PSA without Professional Liability Insurance (Contractor)
Last Revised: 11/12/2020
Commercial General Liability Insurance or other form with a gener al aggreg ate limit shall apply separately to this Agreement or the general limit shall be twice the required occurrence limit.
(2) Automobile Liability: $2,000,000 per accident for bodily injury and property damage.
(3) Employer’s Liability: $1,000,000 per accident and in the aggregate for bodily injury or disease and Workers’
Compensation Insurance in the amount required by law.
12.4 Deductibles and Self-Insured Retentions. Any deductibles or self - insured retentions must be declared to and approved by the City.
12.5 Other Insurance Provisions.
(1) The commercial general liability and a utomobile liability policies are to contain the following provisions on a
separate additionally insured endorsement na ming the City, its officers, officials, employees, d esignated volunteers and agents serving as independent contractors in the role of city or agency officials, are to be covered as additional insureds as respects: liability arising out of activities perfor med by or on behal f of Contractor; products and comp leted
operations of Contractor; premises owned, occupied or
used by Contractor; and/or automobiles owned, leased,
hired or borrowed by Contractor. The coverage shall
contain no limitations on the scope o f protection afforded to City, its officers, officia ls, emplo yees, designated volunteers or agents serving as independent contractors in the role of City or agency officials which are not also limitations applicable to the named insured.
(2) For any claims related to this A greement, Contractor’s insurance coverage shall be primary insurance as respects City, its officers, officials, employe es, designated
volunteers and agents serving as independent contractors in the role of city or agency officials. Any insurance or self - insurance maintained by City, thei r officer s, officials, employees, designated volunteers or agents serving as
independent contractors in the role of city or agency
officials shall be excess of Contractor’s insurance and shall not contribute with it.
PSA without Professional Liability Insurance (Contractor)
Last Revised: 11/12/2020
(3) Contractor’s insurance shall apply separately to each insured against whom claim is made or suit is brought,
except with respect to the limits of the insurer’s liability. (4) Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled except after 30 days prior written notice by first class mail has been given to City (ten (10 ) days prior written notice for non-payment of premium). Contractor shall provide thirty (30) days written notice to C ity prior to imple mentation of a reduction of limits or mater ial change of insurance coverage as specified herein.
(5) Each insurance p olicy, required by this clause shall expressly waive the insurer’s right of subrogation against City and its elected o fficials, officers, employees, servants, attorneys, designated volunteers, and agents serving as independent contractors in the role of ci ty or agency
officials.
(6) Be issued by an insurance company approved in writing by City, which is admitted and licen sed to do business in the State of California and wh ich is rated A:VII or better according to the most recent A.M. Best Co. Rating Guide.
(7) Specify that any failure to comply with reporting or other provisions of the required policy, including breache s of warranty, sha ll not affect the coverage require d to be provided.
(8) Specify that any and all costs of adjusting and/or defending any claim against any insured, including court costs and attorneys' fees, shall be paid in addition to and shall not deplete any policy limits.
(9) Other required insura nce, endo rsements, or exclusions as required by the City in any request for proposals applicable to this Agreement.
12.6 Evidence of coverage. Prior to commencing performance under this Agreement, the Contractor shall fu rnish the City with certificates a nd origin al endorsements, or copies of each required policy, effecting and evidencing the insurance coverage required by this Agreement. The endorsements shall be signed by a person authorized by the ins urer(s) to bind co verage on its behalf. All endorse ments or policies shall be received and approved by the City before Contractor commences performance.
If performance of this Agreement shall extend beyond one year, Contractor shall provide
PSA without Professional Liability Insurance (Contractor)
Last Revised: 11/12/2020
City with the required policies or en dorsements evidencing renewa l of the required policies of insurance prior to the expiration of any required policies of insurance.
13. Cooperation. In the event any claim or action is brought against City relating to Contractor’s performance or ser vices rendered under this Agreemen t, Contractor shall render any reasonable assistance and cooperation that City might require.
City shall compensate Contractor for any litigation support services in an amount to be agreed upon by the parties.
14. Termination. City shall have the right to terminate this Agreement at any time for any or no reason on not less than ten (10 ) days prior written notice to Contractor. In the event City exercises its right to terminate this Agreement, City shal l pay Contractor for any services satisfactorily ren dered prior to the effective date of the termination, provided Contractor is not then in breach of this Agreement. Contractor shall have no other claim against City by reason of such termination, includi ng any claim for compensation. City may terminate f or cause following a default remaining uncured more than five (5) business days after service of a notice to cure on the breaching party.
Contractor may terminate this Agreement for cause upon giving the City ten (10) business days prior written notice fo r any of the following: (1) uncured breach by the City of any material term of this Ag reement, including but not limited to Payment Terms; (2) material changes in the conditions under which this Agreement was entered into, coupled with the failure of the p arties to reach accord on the fees and charges for any Additional Services required because of such changes.
15. Notices. Any notices, bills, invoices, or reports authorized or required by this Agreem ent s hall be in wr iting and shall be deemed received on (a) t he day of delivery if delivered by hand or overnight courier service during Contractor’s and City’s regular business hours; or (b) on the third business day following deposit in the United States mail, postage pre paid, to the addresses set forth i n this se ction, or to such other addresses as the parties may, from time to time, desi gnate in writing pursuant to the provisions of this section.
All notices shall be addressed as follows:
If to City: Wess Garcia, Acting Library Director
Rancho Cucamonga Public Library
12505 Cultural Center Dr.
Rancho Cucamonga, CA 91739
[email protected]
909-774-3973
If to Contractor: Envisionware, Inc.
John C. Dexter, General Manager
3820 Mansell Road, Suite 350
Alpharetta, GA 30022
[email protected]
PSA without Professional Liability Insurance (Contractor)
Last Revised: 11/12/2020
800-216-8370
16. Non-Discrimination and Equal Employment Opportunity. In the performance of this Agr eement, Contractor shall not discriminate against any employee, subcontractor, or applicant for employment because of race, co lor, creed, religi on, sex, marital status, nati onal origin, ancestry, age, physical or mental handicap, medical condition, or sexu al orientation. Contractor will take affirmative action to ensure that subcontractors and applicants are employed, and that e mployees are treat ed during employment, without regard to their race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation.
17. Assignment and Subcontracting. Contractor shall not assign or transfer any inter est in this Agreement or subcontract the performance of any of Contractor’s obligations hereunder without City’s prior written consent. Except as provided herein, any attempt by Contractor to so assign, trans fer, or subcontrac t any rights, duties, or obligations arising hereunder shall be null, void and of no effect.
18. Compliance with Laws. Contractor shall comply with all applicable federal, state and local laws, ordinances, codes and regulations in force at the time Contractor performs the Services.
19. Non-Waiver of Terms, Rights and Remedies . Waiver by either party of any one o r more of t he conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by City of any payment to Contractor constitute or be construed as a wa iver by City of any bre ach of covenant, or any default which may then exist on the part of Contractor, and the making of any such payment by City shall in n o way impair or prejudice any right or remedy available to City with regard to such breach or default.
20. Attorney’s Fees . In the event that either party to this Agreement shall commence any legal action or proceeding to enforce or inte rpret the provisio ns of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including reasonable attorney’s fees and costs of experts.
21. Exhibits; Precedence . All documents referenced as exh ibits in this Agreement are hereby incorporated in this Agreement. In the event of any material discrepancy between the express provisions of this Agreement and the provisions of any document incorporated herein by reference, the provisions of this Agreem ent shall prevail.
22. Applicable Law and Venue . The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of California. Venue for any action relating to this Agreement shall be in th e San Bernardino County Superior Court.
PSA without Professional Liability Insurance (Contractor)
Last Revised: 11/12/2020
23. Construction. In the event of any asserted ambiguity in, or dispute regarding the int erpretation of any matter herein, the interpretation of this Agreement shall not be resolved by any rules of interpretation providing for interpretation against the party who causes the uncertainty to exist or against the party who drafted the Agreement or who drafted that portion of the Agreement.
24. Entire Agreement. This Agreement consists of this document, and any other documents, attachments and/or exhibits referenced herein and attached hereto, each of which is incorporated herein by suc h reference, and the same represents the entire and integrated agreement between Contractor and City. This Agreement supersedes all prior oral or written n egotiations, representations or agreements. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by the parties which expressly refers to this Agreement.
IN WITNESS WHEREOF, the parties, through their respective authorized representatives, have executed this Agreement as of the date first written above.
Contractor Name:
Envisionware, Inc.
John C. Dexter, General Manager
3820 Mansell Road, Suite 350
Alpharetta, GA 30022
[email protected]
800-216-8370
By: ______________________________
Name Date
______________________________
Title
City of Rancho Cucamonga
By:________________________________
Name Date
_________________________________
Title
By: ______________________________
Name Date
______________________________
Title
City of Rancho Cucamonga
By:________________________________
Name Date
_________________________________
Title
(two signatures required if corporation)
Approval ____ Buyer II, Purchasing
____ Alternate, Risk Management Coordinator
PSA without Professional Liability Insurance (Contractor)
Last Revised: 11/12/2020
EXHIBIT A
SCOPE OF SERVICES
Quotation
US-77225
2/8/2023
This information is con®dential and proprietary to EnvisionWare, Inc.
US-77225 1
Bill To TOTAL
Paul A. Biane Library
7368 Archibald Ave
Rancho Cucamonga CA 91730
United States $188,042.25
Quote Expires: 5/9/2023
Federal EIN Currency Terms Sales Rep
58-2424595 US Dollar *50%Dep|Bal-30|
Services-Accept
D©Alessandro, Ted
Quotation Title Memo
340D no canopy
Quotation
US-77225
2/8/2023
This information is con®dential and proprietary to EnvisionWare, Inc.
US-77225 2
Qty Item / Description Ship To Unit Price Amount
1 24L-340D
24-Hour Library™ Main System - 340 Item System
Delivers 24/7 library services including check out, return, item renewals, (2) large touch screen displays for
program information, OPAC, ebook downloads or other
library services, (1) display for branding, (2) Channel Wi- Fi, 340-item shelving capacity, 1,000 item 14-bin sorter for returns
Includes:
- Heating system
- 1D/2D card/smartphone barcode scanner for patron
cards and items
- RFID and barcode detection for items and patron cards - Router with VPN support - Integrated 2-CH WiFi
Access Point
- Custom Sign Artwork/Design
- Shelving step, supplies
- Delivery minimum 12 weeks after confirmation of site
plan
*! REQUIREMENTS !*
- ILS: SIP2 interface with Booksort extensions
(Millennium/Sierra requires optional SIP2 sorter API)
- Internet Connection
- 120V 20A Power for system (+120V 60A service for
heater operation in cold climates)
- Overhang or canopy NOTE: Installation where an
EnvisionWare canopy is NOT used requires written
certification by Product Management.
- Installation and Project Management required and not
included - varies by requirements
# OPTIONS #
- eCommerce Self Service, Terminal, ECS Kiosk
Terminal Bracket
- Customer Central Management Control Licenses
- Canopy (Important: 5 Month lead time from date order
is placed)
24HR Library
Address
$149,900.00 $149,900.00
1 CM Gateway
ENVISIONWARE CENTRAL MANAGEMENT
GATEWAY is a single license to create a broker service
between the CM Clients on your network, your CM
Controls, and EnvisionWare Support via the Internet.
+ Requires opening one port on your firewall to
EnvisionWare's IP address range.
$165.00 $165.00
Quotation
US-77225
2/8/2023
This information is con®dential and proprietary to EnvisionWare, Inc.
US-77225 3
Qty Item / Description Ship To Unit Price Amount
1 CM Control
ENVISIONWARE CENTRAL MANAGEMENT
CONTROL LICENSES - For installation on network IT or
staff computers. The Control License provides remote
connectivity to CM Clients that are on host computers or OneStop stations. Staff can use a control license to
remotely interact with patrons and update systems from
a central location.
$125.00 $125.00
3 CM Client
ENVISIONWARE CENTRAL MANAGEMENT CLIENT -
Install on OneStop computers or host systems. When a
Control license is installed on a staff computer, staff can interact with patrons using self checkout or other
computers running the CM Client. Staff can view station screens in stealth or alert mode and update systems.
$35.00 $105.00
SUBTOTAL Items
SUBTOTAL for Items Above
$150,295.00
1 PS Rigging
PROFESSIONAL RIGGING SERVICES for Remote
Library Products
Offload, place item and secure in place
- Includes oversize forklift, equipment rental and labor team
$5,980.00 $5,980.00
60 PS-HR-UM
ENVISIONWARE PROFESSIONAL SERVICES -
Consulting services at the hourly rate for customers
under maintenance.
- Quotations provide an estimate - actual time is billed. - The minimum charge is 1 hour.
- The minimum for an onsite hourly project is 8 hours per day plus the actual first and additional flat fee expense charges.
$195.00 $11,700.00
1 PS-EXPFF-U 1st Day
ENVISIONWARE PROFESSIONAL SERVICES - FLAT
FEE FOR EXPENSES - First of Every Five Days Onsite.
No partial days.
$1,250.00 $1,250.00
4 PS-EXPFF-U Additional Day
ENVISIONWARE PROFESSIONAL SERVICES - FLAT
FEE FOR EXPENSES - Additional Days After First.
Maximum (4) additional days before an additional First
day is required.
$400.00 $1,600.00
Quotation
US-77225
2/8/2023
This information is con®dential and proprietary to EnvisionWare, Inc.
US-77225 4
Qty Item / Description Ship To Unit Price Amount
1 PS-IC-TRAVEL
ENVISIONWARE IMPLEMENTATION TRAVEL TIME –
PER TRIP
* Flat fee for travel time, per round trip, related to onsite professional services.
++ This price does not include any of the fixed travel
costs (Continental US) or billed expenses (Outside USA) items when onsite services are requested.
$600.00 $600.00
SUBTOTAL Services
SUBTOTAL for EnvisionWare Professional Services
$21,130.00
Subtotal $171,425.00
Freight charges are estimated; actual charges will be billed. Discount Send your purchase order or email con®rmation to:
EMAIL: [email protected] | FAX: +1 678.382.6501 Freight $5,000.00
Standard terms and conditions apply: http://system.envisionware.com/terms Total Tax $11,617.25 PST-CA
Total $188,042.25
PSA without Professional Liability Insurance (Contractor)
Last Revised: 11/12/2020
EXHIBIT B
End User License Agreement
ENVISIONWARE, INC.
END USER LICENSE AGREEMENT AND LIMITED WARRANTY (“EULA”)
IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS EULA CAREFULLY BEFORE USING THE SOFTWARE. ENVISIONWARE, INC. (“ENVISIONWARE”) IS WILLING TO LICENSE THE SOFTWARE TO YOU AS THE
INDIVIDUAL, THE ORGANIZATION, OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE SOFTWARE (REFERRED TO AS “YOU” OR “YOUR”) ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS EULA.
UPON AND AS OF THE DATE ENVISIONWARE SENDS AN EMAIL TO YOU (THE “EFFECTIVE DATE”) ISSUING CREDENTIALS TO LOG INTO ENVISIONWARE’S
WEBSITE FROM WHERE THE SOFTWARE MAY BE DOWNLOADED, YOU
AGREE TO THE TERMS AND CONDITIONS OF THIS EULA.
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS EULA, DO NOT
ATTEMPT TO DOWNLOAD OR INSTALL THE SOFTWARE, OR, IF INSTALLED,
MAKE NO FURTHER USE OF THE SOFTWARE, AND NOTIFY IN WRITING
ENVISIONWARE OR THE RESELLER FROM WHOM IT WAS ACQUIRED WITHIN THIRTY (30) DAYS OF PURCHASE, AND THE PURCHASE PRICE WILL BE REFUNDED.
1. License: The software and documentation (collectively the “Software”) are owned by and are the property of EnvisionWare or its licensors and are protected by copyright and other intellectual property laws. Some licensors may be express or intended beneficiaries of this EULA. Subject to all of the terms and conditions of this Agreement, EnvisionWare grants you a limited, non-exclusive, worldwide, non-transferable, non-sublicensable license to use the Software for which you have been issued a Product Key by EnvisionWare or an authorized distributor or reseller, but only in accordance with
(i) the documentation, (ii) the restrictions contained herein and any restrictions on the applicable invoice, and (iii) the number of authorized users. Portions of some Software modules are licensed from Artifex Software, Inc. Portions of some modules may contain MySQL connector (under the GNU GPL v2 license at http://www.gnu.org/licenses/gpl-
2.0.html). Portions of some modules may contain the MS access driver, licensed from Microsoft Corporation. Portions of some modules may be licensed under the Microsoft Reciprocal License (MS-RL) http://opensource.org/licenses/ms-rl. Portions of some Software modules are licensed under the Apache License, Version 2.0; you may not use these files except in compliance with the Apache License. The Apache License is available at
http://www.apache.org/licenses/LICENSE-2.0. Unless required by applicable law or agreed to in writing, software distributed under the Apache License is distributed on an “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied.
See the Apache License for the specific language governing permissions and limitations under the Apache License. Portions of some Software modules are licensed under the MIT Expat License. This EULA also incorporates the terms of the Verifone Pass Through Terms of Use and Windcave End User License Agreement attached hereto, as applicable to your purchase.
This EULA also governs any future releases, revisions, or enhancements to the Software that EnvisionWare may furnish to you. Your rights and obligations with respect to the use of this
Software are as follows:
A. You may:
i. use the Software on the quantity and type of computers indicated on EnvisionWare invoice. You may make that number of copies of the Software licensed to you by EnvisionWare.
ii. make one copy of the Software for archival purposes, or copy the Software onto the hard disk of your computer and retain the original for archival purposes; iii. use the Software on a network, provided that you have a licensed copy of the Software for each computer that can access the Software over that network; and, iv. make printed copies of electronic documentation for your internal use.
B. You may not:
i. transfer, assign, convey, sublicense, rent or lease the Software (or any portion thereof) to another person or entity or unlicensed division, subsidiary, or affiliate (or to anyone other than the entity named as licensee as appearing on the software splash screen), other than to a successor agency, and any transfer in violation hereof shall be of no power or effect; ii. distribute, sell, sublicense, rent, lease or use the Software (or any portion thereof) for time sharing, hosting, service provider or like purposes, except as expressly permitted under this Agreement;
iii. reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover, modify or use the source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions), or create derivative works from the Software (any such modifications shall automatically be owned by EnvisionWare upon creation);
iv. utilize any equipment, device, software, or other means designed to circumvent or remove any form of product key or copy protection used by EnvisionWare in connection with the Software, or use the Software together with any authorization code, product key, serial number, or other copy protection device not supplied by EnvisionWare or through an authorized distributor or reseller;
v. use the Software to develop or facilitate development of a product which is competitive with any EnvisionWare product offerings;
vi. post or otherwise publish electronic documentation of the Software for access outside the licensed organization;
vii. use a previous version or copy of the Software after you have installed a replacement set or an upgraded version and, upon upgrading the Software, all copies of the prior version must be uninstalled or rendered unusable; viii. use a later version of the Software than is provided in the email with the login credentials except as provided under the Software Product Warranty, unless you have purchased maintenance and update service or have otherwise separately acquired the right to use such later version;
ix. remove any product identification, proprietary, copyright or other notices contained in the Software;
x. provide any product key or login information to a third party; or xi. use the Software or product keys in any manner not expressly authorized by this EULA.
2. Thirty Day Money Back Guarantee: If you are the original licensee of the Software and are dissatisfied with it for any reason, and if at any time during the thirty (30) day period following the Effective Date you email EnvisionWare confirming your complete removal and deletion of the complete product and provide a signed statement to EnvisionWare attesting to removal of all software components, then EnvisionWare will provide a full refund, subject to the provisions of the Hardware Return Policy below. Notwithstanding the foregoing sentence, in the event sufficient funds for the performance of this Agreement are not appropriated by you in any fiscal year covered by this Agreement, you may terminate this Agreement by providing thirty (30) days’ prior written notice, provided that you shall pay all amounts owed up to the effective date of such termination and EnvisionWare shall be reimbursed any resulting unamortized, reasonably incurred, nonrecurring costs. EnvisionWare will not be reimbursed any costs amortized beyond the initial term of the Agreement.
3. Hardware Return Policy: Custom printed RFID tags, manufactured, built-to-order or custom-configured Hardware as designated on a Quotation, such as but not limited to, kiosks or sorters, may not be returned or canceled for any reason. Custom items include any item listed in an EnvisionWare quotation, product description or order form as being a custom item, or any item which is modified by EnvisionWare after installation. Standard Hardware products may be accepted for return within ninety (90) days of the date of invoice subject to advance, written approval expressed in the form of an EnvisionWare Return Merchandise Authorization (“RMA”). EnvisionWare, at its sole discretion, may grant the right to return standard Hardware products during this return period. Any such returns are subject to a 20% restocking fee unless EnvisionWare determines that the cause of the return is a result of an error on the part of EnvisionWare, in which case EnvisionWare may waive all or part of the restocking fee.
No Hardware product will be accepted for return for ANY reason without a Return Merchandise Authorization issued by EnvisionWare. The RMA number must be clearly displayed on any packaging shipped to EnvisionWare. Products returned without an RMA number on the package will be refused. Any return for any reason, whether for an authorized RMA or for warranty support must be shipped to EnvisionWare freight prepaid. Equipment serviced under warranty will be returned freight prepaid.
4. Limited Warranty; Disclaimer:
A. Software Product Warranty: EnvisionWare warrants that the Software as distributed operate in substantial conformity with the documentation (the “Software Product Warranty”) for a period of one (1) year from the delivery of the Software to you (the “Software Warranty Period”). This is the sole warranty EnvisionWare provides for all Software supplied by EnvisionWare, unless specifically stated otherwise in EnvisionWare’s quotation.
EnvisionWare does not warrant that your use of the Software will be uninterrupted or error- free. EnvisionWare’s sole liability (and your sole remedy) in the event of a breach of this Product Warranty will be that EnvisionWare will, in EnvisionWare’s sole discretion,
(A) use commercially reasonable efforts to provide you with an error correction or a work- around which corrects the reported non-conformity or (B) if EnvisionWare determines such remedies to be impracticable within a reasonable period of time, refund the money you paid for the Software being returned. EnvisionWare does not warrant that the Software will meet your requirements or that operation of the Software will be uninterrupted or that the Software will be error-free. EnvisionWare provides Software product support through the reseller from whom you purchased the Software or directly from EnvisionWare for a period of twelve (12) months from date of delivery of the Software.
B. Hardware Product Warranty: EnvisionWare warrants that EnvisionWare-branded hardware as distributed will be free from material defects (the “Hardware Product Warranty”) for a period of one (1) year from the date of delivery of the EnvisionWare-brand hardware to you (the “Hardware Warranty Period”). Other Hardware components supplied to you by EnvisionWare that are not manufactured or branded by EnvisionWare are covered by the warranties provided by the product manufacturer. EnvisionWare shall have no obligation with respect to a warranty claim unless notified of such claim within the applicable Software or Hardware Warranty Period. The term “delivery” in this Section 4 means, with respect to Software, the date of invoice, and, with respect to Hardware, “delivery” means the date that the Hardware is delivered to your facility.
C. Exclusions: The above warranties shall not apply: (i) to the extent of issues or problems if the Software or Hardware is used with hardware or software not specified in the documentation; (ii) if any modifications are made to the Software or Hardware by you or any third party; (iii) to defects in the Software or Hardware that are due to accident, abuse or improper use by you or your contractors; or (iv) to any evaluation version or other Software or Hardware provided on a no-charge or evaluation basis. Any replacement Software or Hardware will be warranted for the remainder of the original applicable Software Warranty Period or Hardware Warranty Period.
D. Professional Services Warranty. For any Professional Services provided pursuant to Section 13 below, EnvisionWare warrants that the services will be performed in a workmanlike manner, and that if any Professional Services are not so performed and if you notify EnvisionWare in writing within thirty (30) days after the provision of the particular Professional Service that the services are not performed properly, EnvisionWare will re- perform such services at no charge to you (the “Professional Services Warranty”). Your sole and exclusive remedy of any breach of this Professional Services Warranty is for EnvisionWare to re-perform such services.
E. THE ABOVE SOFTWARE PRODUCT WARRANTY AND HARDWARE
PRODUCT WARRANTY ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, ALL OF WHICH ARE SPECIFICALLY DISCLAIMED. THE SOFTWARE PRODUCT
WARRANTY AND THE HARDWARE PRODUCT WARRANTY GIVE YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.
F. EnvisionWare uses virus protection scanning software to scan the Software prior to
installation and to the best of EnvisionWare’s knowledge as of the installation date, the Software, when installed, does not contain or otherwise introduce any computer virus or any harmful or destructive code which could damage or harm your computers; however, EnvisionWare cannot guarantee that benign or harmful viruses or other malware will not enter your computers or systems.
5. Personal Information:
A. In the event that your (or your users’) use of the Software currently or in the future involves the transmitting, uploading, downloading, storage, management, manipulation or other use of personal information (as defined by the Gramm-Leach-Bliley Act, Payment Card Industry Security Standards Council or other applicable standards or rules relating to electronic transaction processing and personal information, such information referred to herein as “Personal Information”), you agree to the following provisions:
i. You shall maintain as confidential any Personal Information. ii. You covenant that you have, as of the Installation Date become and currently are PCI and HIPAA (as applicable) compliant and shall maintain compliance and/or certification under the PCI (Payment Card Industry), PCI-DSS, HIPAA and other relevant and applicable standards relating to electronic transaction processing and personal healthcare information existing as of the Effective Date and as promulgated thereafter. iii. If you are de-certified, have your compliance proof expire or are threatened with de- certification, you shall notify EnvisionWare in writing within ten (10) days of such de- certification or threat thereof.
B. EnvisionWare shall use commercially reasonable technical, organizational, and administrative data security measures designed to maintain the security and confidentiality of your Personal Information entered into the Software, but EnvisionWare is not liable for the confidentiality of any Personal Information in the event of unauthorized access, theft or use of such Personal Information, either by you, your users, or by third parties who access such Personal Information through your systems or unauthorized use of your login credentials, other than to the extent due to the negligence of EnvisionWare or its representatives, agents, or contractors, in breach of EnvisionWare’s obligations under this Agreement.
C. EnvisionWare acknowledges that you may be required to periodically demonstrate to third parties your compliance and that of your applicable vendors with the PCI-DSS standards (Payment Card Industry Data Security Standard) of all the system components used to process, store or transmit “PCI cardholder data” (as that term is defined by PCI-DSS), and any other component that resides on the same network segment that those system components, hereafter known as “System Components in Scope.” Some of those system components and/or processes have been outsourced to EnvisionWare’s service providers (e.g., Verifone, Windcave, Chase E-xact, SecurePay, or the like) (“Service Providers”). Those portions of the system hardware and software developed by EnvisionWare are out of scope for PCI compliance since no PCI cardholder data passes through any EnvisionWare-developed component. Accordingly, EnvisionWare is not required to be PCI compliant. All System Components in Scope are provided by Service Providers.
Service Providers will achieve and maintain PCI DSS compliance against the current version of PCI DSS published on the PCI SSC (PCI Security Standards Council) website. EnvisionWare’s
Service Providers with System Components in Scope have represented to EnvisionWare that they are compliant. As evidence of compliance, Service Providers will provide, when requested, a current attestation of compliance (“AOC”) signed by a PCI QSA (Qualified Security Assessor). AOCs are available for download from EnvisionWare's Customer Center on EnvisionWare’s website at http://support.envisionware.com. Service Providers have represented to EnvisionWare that they will create and maintain reasonably detailed, complete and accurate documentation describing the systems, processes, network segments, security controls, and dataflow used to receive, transmit, store and secure Customer’s PCI cardholder data. Such documentation will conform to the most current version of PCI DSS. Service Providers have represented to EnvisionWare that they will, upon written request by you, make such documentation and the individuals responsible for implementing, maintaining and monitoring those system components and processes available to: a) QSAs, forensic investigators, consultants or attorneys retained by you to facilitate audit and review of your PCI-DSS compliance and b) your IT Audit Staff.
EnvisionWare maintains protective coverage for PCI breach protection in the United States in the amount of $100,000.00 per breach incident (not per individual affected), which will cover the costs of responding to a breach or a suspected breach caused by the eCommerce system.
D. The obligations of the parties under this Section 5 shall survive any expiration or termination of this EULA.
6. Data:
A. CUSTOMER DATA. In connection with the Software and any related hardware or services provided by EnvisionWare, EnvisionWare may collect and maintain data and information provided by you, your patrons and users (collectively, “Customer Data”). As between EnvisionWare and you, all Customer Data shall be and remain owned by you and be your property. EnvisionWare shall maintain the aspects of all Customer Data that identify an individual as confidential. All third parties authorized by EnvisionWare which may have access to the Customer Data shall be under obligations of confidentiality to maintain the Customer Data as confidential.
B. USE OF CUSTOMER DATA. EnvisionWare shall have the right to use Customer Data in connection with EnvisionWare’s business, provided that such data shall be Anonymized or aggregated such that Personal Information has been de-identified so that one could not link anonymized information back to a specific individual (“Anonymized Data”). “Anonymize” means to either (1) irreversibly process Personal Information in such a way that the data can no longer be attributed to a specific individual, or (2) to process such information in such a way that the data can no longer be attributed to a specific individual without the use of additional information, and where such additional information is kept separate and under adequate security to prevent unauthorized re-identification of a specific individual. All such Anonymized Data shall be the sole property of EnvisionWare. EnvisionWare may use, disseminate, share, or transfer the Anonymized Data or any portion thereof in any way EnvisionWare chooses.
C. ENVISIONWARE DATA. EnvisionWare may also collect data and information in connection with the service that EnvisionWare provides generally (but not including Customer Data) through its services (“EnvisionWare Data”). You acknowledge and consent that the Software may communicate (e.g., via an outbound or inbound call using SSL) with
EnvisionWare’s servers (which may be hosted by a third-party service provider) and support personnel, or vice versa, to communicate diagnostic, event logs, support, licensing, compliance, and other information (which is included in the definition of EnvisionWare Data).
Some communication may be done automatically by the Software without your needing to be involved, other communication may be at your initiation (e.g., uploading logs) or initiated by EnvisionWare. All such EnvisionWare Data shall be the sole property of EnvisionWare.
7. Confidential Information: Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software, documentation or technical information provided by EnvisionWare (or its agents), performance information relating to the Software, and the terms of this Agreement shall be deemed Confidential Information of EnvisionWare without any marking or further designation except as such disclosure is required by FOIA requirements.
Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. The obligations under this Section 7 shall, with respect to Confidential Information, continue for a period of two (2) years after disclosure and, with respect to any information considered by and treated as a trade secret by the Disclosing Party, continue until the trade secret status has been lost.
8. Indemnification:
A. Infringement. Subject to your compliance with the terms of this EULA, EnvisionWare shall indemnify and hold harmless you and your officers, directors, employees and agents from and against all third party actions, suits, proceedings, claims, losses, liabilities, damages, and expenses (including attorneys’ and experts’ fees and sums reasonably expended in investigation and settlement of litigation, pending or threatened), to the extent such claim alleges that the Software (in each case as provided by EnvisionWare) infringes any copyright, U.S. patent right, trade secret right, or other intellectual property right provided, however, that you must comply with the following terms: EnvisionWare must have received from you: (i) prompt written notice of such claim (but in any event notice in sufficient time for EnvisionWare to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonable
necessary cooperation by you. In the event that the Software is, or in EnvisionWare’s sole opinion is likely to be, enjoined or subject to a claim due to the type of infringement described in this Section 8, EnvisionWare, at its option and expense, may (a) replace the Software with functionally equivalent non-infringing Software or (b) obtain a license for your continued use of the Software, or, if the foregoing alternatives are not reasonably available to EnvisionWare (c) terminate this EULA and refund a pro rata amount, as determined by EnvisionWare, of the purchase price of the Software and Hardware. Notwithstanding the above, EnvisionWare shall have no liability for any infringement claim which: (i) pertains to any Software that has been altered or modified without EnvisionWare’s prior written approval; (ii) is based on use of the Software in conjunction with any item not provided by EnvisionWare, unless such use is shown to constitute the infringement when not used in conjunction with the item not provided by EnvisionWare; (iii) pertains to any unauthorized use of the Software; (iv) pertains to an unsupported release of the Software; or, (v) pertains to any Open Source Software or other third party code provided with the Software. THIS SECTION 8 SETS FORTH ENVISIONWARE’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
B. EnvisionWare shall indemnify, defend and hold you harmless from any losses (including, but not limited to, damage awards, reasonable attorneys’ fees and costs, cost of notification, remediation, and penalties) you incur due to any third party claim or action directly resulting from any Data Breach of your (or your patrons’) Personal Information to the extent that such losses are due to the direct act or omission of EnvisionWare or its representatives, agents, or contractors. This Section 8B shall apply only for so long as you are under a written annual support agreement with EnvisionWare (for which you have fully paid) for the Software and applies only to the Software covered by such support agreement.
Furthermore, if you allow such support agreement to expire and subsequently purchase a support agreement, the obligations under Section 8B shall not apply to any third party claims arising from or during the period for which no support agreement was active.
9. Limitation of Liability: SOME STATES AND COUNTRIES, INCLUDING MEMBER
COUNTRIES OF THE EUROPEAN ECONOMIC AREA, DO NOT ALLOW THE
LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES SO THE LIMITATION OR EXCLUSION BELOW MAY NOT APPLY TO YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS
OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL ENVISIONWARE OR ITS
LICENSORS BE LIABLE TO YOU FOR ANY LOSS OF USE, LOST DATA, FAILURE
OF SECURITY MECHANISMS (OTHER THAN THOSE CONTAINED IN THE
SOFTWARE), INTERRUPTION OF BUSINESS OR ANY SPECIAL, CONSEQUENTIAL,
INDIRECT, PUNITIVE, EXEMPLARY OR SIMILAR DAMAGES, INCLUDING ANY
LOST PROFITS ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE
OR HARDWARE, EVEN IF ENVISIONWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO CASE SHALL ENVISIONWARE’S OR ITS LICENSORS’ TOTAL LIABILITY (A)
FOR ANY SOFTWARE AND HARDWARE PRODUCTS COVERED UNDER THIS EULA, EXCEED TWO (2) TIMES THE PURCHASE PRICE FOR THE SOFTWARE AND HARDWARE OR (B) FOR ANY SERVICES, EXCEED TWO (2) TIMES THE FEES PAID
BY YOU FOR THE SERVICES (EXCLUDING MAINTENANCE AND SUPPORT SERVICES) WHICH DIRECTLY CAUSED THE DAMAGES ALLEGED.
The disclaimers and limitations set for th above in this Section 9 will apply regardless of whether you accept the Software or Hardware or Professional Services. The parties agree that the limitations specified in this Section 9 will survive any expiration or termination of this EULA and apply e ven if any limited remedy specified in this EULA is found to have failed of its essential purpose.
10. U.S. Government Restricted Rights: RESTRICTED RIGHTS LEGEND. All EnvisionWare Software and documentation are commercial in nature. The Software and documentation are “Commercial Items”, as that term is defined in 48 C.F.R. section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are defined in 48 C.F.R. section 252.227-7014(a)(5) and 48 C.F.R. section 252.227-7014(a)(1), and used in 48 C.F.R. section 12.212 and 48 C.F.R. section 227.7202, as applicable. Consistent with 48 C.F.R. section 12.212, 48 C.F.R. section 252.227- 7015, 48 C.F.R. section 27.7202 through 227.7202-4, 48 C.F.R. section 52.227-14, and other relevant sections of the Code of Federal Regulations, as applicable. EnvisionWare’s computer Software and software documentation are licensed to United States Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in this EULA. The manufacturer is EnvisionWare, Inc., 1960 Satellite Blvd., Suite 4100, Duluth, GA 30097-4127 USA.
11. Export Compliance: You acknowledge that the Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments. You shall not, and shall not allow any third-party hired or under contract by you, to, remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist- supporting country; (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority.
12. Third-Party Code: The Software may contain or be provided with components subject to the terms and conditions of "open source" or freeware software licenses ("Open-Source Software"). Licenses for open source are identified in Section
1. To the extent required by the license that accompanies the Open-Source Software, the terms of such license will apply in lieu of the terms of this EULA with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
13. Professional Services: Upon request and agreement between the parties, EnvisionWare may provide consulting, training, installation, development, customization, report creation or other services (“Professional Services”). You may order Professional Services under a Statement of Work (“SOW”) describing the work to be performed, fees and any applicable
milestones, dependencies and other technical specifications or related information. Each SOW must be signed by both parties before EnvisionWare shall commence work under such SOW.
If the parties do not execute a separate SOW, the Services shall be provided as stated on the invoice. You will reimburse EnvisionWare for reasonable travel and lodging expenses as incurred. EnvisionWare shall be deemed the sole owner of any work product created and deliverables (including any documentation, code, Software, training materials or other work product) (collectively referred to as the “Deliverables”) delivered pursuant to the Professional Services, whether created solely by EnvisionWare or jointly with you or your contractors.
Subject to your full payment of any and all fees pursuant to the applicable SOW, EnvisionWare grants to you the limited, nontransferable right to use any Deliverables delivered as part of the Professional Services solely in connection with your permitted use of the Software, subject to all the same terms and conditions as apply to your Software license (including the restrictions set forth in Section 1B), and subject to any additional terms and conditions provided with the Deliverables. EnvisionWare provides the Professional Services Warranty as stated in Section 4D above.
14. General: This EULA is the entire agreement between you and EnvisionWare relating to the license and use of the Software and Hardware, and relating to the Professional Services.
This EULA supersedes all prior EnvisionWare end user license agreements for the Software and for any Professional Services. EnvisionWare may terminate this EULA upon your breach of any term contained herein. Upon termination, you shall cease use of, uninstall or render inoperable, and delete destroy all copies of the Software. The disclaimers of warranties and damages and limitations on liability shall survive termination. No provision of any purchase order or other business form employed by you will supersede the terms and conditions of this EULA, and any such document relating to this EULA shall be for administrative purposes only and shall have no legal effect. The parties to this EULA are independent contractors with respect to one another. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent. This document may not be changed. In the event of any conflict with local law, the sole method for changes to EULA language are the incorporation of overriding text in an Agreement or a separate EULA Amendment.
15. Governing Law; Jurisdiction and Venue: This Agreement shall be governed by the laws of the State of Georgia and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction.
16. Software Escrow: At your request, EnvisionWare is willing to set up and maintain the Software with EnvisionWare’s independent U.S. escrow agent and make ongoing escrow deposits for significant updates. You would be responsible for additional fees for this service.
Please contact EnvisionWare to for more information and pricing.
17. Insurance: EnvisionWare will, upon your request, provide you with a certificate of insurance showing that it carries or has in force each of the following types of insurance:
general liability--$1,000,000 per occurrence and $1,000,000 general aggregate; professional liability--$1,000,000 per occurrence or claim and $1,000,000 aggregate; and cyber (aka electronic e/o)--$1,000,000 per occurrence or claim and $1,000,000 aggregate. If
EnvisionWare does on-site installation or training, it will carry workers' compensation insurance that provides statutorily required workers' compensation coverage and employers' liability insurance with limits of $500,000 per accident, $500,000 disease - each employee, $500,000 disease - policy limit. EnvisionWare's insurance is primary. EnvisionWare is responsible for the payment of any deductibles or self-insured retentions. You will receive thirty (30) days' notice of cancellation.
18. Purchase in Australia: If you purchase Software, Hardware, or services from EnvisionWare Pty Ltd or its partners, the laws of South Australia, Australia govern all warranty and service claims. EnvisionWare Pty Ltd is authorized to convey and effect all of the rights expressed in this EULA for its direct and indirect customers.
19. Contact Us: Should you have any questions concerning this EULA, or if you desire to contact EnvisionWare for any reason, please email [email protected] or write to:
EnvisionWare, Inc., 1960 Satellite Blvd., Suite 4100, Duluth, GA 30097-4127 USA, unless you purchase from an Asia Pacific country in which case, please write EnvisionWare Pty Ltd, 258 Payneham Road, Payneham, SA 5070 Australia. Revised Jan 2022 © 2002-2022 EnvisionWare, Inc. All Rights Reserved.
PASS THROUGH EULAs FOR PCI-RELATED PRODUCTS
The Verifone EULA applies to customers located in the United States that use EnvisionWare Products supporting credit card payment. The Windcave EULA is appliable to customers that use EnvisionWare Products supporting credit card payment located in Australia, Canada, Ireland, New Zealand and other countries where Windcave terminal and web services are applicable using Windcave gateways and/or terminals. EnvisionWare has no ability to modify these EULAs that are provided by Verifone and Windcave respectively.
VERIFONE PAYMENT GATEWAY TERMS OF USE
Solely for the purposes of the following Verifone Terms of Use, the following terms shall have their associated meanings. “Agreement” means the Verifone Terms of Use. “BPP” means Verifone’s Buyer Protection Program. “Covered Territory” means your location(s). “Customer Agreement” means the EULA. “Payment Gateway” means Verifone’s transaction gateway portal which provides transaction routing, online reporting and other tools made available by the portal. “Point Solution” and “Rental Devices” mean the Point Solution hardware and Software manufactured or provided by Verifone and offered by EnvisionWare under the EULA. “Reseller” means EnvisionWare. “Software” means the software accompanying the Point Solutions Rental Devices. “Verifone” means VeriFone, Inc.
VERIFONE PASS THROUGH TERMS OF USE
1. The following are Verifone’s Pass Through Terms of Use for its Point Solution Rental Device hardware and Software.
2. Each Verifone payment device used with the Point Solution is subject to an initial service term of 36 months (the “Initial Service Term”). Subject to the terms of the Customer Agreement, with respect to a particular Verifone payment device, Verifone shall provide the
Point Solution to customer for a service term commencing (A) for Rental Devices (or any other payment devices shipped directly by Verifone), on the date such devices are shipped by Verifone, or (B) for any other payment devices, on the date on which such device is activated on the Payment Gateway, and in any case ending on the earliest of (1) the date on which Reseller removes such device from the Payment Gateway, (2) upon Verifone’s ceasing to provide the Point Solution for a payment device, which Verifone shall have the right to do on thirty days’ notice to customer following the Initial Service Term for such device, and (3) termination of customer’s right to use the Point Solution by Reseller due to breach by customer of the Customer Agreement (the “Service Term”). In addition, in the event Verifone’s separate agreement with Reseller terminates or Verifone ceases to offer the Point Solution to its customers generally, Verifone reserves the right to terminate the Service Terms for any or all Verifone payment devices. Upon the termination of the Service Term for a particular Verifone payment device, customer shall cease using the Point Solution for such payment device. In the event that a customer desires to end the Service Term for a payment device, the customer must request that Reseller remove the applicable device from the Payment Gateway on its behalf; Verifone will not be responsible for removing a payment device from the Payment Gateway provided that, notwithstanding customer’s earlier request, the Service Term will end on the day Reseller actually removes the device from the Payment Gateway.
3. Subject to the terms of this Agreement and customer’s payment of the applicable fees, Verifone hereby grants to customer a limited, non-exclusive, non-transferable, non-sub- licensable right and license, in the Covered Territory during the Service Term for each payment device, to access and use the Point Solution subscribed to hereunder solely for customer’s internal business purposes. Notwithstanding the foregoing, Reseller will be responsible for managing and monitoring customer’s payment devices on customer’s behalf, including with respect to the installation of payment applications and key loading, and customer will not be able to directly manage or monitor its payment devices via the Payment Gateway portal.
Verifone may modify the Point Solution from time to time in its reasonable discretion, provided that such modifications shall not materially diminish the functionality thereof. If Reseller fails to pay Verifone for services rendered in accordance with its agreement with Verifone, Verifone reserves the right to withhold customer’s access to the Point Solution until such fees are paid in full, and Verifone shall not have any liability to customer for any amounts paid to Reseller and not received by Verifone for such services.
4. Customer shall have no right to market, distribute, sell, assign, pledge, sublicense, lease, deliver or otherwise transfer the Point Solution, or any component thereof, including without limitation the Software, to any third party. Customer shall not reverse engineer, decompile, disassemble, translate, modify, alter or create any derivative works based upon the Software, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in the Software, without the prior express written consent of Verifone. Customer shall not remove from the Rental Devices or the Software, or alter, any of trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to the Rental Devices or the Software, without the prior express written consent of Verifone.
5. Customer acknowledges that the Point Solution (including any related documentation) and any intellectual property rights relating to or residing therein (including any patents, copyrights, trade secrets, trademarks, trade names or mask work rights), including the
proprietary electronics, software and technical information of Verifone therein, are proprietary products of Verifone and that ownership of such shall remain with and inure to Verifone.
Except for the license rights set forth in this clause 5, customer shall have no right, title or interest therein.
6. Customer grants VeriFone a limited, non-exclusive and irrevocable license during and after the term of this Agreement to follow customer’s activity inside of the Point Solution components and to use, share, and disseminate data from customer’s activity (including its transactions) on an aggregate and anonymous basis only (such data, “Derived Data”), including for purposes of data analytics and optimizing or otherwise enhancing its products and services. VeriFone will comply with all applicable laws with respect to any use, sharing and dissemination of Derived Data. This clause 6 shall survive any expiration or termination of this Agreement.
7. VERIFONE DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR
STATUTORY, WITH RESPECT TO THE POINT SOLUTION, INCLUDING WITHOUT
LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
VERIFONE DOES NOT WARRANT THAT THE POINT SOLUTION, OR ANY
COMPONENT THEREOF, WILL MEET THE REQUIREMENTS OF CUSTOMER OR
THAT THE OPERATION OF THE POINT SOLUTION, OR ANY COMPONENT THEREOF, WILL BE UNINTERRUPTED OR ENTIRELY ERROR FREE. CUSTOMER
ACKNOWLEDGES THAT UNDER NO CIRCUMSTANCES DOES VERIFONE
REPRESENT OR WARRANT THAT ALL ERRORS IN ANY SOFTWARE CAN BE REMEDIED. NO ADVICE OR INFORMATION OBTAINED BY CUSTOMER FROM
VERIFONE OR FROM ANY OTHER THIRD PARTY ABOUT THE POINT SOLUTION SHALL CREATE ANY WARRANTY.
8. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE CUSTOMER AGREEMENT: EXCEPT TO THE EXTENT PROHIBITED BY LAW:
(A) VERIFONE SHALL HAVE NO LIABILITY TO CUSTOMER OR ANY THIRD
PARTY FOR SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR
CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE,
LOSS OF BUSINESS, LOSS OF PROFITS OR REVENUE, GOODWILL OR SAVINGS,
DOWNTIME, OR DAMAGE TO, LOSS OF OR REPLACEMENT OF DATA OR
TRANSACTIONS, COST OF PROCUREMENT OF SUBSTITUTE SERVICES)
RELATING IN ANY MANNER TO THE POINT SOLUTION (WHETHER ARISING
FROM CLAIMS BASED IN WARRANTY, CONTRACT, TORT OR OTHERWISE), EVEN
IF VERIFONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGE;
(B) IN ANY CASE, VERIFONE’S ENTIRE LIABILITY RELATING IN ANY MANNER TO
THIS AGREEMENT OR THE POINT SOLUTION, REGARDLESS OF THE FORM OR
NATURE OF THE CLAIM, SHALL BE LIMITED IN THE AGGREGATE TO THE FEES
ACTUALLY RECEIVED BY VERIFONE FROM RESELLER FOR CUSTOMER FOR THE POINT SOLUTION UNDER THE CUSTOMER AGREEMENT DURING THE SIX (6) MONTHS PRIOR TO THE CLAIM ARISING; AND (C) VERIFONE SHALL NOT BE
LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THE POINT
SOLUTION. THE LIMITATIONS ON VERIFONE’S LIABILITY SET FORTH IN CLAUSES “(B)” AND “(C)” OF THIS SECTION SHALL NOT APPLY TO LIABILITY
FOR DEATH, PERSONAL INJURY OF A PHYSICAL NATURE OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY VERIFONE’S NEGLIGENCE OR INTENTIONAL MISCONDUCT. THE LIMITATIONS CONTAINED IN CLAUSE 7 ABOVE AND THIS CLAUSE 8 ARE A FUNDAMENTAL PART OF THE BASIS OF VERIFONE’S BARGAIN
HEREUNDER, AND VERIFONE WOULD NOT PROVIDE THE POINT SOLUTION TO
CUSTOMER ABSENT SUCH LIMITATIONS
9. Customer shall comply with all applicable laws, rules, and regulations in connection with this Agreement, including, but not limited to, export control laws and anti-corruption and anti- bribery laws, rules, and regulations. Customer agrees that if Verifone reasonably believes that customer is in breach of this clause 9, that alone shall be sufficient grounds for further action by Verifone, including, without limitation, cancellation of any orders or denial of future business, without any liability or obligation to customer. In addition, customer hereby indemnifies Verifone and its affiliates, directors, officers and employees for all costs, expenses, damages, claims, charges, penalties, fines and other losses that arise in connection with any breach by customer or customer subsidiaries, owners, officers, directors, employees, partners, subcontractors, agents and representatives of the terms and conditions contained in this clause
9. 10. VERIFONE SHALL BE A THIRD-PARTY BENEFICIARY OF THIS AGREEMENT,
WITH THE RIGHT TO ENFORCE THE TERMS HEREOF AGAINST CUSTOMER WITH RESPECT TO THE POINT SOLUTION.
11. In the case of any customer agreements that include Rental Devices:
A. Verifone Property. The Rental Devices shall remain the property of Verifone.
Customer shall have no right, title or interest therein except as a lessee under this Agreement.
Customer shall keep all Rental Devices free and clear from all liens, including any direct or indirect charge, encumbrance, lien, security interest, legal process or claim against the Rental Devices. Customer may not assign, hypothecate, sublet, sell, transfer, permit the sale of or part with possession of all or any of the Rental Devices or interest in the Customer Agreement, without Verifone’s prior written consent. If customer fails to pay any undisputed fees when due, and fails to cure such failure within ten (10) business days of written notice thereof, Verifone may, at any time thereafter enter, with or without legal process, any premises where any Rental Device may be, and repossess and remove such Rental Device. Customer hereby waives any claim of trespass or right of action for damages by reason of such entry and repossession. In addition, customer shall pay to Verifone any actual additional expenses incurred by Verifone in collection efforts.
B. Upgrades. Customer may, commencing on the one year anniversary of the start of the Service Term for a Rental Device, upgrade to a different Rental Device (in which event customer may be subject to an increase in fees based on the new Rental Device subscription fee). For such upgrades, customer shall be required to commit to a new Initial Service Term for such Rental Device and shall be required to return the old Rental Device in accordance with clause (d) below.
C. Loss and Damage. Subject to Verifone’s obligation to provide the Services, customer assumes and shall bear the entire risk of loss or damage to the Rental Devices from any use
whatsoever from the date of delivery of the Rental Devices to the customer site, until such Rental Devices are returned to Verifone. No loss or damage shall relieve customer from the obligation to make payments hereunder or to comply with any other obligation under the Customer Agreement. In the event of a loss of a Rental Device (but not damage), customer shall immediately notify Reseller thereof. With respect to any lost Rental Device, customer shall be obligated to pay Reseller the Non-Return Fee applicable to such Rental Device.
Subject to Verifone’s receipt of such Non-Return Fee from Reseller, Verifone shall ship customer a new or refurbished replacement Rental Device. At all times payments for the Point Solution for such Rental Device shall continue in effect.
D. Return at End of Service Term. At the end of the Service Term for a Rental Device, customer shall return such Rental Device to Reseller or Verifone, as directed by Reseller.
When returning a Rental Device to Verifone a Material Return Authorization number is required. If a Rental Device is not returned to Verifone within thirty (30) days of the end of its Service Term, customer shall be obligated to pay Reseller the Non-Return Fee for such Rental Device. If, upon return of the Rental Device, Verifone determines that the Rental Device requires repair that is not covered by the BPP or Repair Services (e.g., “Out of Scope” or “Limitations”), customer shall be required to pay Reseller for such services at Verifone’s standard fees.
WINDCAVE, INC. END USER LICENSE AGREEMENT (EULA)
Windcave was formerly known as Payment Express (PX).
This WINDCAVE END USER LICENSE AGREEMENT (this “Agreement”) is made as of the Effective Date (the date Customer signs this Agreement), by and between WINDCAVE INC., a California corporation (“PX”), and the party set forth on the signature page hereto (“Customer”).
1. Definitions and Interpretation
1.1 Definitions: In this Agreement, unless the context indicates otherwise:
“Acquirer “ means a bank or any financial institution or a card issuer of financial or non- financial transactions which receives and transmits Transactions via Windcave; “Agreement “ means this Agreement, and any attachments that may be agreed between the parties, as each may be amended in writing from time to time; “Business Day “ means any day of the week except Saturday, Sunday or a day on which banks are authorized or required to be closed in California;
“Chargeback “ means the procedure by which a sales record or other indicia of a card transaction (or disputed portion thereof) is denied or returned to Bank or the card issuer after it was entered into the appropriate settlement network for payment, in accordance with the rules of Visa, MasterCard or a similar card association (“Rules”), for failing to comply with the Rules, including, without limitation by reason of cardholder disputes, the liability for which is Customer’s responsibility and Customer agrees to pay.
“Confidential Information “ means, in relation to either party, any information:
a) relating to the terms of this Agreement;
b) relating directly or indirectly to research or development by, accounting for, or the marketing of, the business of that party or its suppliers or customers; c) disclosed by that party to the other party on the express basis that such information is confidential; or
d) which might reasonably be expected by the other party to be confidential in nature; “Customer “ means the customer specified on the first page of this Agreement and where applicable includes its employees, contractors and agents. “Documentation “ means any user, training or system manuals for Windcave (whether in printed or electronic form) which describes and provides guidance on the use of Windcave (or any aspect of Windcave);
“Goods “ means electronic devices produced by PX or sold by PX to Customer, Reseller, or a third party;
“Intellectual Property “ means registered and unregistered trade marks (including logos and trade files), domain names, copyright, patents, petty patents, utility models, registered and unregistered designs, circuit layouts, rights in computer software, databases and lists, Confidential Information, software (whether in object code or source code), and all other rights anywhere in the world resulting from intellectual activity; “Windcave “ means the Windcave solution provided by PX for the transmission of data relating to Windcave Supported Transactions between a Customer and an Acquirer,
incorporating the Software and including access (via the internet) to the Windcave Host; “Windcave Host “ means the PX host server known as Windcave Host to which Customer may be connected using the Software and which is in turn linked to an Acquirer to enable Windcave Supported Transactions to be processed in real time; “Windcave Supported Transactions “ means transactions from Customers:
a) accepting payment for goods and services by means of credit card, debit card, prepaid card, gift card or any other means of payment which PX agrees to support through Windcave from time to time;
b) accepting loyalty cards, rewards cards, points cards, discount cards or club cards; or c) providing services in relation to the sale and use of any of the cards referred to in paragraphs (a) and (b) above including the issue of such cards and the crediting or debiting of value to such cards;
“Payment Manager “ means Windcave Merchant Portal which Customer is able to access by logging onto the PX Website with an assigned username and password; “PCI Standards “ means the Payment Card Industry standards, requirements and guidelines issued by the Payment Card Industry Data Security Council from time to time including the Payment Card Industry Data Security Standard PIN Entry Device requirements and guidelines, and the Payment Application Data Security Standard; “Permitted Use “ means the transmission to, and receipt from, an Acquirer of data relating to Windcave Supported Transactions and expressly excludes, without limitation, use for the processing of transactions of, or for the benefit of, any person other than Customer;
“Reseller “ means the party with whom Customer has entered into an agreement for the purchase of a license to Windcave;
“Reseller Agreement “ means the agreement between the Customer and the Reseller; “PX “ means Windcave Inc., a corporation duly formed in California with offices in Los Angeles, California.
PX Logo means the PX logo supplied (in electronic format) by PX to Customer (as may be updated from time to time by PX);
“PX Website “ means the website maintained by PX and accessible by Customer for viewing transactions, data entry, refunding, report generating and other features related to Transactions;
“Software “ means the software and other related PX products which:
a) form part of Windcave; and
b) is owned or licensed by or developed by, or on behalf of, PX and supplied to Customer, including all upgrades, updates, alterations and modifications and other changes to such software by or on behalf of PX from time to time, but excluding any third party software and firmware forming part of, or supplied with, the Windcave solution;
“Transaction “ means a message pair consisting of a message relating to a Windcave Supported Transaction transmitted by Customer to an Acquirer through Windcave and a response to that message from the Acquirer to Customer through Windcave;
“Tokenized Data “ means data for which PX has substituted a sensitive data element with a non-sensitive equivalent that has no extrinsic or exploitable meaning or value.
1.2 Interpretation: In this Agreement, unless the context indicates otherwise:
a) the singular includes the plural and vice versa;
b) clause and other headings are for ease of reference only and will not affect this Agreement's interpretation;
c) the term “includes “ or “including “ (or any similar expression) is deemed to be followed by the words without limitation;
d) references to a “person “ include an individual, company, corporation, partnership, firm, joint venture, association, trust, unincorporated body of persons, governmental or other regulatory body, authority or entity, in each case whether or not having a separate legal identity;
e) any obligation not to do anything includes an obligation not to suffer, permit or cause that thing to be done; and
f) in the event of any inconsistency between the terms this Agreement and the terms of the Reseller Agreement, the terms of this Agreement will control.
2. Term
2.1 Term: This Agreement commences on the Effective Date and will continue until terminated under Clause 9 (the “Term”).
3. Customer Responsibilities
Customer represents and agrees that it:
3.1 Power and Authority: that it has full power and authority necessary to validly enter into and perform all its obligations under this Agreement
3.2 Requirements: to comply with the other party's reasonable security, confidentiality and operational requirements of which it has been given reasonable notice
3.3 Suitability: has made, and will continue to make, its own assessment of the suitability, adequacy, compatibility and appropriateness of Windcave for its purposes;
3.4 Comply with Instructions: will comply with PX’s restrictions, instructions and Documentation in relation to the use of Windcave, including those set out in this Agreement;
3.5 Use by Others: will ensure that only authorized persons use Windcave and that Windcave is used only for the Permitted Use and as expressly authorized under this Agreement;
3.6 Responsibility for Use: will accept all responsibility for the reliance on and use of Windcave by Customer and its employees, contractors and agents;
3.7 Obtain Equipment Etc.: will obtain and maintain all equipment, software and services needed to enable it to receive and use Windcave;
3.8 Accurate Customer Information: warrants that all information provided by Customer to PX in the Application Form is accurate and correct, and that Customer will notify PX in writing if such information changes or ceases to be accurate in any way;
3.9 Provide Sufficient Information: will ensure that sufficient information is given to PX
to enable PX to comply with its obligations under this Agreement and that such information is timely, complete and accurate;
3.10 Personal Information: acknowledges that any personal information concerning Customer or its personnel which is provided to PX by or on behalf of Customer may be:
a) used by PX for the purpose of providing Windcave, the Support Services and any other services to Customer; and
b) disclosed by PX to its affiliates and other services providers to enable PX to provide Windcave, the Support Services and any other services to Customer;
3.11 Notify of Third Party Infringement: will immediately notify PX upon becoming aware of any third party infringing PX's Intellectual Property rights in any manner;
3.12 Responsible for Connecting to Windcave Host: is responsible for all charges and costs associated with connecting to the Windcave Host to operate Windcave. PX will provide Customer with reasonable technical information and Software necessary to enable Customer to connect to the Windcave Host; and
3.13 Comply with Law Generally: will comply with all relevant laws in its use of Windcave and carrying out its obligations under this Agreement.
3.14 Requisite Review of Payline Portal: will review Customer’s Payline portal, established by PX, with due care on a daily basis for transaction errors. If an error is discovered by Customer, Customer will notify PX in writing within three (3) Business Days of the date such error occurs; provided that PX will have no liability or obligations of any kind with respect to errors that are not reported to PX within such three (3) Business Day period. In addition, Customer shall be required to review with due care its bank settlement files on a daily basis to ensure deposits occur without error. If an error is discovered by Customer in the course of such review, Customer will notify PX in writing within three (3) Business Days of the date of such error occurring; provided that PX will have no liability or obligations of any kind with respect to errors that are not reported to PX within such three (3) Business Day period. PX’s liability under this Section 3.14 (Requisite Review of Payline Portal) of the Agreement is governed by, and fully subject to, the terms of Section 9 of this Agreement.
3.15 Improperly Deposited Funds: will return funds that PX deposits in Customer’s bank account(s) that do not rightfully belong to Customer (“Improperly Deposited Funds”) without offset or delay. Customer will return all Improperly Deposited Funds to PX within five (5) calendar days of a written request to do so by PX. If Customer fails to comply with the terms of this Section, PX may immediately suspend services to Customer until Customer returns the Improperly Deposited Funds. Customer will be liable to PX for the Improperly Deposited Funds, and all costs (including legal costs on an attorney-client basis) incurred by PX in recovering the Improperly Deposited Funds.
3.16 Return of Old Goods: For Goods that Customer ceases using for the Permitted Use (“Unused Goods”), Customer will return such Unused Goods to PX within 30 calendar days. Unused Goods include, but are not limited to, Goods Customer has ceased using due to the Goods becoming obsolete, Goods that no longer operate, and Goods that are replaced per warranty. Customer will pay all shipping fees and costs associated with returning the
Unused Goods to PX. Alternatively, instead of returning Unused Goods to PX, Customer may provide PX a secure destruction certificate evidencing that the Unused Goods were destroyed in compliance with the Security Standards within the same 30 calendar day period.
4. Disclaimer of Warranties
4.1 Limitations on Warranties: To the fullest extent permitted by law, except as expressly set out in this Agreement, PX disclaims and excludes all warranties, conditions, terms, representations or undertakings, whether express, implied, statutory or otherwise, including any condition or warranty of merchantability or fitness for a particular purpose.
PX does not warrant that:
a) Windcave, the Software or the Documentation will meet Customer's requirements; or
b) Windcave, the Software and the Documentation will be uninterrupted or error free, or that all errors will be corrected.
Customer understands and acknowledges that an authorization obtained through Windcave only confirms the availability of the cardholder’s credit at the time of the authorization. It does not warrant that the person presenting the card is the rightful cardholder, nor is it an unconditional promise, guarantee or representation by Bank, processor or PX that a transaction is or will be deemed valid and not subject to dispute, debit or chargeback.
4.2 No Requirement to Decrypt Tokenized Data: PX will at no time be obligated to decrypt and transmit Tokenized Data to Customer or any third party.
5. Intellectual Property
All Intellectual Property rights in Windcave, the Software, the Documentation and any work or thing developed or created by or on behalf of PX under or in connection with this Agreement (such work or thing being Developed Works), are exclusively owned by PX (or PX's licensors or suppliers). Customer acknowledges that there is no transfer of title, Intellectual Property rights or ownership of:
a) Windcave, the Software, the Documentation or any part thereof; or b) any Developed Works; to Customer under this Agreement and Customer will not dispute PX's (or PX's licensors or suppliers) ownership of the property referred to in this clause 5.
6. Indemnity
Customer shall indemnify PX (and at PX’s sole discretion, defend PX) at all times against any liability, loss, damage or cost (including attorney’s fees) suffered or incurred by PX and all actions, proceedings, claims or demands made against PX as a result of any negligent act or omission or any breach of this Agreement by Customer, its personnel or agents.
7. Liability
7.1 Remedy: Subject to clauses 7.2 and 7.3, Customer's sole and exclusive remedy for breach of any warranty or of any of PX's obligations under this Agreement is (at PX's
option) the supply or re- supply of Windcave, the Goods, the Software, or the Documentation or the refund or waiver of Fees for the relevant part of Windcave the Goods, the Software, or the Documentation which is the subject matter of, or directly related to, the breach.
7.2 Limitation: In no event will PX's total liability to Customer under this Agreement for any reason exceed the amount of $1,000.
7.3 Exclusion: In no event will PX be liable to Customer whether in contract, tort (including negligence) or otherwise in respect of any:
a) punitive, incidental, indirect or consequential damages, damages for loss of profits, business interruption, loss of data, loss of goodwill, arising out of, or in connection with, this Agreement, in each case even if such party has been advised of the possibility of such damages;
b) loss, damage, cost or expense suffered or incurred by Customer, to the extent this results from any act or omission by Customer; or any event described in part B, clause 14 (Force Majeure).
8. Commercial Purpose
It is expressly acknowledged and agreed by Customer that Windcave, the Software and the Documentation are supplied to Customer for business and commercial purposes.
9. Termination
9.1 PX Termination Upon Notice: PX may terminate this Agreement without liability or obligation to Customer of any kind upon written notice to Customer if the Reseller Agreement expires or is terminated by Customer and/or Reseller for any reason.
9.2 PX Termination for Cause: PX may terminate this Agreement without liability or obligation to Customer of any kind at any time and with immediate effect by written notice to Customer:
a) if Customer breaches any of its obligations under this Agreement; or b) if Customer fails to pay any amounts due to Reseller pursuant to the Reseller Agreement; or
c) goes into voluntary or involuntary bankruptcy or liquidation or has a receiver appointed.
9.3 Customer Termination: Customer may terminate this Agreement if PX breaches any of its obligations under this Agreement and fails to cure such breach within 10 Business Days after receipt of written notice of such breach.
9.4 Consequences: Termination of this Agreement will not affect the rights or obligations of the parties which have accrued prior to or accrue on termination or which by their nature are intended to survive termination (including clauses 3-7, 10, 13, and 14, together with those clauses which are incidental to, and required in order to give effect to, those clauses).
Upon termination of this Agreement, Customer must immediately cease use of Windcave, the Software and the Documentation.
10. Confidentiality
10.1 Confidential Information: Each party will maintain as confidential at all times, and will not at any time, directly or indirectly:
a) disclose or permit to be disclosed to any person;
b) use for itself or to the detriment of the other party; any Confidential Information of the other party except as, and then only to the extent:
i) required by law;
ii) that the information is already or becomes public knowledge, otherwise than as a result of a breach, by the receiving party, of any provision of this Agreement; iii) that the information is disclosed to the receiving party, without restriction, by a third party and without any breach of confidentiality by the third party; iv) that the information is developed independently by the receiving party without reliance on any of the Confidential Information of the other party; v) authorized in writing by the other party; or
vi) reasonably required by this Agreement (and, without limiting the effect of this clause, a party may disclose Confidential Information of the other party only to those of its officers, employees or professional advisers on a "need to know" basis, as is reasonably required for the implementation of this Agreement).
10.2 PX’s Intellectual Property: Customer acknowledges and agrees that the computer programs, computer software, specifications, data, images, designs, codes, and configurations contained in or utilized by the equipment and PX's network are proprietary and confidential to PX and protected under United States copyright law. Customer shall not copy, modify, adopt, translate, merge, reverse engineer, decompile, or disassemble, the equipment or Software, or create any derivative works based on the equipment, PX network or Software. Without limiting the effect of clause 10.1, Customer will treat information about PX's Intellectual Property as Confidential Information of PX.
11. Force Majeure
11.1 Customer acknowledges that PX relies on third-party providers in the delivery of its services, including, but not limited to, wireless data network providers, cellular radio service provided by third parties that is available only when within the operating range of cellular systems, and cellular service is subject to transmissions limitations and dropped or interrupted transmissions. Cellular service may be temporarily refused, limited, interrupted, or curtailed because of government regulations or orders, atmospheric and/or topographical conditions, and cellular system modifications, repairs, and upgrades.
Customer agrees that PX shall not be liable for, and to hold PX harmless for any losses, damages, or business interruptions sustained as a result of interruptions caused by its wireless data network providers or any other third-party provider.
11.2 Neither party (the “Affected Party”) shall be liable for any default or delay in the performance of its obligations under this Agreement if and to the extent such default or delay is caused, directly or indirectly, by
a) fire, flood, elements of nature or other acts of God b) any outbreak or escalation of hostilities, war, riots or civil disorders in any country; c) any act or omission of the other party or any government authority; d) any labor disputes (whether or not employees’ demands are reasonable or within the party’s power to satisfy); or
e) the nonperformance by a third party for any similar cause beyond the reasonable control of such party, including without limitation, failures or fluctuations in
telecommunications or other equipment such as described in clause
11.3 In any such event, the Affected Party shall be excused from any further performance and observance of the obligations so affected only for as long as such circumstances prevail and such party continues to use commercially reasonable efforts to recommence performance or observance as soon as practicable, provided that:
a) Notice: whenever the Affected Party becomes aware that such a result has occurred or is likely to occur, the Affected Party will, as soon as practicable, notify the other party by written notice accordingly;
b) Continued Performance: each party will continue to use commercially reasonable efforts to perform its obligations as required under this Agreement; and c) No Deemed Acceptance of Extra Costs: neither party will be deemed to have accepted any liability to pay or share any extra costs which may be incurred by the other party in complying with this clause or otherwise resulting from such act, omission or failure; and
d) Charges: this clause 11.3 will not apply in respect of Customer's obligation to pay any charges or Fees payable under this Agreement.
12. License
12.1 Grant of License: PX grants to Customer a limited, non-exclusive, non-transferable, non-assignable, revocable license to use Windcave, the Software and the Documentation for the Term of this Agreement solely for the Permitted Use. Any other use or dealings with Windcave, the Software or the Documentation without the prior written consent of PX will be a material breach of this Agreement. Except to the extent specifically authorized under this Agreement, Customer must not sub-license, transfer, assign, rent or sell any of Windcave, the Software or the Documentation or the right to use Windcave, the Software or the Documentation.
12.2 PX Warranty: PX warrants that PX has the right and authority to grant to Customer the license set out in clause 12.1, in accordance with the terms of this Agreement.
13. Terms of Use
13.1 Adequacy: Customer must satisfy itself as to the adequacy, appropriateness and compatibility of Windcave for its requirements. Without limiting the foregoing, Customer acknowledges that it has not relied on any statements or representations on the part of PX as to performance or functionality, verbal or otherwise, except as expressly recorded in this Agreement.
13.2 PX Logo: If Customer uses a capture method for credit or debit card processing using a system which is not hosted by PX, Customer agrees to display the PX Logo in a readily visible position on the user interface of Customer’s system where the credit or debit card data is captured. The PX Logo must not be altered or used for any other purpose without the prior written consent of PX.
13.3 Compliance: If Customer is not compliant with one or more of the Security Standards, Customer must not capture or store any credit or debit card number or expiry date locally on Customer's or a non- compliant third party’s system.
13.4 No Right to Copy, Alter or Modify: Customer may make a reasonable number of copies of the Software for backup and disaster recovery purposes only. Except for such
back-up copies, Customer must not, and must not permit any other person to, copy, reproduce, translate, adapt, vary, repair or modify all or any part of Windcave, the Software or the Documentation by any means or in any form without PX's prior written consent.
13.5 Permitted Use: Customer may not:
a) use Windcave, the Software or the Documentation for any purpose other than the Permitted Use; or
b) use the Software independently of the other components of Windcave unless PX has given prior written consent to do so.
If this Agreement is terminated, Customer's right to use Windcave, the Sof tware and the Documentation will automatically terminate and Customer must immediately remove all copies of the Software from its system(s) and return Windcave, the Software and the Documentation to PX
13.6 Reverse Engineering: Customer must not, and must not permit any other person to, reverse assemble or decompile the whole or any part of the Software.
13.7 No Third Party Use: Except as expressly provided for in this Agreement, the Customer must not provide, or otherwise make available, Windcave, the Software or the Documentation or any component thereof in any form to any person (a “Third Party”) without the prior written consent of PX. If PX grants such consent, Customer must ensure that the Third Party complies with the provisions of clauses 5, 10, 12, and 13 (so far as those provisions relate to Customer) as if the Third Party were a party to this Agreement.
Customer will be liable to PX for all acts or omissions of any Third Party in contravention of the provisions of clauses 5, 10, 12, and 13.
General
13.8 Entire Agreement: This Agreement including all schedules hereto records the entire arrangement between the parties relating to all matters dealt with in this Agreement and supersedes all previous arrangements, whether written, oral or both, relating to such matters.
13.9 Disputes: The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this Agreement. Any party may give the other party written notice of any dispute not resolved in the normal course of business. Within 15 days after delivery of the notice, the receiving party shall submit to the other a written response. The notice and response shall include with reasonable particularity (a) a statement of each party’s position and a summary of arguments supporting that position, and (b) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within 30 days after delivery of the notice, the executives of both parties shall meet at a mutually acceptable time and place. If the parties fail to negotiate a resolution to a dispute within a reasonable time (not exceeding 20 Business Days from formal notice of the dispute being given by one party to the other), either party may require that the dispute be submitted to mediation through JAMS, such mediation to take place in Los Angeles, California. A mediator shall be selected by mutual agreement or through procedures provided by JAMS. In such case:
a) the mediator will not be acting as an expert or as an arbitrator;
b) the mediator will determine the procedure and timetable for the mediation; and c) the parties will share equally the cost of the mediation.
All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non- discoverable as a result of its use in the negotiation.
Neither party may issue any legal proceedings (other than for urgent interlocutory relief) relating to any dispute, unless that party has first taken all reasonable steps to comply with the dispute resolution process above. All applicable statutes of limitation and defenses based upon the passage of time shall be tolled while the procedures specified in this clause
14.2 above are pending and for 15 calendar days thereafter. The parties will take such action, if any, required to effectuate such tolling.
13.10 Waiver: No waiver of any breach, or failure to enforce any provision, of this Agreement at any time by either party shall in any way limit or waive the right of such party to subsequently enforce and compel strict compliance with the provisions of this Agreement.
13.11 Severance: Any provision in this Agreement which is or becomes unenforceable, illegal or invalid for any reason shall be severed and shall not affect the enforceability, legality, validity or application of any other provision which shall remain in full force and effect.
13.12 Assignment: PX may assign all or any of its rights and obligations under this Agreement to any person without Customer's consent. Customer may not transfer or assign any of its liabilities or rights under this Agreement to any other person without PX's prior written consent.
13.13 Amendment: Except as expressly provided for in this Agreement, no amendment to this Agreement will be valid unless recorded in writing and signed by a duly authorized senior representative of each party.
13.14 Governing Law and Jurisdiction: This Agreement is governed by the laws of California. Subject to the terms of clause 14.2, the parties submit to the jurisdiction of the courts of the State of California in respect of all matters relating to this Agreement.
13.15 Remedies: The rights, powers and remedies provided in this Agreement are not exclusive of any rights, powers or remedies provided by law.
13.16 Subcontracting: PX may appoint subcontractors to perform any of its obligations under this Agreement.
13.17 Notices: Any notice or other communication to be given under this Agreement must be in writing and must be served by one of the following means and in respect of each is deemed to have been served as described:
a) By personal delivery – when received by the party.
b) By post by registered or ordinary mail – on the second working day following the date of posting in the United States mail to the addressee’s registered office. c) By email – when acknowledged by the party orally or by return email or otherwise
in writing.
d) By facsimile – when sent to the correct facsimile number (with written transmission confirmation).
The addresses for the parties for Notices shall be as set out on Page 1 of this Agreement or such other address as either party specifies by notice in writing to the other given in accordance with this clause 14.10.
13.18 In the event of any conflict or inconsistency between this Agreement and the terms of a purchase order made by Customer to PX or a reseller of PX goods or services, this Agreement shall govern and control.
DATE:June 21, 2023
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Jason C. Welday, Director of Engineering Services/City Engineer Frank A. Lopez, Principal Civil Engineer/Assistant City Engineer Romeo M. David, Associate Engineer
SUBJECT: Consideration of a Contract with HL Hitchcock Construction, Inc., in the Amount of $165,530 Plus a 15% Contingency in the amount of $24,830 from the LMD 1 Fund (Fund 130) for the Almond Trail Drainage Improvements Project. This Project is exempt from the requirements of the California Environmental Quality Act (CEQA) per Government Code Section 15301 – Existing Facilities. (CITY)
RECOMMENDATION:
Staff recommends that the City Council:
1. Approve the plans and specifications for the Almond Train Drainage Improvements Project (Project) on file in the Office of the City Engineer;
2. Accept the bids received for the Project;
3. Award and authorize the execution of a contract in the amount of $165,530, to the lowest responsive bidder, HL Hitchcock, Inc., for the total bid amount; and
4. Authorize the Director of Engineering Services or his designee to approve the expenditure of a 15% contingency in the amount of $24,830.
BACKGROUND:
In the past year, portions of the community trail located south and west of the Randolph Davis Property, 9400 Almond Street, experienced erosion after heavy storm events. For the protection of the public and to prevent further damage to the trail or the adjacent hillside, Public Works staff closed the community trail by placing “trail closed” signs at either entrance and implemented temporary erosion control measures until the community trail could be restored to a safe condition.
This trail has repeatedly experienced damage from erosion over the years, including one storm that caused a slope failure in 2019 that required the closure of the trail and reconstruction of the slope just west of the trail. Engineering staff has investigated the recent failure and provided recommendations for repairs which are intended to provide a long-term solution. The proposed repairs were presented to the Trails Advisory Committee and Planning Commission on May 10 and May 24, 2023 at their respective regularly scheduled meetings.
1 8
6 8
ANALYSIS:
The scope of work consists of regrading the trail, installation of curb and gutter with inlet grates and catch basins, a concrete Arizona crossing at the sump condition where the water flows across the existing trail, concrete ribbon gutter, and grouted cobble rocks and un-grouted cobble rocks as energy dissipaters. A vicinity map illustrating the project site location included in this Project is included as Attachment 1.
The Notice Inviting Bids was released to the general contracting community and was published in the Daily Bulletin on April 4, and 11, 2023. The City Clerk’s Office facilitated the formal bid solicitation for the Project. On May 30, 2023, the City Clerk’s office received ten (10) construction bids. The Engineer’s estimate for the Project was $190,000. The apparent low bidder HL Hitchcock, Inc. submitted a bid in the amount of $ 165,530. A full bid summary is included as Attachment 2.
Engineering staff has reviewed all bids received and found all to be complete and in accordance with the bid requirements with any irregularities to be inconsequential. Staff has completed the required background investigation and finds the lowest responsive bidder HL Hitchcock, Inc. meets the requirements of the bid documents.
FISCAL IMPACT:
Anticipated construction costs are estimated to be as follows:
Expenditure Category Amount
Construction Contract $165,530
Construction Contract Contingency (15%) $24,830
Construction Inspection Services $26,840
Construction Survey Services $8,470
Bid Noticing Advertisement $1,535
Project Construction Costs $227,205
A total of $272,000 is budgeted, made available and shown in the approved Fiscal Year 2022/23 Budget from the LMD 1 Fund (Fund 130) for this project. An initial of $9,020 for the Design Survey has been spent and therefore, the amount available to expend for construction is $262,980 which is sufficient to fund the recommended contract as well as the on-call inspection and survey services. Current funding for this project is identified under Capital Improvement Project Account No. and in the amount listed below:
Account No. Funding Source Description Amount
11303035650/2110130-0 LMD 1 Fund (130) Almond Trail
Improvements Project
$262,980
Total Project Funding $262,980
COUNCIL MISSION / VISION / VALUE(S) ADDRESSED:
This project meets our City Council core values by promoting and enhancing a safe and healthy community for all, and by providing continuous improvement through the construction of high- quality public improvements.
ATTACHMENTS:
Attachment 1 - Vicinity Map
Attachment 2 - Bid Summary
ALMOND TRAIL DRAINAGE IMPROVEMENTS PROJECT
Vicinity Map
NOT TO SCALE
Project Site
ATTACHMENT 2
BID SUMMARY: BID DATE: May 30, 2023 APPARENT LOW BIDDER 2 3 4 5 6 7 8 9 10
H L HITCHCOCK
CONSTRUCTION INC.
TSR CONSTRUCTION AND
INSPECTION
US BUILDERS AND
CONSULTANTS INC.
GENTRY GENERAL
ENGINEERING, INC.
WRIGHT CONSTRUCTION
ENGINEERING CORP
CT&T CONCRETE PAVING
INC.
KORMEX CONSTRUCTION,
INC.ALMOND TRAIL IMPROVEMENT PROJECT ENGINEER'S ESTIMATE VOLTAIRE ENGINEERING INC. CMB STRUCTURES, INC, BONADIMAN WATER, INC.
BASE BID UNIT BID UNIT BID UNIT BID UNIT BID UNIT BID UNIT COST
BID UNIT BID UNIT BID UNIT BID UNIT BID UNIT BID
NO QTY UNIT DESCRIPTION COST AMOUNT COST AMOUNT COST AMOUNT COST AMOUNT COST AMOUNT AMOUNT COST AMOUNT COST AMOUNT COST AMOUNT COST AMOUNT COST AMOUNT 1 2
1 1
LS Mobilization $10,000.00
$20,000.00
$10,000.00
$20,000.00
$14,300.00
$16,040.00
$14,300.00
$16,040.00
$43,740.00
$28,000.00
$43,740.00 $14,000.00
$28,000.00 $31,000.00
$14,000.00
$31,000.00
$5,500.00
$9,375.00
$5,500.00 $6,900.00
$9,375.00 $4,700.00
$6,900.00 $9,000.00
$4,700.00 $30,600.00
$9,000.00
$30,600.00
$22,000.00
$21,615.00
$22,000.00
$21,615.00
$10,000.00
$15,000.00
$10,000.00
$15,000.00
$15,000.00
$19,950.00
$15,000.00
$19,950.00
$20,000.00
$30,000.00
$20,000.00
$30,000.00LS Clearing and Grubbing – Including Grading, Fill, Compaction, Removal and Disposal Per Plans Complete in Place
CORRECTED
$19,125.003 255 LF Construct P.C.C. Curb and Gutter (A2-6) with Transverse Heavy Broom Finish Per Detail A and B and City Std. Plan No. 104.
LF Construct P.C.C. Ribbon Gutter with Transverse Heavy Broom Finish Per Detail C.
EA Install Catch Basin Per Detail D.
SF Construct 6" P.C.C. Slab with Transverse Heavy Broom Finish Per Cross Section A-A and Cross Section B-B.
$75.00 $19,125.00 $80.00 $20,400.00 $55.00 $14,025.00 $70.00 $17,850.00 $61.00 $15,555.00 $5,130.00
$11,344.00 $4,500.00
$3,564.00
$79.00
$65.00
$20,145.00
$6,175.00
$36,000.00 $2,376.00
$4,356.00
$90.35
$57.50
$23,039.25 $100.00 $25,500.00 $100.00 $25,500.00 $75.00 $60.00 $15,300.00 4 5
6 95
8 198
$75.00
$4,500.00
$45.00
$7,125.00
$36,000.00
$8,910.00
$73.00
$2,400.00
$40.00
$6,935.00
$19,200.00
$7,920.00
$36.00
$1,500.00
$40.00
$3,420.00
$12,000.00
$7,920.00
$80.00
$4,000.00
$20.00
$7,600.00
$32,000.00
$3,960.00
$54.00
$1,418.00
$18.00
$5,462.50
$19,008.00
$4,019.40
$100.00
$3,000.00
$75.00
$9,500.00
$24,000.00
$14,850.00
$150.00
$5,000.00
$50.00
$14,250.00
$40,000.00
$9,900.00
$68.00
$7,250.00
$35.00
$6,460.00
$58,000.00
$6,930.00
$60.00
$5,000.00
$60.00
$5,700.00
$40,000.00
$11,880.00$22.00 $20.30
7 8
20 500
LF Construct 6" P.C.C. Footing Key at Edge of Concrete Slab Per Cross Section A-A.
SF Rearrange Ungrouted Cobble Rock Energy Dissipater, Reuse Loose Rocks at Project Site.
$100.00
$20.00
$2,000.00
$10,000.00
$445.00
$6.20
$8,900.00
$3,100.00
$160.00
$4.50
$3,200.00
$2,250.00
$100.00
$10.00
$2,000.00
$5,000.00
$65.00
$24.00
$1,300.00
$12,000.00
$52.00
$17.00
$1,040.00
$8,500.00
$408.60
$11.00
$8,172.00
$5,500.00
$400.00
$30.00
$8,000.00
$15,000.00
$200.00
$12.00
$4,000.00
$6,000.00
$80.00
$45.00
$1,600.00
$22,500.00
$500.00
$8.00
$10,000.00
$4,000.00
9 10
150
20 SF Place grouted Cobble Rock Energy Dissipater, Reuse Loose Rocks at Project Site.
EA Remove and Replace Existing Fence Post with Concrete Footing Per City Std. Plan No. 1010-A. Reuse 2'x6' PVC Rail.
$45.00
$200.00
$6,750.00
$4,000.00
$20.00
$330.00
$3,000.00
$6,600.00
$15.00
$480.00
$2,250.00
$9,600.00
$30.00
$200.00
$4,500.00
$4,000.00
$34.00
$93.00
$5,100.00
$1,860.00
$46.00
$513.00
$6,900.00
$10,260.00
$45.60
$627.60
$6,840.00
$12,552.00
$50.00
$150.00
$7,500.00
$3,000.00
$100.00
$100.00
$15,000.00
$2,000.00
$75.00
$450.00
$11,250.00
$9,000.00
$20.00
$500.00
$3,000.00
$10,000.00
11 12
13 14
15 44
385
1 2
1 LF Install 18"ø HDPE, double wall smooth interior with a corrugated exterior Pipe.
LF Install 12"ø HDPE, double wall smooth interior with a corrugated exterior Pipe.
LS Regrade Existing to Install 2-18"ø PVC Pipe Per Plan.
EA Install Sign and Post to be Specified by City.
EA Expose Existing 18"ø CMP Drainage Pipe and Tie into 12"ø PVC Pipe with Concrete Collar Per City Std Plan No. 329.
$200.00
$115.00
$1,000.00
$1,000.00
$3,000.00
$8,800.00
$44,275.00
$1,000.00
$2,000.00
$3,000.00
$190.00
$70.00
$4,800.00
$1,200.00
$5,600.00
$8,360.00
$26,950.00
$4,800.00
$2,400.00
$5,600.00
$75.00
$90.00
$2,240.00
$400.00
$3,300.00
$34,650.00
$2,240.00
$800.00
$100.00
$100.00
$5,000.00
$1,200.00
$7,000.00
$4,400.00
$38,500.00
$5,000.00
$2,400.00
$7,000.00
$475.00
$248.00
$1,100.00
$1,060.00
$641.00
$20,900.00
$95,480.00
$1,100.00 $11,000.00
$2,120.00 $1,050.00
$641.00 $3,900.00
$235.00
$140.00
$10,340.00
$53,900.00
$11,000.00 $5,520.00
$2,100.00 $4,320.00
$186.80
$106.28
$8,219.20
$40,917.80
$5,520.00
$8,640.00
$900.00
$250.00
$116.00
$7,000.00
$500.00
$11,000.00
$44,660.00
$7,000.00
$1,000.00
$2,500.00
$225.00
$190.00
$5,000.00
$500.00
$9,900.00
$73,150.00
$5,000.00
$1,000.00
$6,000.00
$95.00
$65.00
$15,000.00
$4,500.00
$12,000.00
$4,180.00
$25,025.00
$15,000.00
$9,000.00
$12,000.00
$400.00
$200.00
$3,500.00
$500.00
$17,600.00
$77,000.00
$3,500.00
$1,000.00
$3,000.00$4,900.00 $4,900.00 $3,900.00 $900.00 $2,500.00 $6,000.00 $3,000.00 16 63 CY Import Fill Material and Grade Existing. $110.00 $6,930.00 $175.00 $11,025.00 $160.00 $10,080.00 $200.00 $12,600.00 $93.00 $5,859.00 $290.00 $18,270.00 $293.80 $18,509.40 $125.00 $7,875.00 $250.00 $15,750.00 $305.00 $19,215.00 $100.00 $6,300.00
CORRECTED
TOTAL BASE BID AMOUNT: $189,915.00 $165,530.00 $182,375.00 $191,810.00 $196,828.00 $204,486.00 $206,899.55 $225,000.00 $252,450.00 $254,235.00 $258,280.00
DATE:June 21, 2023
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Wess Garcia, Acting Library Director
Cara Vera, Library Services Manager
SUBJECT: Consideration to Approve the Continued Use and Appropriation of Funds for an Amount Not to Exceed $45,000 for Midwest Tape to Provide Digital Media Content Using the Hoopla Platform for FY 2023/2024. (CITY) RECOMMENDATION:
Staff recommends City Council approve the continued use and appropriation of funds in an amount not to exceed $45,000 for Midwest Tape’s Hoopla platform to provide patron driven acquisition of digital media content for the Rancho Cucamonga Public Library in FY 2023/2024.
BACKGROUND:
Since 1989, Midwest Tape has been a leading distributor of DVDs, CDs, audiobooks, and other physical audio-visual formats to libraries. Midwest Tape now distributes Hoopla, a co-branded, digital audio-visual content service. Hoopla’s delivery model and content are the only Library Media on Demand (LMOD) software application offered to and by libraries and is manufactured, sold and distributed exclusively by Midwest Tape.
Hoopla’s digital service platform is a proprietary design which provides libraries the only true patron-driven acquisition model in which all digital media content (audiobooks, eBooks, comics, movies, TV, and music) is made available under a single login and to every user, simultaneously.
Hoopla is currently the sole content provider of LMOD for MGM, NBC Universal, Nat Geo, Bold and Beautiful, Miramax, RLJ, Warner Music, Universal Music, DC Comics, Lionsgate, Viacom, and many other content creators.
The Library began offering Hoopla to borrowers in 2020, and it quickly gained popularity and became a sought after resource for on demand electronic media consumption.
ANALYSIS:
Hoopla offers a unique product that combines multiple book and media formats through an all-in- one service. Users access the digital content using an “on demand” model where the Library is charged for each checkout as content is consumed, rather than paying an annual subscription fee for access to the overall collection. The Library meters expenses through various service controls such as setting limits on the number of monthly checkouts per user and offering content at varying price points.
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Hoopla’s simultaneous use model provides a key benefit to the Library’s users. Other digital content providers typically operate under a one-to-one lending model where with a copy of a title is lent to a single borrower at a time, the traditional physical material lending model. However, Hoopla’s simultaneous use model offers unlimited checkouts per item providing instantaneous access to materials and wait-free checkouts. Simultaneous use expands the Library’s digital media collection exponentially, while reducing barriers to content.
Based on Hoopla’s extensive inventory, variety of formats, simultaneous use and Library Media on Demand features, a Single Source Memo was submitted and approved by the Procurement Manager in 2021. Staff requests that the City Council accept the continued use and appropriation of additional funds to meet the increased use and demand.
Copies of all supporting documents are on file with the City Clerk and Procurement Offices.
FISCAL IMPACT:
Funding for this service during FY 2023/2024 is not to exceed $45,000 annually and will come from Library Fund object 1290601-5200 Operations and Maintenance.
COUNCIL MISSION / VISION / VALUE(S) ADDRESSED:
Providing superior digital media content to residents, contributes to a high quality of life in Rancho Cucamonga.
ATTACHMENTS:
None.
DATE:June 21, 2023
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Matt Burris, Deputy City Manager / Acting PW Services Director Jeff Benson, Parks and Landscape Superintendent
Paul Fisher, Management Analyst III
SUBJECT: Consideration of Amendment No. 1 to Contract No. 2022-070 with Mariposa Landscapes, Inc. for LMD 2 Parkway Paseo and Median Island Landscape and Irrigation Maintenance in an Amount Not to Exceed $1,697,730. (CITY)
RECOMMENDATION:
Staff recommends the City Council approve Amendment No. 1 to Contract No. 2022-070 with Mariposa Landscapes, Inc., extending the term of the contract to June 30, 2024 in an amount not to exceed $1,697,730 for FY 2023/24.
BACKGROUND:
On July 20,2022, the City Council awarded contract number CO 2022-070 for “LMD 2 Parkway Paseo and Median Island Landscape and Irrigation Maintenance” to Mariposa Landscapes, Inc. of Irwindale, California, effective July 1, 2022 for a one (1) year term with an option to renew in one (1) year increments up to a total of six (6) additional years through June 30, 2029. Currently all sites are maintained at Service Level A. If approved, Amendment No. 1 to contract CO 2022- 070 will extend the term of the contract to June 30, 2024 with a 7.5% rate increase for routine (cyclically scheduled) maintenance and “extra work” line items. A copy of this agreement is available in the City Clerk’s Office.
ANALYSIS:
Mariposa Landscapes, Inc. has submitted a Letter of Intent expressing their desire to continue providing service to the City of Rancho Cucamonga during FY 2023/24. Mariposa Landscapes, Inc. is requesting an 7.5% rate increase for routine (cyclically scheduled) maintenance and “extra work” line items to cover increases in labor, material, and fuel costs.
Mariposa Landscapes, Inc. continues to meet the service needs of the City and staff recommends the City Council approve the renewal of contract CO 2022-070 effective July 1, 2023 and approve the spending limit of $1,697,730 for FY 2023/24.
FISCAL IMPACT:
The proposed FY 2023/24 budget includes $1,476,280 in account 1131303-5300 for parkway, paseo, and median island landscape maintenance in LMD 2, including a 10% increase for routine (cyclically scheduled) maintenance and “Extra Work” line items in the various accounts. The EAs
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will be adjusted accordingly in the amended budget to account for the difference between the budgeted increase and the actual increase in contract expenditures. The contract spending limit of $1,697,730 includes a contingency of $221,450 for unforeseen work resulting from wind events or other emergencies.
COUNCIL MISSION / VISION / VALUE(S) ADDRESSED:
This item addresses the City Council’s Core Values of promoting and enhancing a safe and healthy community for all while providing and maintaining high quality outdoor spaces.
ATTACHMENTS:
None.
DATE:June 21, 2023
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Matt Burris, Deputy City Manager / Acting PW Services Director Jeff Benson, Parks and Landscape Superintendent
Paul Fisher, Management Analyst III
SUBJECT: Consideration of Amendment No. 3 to Contract CO 2020-030 with Mariposa Landscapes, Inc. for LMD 4R Parkway Paseo and Median Island Landscape and Irrigation Maintenance in an Amount Not to Exceed $570,905. (CITY)
RECOMMENDATION:
Staff recommends the City Council approve Amendment No. 3 to contract CO 2020-030 with Mariposa Landscapes, Inc., extending the term of the contract to June 30, 2024, in an amount not to exceed $570,905, contingent upon approval of the FY 2023/24 budget.
BACKGROUND:
On April 1, 2020, the City Council accepted the bids received and awarded contract number CO 2020-030 for “LMD 4R Parkway Paseo and Median Island Landscape and Irrigation Maintenance” to Mariposa Landscapes, Inc. of Irwindale, California, effective July 1, 2020 for a one (1) year term with an option to renew in one (1) year increments up to a total of six (6) additional years through June 30, 2027. Currently all sites are maintained at Service Level A. If approved, Amendment No. 3 to contract CO 2020-030 will extend the term of the contract to June 30, 2024, with a 7.5% rate increase for routine (cyclically scheduled) maintenance and “extra work” line items. A copy of this agreement is available in the City Clerk’s Office.
ANALYSIS:
Mariposa Landscapes, Inc. has submitted a Letter of Intent expressing their desire to continue providing service to the City of Rancho Cucamonga during FY 2022/23. Mariposa Landscapes, Inc. is requesting an 7.5% rate increase for routine (cyclically scheduled) maintenance and “extra work” line items to cover increases in labor, material, and fuel costs.
Mariposa Landscapes, Inc. continues to meet the service needs of the City and staff recommends the City Council approve the renewal of contract CO 2020-030 effective July 1, 2023 and approve the spending limit of $570,905 for FY 2023/24.
FISCAL IMPACT:
The proposed FY 2023/24 budget includes $496,435 in account 1134303-5300 for parkway, paseo, and median island landscape maintenance in LMD 4R including a 10% increase for routine (cyclically scheduled) maintenance and “Extra Work” line items in the various accounts. The EAs
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will be adjusted accordingly in the amended budget to account for the difference between the budgeted increase and the actual increase in contract expenditures. The contract spending limit of $570,905 includes a contingency of $74,470 for unforeseen work resulting from wind events or other emergencies.
COUNCIL MISSION / VISION / VALUE(S) ADDRESSED:
This item addresses the City Council’s Core Values of promoting and enhancing a safe and healthy community for all while providing and maintaining high quality outdoor spaces.
ATTACHMENTS:
None.
DATE:June 21, 2023
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Jason C. Welday, Director of Engineering Services/City Engineer Justin Pope, Associate Engineer
SUBJECT: Consideration of Amendment No. 03 to Professional Services Agreement (Contract No. CO18-122) with Moffatt & Nichol, to Extend the Term of the Agreement for the Etiwanda Avenue Grade Separation Project. (CITY) RECOMMENDATION:
Staff recommends the City Council approve Amendment No. 03 to the Professional Services Agreement (Contract No. CO18-122) with Moffatt & Nichol for design of the Etiwanda Grade Separation Project, which would extend the Term of the Agreement by allowing the option to renew in one (1) year increments to a total of five (5) years.
BACKGROUND:
The City awarded the original Professional Services Agreement to Moffatt & Nichol on October 17, 2018 to prepare the design plans, specifications, and estimate, and right of way documents for the Etiwanda Grade Separation Project.
In this Agreement, Section 2 – Term of Agreement states that:
“The term of this Agreement shall be 20 months and shall become effective as of the date of the mutual execution by way of both parties’ signature (the “Effective Date”). No work shall be conducted; services or goods will not be provided until this Agreement has been executed and requirements have been fulfilled. Parties to this Agreement shall have the option to renew in one (1) year increments to a total of three (3) years, unless sooner terminated as provided in Section 14 herein.
Options to renew are contingent upon the City Manager’s approval, subject to pricing review, and in accordance to all Terms and Conditions stated herein unless otherwise provided in writing by the City.”
To date, the City has approved time extensions totaling three (3) years beyond the original 20 month duration, bringing the Term of the Agreement to its maximum date of June 17, 2023.
ANALYSIS:
Additional design scope has been awarded with Amendments No.’s 01 and 02, causing the time needed by Moffatt & Nichol to extend beyond the maximum date allowed in the original Agreement. The City is therefore requesting that City Council approve Amendment No. 03 to allow the Agreement to remain valid for two (2) additional increments of one (1) year each, subject to the same requirements as the original Agreement.
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FISCAL IMPACT:
There is no cost impact being considered at this time because Amendment No. 03 is solely a time extension to the original Agreement.
COUNCIL MISSION / VISION / VALUE(S) ADDRESSED:
The proposed Etiwanda Avenue Grade Separation Project will enhance the City’s position as the premier community in our region by improving safety, traffic flow, and access to the southeast industrial area of the City.
ATTACHMENTS:
Attachment 1 - Amendment to Professional Services Agreement
Last Revised: 11/27/2018 Page 1 of 1
AMENDMENT NO. 03
to
Professional Services Agreement (CO #18-122)
between
Moffatt & Nichol, Inc. (hereinafter “Consultant”)
and
City of Rancho Cucamonga (hereinafter the “City”)
This Amendment No. 03 will serve to amend the Professional Services Agreement ( hereinafter “Agreement”), CO# 18-122, to incorporate the following:
Section 2 Term of Agreement, Paragraph 2 shall be amended to state that "Parties to this Agreement shall have the option to renew in one (1) year increment s to a total of five (5) years, unless sooner terminated as provided in Section 14 herein. Options to renew are contingent upon the City Manager's approval, subject to pricing review, and in accordance to all Terms and Conditions stated herein unless otherwise provided in writing by the City." The first three of the one (1) year increments have already been used, which brought the Agreement expiration date to June 17, 2023 in Amendment No. 02. By this Amendment No. 03, both parties agree to use the fourth one (1) year increment to extend the Agreement expiration date to June 17, 2024. Both parties also agree that the Agreement has been in place retroactively to June 17, 2023.
All other Terms and Conditions of the original Agreement CO#18-122, Amendment No. 01 and Amendment No. 02, will remain in full effect.
IN WITNESS WHEREOF, the parties, through their respective authorized representatives, have executed this Amendment by way of signature by both parties and on the date indicated below. Please return two (2) original signed copies to the City no later than June 6, 2023. The City will process both copies for signature and provide Consultant with one (1) fully executed copy of the Amendment.
Moffatt and Nichol, Inc.
By: ______________________________
Name Date
______________________________
Title
City of Rancho Cucamonga
By: ______________________________
Name Date
____________
__________________
By: _________________________________
Name Date _________________________________
Title
By: __________________
_______________
Name Date
_________________________________
Title Title
(t
wo signatures required if corporation)
Alaedin Moubayed
Project Manager/ Vice President
6-01-2023
6-01-2023Jim McCluskie
Vice President
6-01-2023
DATE:June 21, 2023
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Matt Burris, Deputy City Manager / Acting PW Services Director Jeff Benson, Parks and Landscape Superintendent
Paul Fisher, Management Analyst III
SUBJECT: Consideration of Amendment No. 5 to Contract CO 18-030 with Mariposa Landscapes, Inc. for Landscape and Irrigation Maintenance of LMDs 6, 7, 8, 9, and 10 Parkways, Paseos, and Medians in an Amount Not to Exceed $1,146,600. (CITY)
RECOMMENDATION:
Staff recommends the City Council approve Amendment No. 5 to contract CO 18-030 with Mariposa Landscapes, Inc., extending the term of the contract to June 30, 2024, in an amount not to exceed $1,146,600 for FY 2023/24.
BACKGROUND:
On May 16, 2018, the City Council accepted the bids received and awarded contract number CO 18-030 for landscape and irrigation maintenance of LMDs 6, 7, 8, 9, and 10 parkways, paseos, and medians, to Mariposa Landscapes, Inc. The initial term of the contract was one year, with the option to renew in one (1) year increments up to a total of six (6) additional years through June 30, 2025. Included in the contract is tiered pricing for Service Levels A through C as defined in the contract specifications. Routine maintenance is currently performed at Service Level A at LMD 6, LMD 7, LMD 9 and LMD 10 sites, and at Service Level B at LMD 8 sites. If approved, Amendment No. 5 to contract CO 18-030 will extend the term of the contract to June 30, 2023, with a 7.5% rate increase for routine (cyclically scheduled) maintenance and reduce LMD 7 and LMD 8 to Service Level C. A copy of this agreement is available in the City Clerk’s Office.
ANALYSIS:
Mariposa Landscapes, Inc. has submitted a Letter of Intent expressing their desire to continue providing service to the City of Rancho Cucamonga during FY 2023/24. Due to substantial increases in the cost of providing tree maintenance services, Mariposa Landscapes, Inc. is requesting modification of certain language to clarify the City’s original intent for tree maintenance services in LMDs 6, 7, 8, 9 and 10. In addition, due to increases in labor, material, and fuel costs, Mariposa Landscapes, Inc. is requesting an 7.5% rate increase for routine maintenance in FY 2023/24. A copy of this agreement is available in the City Clerk’s Office.
Mariposa Landscapes, Inc. continues to meet the service needs of the City and staff recommends the City Council approve the renewal of contract CO 18-030 effective July 1, 2023 and approve the spending limit of $1,146,600 for FY 2023/24.
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FISCAL IMPACT:
The proposed FY 2023/24 Budget includes $997,040 for parkway, paseo, and median island landscape maintenance in LMDs 6, 7, 8, 9 and 10. The funding breakdown is shown in the following table:
Account
Funding
Source Amount
1136303-5300 LMD 6 $287,820
1137303-5300 LMD 7 $485,910
1138303-5300 LMD 8 $11,480
1139303-5300 LMD 9 $74,220
1140303-5300 LMD 10 $137,610
Total $997,040
The proposed FY 2023/24 budget includes a 10% increase for routine (cyclically scheduled) maintenance and “Extra Work” line items in the various accounts. The EAs will be adjusted accordingly in the amended budget to account for the difference between the budgeted increase and the actual increase in contract expenditures. The contract spending limit of $1,146,600 includes a contingency of $149,560 for unforeseen work resulting from wind events or other emergencies.
COUNCIL MISSION / VISION / VALUE(S) ADDRESSED:
This item addresses the City Council’s Core Values of promoting and enhancing a safe and healthy community for all while providing and maintaining high quality outdoor spaces.
ATTACHMENTS:
None.
DATE:June 21, 2023
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Matt Burris, Deputy City Manager / Acting PW Services Director Jeff Benson, Parks and Landscape Superintendent
Paul Fisher, Management Analyst III
SUBJECT: Consideration of Amendment No. 6 to Contract CO 16-262 with BrightView Landscape Services for Landscape, Irrigation, and Parks Maintenance for PD-85 Parks in an Amount Not to Exceed $323,800. (CITY) RECOMMENDATION:
Staff recommends the City Council approve Amendment No. 6 to contract CO 16-262 with BrightView Landscape Services, extending the term of the contract to June 30, 2024, in an amount not to exceed $323.800, contingent upon the approval of the FY 2023/24 budget.
BACKGROUND:
On November 16, 2016, the City Council accepted the bids received for landscape services and awarded contract CO 16-262 to BrightView Landscape Services for Landscape, Irrigation, and Parks Maintenance for PD-85 Parks. Currently, all parks in PD-85 are maintained at Service Level C as defined by the contract specifications. If approved, Amendment No. 6 to contract CO 16-262 will extend the term of the contract to June 30, 2024, with an 8% rate increase. A copy of this agreement is available in the City Clerk’s Office.
ANALYSIS:
BrightView Landscape Services has submitted a Letter of Intent expressing their desire to continue providing service to the City of Rancho Cucamonga during FY 2023/24. Due to substantial increases in labor, material, and fuel costs, BrightView is requesting an 8% rate increase for FY 2023/24. BrightView Landscape Services continues to meet the service needs of the City and staff believes the requested increase is reasonable. Therefore, staff recommends the City Council approve the renewal of contract CO 16-262 effective July 1, 2023 and approve the spending limit of $323,800 for FY 2023/24.
FISCAL IMPACT:
The proposed FY 2023/24 Budget includes $294,360 in account 1848303-5300 for Landscape Maintenance in PD-85 Parks. The funding breakdown is shown in the following table:
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Account Description Amount
1848303-5300 Park Maintenance Contract – Heritage $142,500 1848303-5300 Park Maintenance Contract – Red Hill $140,860 1848303-5300 Irrigation Repairs $11,000
Total $294,360
The proposed FY 2023/24 budget includes a 10% increase for routine (cyclically scheduled) maintenance and “Extra Work” line items in the various accounts. The EAs will be adjusted accordingly in the amended budget to account for the difference between the budgeted increase and the actual increase in contract expenditures.
The contract spending limit of $323,800 includes a contingency of $29,440 for unforeseen work resulting from wind events or other emergencies.
COUNCIL MISSION / VISION / VALUE(S) ADDRESSED:
This item addresses the City Council’s Core Values of promoting and enhancing a safe and healthy community for all while providing high quality outdoor spaces.
ATTACHMENTS:
None.
DATE:June 21, 2023
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Matt Burris, Deputy City Manager / Acting PW Services Director Jeff Benson, Parks and Landscape Superintendent
Paul Fisher, Management Analyst III
SUBJECT: Consideration of Amendment No. 6 to Contract CO 17-140 with Mariposa Landscapes, Inc. for Landscape and Irrigation Maintenance on the Haven Avenue and Foothill Boulevard Medians, in an Amount Not to Exceed $297,570. (CITY)
RECOMMENDATION:
Staff recommends the City Council approve Amendment No. 6 to contract CO 17-140 with Mariposa Landscapes, Inc., extending the term of the contract to June 30, 2024, in an amount not to exceed $297,570, contingent upon the approval of the FY 2023/24 budget.
BACKGROUND:
On June 21, 2017, the City Council accepted the bids received for landscape services and awarded contract CO 17-140 to Mariposa Landscapes, Inc. for landscape and irrigation maintenance on the Haven Avenue and Foothill Boulevard Medians. The initial term of the contract was one year, with the option to renew in one (1) year increments up to a total of six (6) additional years through June 30, 2024. Included in the contract is tiered pricing for Service Levels A through C as defined in the contract specifications. Routine maintenance is currently performed at Service Level B at all sites on the Haven and Foothill medians. If approved, Amendment No. 6 to contract CO 17-140 will extend the term of the contract to June 30, 2024, with a reduction in the scope of work in-lieu of a rate increase for routine (cyclically scheduled) maintenance and a
7.5% increase to “extra work” line items. A copy of this agreement is available in the City Clerk’s Office.
ANALYSIS:
Mariposa Landscapes, Inc. has submitted a Letter of Intent expressing their desire to continue providing service to the City of Rancho Cucamonga during FY 2023/24. Due to substantial increases in the cost of providing tree maintenance services, Mariposa Landscapes, Inc. is requesting the removal of the tree trimming task component from the scope of work for routine maintenance. The reduction in scope of work is in-lieu of a rate increase for the routine maintenance portion of the contract. The tree trimming work previously done by Mariposa along the Haven and Foothill medians will be completed by the City’s tree maintenance contractor which is able to complete this work more economically. Mariposa Landscapes, Inc. continues to meet the service needs of the City and staff recommends the City Council approve the renewal of contract CO 17-140 effective July 1, 2023 and approve the spending limit of $297,570 for FY
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2023/24.
FISCAL IMPACT:
The proposed FY 2023/24 Budget includes $258,760 for landscape and irrigation maintenance on the Haven Avenue and Foothill Boulevard Medians. The funding breakdown is shown in the following table:
Account
Funding
Source Amount
1001319-5300 General Fund $38,120
1130303-5300 LMD 1 $23,480
1133303-5300 LMD 3B $149,770
1134303-5300 LMD 4R $37,590
1139303-5300 LMD 9 $9,800
Total $258,760
The proposed FY 2023/24 budget includes a 10% increase, totaling $19,920, for routine (cyclically scheduled) maintenance across the five funding sources. This amount will be transferred from object code 5300 to object code 5310 and encumbered with the City’s tree maintenance contractor who will now perform the tree maintenance work. The “Extra Work” line items such as irrigation repairs and plant material replacement, were also increased 10% in the proposed FY 2023/24 budget. The EAs will be adjusted accordingly in the amended budget to account for the difference between the budgeted increase and the actual increase in contract expenditures. The contract spending limit of $297,570 includes a contingency of $38,810 for unforeseen work resulting from wind events or other emergencies.
COUNCIL MISSION / VISION / VALUE(S) ADDRESSED:
This item addresses the City Council’s Core Values of promoting and enhancing a safe and healthy community for all while providing and maintaining high quality outdoor spaces.
ATTACHMENTS:
None.
DATE:June 21, 2023
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Matt Burris, Deputy City Manager / Acting PW Services Director Jeff Benson, Parks and Landscape Superintendent
Paul Fisher, Management Analyst III
SUBJECT: Consideration of Amendment No. 6 to Contract CO 19-187 with West Coast Arborists, Inc. for Citywide Tree Maintenance Services in an Amount Not to Exceed $1,630,660. (CITY)
RECOMMENDATION:
Staff recommends the City Council approve Amendment No. 6 to contract CO 19-187 with West Coast Arborists, Inc., extending the term of the contract to June 30, 2024, in an amount not to exceed $1,630,660.
BACKGROUND:
On December 4, 2019, the City Council awarded contract CO 19-187 to West Coast Arborists, Inc. for citywide tree maintenance services. These services include grid trimming, pruning, tree removals, stump grinding, planting, staking, pest control, fertilizing, watering, emergency response, and arborist services for City owned and maintained trees. The areas of work include LMDs, CFDs, PD85, and General Fund parkways, paseos, medians, parks, and City facilities.
This contract has an option to renew in one year increments up to a total of seven years ending on June 30, 2027. If approved, Amendment No. 6 to contract CO 19-187 will extend the term of the contract to June 30, 2024, with a 4.6% rate increase. A copy of this agreement is available in the City Clerk’s Office.
ANALYSIS:
West Coast Arborists, Inc. has submitted a Letter of Intent expressing their desire to continue providing service to the City of Rancho Cucamonga during FY 2023/24 with an 4.6% rate increase. The requested increase is equal to the change in the March Riverside-San Bernardino- Ontario Region Consumer Price Index (CPI-U).
West Coast Arborists, Inc. continues to meet the service needs of the City and staff recommends the City Council approve the renewal of contract CO 19-187 effective July 1, 2023 and approve the spending limit of $1,630,660 for FY 2023/24.
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FISCAL IMPACT:
The proposed FY 2023/24 Budget includes $1,338,880 for citywide tree maintenance services.
The funding breakdown is shown in the following table:
Account
Funding
Source Amount
1001318-5650 Streets Maintenance $50,000
1001319-5310 Parks Maintenance $414,120
1130303-5310 LMD 1 $132,670
1131303-5310 LMD 2 $284,240
1133303-5310 LMD 3B $25,980
1133320-5310 LMD 3B - Metrolink $8,500
1134303-5310 LMD 4R $106,130
1136303-5310 LMD 6R $65,310
1137303-5310 LMD 7 $78,410
1138303-5310 LMD 8 $9,000
1139303-5310 LMD 9 $56,560
1140303-5310 LMD 10 $21,090
1700312-5310 Sports Complex $37,400
1848303-5310 PD 85 $24,380
1868303-5310 CFD 2000-03 $25,000
Total $1,338,880
The contract spending limit of $1,630,660 includes a contingency of $291,780 for unforeseen work resulting from wind events or other emergencies.
COUNCIL MISSION / VISION / VALUE(S) ADDRESSED:
This item addresses the City Council’s Core Values of promoting and enhancing a safe and healthy community for all while providing and maintaining high quality outdoor spaces.
ATTACHMENTS:
None.
DATE:June 21, 2023
TO:President and Members of the Board of Directors
FROM:John R. Gillison, City Manager
INITIATED BY: Mike McCliman, Fire Chief
Darci Vogel, Fire Business Manager
Ruth Cain, Procurement Manager
SUBJECT: Consideration of Amendment No. 6 to the Professional Services Agreement with 360 Deep Cleaning Services, LLC for Janitorial Services. (FIRE)
RECOMMENDATION:
Staff recommends that the Fire Board approve amendment No. 006 to the Professional Services Agreement, FD 2020-005, with 360 Deep Cleaning Services, LLC for janitorial services and enhanced disinfecting and surface sterilization services. This will amend the term of the Agreement to a month-to-month basis pending the award of a new janitorial contract.
BACKGROUND:
In response to the COVID-19 pandemic, the Fire District identified the need for enhanced cleaning, sterilization, and decontamination services in order to mitigate the spread of the virus in fire stations and other facilities where first responders are housed or congregate in the performance of their duties. Enhanced measures include aerosolized fogging decontamination of large surface areas and additional cleaning of likely surface exposure areas in frequent contact by Fire District personnel and visitors.
On July 1, 2020, the Fire District and 360 Deep Cleaning Services entered into a Professional Services Agreement (PSA), FD 2020-005, for janitorial services and enhanced disinfecting and surface sterilization services. The Fire District amended the contract four times to incrementally increase the total compensation from $19,999 to $100,000 in order to ensure the safety Fire District personnel and visitors of services during the COVID-19 pandemic.
On October 20, 2021, the Fire Board approved amendment No. 005, which increased the total contract amount from $100,000 to $300,000 through June 30, 2023, and approved 360 Deep Cleaning Services as a single source vendor. This reduced the risk factors associated with procuring new janitorial and cleaning services during the still active pandemic and ensured there were no gaps in service that could compromise the safety and well-being of Fire District personnel.
ANALYSIS:
Fire District staff provided detailed specifications for janitorial services to the Procurement Division. Formal Request for Proposal (RFP) #22/23-011 was prepared and posted on April 20, 2023 to PlanetBids, the City’s automated procurement system. Janitorial vendors submitted their proposals on June 12, 2023. Evaluation of these proposals is currently underway with an
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expected completion date in mid-July. Once the evaluation process is complete, Staff will bring the new janitorial contract to the Fire Board for approval.
Pending the award of a new janitorial contract, Staff recommends that the Fire Board approve amendment No. 006 to PSA FD 2020-005 with 360 Deep Cleaning Services, to amend the term of the Agreement to a month-to-month basis. Amending the term will ensure there are no gaps in service while staff completes the evaluation process and a new janitorial contract is awarded, as well as the potential transition to a new janitorial vendor.
FISCAL IMPACT:
Janitorial services are allocated in the Fire Fund under account 3281529-5304 (Fire Facilities Maintenance). Sufficient funding is available for this contract amendment.
COUNCIL MISSION / VISION / GOAL(S) ADDRESSED:
This item brings together portions of the City Council / Fire Board’s vision and core value by providing a sustainable City and promoting a safe and healthy community for all. This is accomplished by providing janitorial services and enhanced disinfecting and surface sterilization services in fire stations and other facilities where first responders are housed or congregate in the performance of their duties.
ATTACHMENTS:
None
DATE:June 21, 2023
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Matt Burris, Deputy City Manager / Acting PW Services Director Jeff Benson, Parks and Landscape Superintendent
Paul Fisher, Management Analyst III
SUBJECT: Consideration of Amendment No. 7 to Contract CO 16-148 with BrightView Landscape Services for Landscape, Irrigation, and Parks Maintenance for Landscape Maintenance District 1 Parks in an Amount Not to Exceed $353,620. (CITY)
RECOMMENDATION:
Staff recommends the City Council approve Amendment No. 7 to contract CO 16-148 with BrightView Landscape Services, extending the term of the contract to June 30, 2024, in an amount not to exceed $353,620, contingent upon the approval of the FY 2023/24 budget.
BACKGROUND:
On June 15, 2016, the City Council accepted the bids received for “Landscape, Irrigation, and Parks Maintenance for Landscape Maintenance District 1 Parks” and awarded contract CO 16- 148 to BrightView Landscape Services for the complete maintenance of parks located in Landscape Maintenance District 1 (LMD-1). Currently, all parks in LMD 1 are maintained at Service Level C as defined by the contract specifications. If approved, Amendment No. 7 to contract CO 16-148 extends the term of the contract to June 30, 2024, with an 8% rate increase.
A copy of this agreement is available in the City Clerk’s Office.
ANALYSIS:
BrightView Landscape Services has submitted a Letter of Intent expressing their desire to continue providing service to the City of Rancho Cucamonga during FY 2023/24. Due to substantial increases in labor, material, and fuel costs, BrightView is requesting an 8% rate increase for FY 2023/24. BrightView Landscape Services continues to meet the service needs of the City and staff believes the requested increase is reasonable. Therefore, staff recommends the City Council approve the renewal of contract CO 16-148 effective July 1, 2023 and approve the spending limit of $353,620 for FY 2023/24.
FISCAL IMPACT:
The proposed FY 2023/24 Budget includes $321,470 in account 1130303-5300 for Landscape Maintenance in LMD 1 Parks. The funding breakdown is shown in the following table:
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Account Description Amount
1130303-5300
Landscape
Maintenance/Parks $311,470
1130303-5300 Parks Field Renovations $10,000
Total $321,470
The proposed FY 2023/24 budget includes a 10% increase for routine (cyclically scheduled) maintenance and “Extra Work” line items in the various accounts. The EAs will be adjusted accordingly in the amended budget to account for the difference between the budgeted increase and the actual increase in contract expenditures.
The contract spending limit of $353,620 includes a contingency of $32,150 for unforeseen work resulting from wind events or other emergencies.
COUNCIL MISSION / VISION / VALUE(S) ADDRESSED:
This item addresses the City Council’s Core Values of promoting and enhancing a safe and healthy community for all while providing high quality outdoor spaces.
ATTACHMENTS:
None.
DATE:June 21, 2023
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Matt Burris, Deputy City Manager / Acting PW Services Director Jeff Benson, Parks and Landscape Superintendent
Paul Fisher, Management Analyst III
SUBJECT: Consideration of Amendment No. 7 to Contract CO 17-142 with Mariposa Landscapes, Inc. for Landscape and Irrigation Maintenance for General Fund and LMD 3B Parkways and Medians, in an Amount Not to Exceed $925,010. (CITY)
RECOMMENDATION:
Staff recommends the City Council approve Amendment No. 7 to contract CO 17-142 with Mariposa Landscapes, Inc., extending the term of the contract to June 30, 2024, in an amount not to exceed $925,010, contingent upon the approval of the FY 2023/24 budget.
BACKGROUND:
On June 21, 2017, the City Council accepted the bids received for landscape services and awarded contract CO 17-140 to Mariposa Landscapes, Inc. for landscape and irrigation maintenance for general fund and LMD 3B parkways and medians. The initial term of the contract was one year, with the option to renew in one (1) year increments up to a total of six (6) additional years through June 30, 2024. Currently all sites on general fund and LMD 3B parkways and medians are maintained at Service Level B. If approved, Amendment No. 7 to contract CO 17- 142 will extend the term of the contract to June 30, 2024, with a 7.5% rate increase for routine (cyclically scheduled) maintenance and “extra work” line items. A copy of this agreement is available in the City Clerk’s Office.
ANALYSIS:
Mariposa Landscapes, Inc. has submitted a Letter of Intent expressing their desire to continue providing service to the City of Rancho Cucamonga during FY 2022/23. Mariposa Landscapes, Inc. is requesting an 7.5% rate increase for routine (cyclically scheduled) maintenance and “extra work” line items to cover increases in labor, material, and fuel costs.
Mariposa Landscapes, Inc. continues to meet the service needs of the City and staff recommends the City Council approve the renewal of contract CO 17-142 effective July 1, 2023 and approve the spending limit of $925,010 for FY 2023/24.
FISCAL IMPACT:
The proposed FY 2023/24 Budget includes $749,360 for landscape and irrigation maintenance for general fund and LMD 3B parkways and medians. In addition, the proposed budget includes
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an additional $55,000 for parkway weed abatement in non-landscaped areas which may be used on various contracts as needed. The funding breakdown is shown in the following table:
Account
Funding
Source Amount
1001318-5300
General Fund – Streets
Maintenance $55,000
1001319-5300 General Fund – Parks Maintenance $574,370
1133303-5300 LMD 3B - Medians $174,990
Total $804,360
The proposed FY 2023/24 budget includes a 10% increase for routine (cyclically scheduled) maintenance and “Extra Work” line items in accounts 1001319-5300 and 1133303-5300. The EAs will be adjusted accordingly in the amended budget to account for the difference between the budgeted increase and the actual increase in contract expenditures.
The contract spending limit of $925,010 includes a contingency of $120,650 for unforeseen work resulting from wind events or other emergencies.
COUNCIL MISSION / VISION / VALUE(S) ADDRESSED:
This item addresses the City Council’s Core Values of promoting and enhancing a safe and healthy community for all while providing and maintaining high quality outdoor spaces.
ATTACHMENTS:
None.
DATE:June 21, 2023
TO:Mayor and Members of the City Council
President and Members of the Boards of Directors
FROM:John R. Gillison, City Manager
INITIATED BY: Matt Burris, Deputy City Manager / Acting PW Services Director Mike McCliman, Fire Chief
Jeff Benson, Parks and Landscape Superintendent
SUBJECT: Consideration of Amendment No. 8 to Contract CO 17-143 with Mariposa Landscapes, Inc. for Park Mowing and Facility Landscape Maintenance in an Amount Not to Exceed $943,540 ($857,290 [City] and $86,250 [Fire]). (CITY/FIRE)
RECOMMENDATION:
Staff recommends the City Council/Board of Directors approve Amendment No. 8 to contract CO 17-143 with Mariposa Landscapes, Inc., extending the term of the contract to June 30, 2024, in an amount not to exceed $943,540 ($857,290 for City Facilities and $86,250 for Fire Facilities), contingent upon the approval of the FY 2023/24 budget.
BACKGROUND:
On June 21, 2017, the City Council accepted the bids received for park mowing and facility landscape maintenance, and awarded contract CO 17-143 to Mariposa Landscapes, Inc. The initial term of the contract was one year, with the option to renew in one (1) year increments up to a total of six (6) additional years through June 30, 2024. Currently all parks and landscapes are maintained at Service Level A. If approved, Amendment No. 8 to contract CO 17-143 will extend the term of the contract to June 30, 2024, with a 7.5% rate increase for routine (cyclically scheduled) maintenance and “extra work” line items. A copy of this agreement is available in the City Clerk’s Office.
ANALYSIS:
Mariposa Landscapes, Inc. has submitted a Letter of Intent expressing their desire to continue providing service to the City of Rancho Cucamonga during FY 2023/24. Mariposa Landscapes, Inc. is requesting an 7.5% rate increase for routine (cyclically scheduled) maintenance and “extra work” line items to cover increases in labor, material, and fuel costs.
Mariposa Landscapes, Inc. continues to meet the service needs of the City and staff recommends the City Council approve the renewal of contract CO 17-143 effective July 1, 2023 and approve the spending limit of $943,540 ($857,290 for City Facilities and $86,250 for Fire Facilities) for FY 2023/2024.
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FISCAL IMPACT:
The proposed FY 2023/24 Budget includes $820,470 for park mowing and facility landscape maintenance in various general and special funds. The funding breakdown is shown in the following table:
Account
Funding
Source Amount
1001318-5300 Streets Maintenance $55,000
1001319-5300 Parks Maintenance $290,380
1131303-5300 LMD 2 $115,700
1133320-5300 LMD 3B (Metrolink) $53,330
1134303-5300 LMD 4R $91,110
1137303-5300 LMD 7 $24,140
1139303-5300 LMD 9 $30,210
1140303-5300 LMD 10 $11,500
1868203-5300 CFD 2000-03 $74,100
3281529-5300 Fire Facilities $75,000
Total $820,470
The proposed FY 2023/24 budget includes a 10% increase for routine (cyclically scheduled) maintenance and “Extra Work” line items in the various accounts. The EAs will be adjusted accordingly in the amended budget to account for the difference between the budgeted increase and the actual increase in contract expenditures. The contract spending limit of $943,540 includes a contingency of $123,070 for unforeseen work resulting from wind events or other emergencies.
COUNCIL MISSION / VISION / GOAL(S) ADDRESSED:
This item addresses the City Council’s Core Values of promoting and enhancing a safe and healthy community for all while providing and maintaining high quality outdoor spaces.
ATTACHMENTS:
None.
DATE:June 21, 2023
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Matt Burris, Deputy City Manager / Acting PW Services Director Jeff Benson, Parks and Landscape Superintendent
Paul Fisher, Management Analyst III
SUBJECT: Consideration of Amendment No. 13 to Contract CO 2012-009 with BrightView Landscape Services for Maintenance of Parkway, Paseo, and Median Landscapes within Landscape Maintenance Districts 1 and 5 in an Amount Not to Exceed $300,720. (CITY)
RECOMMENDATION:
Staff recommends the City Council approve Amendment No. 13 to contract CO 2012-009 with BrightView Landscape Services, extending the term of the contract to June 30, 2024, in an amount not to exceed $300,720, contingent upon the approval of the FY 2023/24 budget.
BACKGROUND:
On March 21, 2012, the City Council accepted the bids received and awarded contract CO 2012- 009 to BrightView Landscape Services for the maintenance of landscape and irrigation within Landscape Maintenance Districts 1, 2, 4R, and 5. This contract, as amended, had an option to renew in one-year increments.
On June 19, 2019, the City Council approved a one-year extension to allow time to re-bid these services. RFP 19/20-011 (LMDs 1 and 5), RFP 19/20-012 (LMD 2) and RFP 19/20-013 (LMD 4R) were posted to the City’s automated procurement system and proposals were received on September 19, 2019. RFP 19/20-012 and RFP 19/20-013 were successful and new contracts were awarded by Council on April 1, 2020 for landscape maintenance in LMDs 2 and 4R.
Unfortunately, following the evaluation of the written proposals and vendor interviews, it was determined the proposals received for LMDs 1 and 5 did not meet the needs of the City.
In order to provide continuity of services in LMDs 1 and 5, it is necessary to extend the term of contract CO 2012-009 an additional year. Contract No. CO 2012-009 provides tiered pricing for Service Levels A through C as defined in the contract specifications. Currently, the landscape site in LMD 5 is maintained at Service Level A and LMD 1 sites are maintained at Service Level C. If approved, Amendment No. 13 to contract CO 2012-009 will amend the contract to extend the term an additional year to June 30, 2024, with an 8% rate increase. A copy of this agreement is available in the City Clerk’s Office.
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ANALYSIS:
BrightView Landscape Services has submitted a Letter of Intent expressing their desire to continue providing service to the City of Rancho Cucamonga during FY 2023/24. Due to substantial increases in labor, material, and fuel costs, BrightView is requesting an 8% rate increase for FY 2023/24. BrightView Landscape Services continues to meet the service needs of the City and staff believes the requested increase is reasonable. Therefore, staff recommends the City Council approve the renewal of contract CO 2012-009 effective July 1, 2023 and approve the spending limit of $300,720 for FY 2023/24.
FISCAL IMPACT:
The proposed FY 2023/24 Budget includes $273,380 for parkway, paseo, and median island landscape maintenance in LMDs 1 and 5. The funding breakdown is shown in the following table:
Account
Funding
Source Amount
1130303-5300 LMD 1 $272,330
1135303-5300 LMD 5 $1,050
Total $273,380
The contract spending limit of $300,720 includes a 10% contingency of $27,340 for unforeseen work resulting from wind events or other emergencies.
COUNCIL MISSION / VISION / VALUE(S) ADDRESSED:
This item addresses the City Council’s Core Values of promoting and enhancing a safe and healthy community for all while providing high quality outdoor spaces.
ATTACHMENTS:
None.
DATE:June 21, 2023
TO:Mayor and Members of the City Council
President and Members of the Boards of Directors
FROM:John R. Gillison, City Manager
INITIATED BY: Mike McCliman, Fire Chief
Augie Barreda, Deputy Fire Chief
Joseph Ramos, Emergency Management Coordinator
SUBJECT: Consideration to Accept the Emergency Management Performance Grant Revenue in the Amount of $35,016, Awarded by the California Office of Emergency Services and Administered by the San Bernardino County Fire Department, Office of Emergency Services for Fiscal Year 2022. (CITY/FIRE)
RECOMMENDATION:
Staff recommends the City Council / Fire Board accept grant revenue in the amount of $35,016 awarded by the California’s Governor’s Office of Emergency Services and administered by the San Bernardino County Fire Department, Office of Emergency Services under Fiscal Year (FY) 2022 Emergency Management Performance Grant (EMPG). The grant funding will be used for personnel costs within the Emergency Management Division.
BACKGROUND:
The EMPG FY 2022 funding is a non-competitive grant designated for each of the twenty-four cities and towns within the County as members of the Operation Area (OA). Each jurisdiction is allocated a $10,000 base, with the remainder of the grant distributed on a per capita basis to each eligible jurisdiction. Funds must be used to support local emergency management program activities that contribute to the State’s Goals and Objectives, and the County’s OA’s capability to prevent, prepare for, mitigate against, respond to, and recover from emergencies and disasters, whether natural or man-made. Although the allocation may vary each year, the City receives this funding annually.
ANALYSIS:
The City of Rancho Cucamonga will continue to use these funds to assist with the implementation and execution of the Fire District’s overall Emergency Management programs. This includes the coordination and development of the Auxiliary Communication Services (ACS) for ham radio operators and Community Emergency Response Team (CERT) programs. Also included are staff training programs such as the Accountability Officer, Emergency Operations Center, and WebEOC training. These programs fall in line with the goals and objectives of the State and County to increase the disaster resiliency in the City through education and awareness of natural and man-made disasters in our community.
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FISCAL IMPACT:
Grant revenue will be received into account number 1383000-4740 (Emergency Management Performance Grant Income). Up to $35,016 of grant revenue will be utilized to offset personnel costs within the Fire District’s Emergency Management Division in account number 3281503- 5000 (Regular Salaries).
COUNCIL MISSION / VISION / GOAL(S) ADDRESSED:
This item brings together portions of the Council’s vision and core value by providing a sustainable City and promoting a safe and healthy community for all. This is accomplished by ensuring our Emergency Management Division has the resources and tools necessary to provide City and Fire District staff, as well as community members, with the skill set needed to manage a disaster of any size.
ATTACHMENTS:
N/A
DATE:June 21, 2023
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Matt Burris, Deputy City Manager/ Acting PW Services Director Jeff Benson, Parks and Landscape Superintendent
Kenneth Fung, Associate Engineer
SUBJECT: Consideration to Accept the LMD-2 Victoria – Water Conservation/Landscape Renovation FY 20-21 Project as Complete (Contract No. 2021-022), File the Notice of Completion, and Authorize Release of Retention and Bonds. (CITY)
RECOMMENDATION:
Staff recommends the City Council:
1. Accept the LMD-2 Victoria – Water Conservation / Landscape Renovation FY 20-21 Project, Contract No. 2021-022, as complete.
2. Approve the final contract amount of $667,040.82.
3. Authorize the release of the Faithful Performance Bond and acceptance of Maintenance Bond.
4. Authorize the release of the Labor and Materials Bond in the amount of $633,810.00, six months after the recordation of said notice if no claims have been received.
5. Authorize the Public Works Services Director to file a Notice of Completion and release of the retention in the amount of $33,352.03, 35 days after acceptance.
BACKGROUND:
The LMD-2 Victoria – Water Conservation / Landscape Renovation FY 20-21 Project scope of work consisted of the removal and replacement of the existing trees, landscaping, hardscaping, irrigation systems and other related items of work along Kenyon Way from Lark Drive to Victoria Park Lane and along Lark Drive from Kenyon Way to Rochester Avenue. Pertinent information of the project is as follows:
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Budgeted Amount: $698,000.00
Publish Dates for Local Paper: November 3, 2020 and November 10, 2020 Bid Opening: December 15, 2020
Contract Award Date: March 3, 2021
Low Bidder: Southern California Landscape, Inc.
Contract Amount: $633,810.00
Contingency: $64,190.00
Final Contract Amount: $667,040.82
Difference in Contract Amount: $33,230.82 (5.2 %)
ANALYSIS:
The subject project has been completed in accordance with the approved plans and specifications and to the satisfaction of the Public Works Services Director.
The net increase in the total cost of the project is a result of five (5) Contract Change Orders (CCO). Among the additional work was the installation of sleeves under the cobble hardscape for controller wires, extending the project work into side street corners, additional mulch and soil amendments and the removal and replacement of additional tree root damaged sections of concrete panels.
At the end of the one-year maintenance period, if the improvements remain free from defects in materials and workmanship, the City Clerk is authorized to release the Maintenance Bond upon approval by the Public Works Services Director.
FISCAL IMPACT:
The Fiscal Year 2020/2021 adopted budget for this project was $400,000.00 to be funded from account number 1131303-5650 (LMD-2). An additional $298,000.00 was appropriated from LMD-2 fund balance to award this project and to have a contingency.
COUNCIL MISSION / VISION / VALUE(S) ADDRESSED:
This project addresses the City Council core value of providing and nurturing a high quality of life for residents along Kenyon Way and Lark Drive while preserving the affected neighborhoods’ family-oriented atmosphere.
ATTACHMENTS:
Attachment 1 – Notice of Completion
DATE:June 21, 2023
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Jason C. Welday, Director of Engineering Services/City Engineer Frank A. Lopez, Principal Engineer/Assistant City Engineer Romeo M. David, Associate Engineer
SUBJECT: Consideration to Accept as Complete, File the Notice of Completion and Authorize Release of Retention and Bonds for the Fiscal Year 2022/23 Local Slurry Seal Pavement Rehabilitation Project (Contract No. 2022- 144). (CITY)
RECOMMENDATION:
Staff recommends that the City Council:
1. Accept the Fiscal Year 2022/23 Local Slurry Seal Pavement Rehabilitation, Contract No. 2022-144 (Project), as complete;
2. Approve the final contract amount of $381,221;
3. Authorize the release of the Faithful Performance Bond 35 days after recordation of Notice of Completion and accept a Maintenance Guarantee Bond;
4. Authorize the release of the Labor and Materials Bond in the amount of $381,221, six months after the recordation of said notice if no claims have been received;
5. Authorize the City Engineer to file a Notice of Completion and release of the project retention, 35 days after recordation of Notice of Completion; and
6. Authorize the City Engineer to approve the release of the Maintenance Bond one year following the filing of the Notice of Completion if the improvements remain free from defects in material and workmanship.
BACKGROUND:
On November 16, 2022, the City Council awarded a construction contract to Doug Martin Contracting, Co, Inc., in the amount of $381,221 plus 10% contingency in the amount of $38,122 for the construction of the Project. A vicinity map illustrating the various neighborhood streets that received slurry seal is included as Attachment 1. A copy of the November 16, 2022 City Council Staff Report is on file with the City Clerk. The scope of work consisted of weed kill, routing and crack sealing, application of slurry seal, protecting existing utilities, installation of pavement markers and thermoplastic striping and related items of work per plans.
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ANALYSIS:
The subject project has been completed in accordance with the approved plans and specifications and to the satisfaction of the City Engineer.
There were no contract change orders issued for the project. Further, a final balancing statement is not required as there were no changes in the final contract quantities placed or constructed during the contract.
At the end of the one-year maintenance period, if the improvements remain free from defects in materials and workmanship, the City Clerk will release the Maintenance Bond upon approval by the City Engineer.
FISCAL IMPACT:
A total of $505,000 was budgeted in Fiscal Year 2022/23 from Gas Tax R&T7360 (Fund 174), which is identified under Capital Improvement Project Account No. and in the amount listed below.
Account No. Funding Source Description Amount
11743035650/1022174-0 Gas Tax R&T7360
Fund (174)
Local Street Rehab $505,000
Total Project Funding $505,000
The final project cost is $453,925 as shown below:
Expenditure Amount
Final Construction Contract $381,221
Construction Inspection Services $40,016
Construction Materials Testing $31,150
Bid Noticing Advertisement $1,538
Total Project Cost = $453,925
A total of $51,075 is remaining in the budget for this project and will be returned to the Gas tax R&T7360 (Fund 174) fund balance to be used for future capital improvement projects.
COUNCIL MISSION / VISION / VALUE(S) ADDRESSED:
This project meets our City Council core values by promoting and enhancing a safe and healthy community for all, and by providing continuous improvement through the construction of high- quality public improvements.
ATTACHMENTS:
Attachment 1 - Vicinity Map
ATTACHMENT 1
PROJECT# 800‐2022‐02
FY 2022/23 LOCAL SLURRY SEAL PAVEMENT REHABILITATIONS
VICINITY MAP
NOT TO SCALE
Project Site
DATE:June 21, 2023
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Jason C. Welday, Director of Engineering Services/City Engineer Frank A. Lopez, Principal Civil Engineer/Assistant City Engineer Romeo David, Associate Engineer
Cesar Guevara, Associate Engineer
SUBJECT: Consideration of the Fiscal Year 2022/23 Major Arterial Program, Award of Contracts with Sequel Contractors, Inc. Totaling $2,467,373 for the Lemon Avenue Pavement Rehabilitation Project and the Banyan Street Pavement Rehabilitation Project, Authorization of a 10% Contingency for Both Contracts, Rejection of Bids for the Hermosa Avenue Pavement Rehabilitation Project, Cancellation of the Base Line Road Pavement Rehabilitation Project, and Appropriation of Funds in the Amount of $1,247,100 From the Road Maintenance & Rehabilitation Fund (Fund 179) and the Measure I Fund (Fund 177). These Projects are exempt from the requirements of the California Environmental Quality Act (CEQA) per 14 CCR 15301 – Existing Facilities. (CITY)
RECOMMENDATION:
Staff recommends that the City Council:
1. Approve the plans and specifications for the Lemon Avenue Pavement Rehabilitation Project (Lemon Avenue Project) and the Banyan Street Pavement Rehabilitation Project (Banyan Street Project) on file in the Office of the City Engineer;
2. Accept the bids received for the Lemon Avenue Project and Banyan Street Project;
3. Reject the bids received for the Hermosa Avenue Pavement Rehabilitation Project (Hermosa Avenue Project);
4. Cancel the Base Line Road Pavement Rehabilitation Project (Base Line Road Project);
5. Award and authorize the execution of a contract for the Lemon Avenue Project in the Base Bid Amount of $738,285, to the lowest responsive bidder, Sequel Contractors, Inc. (Sequel);
6. Authorize the Director of Engineering Services or his designee to approve the expenditure of a 10% contingency for the Lemon Avenue Project in the amount of $73,830;
7. Award and authorize the execution of a contract for the Banyan Street Project in the Total Bid Amount of $1,729,088, to the lowest responsive bidder, Sequel; reject bid protest;
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8. Authorize the Director of Engineering Services or his designee to approve the expenditure of a 10% contingency for the Banyan Street Project in the amount of $173,000; and
9. Authorize appropriations from fund balances in the amount of $321,350 from the Measure I Fund (Fund 177) and $925,750 from the Road Maintenance & Rehabilitation Fund (Fund 179).
BACKGROUND:
As part of the annual budgeting process, the Engineering Services Department identifies major arterials in need of resurfacing for inclusion in the Five-Year Capital Improvement Program and annual City Budget. The selection process for the Major Arterials Program is based on data included in the City’s Pavement Management System (PMS). The PMS is a planning tool that analyzes existing pavement conditions, assigns a Pavement Condition Index, and provides a recommended pavement treatment. Typical treatments used by the City include slurry seals, pavement resurfacing, and full pavement reconstruction. After conducting field investigations, staff confirms the data and recommendations obtained from the PMS and prepares plans, specifications, and estimates for each planned project prior to requesting bids.
The existing asphalt pavement conditions for the four streets listed below (see Vicinity Map in Attachment 1) were confirmed to have deteriorated to the point that resurfacing is required to extend the life of the pavement and improve rideability and were included in the Five-Year Capital Improvement Program and Fiscal Year 2022/23 Budget for the Major Arterial Program. •Lemon Avenue from Haven Avenue to Marbella Drive (Lemon Avenue Project) •Banyan Street from Haven Avenue to Rochester Avenue (Banyan Street Project) •Hermosa Avenue from Wilson Avenue to the North City Limits (Hermosa Avenue Project) •Base Line Road from Day Creek Boulevard to Forester Place (Base Line Road Project) In general, the rehabilitation treatment for streets such as those listed above involves the use of an asphalt rubber hot mix overlay to apply a new layer of asphalt to the roadway surface thus utilizing the existing pavement as a base for the new overlay. This approach is intended to not only extend the life of the pavement by 15 to 20 years, but also has the added benefit of recycling used rubber tires diverting them from the landfill.
ANALYSIS:
Design of the four projects in the Fiscal Year 2022/23 Major Arterial Program has been completed and the projects were prepared to advertise for bids. Upon receipt of bids for the first project, the Hermosa Avenue Project, staff determined that there were inadequate funds available in the authorized budget to fully fund the construction and construction management costs for the project. It was also understood that this increase in project costs would extend to the remaining projects in the program. Analysis of the budgeted and estimated total program costs, including design and construction phases indicates that the funding gap is due to a number of factors including: (1) the need to utilize on-call engineering firms for design services to meet project deadlines; (2) the expansion of the limits for the Banyan Street Project beyond those initially anticipated during initial project planning; (3) the incorporation of active transportation improvements on Lemon Avenue to improve safety at two crosswalks used by children walking to school; and (4) significant increases in construction prices since the original budget level estimates were developed. Given the scale of this gap, funding the shortfall for all four projects from fund balance would not be fiscally prudent. Therefore, staff re-evaluated each project with a goal of focusing available funding on the highest priority projects while minimizing impact to the City’s fund balances for Gas Tax, Measure I, and the Road Maintenance & Rehabilitation Funds.
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While the recommended actions would mean deferring two of the projects, this approach seeks to ensure that funds are available in future years to sustain the larger pavement management program.
Lemon Avenue Project
The Lemon Avenue Project consists of resurfacing Lemon Avenue from Haven Avenue to Marbella Drive with an asphalt rubber hot mix overlay and associated work as described in the bid documents. The contract documents call for forty (40) working days to complete this project.
Bids have been received for this project and as stated above, staff is recommending award of this project.
A Notice Inviting Bids for the Lemon Avenue Project was released to the general contracting community and published in the Daily Bulletin on May 16, and May 23, 2023. The City Clerk’s Office facilitated the formal solicitation of bids for the project. On March 30, 2023, the City Clerk’s Office received six (6) construction bids. The Engineer’s estimate for the Project was $800,000.
The apparent low bidder, Sequel, submitted a bid that totaled $738,285 for the Base Bid Amount.
A full bid summary is included as Attachment 2. Staff has reviewed all bids received and found them complete and in accordance with the bid requirements with any irregularities being inconsequential. Further, staff has completed the required background investigation and finds the lowest responsive bidder, Sequel, meets the requirements of the bid documents.
Banyan Street Project
The Banyan Street Project consists of resurfacing Banyan Street from Haven Avenue to Rochester Avenue with an asphalt rubber hot mix overlay and associated work as described in the bid documents. The contract documents call for sixty (60) working days to complete this project. Bids have been received for this project and as stated above, staff is recommending award of this project.
A Notice Inviting Bids for the Banyan Street Project was released to the general contracting community and published in the Daily Bulletin on May 16, and May 23, 2023. The City Clerk’s Office facilitated the formal solicitation of bids for the project. On May 30, 2023, the City Clerk’s Office received six (6) construction bids. The Engineer’s estimate for the Project was $1,900,000.
The apparent low bidder, Sequel, submitted a bid in the amount of $1,729,088. A full bid summary is included as Attachment 3. Staff has reviewed all bids received and found them complete and in accordance with the bid requirements with any irregularities being inconsequential. Further, staff has completed the required background investigation and finds the lowest responsive bidder, Sequel, meets the requirements of the bid documents.
Appeal of Award of Contract
On June 6, 2023, the City received a letter from R.J. Noble Co. (RJNC) through its legal counsel serving as a Notice of Appeal of the award of a contract to Sequel. A copy of the letter without enclosures is provided here as Attachment 4 (an unabridged copy is on file with the City Clerk).
The letter requests an appeal of an award of a contract to Sequel based on Section 17.14.070 of the Rancho Cucamonga Municipal Code and RJNC’s belief that Sequel’s bid was incomplete, and award of a contract constitutes granting an advantage over other bidders. While the referenced municipal code section only applies to development applications and not the award of construction contracts, staff believes that the intent of the letter is to protest the award of a contract to Sequel for the project. The City does not have a formal bid protest procedure for construction contracts; however, a response letter was provided to RJNC on June 12, 2023 (Attachment 5).
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According to the letter, RJNC asserts that Sequel failed to include the required Certification of IMSA Traffic Signal Senior Field Technician Level III (Level III Technician) with its bid and thus should be disqualified from the bidding process as non-responsive. In reviewing the bids, staff did note that the certificate for the Level III Technician was not included in the bid package. However, as acknowledged by RJNC in the letter, the bid—including the acknowledgement of the requirements to employee a Level III Technician for specified work and to maintain the required certification throughout the project—was signed by Sequel’s president. Sequel submitted the required certification on May 30, 2023. Staff reviewed the certificate and determined that it was valid at the time of bid in conformance with the requirements of the contract documents. Further, the late submittal of the certificate did not grant an advantage to Sequel in that the requirement to utilize a Level III Technician was able to be met by Sequel at the time of the bid opening. Finally, no financial advantage was conferred by the late submittal as the bid price remains unaltered and Sequel will be contractually obligated to satisfy the requirements of the contract documents.
Therefore, staff believes this to be a minor irregularity similar to a bidder inadvertently forgetting to check a box or sign a form when the remainder of the bid is properly submitted and provides the necessary information to exhibit the ability and commitment of the contractor to perform the work at the price being bid. Thus, the irregularity should be waived.
Hermosa Avenue Project
The Hermosa Avenue Project consists of resurfacing Hermosa Avenue from Wilson Avenue to the North City Limit with asphalt rubber hot mix overlay and associated work as described in the bid documents. A Notice Inviting Bids for the Hermosa Avenue Project was released to the general contracting community and was published in the Daily Bulletin on April 25, and May 2, 2023. The City Clerk’s Office facilitated the formal bid solicitation for the Project. On May 9, 2023, the City Clerk’s office received eight (8) construction bids. The Engineer’s estimate was $610,000. The apparent low bidder RJNC submitted a bid that totaled $639,159 all inclusive. While bids have been received for this project, staff’s analysis described above ranked the Lemon Avenue and Banyan Street Projects as a higher priority with respect to current pavement condition and volume of traffic served. Therefore, staff is recommending rejection of all bids for this project as being in the best financial interest of the City at this time. This project will be re-evaluated for inclusion in the Major Arterial Program in a future fiscal year.
Base Line Road Project
The Base Line Road Project consists of resurfacing of Base Line Road from Day Creek Boulevard to Forester Place with asphalt rubber hot mix overlay and associated work as described in the bid documents. A Notice Inviting Bids for the Base Line Road Project was released to the general contracting community and was published in the Daily Bulletin on May 9, and May 16, 2023.
However, prior to receiving bids, staff’s analysis had ranked this project below the Lemon Avenue and Banyan Street Projects in priority and thus staff issued an addendum on May 16, 2023, cancelling the invitation for bid on this project. While no bids were received, the construction contract for the Base Line Road Project has been estimated at approximately $1.9 Million.
Construction Inspection and Materials Testing Services
In order to ensure the materials and final work product meet or exceed the City’s plans and specifications, and that the requirements of State law are met in relation to preservation of survey monuments, materials testing, inspection, and survey services will be provided by outside consultants per separate on-call agreements.
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ENVIRONMENTAL:
Staff has determined that the projects listed above are Categorically Exempt from CEQA per 14 CCR 15301 “Existing Facilities” subsection (c), Class 1.
FISCAL IMPACT:
Based on the latest available data—including bids and cost estimates—the total estimated remaining cost for the Fiscal Year 2022/23 Major Arterial Program consisting of all four previously planned projects is $6,059,640 and is broken down as follows:
Project Estimated
Remaining Cost
Lemon Avenue Project $949,030
Banyan Street Project $2,200,000
Hermosa Avenue Project $760,610
Base Line Road Project $2,150,000
Estimated Project Construction Costs $6,059,640
Funding available in the Fiscal Year 2022/23 Budget for the Major Arterial Program after design and advertising costs expended to date is $2,897,860, leaving a $3,161,780 funding shortfall which is necessitating the reduction in projects recommended as part of this staff report.
Account No. Funding Source Project Amount
11773035650/2098177-0 Measure I
(Fund 177)
Lemon Avenue
Project
$553,970
11773035650/2033177-0 Measure I
(Fund 177)
Banyan Street
Project
$360,000
11793035650/2033179-0 RMRA
(Fund 179)
Banyan Street
Project
$700,000
11743035650/2099174-0 Gas Tax
(Fund 174)
Hermosa Avenue
Project
$517,530
11793035650/2097179-0 RMRA
(Fund 179)
Base Line Road
Project
$766,360
Total Program Funding Available $2,897,860
Rejection of the bids for the Hermosa Avenue Project and cancellation of the Base Line Road Project will return $1.28 Million budgeted for these projects to the respective fund balance for use on the remaining and future projects.
Lemon Avenue Project Fiscal Impact
Anticipated construction costs for the Lemon Avenue Project are estimated to be as follows:
Expenditure Category Amount
Construction Contract $738,285
Construction Contract Contingency (10%) $73,830
Construction Inspection Services $44,480
Construction Materials Services $17,060
Bid Noticing Advertisement $1,660
Estimated Project Construction Costs $875,315
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The proposed funding plan for the Lemon Avenue Project, including an appropriation request in the amount of $321,350 from the Measure I Fund (Fund 177) is as follows:
Account No. Funding Source Project Amount
11773035650/2098177-0 Measure I
(Fund 177)
Lemon Avenue
Project
$553,970
Appropriation Request
11773035650/2098177-0
Measure I
(Fund 177)
Lemon Avenue
Project
$321,350
Proposed Project Funding – Lemon Avenue Project $875,320 Sufficient funds are currently available in the Measure I Fund to cover the requested appropriation.
Banyan Street Project Fiscal Impact
Anticipated construction costs for the Banyan Street Project are estimated to be as follows:
Expenditure Category Amount
Construction Contract $1,729,090
Construction Contract Contingency (10%) $173,000
Construction Inspection Services $56,000
Construction Materials Services $25,990
Bid Noticing Advertisement $1,640
Estimated Project Construction Costs $1,985,720
The proposed funding plan for the Banyan Street Project, including an appropriation request in the amount of $925,750 from the Road Maintenance and Rehabilitation Fund (Fund 179) is as follows:
Account No. Funding Source Project Amount
11773035650/2033177-0 Measure I
(Fund 177)
Banyan Street
Project
$360,000
11793035650/2033179-0 RMRA
(Fund 179)
Banyan Street
Project
$700,000
Appropriation Request
11793035650/2033179-0
RMRA
(Fund 179)
Banyan Street
Project
$925,750
Proposed Project Funding – Banyan Street Project $1,985,750 Sufficient funds are currently available in the Road Maintenance & Repair Fund to cover the requested appropriation.
COUNCIL MISSION / VISION / VALUE(S) ADDRESSED:
This project meets our City Council core values by promoting and enhancing a safe and healthy community for all, and by providing continuous improvement through the construction of high- quality public improvements.
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ATTACHMENTS:
Attachment 1 – Vicinity Map
Attachment 2 – Bid Summary– Lemon Avenue Project
Attachment 3 – Bid Summary – Banyan Street Project
Attachment 4 – RJNC Appeal Letter (without Enclosure)
Attachment 5 – City Response to RJNC Appeal Letter
"MAJOR ARTERIALS PROGRAM PROJECT”
VARIUOUS LOCATIONS
NOT TO SCALE
ATTACHMENT 1
Project Site
Hermosa Avenue Project
Wilson Av to North City Limit
Base Line Road Project
Day Creek Bl to Forester Pl
Banyan Street Project
Haven Ave Bl to Rochester Ave
Lemon Avenue Project
Haven Avenue to Marbella Dr
ATTACHMENT 2
BID DATE: May 30, 2023 APPARENT LOW BIDDER 2 3 4 5 6
LEMON AVENUE PAVEMENT REHABILITATION PROJECT ENGINEER'S ESTIMATE SEQUEL CONTRACTORS, INC HARDY & HARPER, INC. THE R.J.NOBLE COMPANY ONYX PAVING COMPANY INC ALL AMERICAN ASPHALT MATCH CORPORATION
BASE BID UNIT BID UNIT BID UNIT BID UNIT BID UNIT BID UNIT BID UNIT BID
NO QTY UNIT DESCRIPTION COST AMOUNT COST AMOUNT COST AMOUNT COST AMOUNT COST AMOUNT COST AMOUNT COST AMOUNT 1 2
1 1
1 LS Mobilization (including clearing, grubbing, & removal - including disposal) LS Traffic control
LS Construction staking (for ramps only)
$67,287.18
$53,829.74
$6,000.00
$4.00
$67,287.18
$53,829.74
$6,000.00
$21,176.00
$10,055.75
$8,690.00
$263,120.00
$10,500.00
$10,080.00
$720.00
$46,883.00
$50,000.00
$16,500.00
$2.50
$5.50
$10.00
$140.00 $283,360.00
$1,100.00
$100.00
$700.00
$46,883.00 $35,030.00
$50,000.00 $94,200.00
$16,500.00 $20,600.00
$35,030.00
$94,200.00
$20,600.00
$12,705.60
$6,935.00
$7,584.00
$70,000.00
$20,000.00
$21,000.00
$3.00
$70,000.00
$20,000.00
$21,000.00
$15,882.00
$13,176.50
$7,505.00
$77,000.00
$77,000.00
$27,000.00
$3.00
$77,000.00 $82,000.00
$77,000.00 $92,000.00
$27,000.00 $20,000.00
$82,000.00 $191,000.00 $191,000.00
$92,000.00 $59,000.00
$20,000.00 $15,000.00
$59,000.00
$15,000.00
$18,529.00
$11,096.00
$9,638.00
3 4 5,294
1,387
790
2,024
15 28
2 5,361
SY Variable cold plane from 0" - 2" $13,235.00
$7,628.50
$7,900.00
$2.40
$5.00
$9.60
$15,882.00
$15,257.00
$11,850.00
$8.00
$11.73
$13.77
$42,352.00
$16,269.51
$10,878.30
$261,096.00
$20,700.00
$3,080.00
$3.50
$8.00
$12.20
5 SY Grind heavy alligator surface for a depth of 3"
SY Grind heavy alligator surface with header cut from 3" - 4" TN Install 2" thick ARHM
EA Adjust manhole cover to grade
EA Adjust water valve cover to grade
$7.25
$11.00
$9.50
$9.50
$11.00
$15.00
$137.00 $277,288.00
$800.00
$100.00
$100.00
$15.00
6 7 $130.00
$700.00
$360.00
$360.00
$20.00
$135.00 $273,240.00 $125.00 $253,000.00
$1,100.00
$250.00
$129.00
$1,380.00
$110.00
$1,100.00
$20.00
$140.00 $283,360.00
8 $16,500.00
$2,800.00
$1,400.00
$1,100.00
$265.00
$110.00
$16.00
$16,500.00
$7,420.00
$220.00
$16,500.00
$7,000.00
$2,200.00
$12,000.00
$2,800.00
$200.00
$1,580.00
$134.00
$134.00
$15.00
$23,700.00
$3,752.00
$268.00
9 10
11 EA Adjust gas valve cover to grade with frame $1,100.00 $2,200.00 SF Construct P.C.C access ramp including sidewalk and AC slot pavement per ramp detail including sawcut, removal & disposal of existing P.C.C
TN Construct AC concrete pavement D2 PG6410 asphalt concrete at various grind and patch (Thickness varies see plans)
LF Construct P.C.C curb & gutter per ramp detail and bulb out including sawcut, removal & disposal of existing curb and gutter
$107,220.00 $20.50 $109,900.50 $85,776.00 $25.00 $134,025.00 $80,415.00 $107,220.00 $80,415.00 12 13
230
612
$160.00
$70.00
$36,800.00
$42,840.00
$156.00
$75.00
$35,880.00
$45,900.00
$212.00
$102.00
$48,760.00
$62,424.00
$170.00
$120.00
$39,100.00
$73,440.00
$210.00
$84.00
$48,300.00
$51,408.00
$200.00
$73.00
$46,000.00
$44,676.00
$128.00
$85.00
$29,440.00
$52,020.00
14 15
16 458
180
1 LF Construct P.C.C retaining curb per ramp detail
SF Install truncated detectable warning surfaces
EA Install sign per plan on street light pole per city standard plan 401-b (See striping plan) $60.00
$50.00
$300.00
$27,480.00
$9,000.00
$300.00
$21.00
$47.00
$300.00
$9,618.00
$8,460.00
$300.00
$78.00
$48.00
$125.40
$35,724.00
$8,640.00
$125.40
$65.00
$45.00
$125.00
$29,770.00
$8,100.00
$125.00
$60.00
$100.00
$200.00
$27,480.00
$18,000.00
$200.00
$50.00
$46.00
$130.00
$22,900.00
$8,280.00
$130.00
$60.00
$100.00
$157.00
$27,480.00
$18,000.00
$157.00
17 18
19 20
10 2
6 EA Install sign and post per plan and city standard plan 401-b (See striping plan).
EA Install sign per plan on existing sign post (See striping plan).
EA Remove and salvage sign per plan (See striping plan) EA Furnish and install RRFB and pole assembly (including conduit, wirings per plan & spec complete in-place)
$300.00
$300.00
$215.00
$3,000.00
$600.00
$1,290.00
$80,000.00
$300.00
$110.00
$50.00
$3,000.00
$220.00
$300.00
$300.00
$110.00
$16.00
$3,000.00
$220.00
$96.00
$52,800.00
$300.00
$115.00
$16.00
$3,000.00
$230.00
$96.00
$52,000.00
$300.00
$200.00
$111.00
$3,000.00
$400.00
$666.00
$310.00
$116.00
$17.00
$3,100.00
$232.00
$102.00
$280.00
$157.00
$96.00
$2,800.00
$314.00
$576.00
4 $20,000.00 $12,500.00 $50,000.00 $13,200.00 $13,000.00 $16,000.00 $64,000.00 $15,000.00 $60,000.00 $16,000.00 $64,000.00 21 1 LS Traffic thermoplastic striping per signing & striping plans complete in place (All striping $40,000.00 and legend shall be thermoplastic)
$40,000.00 $28,500.00 $28,500.00 $28,000.00 $28,000.00 $28,000.00 $28,000.00 $37,854.00 $37,854.00 $29,000.00 $29,000.00 $26,000.00 $26,000.00 TOTAL BASE BID AMOUNT: $799,988.67 $738,285.00 $800,000.00 $794,149.50 $848,000.00 $872,215.81 $916,545.00
DEDUCTIVE BID ITEMS (TO BE DELETED/REMOVED FROM BASE BID) UNIT BID UNIT BID UNIT BID UNIT BID UNIT BID UNIT BID UNIT BID
NO QTY UNIT DESCRIPTION COST AMOUNT COST AMOUNT COST AMOUNT COST AMOUNT COST AMOUNT COST AMOUNT COST AMOUNT A
B
C
D
461
149
47 SF P.C.C access ramp at bulb out
LF P.C.C curb & gutter from bulb out
SF Truncated detectable warning surfaces
EA Furnish and install RRFB and pole assembly (including conduit, wirings per plan & spec complete in-place)
$20.00
$70.00
$50.00
$9,220.00
$10,430.00
$2,350.00
$80,000.00
$20.50
$75.00
$47.00
$9,450.50
$11,175.00
$2,209.00
$16.00
$102.00
$48.00
$7,376.00
$15,198.00
$2,256.00
$52,800.00
$18.00
$90.00
$35.00
$8,298.00
$13,410.00
$1,645.00
$44,000.00
$15.00
$84.00
$100.00
$6,915.00
$12,516.00
$4,700.00
$20.00
$73.00
$46.00
$9,220.00
$10,877.00
$2,162.00
$15.00
$85.00
$100.00
$6,915.00
$12,665.00
$4,700.00
$64,000.004 $20,000.00 $12,500.00 $50,000.00 $13,200.00 $11,000.00 $13,217.25 $52,869.00 $15,000.00 $60,000.00 $16,000.00 TOTAL DEDUCTIVE BID ITEMS A-D AMOUNT : $102,000.00
$697,988.67
$72,834.50 $77,630.00 $67,353.00 $77,000.00 $82,259.00 $88,280.00 TOTAL BASE BID – (MINUS) TOTAL DEDUCTIVE BID A-D AMOUNT: $665,450.50 $722,370.00 $726,796.50 $771,000.00 $789,956.81 $828,265.00
ATTACHMENT 3
BID SUMMARY: BID DATE: _____05/30/2023______ APPARENT LOW BIDDER 2 3 4 5 6 BANYAN STREET PAVEMENT REHABILITATION PROJECT ENGINEER'S ESTIMATE Sequel Contractors, Inc R.J. Noble Matich Corporation Hardy & Harper, Inc Onyx Paving Company, Inc All American Asphalt
BASE BID UNIT BID UNIT BID UNIT BID
AMOUNT
$85,000.00 $236,000.50
UNIT BID UNIT
COST
BID UNIT BID UNIT BID
NO QTY UNIT DESCRIPTION
LS Mobilization (including clearing, grubbing, all removals and disposal) 1 LS Traffic control
COST AMOUNT COST AMOUNT COST COST AMOUNT AMOUNT COST AMOUNT COST AMOUNT 1 2
3 $98,000.00
$113,000.00
$15,000.00
$3.55
$98,000.00 $155,937.00
$113,000.00 $100,000.00
$155,937.00
$100,000.00
$35,000.00
$37,202.45
$5,062.20
$19,636.50
$84,245.00
$635,250.00
$7,700.00
$85,000.00
$50,000.00
$38,000.00
$3.15
$236,000.50 $150,000.00
$78,000.00 $168,471.60
$30,000.00
$44,138.50
$6,864.00
$20,670.00
$81,340.00
$686,070.00
$20,900.00
$5,476.00
$150,000.00 $169,000.00
$168,471.60 $222,000.00
$169,000.00 $98,550.00
$222,000.00 $223,350.00
$27,500.00 $36,663.00
$37,833.00
$13,728.00
$37,895.00
$122,010.00
$696,234.00
$8,800.00
$98,550.00
$223,350.00
$36,663.00
$41,490.19
$11,154.00
$33,761.00
$117,362.00
$686,070.00
$14,300.00
$21,275.00
$1,600.00
1 $50,000.00
$38,000.00
$39,724.65
$13,728.00
$44,785.00
$93,541.00
$655,578.00
$18,700.00
$5,550.00
$78,000.00
$30,000.00
$3.50
LS Construction staking (for ramps only) 1 $15,000.00
$44,769.05
$13,728.00
$55,120.00
$66,815.00
$686,070.00
$22,000.00
$18,500.00
$2,400.00
$35,000.00
$2.95
$10,000.00
$3.40
$10,000.00
$42,877.40
$12,012.00
$34,450.00
$92,960.00
$620,004.00
$15,400.00
$10,175.00
$550.00
$27,500.00
$3.004
5 6
7 12,611 SY Variable 0" - 2" Cold Mill Per Plan $3.29
$6.50
$9.80
1,716 SY Grind Heavy Alligator Surface for a depth of 2" 3,445 SY Grind Heavy Alligator Surface with Header Cut from 2" -4" TON Install 2" D2 PG6410 Asphalt 581
$8.00
$16.00
$115.00
$135.00
$2.95
$5.70
$8.00
$13.00
$4.00
$6.00
$7.00
$10.00
$8.00
$11.00
$145.00
$125.00
$700.00
$500.00
$500.00
$9,000.00
$161.00
$129.00
$1,700.00
$150.00
$150.00
$13,350.00
$140.00
$135.00
$1,900.00
$148.00
$148.00
$9,000.00
$160.00
$122.00
$1,400.00
$275.00
$275.00
$15,000.00
$210.00
$137.00
$800.00
$100.00
$100.00
$8,880.00
$202.00
$135.00
$1,300.00
$575.00
$800.00
8 9
10 11
TON5,082 Install 2" Asphalt Rubber Hot Mix Overlay (ARHM) EA Adjust Existing Manhole Cover to Finish Grade11 $2,000.00 $500.00
$1,200.00
$19,829.00
EA Adjust Existing Water Valve Can and Cover to Finish Grade37 EA Adjust Existing Gas Valve Can and Cover to Finish Grade 2 Construct PCC Access Ramp Including truncated detectable warning Surface, retaining curb, sidewalks, curb and gutter, spandrel, asphalt pavement slot patch, adjustment of $18,500.00
$1,000.00
$225,000.00
$3,700.00
$200.00
$222,000.00 $15,348.00
$300.00
$333,750.00
$296.00
$225,000.00$495,725.00 $375,000.00 $383,700.00
12 13
14 EA 25 any utilities within the proposed ramp etc. per access ramps details on appendix complete in place. (Excluding pedestrian push button work).
Furnish and Install New Polara Bulldog Pedestrian Push Button Post Assembly and Associated Conduit and Cables for a Fully Operational Pedestrian Push Button, per Caltrans Std. Plan ES-5C, ES-7A, Including Removing and Capping of Existing Push Button, Relocating (1) Existing Push Button Post Assembly $3,000.00 $30,000.00 $8,000.00 $80,000.00 $8,200.00 $82,000.00 $7,500.00 $75,000.00 $6,500.00 $65,000.00 $8,400.00 $84,000.00 $9,000.00 $90,000.00 EA 10
Traffic Thermoplastic Striping, Signs and post, signs installation to existing posts and streetlights and Markers, per plan and City & Caltrans Std. Plan Complete in Place (All Striping Including Lane Lines, Legends, Symbols, Limit Lines & Crosswalks, shall be Thermoplastic)
$92,300.00 $92,300.00 $140,000.00 $140,000.00 $120,000.00 $120,000.00 $110,000.00 $110,000.00 $110,000.00 $110,000.00 $142,000.00 $142,000.00 $132,000.00 $132,000.00 LS 1
15 16
17 18
2,455 LF Install Thermoplastic Skip Green Bike Treatment Striping Per plans and details EA Furnish and Install RRFB and Pole Assembly 2
$10.00
$20,000.00
$40,000.00
$1,000.00
$24,550.00
$40,000.00
$80,000.00
$2,000.00
$21.00
$15,000.00
$50,000.00
$1,500.00
$51,555.00
$30,000.00
$100,000.00
$3,000.00
$21.00
$17,500.00
$52,000.00
$725.00
$51,555.00
$35,000.00
$104,000.00
$1,450.00
$19.00
$16,000.00
$48,000.00
$1,570.00
$46,645.00
$32,000.00
$96,000.00
$3,140.00
$20.00
$20,000.00
$45,000.00
$2,000.00
$49,100.00
$40,000.00
$90,000.00
$4,000.00
$20.00
$17,500.00
$51,000.00
$1,500.00
$49,100.00
$35,000.00 $19,000.00
$102,000.00 $55,000.00
$22.01 $54,034.55
$38,000.00
$110,000.00
$6,600.00
EA Install Video Detection System Per Plan, complete in place 2 LS Install Construction Notification Sign 2 $3,000.00 $3,300.00 TOTAL BASE BID AMOUNT: $1,899,977.05 $1,729,088.15 $1,772,661.65 $1,797,540.00 $1,890,000.00 $1,976,000.00 $2,099,909.74 NOTE: CORRECTIONS TO BID AMOUNTS SHOWN IN BOLD. Bid Package: $1,729,088.00
VIA U.S. MAIL & EMAIL TO [email protected]
June 12, 2023
Mark T. Collinsworth, Esq.
Collinsworth, Specht, Calkins & Giampaoli, LLP
4695 MacArthur Court, Suite 370
Newport Beach, CA 92660
SUBJECT: BANYAN STREET PAVEMENT REHABILITATION PROJECT
RESPONSE NOTICE OF APPEAL SUBMITTED BY R.J. NOBLE CO.
Dear Mr. Collinsworth:
The City of Rancho Cucamonga is in receipt of your “Notice of Appeal” regarding the award of a contract for the Banyan Street Pavement Rehabilitation Project. The City Council is expected to consider the award of the contract at its meeting on June 21, 2023. As a result, there is no decision involving the contract to appeal at this time. Further, the Rancho Cucamonga Municipal Code Section purporting to grant such a right of appeal— Section 17.14.006—is not applicable to public works contra cts. It applies to land use entitlements and zoning decisions.
We assume your letter constitutes a bid protest. The City has no formal bid protest process in its Municipal Code. However, you are welcome to appear at the June 21, 2023 City Council Meeting to express your position. After reviewing the allegations in your letter, City staff intends to recommend that that the City Council waive any alleged irregularities and award the contract to the apparent low bidder.
If you have any questions, please contact me at (909) 477-2740 or by email at [email protected].
Sincerely,
ENGINEERING SERVICES DEPARTMENT
Jason C. Welday
Director of Engineering Services/City Engineer
cc: Jacob Breedlove, R.J. Noble Co. (via email to [email protected])
DATE:June 21, 2023
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Jason C. Welday, Director of Engineering Services/City Engineer SUBJECT: Consideration of a Purchase and Sale Agreement with Sandra L. Davis, as Successor in Interest to Tony Beletrutti and Flora Beletrutti, Trustees Under Declaration of Trust Dated July 23, 1986, as Amended June 28, 1988 and August 8, 1989 for the Acquisition of a Permanent Public Trail Easement Located at 12089 Foothill Boulevard (Assessor's Parcel Number 0229-021-48) in Connection with the Day Creek Channel Bike Trail Project. (CITY)
RECOMMENDATION:
Staff recommends the City Council approve the Purchase and Sale Agreement on file with the City Clerk for the acquisition of a permanent public trail easement located at 12089 Foothill Boulevard (Assessor’s Parcel Number 0229-021-48) in connection with the Day Creek Channel Bike Trail Project (Project) and authorize the City Manager or his designee to sign the agreement and any documents necessary to complete the purchase.
BACKGROUND:
The Day Creek Channel Bike Trail Project will construct a new 1.4 mile Class I Bike Trail along the west side of the Day Creek Channel from Jack Benny Drive to Base Line Road. This new section of bike trail will be similar to other north-south trails in the City and will upgrade the existing flood control maintenance road running alongside the channel to accommodate cyclists and pedestrians. The planned trail will continue the City’s commitment to expanding trail access throughout the City and supports the development of the trail network as envisioned in the General Plan. When complete, the new trail segment will provide additional access for the City and region to the PE Trail, Victoria Gardens, the Epicenter Focus Area (including the RC Sports Center, the Stadium, and the Adult Sports Park), along with commercial, manufacturing, and industrial centers and destinations in the southern part of the City.
The Project is primarily situated within right-of-way owned and operated by the San Bernardino County Flood Control District. The use of the District’s property will be subject to an amendment to an existing agreement between the City and the District. However, additional property rights are needed from two private property owners, Southern California Edison (SCE) and Sandra L.
Davis, as Successor in Interest to Tony Beletrutti and Flora Beletrutti, Trustees Under Declaration of Trust Dated July 23, 1986, as Amended June 28, 1988 and August 8, 1989 (Beletrutti Trust).
An amendment to the agreement with the Flood Control District will be presented for consideration by City Council at a later date. Staff is currently in discussions with SCE on the property rights needed from their right-of-way for the project which would provide a direct connection to the RC
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Sports Center from the Day Creek Channel Bike Trail. SCE has been open to an agreement allowing the trail connection across their property and staff is continuing to work through the process to secure those rights. It should be noted that if access across SCE’s property is delayed, the design of the project would proceed in a phased approach with access to the RC Sports Center being taken via Jack Benny Drive to Rochester Avenue in the interim. Once an agreement is reached with SCE, staff will present it for consideration by the City Council. Finally, with respect to the land owned by the Beletrutti Trust, the Project requires the acquisition of an approximate 36,600 square foot permanent public trail easement (Subject Property Interests) from the property located at 12089 Foothill Boulevard.
ANALYSIS:
Pursuant to Government Code Section 7260 et seq., the City of Rancho Cucamonga obtained a fair market value appraisal of the Subject Property Interests which lie within the flood control channel corridor. The City set just compensation in accordance with the appraised fair market value and extended a written offer on September 26, 2022. Following negotiation with the property owner, an agreement has been reached for purchase of the Subject Property Interests in the amount of $898. A Purchase and Sale Agreement memorializing the negotiated agreement has been prepared, executed by the property owner and is on file with the City Clerk. Following approval of the Purchase and Sale Agreement, staff will proceed with opening escrow and completing the purchase.
FISCAL IMPACT:
The Project is primarily funded by a $403,000 TDA/Article 3 Grant (Fund 214) from the San Bernardino County Transportation Commission that was awarded in July 2019 along with funds from the AB2766 Air Quality Improvements Fund (Fund 105).
Under the Purchase and Sale Agreement, the City will purchase the Subject Property Interests from the property owner for $898. Sufficient funds have been budgeted in Account No.’s 11052085650/2014105-0 and 12143035650/2014214-0 to cover the purchase price and incidental costs related to the acquisition including escrow and title fees.
COUNCIL MISSION / VISION / VALUE(S) ADDRESSED:
The proposed Day Creek Channel Bike Trail Project seeks to implement the City Council’s core value of promoting and enhancing a safe and healthy community for all by expanding the City’s trail network and creating more options for mobility throughout the City.
ATTACHMENTS:
Attachment 1 – Vicinity Map
ATTACHMENT 1
DAY CREEK CHANNEL BIKE TRAIL PROJECT
VICINITY MAP
Day Creek
Channel Bike
Trail Project
Subject Property
Interests
NORTH
DATE:June 21, 2023
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Robert Neiuber, Senior Human Resources Director Lucy Alvarez-Nunez, Management Analyst
SUBJECT: Consideration to Adopt a Resolution Approving Salary Schedules for Job Classifications Employed by the City for Fiscal Year 2023-24. (RESOLUTION NO. 2023-064) (CITY)
RECOMMENDATION:
Staff recommends the City Council of the City of Rancho Cucamonga adopt the attached resolution approving salary schedules for job classifications employed by the City for the fiscal year 2023-24.
BACKGROUND:
The City Council traditionally adopts salary resolutions biannually for classifications employed by the City of Rancho Cucamonga. These resolutions are updated to reflect changes in salaries, additions and deletions of classifications, changes in job titles, and other terms of employment.
The City Council previously approved the existing Memorandums of Understanding (MOU) between the City and each of its bargaining units including the Executive Management Employees Group (Executive Management), Rancho Cucamonga Management Association (RCMA), Rancho Cucamonga City Employees Association (RCCEA), and Teamsters Local 1932 (Teamsters). These MOUs are currently in effect and provide for a cost-of-living adjustment (COLA) effective the first full pay period in July 2023.
ANALYSIS:
The attached resolution adopts the cost of living adjustments (COLA) previously negotiated and agreed upon in the existing MOUs. Updates to the salary schedules include a 2.5% COLA for job classifications employed within the Executive Management and RCCEA bargaining units and a 2% COLA for job classifications employed within the RCMA and Teamsters bargaining units effective July 3, 2023.
All other salary schedules, classifications, job titles, and other terms of employment remain the same.
Staff recommends the City Council approve the resolution updating the salary schedules for the fiscal year 2023-24.
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FISCAL IMPACT:
Adjustments to the salary schedules and their fiscal impacts were accounted for in the FY 2023- 24 budget.
COUNCIL MISSION / VISION / VALUE(S) ADDRESSED:
This item addresses the Council’s vision to build on our success as a world-class community, to create an equitable, sustainable, and vibrant City, rich in opportunity for all to thrive.
ATTACHMENTS:
Attachment 1 – Resolution No. 2023-064
Attachment 2 - Executive Management Group Salary Schedule Attachment 3 - Rancho Cucamonga Management Association Salary Schedule Attachment 4 - Rancho Cucamonga City Employees Association Salary Schedule Attachment 5 - Teamsters Local 1932 Salary Schedule
Attachment 6 - Part-time City Positions Salary Schedule
RESOLUTION NO. 2023-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
RANCHO CUCAMONGA, CALIFORNIA, APPROVING SALARY
SCHEDULES FOR JOB CLASSIFICATIONS EMPLOYED BY THE
CITY FOR FISCAL YEAR 2023-24.
WHEREAS, the City Council of the City of Rancho Cucamonga has determined that it is necessary for the efficient operation and management of the City that policies be established prescribing salary ranges, benefits and holidays and other policies for employees of the City of Rancho Cucamonga; and
WHEREAS, the City Council of the City of Rancho Cucamonga has previously adopted salary resolutions establishing salary ranges, benefits and other terms of employment for employees of the City of Rancho Cucamonga; and
WHEREAS, the City Council of the City of Rancho Cucamonga recognizes that it is necessary from time to time to amend the salary resolution to accommodate changes in position titles, classifications salary ranges, benefits and other terms of employment; and NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rancho Cucamonga, California to approve the attached salary schedules for job classifications employed by the City (attachments 2 – 6).
PASSED, APPROVED, AND ADOPTED this 21st day of June 2023.
ATTACHMENT 1
Minimum Control Point Maximum
Class Title Step Amount Step Amount Step Amount
Animal Services Director 1604 $9,909 1644 $12,096 1674 $14,049 Assistant City Manager 1698 $15,835 1738 $19,332 1768 $22,452 Building and Safety Services Director 1609 $10,159 1649 $12,401 1679 $14,403 City Clerk Services Director 1594 $9,426 1632 $11,393 1675 $14,118 City Manager 1756 $21,147 1796 $25,816 1826 $29,983
Community Services Director 1627 $11,113 1667 $13,566 1697 $15,756 Deputy City Manager/Administrative Services 1647 $12,278 1687 $14,990 1717 $17,409 Deputy City Manager/Civic & Cultural Services 1647 $12,278 1687 $14,990 1717 $17,409 Deputy City Manager/ Econ. & Comm. Dev. 1647 $12,278 1687 $14,990 1717 $17,409 Eng Svs Director/City Engineer 1628 $11,186 1668 $13,635 1698 $15,835 Finance Director 1637 $11,861 1677 $14,260 1707 $16,562 Human Resources Director 1621 $10,785 1661 $13,166 1691 $15,292 Innovation and Technology Director 1637 $11,861 1677 $14,260 1697 $15,756 Library Director 1615 $10,467 1655 $12,778 1685 $14,841 Planning and Economic Development Director 1625 $11,002 1665 $13,432 1695 $15,599 Public Works Services Director 1609 $10,159 1649 $12,401 1679 $14,403 Fire Chief* A $16,302 F $20,805
* Included for informational purposes only - This is a Fire District Management Employee Group position not a City position
EXECUTIVE MANAGEMENT GROUP
ASSIGNMENTS OF CLASSIFICATIONS TO PAY RANGES
Monthly Pay Ranges effective July 3, 2023
Resolution No. 2023-
ATTACHMENT 2
Executive Management
Salary Schedule
July 3, 2023
Minimum Control Point Maximum
Class Title Step Amount Step Amount Step Amount
Accounting Manager 2525 $6,781 2565 $8,276 2585 $9,145
Animal Center Manager 2506 $6,169 2546 $7,531 2566 $8,319 Assistant to the City Manager 2590 $9,377 2630 $11,446 2650 $12,648 Building & Safety Manager 2533 $7,058 2573 $8,614 2593 $9,519 Chief Information Security Officer 2552 $7,731 2592 $9,470 2612 $10,463 City Planner/Planning Manager 2583 $9,056 2623 $11,053 2643 $12,213 Community Affairs Manager 2565 $8,276 2605 $10,106 2625 $11,164 Community Improvement Manager 2533 $7,058 2573 $8,614 2593 $9,519 Community Services Manager 2506 $6,169 2546 $7,531 2566 $8,319 Community Services Superintendent 2536 $7,164 2576 $8,744 2596 $9,661 Cultural Center Manager 2536 $7,164 2576 $8,744 2596 $9,661 Deputy Director of Animal Services 2566 $8,319 2606 $10,155 2626 $11,219 Deputy Director of Building and Safety 2580 $8,919 2620 $10,890 2640 $12,033 Deputy Director of City Clerk Services 2543 $7,418 2583 $9,056 2603 $10,005 Deputy Director of Community Services 2598 $9,757 2638 $11,913 2658 $13,163 Deputy Director of Economic Development 2598 $9,757 2638 $11,913 2658 $13,163 Deputy Dir. Engineering/Deputy City Eng. 2604 $10,055 2644 $12,276 2664 $13,563 Deputy Dir. Engineering/Utility Manager 2604 $10,055 2644 $12,276 2664 $13,563 Deputy Director of Engineering 2598 $9,757 2638 $11,913 2658 $13,163 Deputy Director of Finance 2598 $9,757 2638 $11,913 2658 $13,163 Deputy Director of Human Resources 2598 $9,757 2638 $11,913 2658 $13,163 Deputy Dir. of Innovation and Technology 2566 $8,319 2606 $10,155 2626 $11,219 Deputy Director of Library Services 2580 $8,919 2620 $10,890 2640 $12,033 Deputy Director of Planning 2598 $9,757 2638 $11,913 2658 $13,163 Deputy Director of Public Works 2598 $9,757 2638 $11,913 2658 $13,163 Economic Development Manager 2539 $7,273 2579 $8,876 2599 $9,807 Environmental Programs Manager 2539 $7,273 2579 $8,876 2599 $9,807 Facilities Superintendent 2536 $7,164 2576 $8,744 2596 $9,661 Finance Manager 2559 $8,033 2599 $9,807 2619 $10,836
Library Services Manager 2506 $6,169 2546 $7,531 2566 $8,319 Park/Landscape Maintenance Supt 2536 $7,164 2576 $8,744 2596 $9,661 Plan Check & Inspection Manager 2533 $7,058 2573 $8,614 2593 $9,519 Principal Accountant 2532 $7,023 2572 $8,571 2592 $9,470 Principal Engineer 2588 $9,283 2628 $11,333 2648 $12,522 Principal Librarian 2495 $5,840 2535 $7,129 2555 $7,874 Principal Management Analyst 2543 $7,418 2583 $9,056 2603 $10,005 Monthly Pay Ranges Effective July 3, 2023
Resolution No. 2023-
ASSIGNMENTS OF CLASSIFICATIONS TO PAY RANGES
RANCHO CUCAMONGA MANAGEMENT ASSOCIATION
ATTACHMENT 3
Rancho Cucamonga Management Association
Salary Schedule
July 3, 2023
Minimum Control Point Maximum
Monthly Pay Ranges Effective July 3, 2023
Resolution No. 2023-
ASSIGNMENTS OF CLASSIFICATIONS TO PAY RANGES
RANCHO CUCAMONGA MANAGEMENT ASSOCIATION
Principal Planner 2543 $7,418 2583 $9,056 2603 $10,005
Procurement Manager 2530 $6,953 2570 $8,486 2590 $9,377 Public Works Maintenance Manager 2566 $8,319 2606 $10,155 2626 $11,219 Revenue Manager 2532 $7,023 2572 $8,571 2592 $9,470
Risk Manager 2559 $8,033 2599 $9,807 2619 $10,836
Senior Civil Engineer 2579 $8,876 2619 $10,836 2639 $11,972 Senior Executive Assistant 2468 $5,104 2508 $6,230 2528 $6,883 Senior Planner 2523 $6,714 2563 $8,196 2583 $9,056
Street/Storm Drain Maintenance Supt 2536 $7,164 2576 $8,744 2596 $9,661 Traffic Engineer 2579 $8,876 2619 $10,836 2639 $11,972
Utilities Operations Manager 2524 $6,747 2564 $8,237 2584 $9,100 Veterinarian 2579 $8,876 2619 $10,836 2639 $11,972
ATTACHMENT 3
Rancho Cucamonga Management Association
Salary Schedule
July 3, 2023
Minimum Control Point Maximum
Class Title Step Amount Step Amount Step Amount
Account Clerk 4375 $3,274 4415 $3,998 4435 $4,416
Account Technician 4423 $4,158 4463 $5,076 4483 $5,610
Accountant# 3465 $5,129 3505 $6,261 3525 $6,917
Accounts Payable Supervisor# 3470 $5,257 3510 $6,418 3530 $7,092 Administrative Assistant 4369 $3,716 4409 $3,878 4429 $4,286 Administrative Technician 4437 $4,461 4477 $5,445 4497 $6,015 Animal Behavior Specialist 4388 $3,492 4428 $4,264 4448 $4,712 Animal Care Attendant 4349 $2,876 4389 $3,511 4409 $3,878 Animal Care Supervisor# 3454 $4,854 3494 $5,925 3514 $6,548 Animal Caretaker 4378 $3,324 4418 $4,056 4438 $4,481
Animal Rescue Specialist 4388 $3,492 4428 $4,264 4448 $4,712 Animal Services Dispatcher 4369 $3,176 4409 $3,878 4429 $4,286 Animal Services Officer I 4421 $4,118 4461 $5,027 4481 $5,554 Animal Services Officer II 4441 $4,549 4481 $5,554 4501 $6,137 Artistic Producer - Mainstreet Theatre
Company
4450 $4,759 4490 $5,809 4510 $6,418
Assistant Engineer# 3504 $6,228 3544 $7,603 3564 $8,402 Assistant Planner# 3468 $5,206 3508 $6,355 3528 $7,019
Associate Engineer# 3534 $7,234 3574 $8,831 3594 $9,757 Associate Planner# 3487 $5,723 3527 $6,987 3547 $7,718
Box Office Coordinator 4450 $4,759 4490 $5,809 4510 $6,418 Budget Analyst# 3515 $6,579 3555 $8,031 3575 $8,873
Building Inspection Supervisor#2 3504 $6,228 3544 $7,603 3564 $8,402 Building Inspector I2 4444 $4,617 4484 $5,636 4504 $6,228 Building Inspector II2 4464 $5,101 4504 $6,228 4524 $6,882 Business License Clerk 4378 $3,324 4418 $4,056 4438 $4,481 Business License Inspector 4418 $4,056 4458 $4,952 4478 $5,471 Business License Program Coordinator# 3432 $4,351 3472 $5,308 3492 $5,866 Business License Program Supervisor# 3470 $5,257 3510 $6,418 3530 $7,092 Business License Technician 4408 $3,860 4448 $4,712 4468 $5,206 City Clerk Records Management Analyst# 3470 $5,257 3510 $6,418 3530 $7,092 Community Affairs Coordinator 4450 $4,759 4490 $5,809 4510 $6,418 Community Affairs Officer# 3515 $6,579 3555 $8,031 3575 $8,873 Community Affairs Senior Coordinator# 3480 $5,525 3520 $6,747 3540 $7,454 Community Affairs Specialist 4350 $2,888 4390 $3,527 4410 $3,898 Community Affairs Technician 4437 $4,461 4477 $5,445 4497 $6,015 Monthly Pay Ranges Effective July 3, 2023
Resolution No. 2023-
SUPERVISORY/PROFESSIONAL AND GENERAL EMPLOYEES GROUPS
ASSIGNMENTS OF CLASSIFICATIONS TO PAY RANGES
RCCEA COVERED EMPLOYEES IN THE
ATTACHMENT 4
Rancho Cucamonga City Employees Association
Salary Schedule
July 3, 2023
Minimum Control Point Maximum
Monthly Pay Ranges Effective July 3, 2023
Resolution No. 2023-
SUPERVISORY/PROFESSIONAL AND GENERAL EMPLOYEES GROUPS
ASSIGNMENTS OF CLASSIFICATIONS TO PAY RANGES
RCCEA COVERED EMPLOYEES IN THE
Community Development Technician I 4413 $3,954 4453 $4,830 4473 $5,337 Community Development Technician II 4423 $4,158 4463 $5,076 4483 $5,610 Community Improvement Supervisor#2 3504 $6,228 3544 $7,603 3564 $8,402 Community Improvement Officer I 4421 $4,118 4461 $5,027 4481 $5,554 Community Improvement Officer II 4441 $4,549 4481 $5,554 4501 $6,137 Community Programs Coordinator 4450 $4,759 4490 $5,809 4510 $6,418 Community Programs Specialist 4437 $4,352 4477 $5,312 4497 $5,868 Community Services Coordinator 4450 $4,759 4490 $5,809 4510 $6,418 Community Services Project Coordinator# 3500 $6,105 3540 $7,454 3560 $8,234 Community Services Specialist 4350 $2,888 4390 $3,527 4410 $3,898 Community Services Supervisor# 3480 $5,525 3520 $6,747 3540 $7,454 Community Services Technician 4437 $4,461 4477 $5,445 4497 $6,015 Community Theater Producer 4450 $4,759 4490 $5,809 4510 $6,418 Customer Care Assistant 4369 $3,176 4409 $3,878 4429 $4,286 Customer Service Representative 4378 $3,324 4418 $4,056 4438 $4,481 Customer Service Specialist I - Utilities 4413 $3,954 4453 $4,830 4473 $5,337 Customer Service Specialist II - Utilities 4423 $4,158 4463 $5,076 4483 $5,610 Customer Service Specialist III - Utilities 4443 $4,594 4483 $5,610 4503 $6,197 Deputy City Clerk# 3430 $4,306 3470 $5,257 3490 $5,809
Engineering Aide 4421 $4,118 4461 $5,027 4481 $5,554
Engineering Technician 4451 $4,781 4491 $5,839 4511 $6,449 Environmental Programs Coordinator# 3503 $6,197 3543 $7,567 3563 $8,360 Environmental Programs Inspector2 4464 $5,101 4504 $6,228 4524 $6,882 Event & Rental Services Coordinator 4450 $4,759 4490 $5,809 4510 $6,418 Executive Assistant II# 3444 $4,617 3484 $5,636 3504 $6,228 Executive Assistant1 4394 $3,599 4464 $5,101 4484 $5,636 Fleet Supervisor#2 3488 $5,749 3528 $7,019 3548 $7,757
Front of House Coordinator 4450 $4,759 4490 $5,809 4510 $6,418 Fund Development Coordinator# 3470 $5,257 3510 $6,418 3530 $7,092 GIS Analyst# 3505 $6,261 3545 $7,642 3565 $8,442
GIS Specialist 4456 $4,904 4496 $5,985 4516 $6,613
GIS Supervisor# 3535 $7,271 3575 $8,873 3595 $9,805
GIS Technician 4436 $4,436 4476 $5,416 4496 $5,985
Human Resources Business Partner# 3433 $4,371 3473 $5,337 3493 $5,898 Human Resources Clerk 4389 $3,511 4429 $4,286 4449 $4,734 Human Resources Technician 4420 $4,096 4460 $5,002 4480 $5,525 ATTACHMENT 4
Rancho Cucamonga City Employees Association
Salary Schedule
July 3, 2023
Minimum Control Point Maximum
Monthly Pay Ranges Effective July 3, 2023
Resolution No. 2023-
SUPERVISORY/PROFESSIONAL AND GENERAL EMPLOYEES GROUPS
ASSIGNMENTS OF CLASSIFICATIONS TO PAY RANGES
RCCEA COVERED EMPLOYEES IN THE
Information Technology Analyst I# 3505 $6,261 3545 $7,642 3565 $8,442 Information Technology Analyst II# 3520 $6,747 3560 $8,234 3580 $9,096 Information Technology Specialist I 4456 $4,904 4496 $5,985 4516 $6,613 Information Technology Specialist II 4471 $5,284 4511 $6,449 4531 $7,127 Information Tech Operations Supvr.# 3535 $7,271 3575 $8,873 3595 $9,805 Information Technology Technician 4411 $3,917 4451 $4,781 4471 $5,284 Lead Park Ranger 4421 $4,118 4461 $5,027 4481 $5,554
Librarian I# 3435 $4,416 3475 $5,390 3495 $5,955
Librarian II# 3457 $4,927 3497 $6,015 3517 $6,647
Library Assistant I 3373 $3,239 3413 $3,954 3433 $4,371 Library Assistant II# 3414 $3,977 3454 $4,854 3474 $5,363 Library Clerk 4356 $2,978 4396 $3,635 4416 $4,015
Library Technician 4393 $3,580 4433 $4,371 4453 $4,830
Maintenance Supervisor#2 3488 $5,749 3528 $7,019 3548 $7,757 Management Aide 4440 $4,527 4480 $5,525 4500 $6,105
Management Analyst I# 3470 $5,257 3510 $6,418 3530 $7,092 Management Analyst II# 3498 $5,925 3538 $7,381 3558 $8,153 Management Analyst III# 3515 $6,579 3555 $8,031 3575 $8,873 Office Services Clerk 4369 $3,716 4409 $3,878 4429 $4,286 Patron & Events Supervisor# 3480 $5,525 3520 $6,747 3540 $7,454 Payroll Supervisor# 3470 $5,257 3510 $6,418 3530 $7,092 Planning Specialist 4443 $4,594 4483 $5,610 4503 $6,197 Planning Technician 4423 $4,158 4463 $5,076 4483 $5,610 Plans Examiner I 4474 $5,363 4514 $6,548 4534 $7,234
Plans Examiner II# 3488 $5,749 3528 $7,019 3548 $7,757
Procurement & Contracts Analyst# 3433 $4,371 3473 $5,337 3493 $6,015 Procurement Clerk 4374 $3,258 4414 $3,977 4434 $4,394
Procurement Technician 4411 $3,917 4451 $4,781 4471 $5,284 Public Services Technician I 4413 $3,954 4453 $4,830 4473 $5,337 Public Services Technician II 4423 $4,158 4463 $5,076 4483 $5,610 Public Services Technician III 4443 $4,594 4483 $5,610 4503 $6,197 Public Works Inspector I2 4444 $4,617 4484 $5,636 4504 $6,228 Public Works Inspector II2 4464 $5,101 4504 $6,228 4524 $6,882 Records Clerk 4358 $3,006 4398 $3,671 4418 $4,056
Records Coordinator 4386 $3,456 4426 $4,222 4446 $4,664 Risk Management Coordinator# 3470 $5,257 3510 $6,418 3530 $7,092 Safety Officer# 3515 $6,579 3555 $8,031 3575 $8,873
ATTACHMENT 4
Rancho Cucamonga City Employees Association
Salary Schedule
July 3, 2023
Minimum Control Point Maximum
Monthly Pay Ranges Effective July 3, 2023
Resolution No. 2023-
SUPERVISORY/PROFESSIONAL AND GENERAL EMPLOYEES GROUPS
ASSIGNMENTS OF CLASSIFICATIONS TO PAY RANGES
RCCEA COVERED EMPLOYEES IN THE
Senior Account Clerk 4395 $3,617 4435 $4,416 4455 $4,878 Senior Account Technician 4446 $4,664 4486 $5,695 4506 $6,292 Senior Accountant# 3498 $6,045 3538 $7,381 3558 $8,153
Senior Animal Care Supervisor# 3461 $5,027 3501 $6,137 3521 $6,780 Senior Animal Services Officer# 3461 $5,027 3501 $6,137 3521 $6,780 Senior Building Inspector#2 3484 $5,636 3524 $6,882 3544 $7,603 Senior Business License Clerk 4398 $3,671 4438 $4,481 4458 $4,952 Senior Community Improvement Officer# 3461 $5,027 3501 $6,137 3521 $6,780 Senior Electrician # 3485 $5,666 3525 $6,917 3545 $7,642 Senior GIS Analyst # 3520 $6,747 3560 $8,234 3580 $9,096 Sr Human Resources Business Partner# 3498 $6,045 3538 $7,381 3558 $8,153 Senior Information Technology Analyst# 3535 $7,271 3575 $8,873 3595 $9,805 Senior Information Technology Specialist# 4493 $5,898 4533 $7,200 4553 $7,953 Senior Librarian# 3468 $5,206 3508 $6,355 3528 $7,019
Senior Park Planner# 3500 $6,105 3540 $7,454 3560 $8,234 Senior Plans Examiner# 3503 $6,197 3543 $7,567 3563 $8,360 Senior Procurement Technician# 3463 $5,002 3503 $6,197 3523 $6,848 Senior Risk Management Analyst# 3515 $6,579 3555 $8,031 3575 $8,873 Senior Veterinary Technician# 3461 $5,027 3501 $6,137 3521 $6,780 Special Districts Analyst# 3498 $6,045 3538 $7,381 3558 $8,153 Supervising Public Works Inspector#2 3494 $5,925 3534 $7,234 3554 $7,992 Supervising Traffic Systems Specialist#2 3502 $6,166 3542 $7,529 3562 $8,317 Theater Production Coordinator 4460 $5,002 4500 $6,105 4520 $6,747 Theater Production Supervisor# 3480 $5,525 3520 $6,747 3540 $7,454 Theatre Technician III 4423 $4,158 4463 $5,076 4483 $5,610 Utilities Operation Supervisor# 3515 $6,579 3555 $8,031 3575 $8,873 Utility Marker 4464 $5,101 4504 $6,228 4524 $6,882
Veterinary Assistant 4407 $3,840 4447 $4,688 4467 $5,178 Veterinary Technician 4437 $4,461 4477 $5,445 4497 $6,015
2. Refer to MOU for provision of boot
# Denotes Supervisory/Professional Class
1. When acting as Clerk to Commissions $50 paid per night or weekend day meeting. Compensatory time off ATTACHMENT 4
Rancho Cucamonga City Employees Association
Salary Schedule
July 3, 2023
Class Title Step Amount Step Amount Step Amount
Electrician 5457 $5,024 5497 $6,132 5517 $6,777
Equipment Operator 5425 $4,283 5465 $5,229 5485 $5,777
Inventory Specialist Equipment/Mat 5389 $3,579 5429 $4,369 5449 $4,827 Lead Maintenance Worker 5429 $4,369 5469 $5,334 5489 $5,893 Lead Mechanic 5440 $4,617 5480 $5,633 5500 $6,225
Maintenance Coordinator 5452 $4,900 5492 $5,980 5512 $6,610 Maintenance Worker 5391 $3,615 5431 $4,412 5451 $4,874
Mechanic 5430 $4,391 5470 $5,360 5490 $5,923
Senior Maintenance Worker 5401 $3,797 5441 $4,638 5461 $5,124 Signal & Lighting Coordinator 5479 $5,607 5519 $6,844 5539 $7,562 Signal & Lighting Technician 5452 $4,900 5492 $5,980 5512 $6,610 Minimum Control Point Maximum
Monthly Pay Ranges Effective July 3, 2023
Resolution No. 2023-
PUBLIC WORKS MAINTENANCE EMPLOYEES
ASSIGNMENTS OF CLASSIFICATIONS TO PAY RANGES
Represented By
THE TEAMSTERS LOCAL 1932
ATTACHMENT 5
Teamsters Local 1932 Salary Schedule
July 3, 2023
Hourly Pay Ranges Effective July 1, 2023
Part Time Positions Step Amount Step Amount Step Amount Account Clerk 6368 $15.87 6408 $19.37 6449 $23.77
Account Technician 6423 $20.88 6463 $25.49 6497 $30.20
Accountant 6465 $25.74 6505 $31.43 6539 $37.23
Administrative Assistant 6364 $15.55 6372 $16.19 6443 $23.07 Administrative Intern 6364 $15.55 6370 $16.02
Animal Behavior Specialist 6388 $17.54 6428 $21.41 6462 $25.36 Animal Care Attendant 6364 $15.55 6389 $17.62 6422 $20.77 Animal Caretaker 6378 $16.69 6418 $20.36 6452 $24.12
Animal Rescue Specialist 6388 $17.54 6428 $21.41 6462 $25.36 Animal Services Dispatcher 6369 $15.95 6409 $19.47 6443 $23.07 Animal Services Officer 6441 $22.84 6481 $27.88 6495 $29.90 Assistant Engineer 6488 $28.88 6528 $35.25 6562 $41.76
Assistant Planner 6468 $26.13 6508 $31.90 6541 $37.61
Associate Engineer 6518 $33.53 6558 $40.94 6592 $48.50
Associate Planner 6487 $28.73 6527 $35.07 6561 $41.55
Box Office Assistant* 6364 $15.55
Box Office Specialist* 6364 $15.55
Budget Analyst 6498 $30.35 6538 $37.05 6588 $47.54
Building Inspector 6464 $25.61 6504 $31.27 6523 $34.38
Business License Clerk 6378 $16.69 6418 $20.36 6452 $24.12 Business License Technician 6408 $19.37 6448 $23.65 6482 $28.02 Community Improvement Officer I 6421 $20.67 6461 $25.23 6495 $29.90 Community Improvement Officer II 6441 $22.84 6481 $27.88 6515 $33.03 Community Programs Coordinator 6450 $23.89 6490 $29.16 6524 $34.55 Community Programs Specialist 6437 $22.39 6477 $27.33 6511 $32.38 Community Services Coordinator 6450 $23.89 6490 $29.16 6529 $35.42 Community Services Specialist 6364 $15.55 6390 $17.71 6424 $20.98 Community Services Supervisor 6480 $27.75 6520 $33.87 6554 $40.13 Community Services Technician 6437 $22.39 6477 $27.33 6511 $32.38 Customer Care Assistant 6364 $15.55 6372 $16.19 6443 $23.07 Customer Service Specialist I - Utilities 6436 $22.27 6476 $27.19 6496 $30.05 Customer Service Specialist II - Utilities 6446 $23.41 6486 $28.58 6506 $31.58 Customer Service Specialist III - Utilities 6466 $25.87 6506 $31.58 6526 $34.90 Day Custodian 6391 $17.79
Department Director 6562 $41.76 6604 $51.50 6707 $86.07 Department Manager 6525 $34.73 6566 $42.60 6634 $59.81
Resolution No. 2023-XXX
Minimum Control Point Maximum
PART-TIME CITY POSITIONS
ASSIGNMENTS OF CLASSIFICATIONS TO PAY RANGES
ATTACHMENT 6
Part Time City Positions Salary Schedule
July 1, 2023
Hourly Pay Ranges Effective July 1, 2023
Part Time Positions Step Amount Step Amount Step Amount Resolution No. 2023-XXX
Minimum Control Point Maximum
PART-TIME CITY POSITIONS
ASSIGNMENTS OF CLASSIFICATIONS TO PAY RANGES
Deputy City Clerk 6430 $21.62 6470 $26.40 6504 $31.27
Division Supervisor 6416 $20.16 6457 $24.74 6554 $40.13 Electrician 6457 $24.74 6497 $30.20 6535 $36.50
Energy Efficiency Coordinator 6372 $16.19 6412 $19.77 6422 $20.78 Engineering Aide 6421 $20.67 6461 $25.24 6495 $29.90
Engineering Intern 6364 $15.55 6370 $16.03
Engineering Technician 6441 $22.84 6481 $27.88 6515 $33.03 Environmental Resources Intern* 6364 $15.55
Equipment Operator 6425 $21.09 6465 $25.75 6503 $31.11
Executive Assistant 6394 $18.07 6434 $22.06 6497 $30.20 Executive Assistant II 6467 $26.00 6507 $31.74 6527 $35.07 Fund Development Coordinator 6514 $32.87 6554 $40.13 6574 $44.34 GIS Intern 6364 $15.55 6370 $16.03
GIS Programmer/Analyst 6456 $24.61 6496 $30.05 6506 $31.58 GIS Technician 6436 $22.28 6476 $27.20 6510 $32.22
Healthy Cities Coordinator 6372 $16.19 6412 $19.77 6422 $20.78 Human Resources Clerk 6389 $17.62 6429 $21.51 6462 $25.36 Human Resources Technician 6399 $18.52 6439 $22.61 6465 $25.74 Lead Mechanic 6440 $22.73 6480 $27.75 6518 $33.53
Librarian I 6449 $23.77 6489 $29.01 6509 $32.06
Library Assistant I 6387 $17.44 6427 $21.30 6447 $23.53 Library Assistant II 6428 $21.40 6468 $26.13 6488 $28.87 Library Clerk 6370 $16.02 6410 $19.56 6429 $21.51
Library Director/SIF Trainer 6600 $50.48 6640 $61.63 6650 $64.78 Library Page* 6364 $15.55
Library Technician 6407 $19.27 6447 $23.53 6467 $26.00
Maintenance Technician* 6364 $15.55
Management Aide 6440 $22.73 6480 $27.75 6514 $32.87
Management Analyst I 6470 $26.40 6510 $32.22 6544 $38.17 Management Analyst II 6498 $30.35 6538 $37.05 6571 $43.68 Management Analyst III 6529 $35.42 6569 $43.24 6588 $47.54 Mechanic 6430 $21.62 6470 $26.40 6508 $31.90
Meter Technician 6487 $28.73 6527 $35.07 6537 $36.86
Office Services Clerk 6369 $15.95 6409 $19.47 6443 $23.07 Office Specialist I 6364 $15.55 6372 $16.19 6382 $17.02 Office Specialist II 6364 $15.55 6392 $17.89 6402 $18.80 ATTACHMENT 6
Part Time City Positions Salary Schedule
July 1, 2023
Hourly Pay Ranges Effective July 1, 2023
Part Time Positions Step Amount Step Amount Step Amount Resolution No. 2023-XXX
Minimum Control Point Maximum
PART-TIME CITY POSITIONS
ASSIGNMENTS OF CLASSIFICATIONS TO PAY RANGES
Outreach Technician* 6364 $15.55
Park Ranger* 6389 $17.62
Planning Aide 6364 $15.55 6370 $16.03
Planning Manager 6583 $46.37 6623 $56.62 6656 $66.74
Plans Examiner I 6474 $26.92 6514 $32.87 6548 $38.94
Playschool Instructor* 6373 $16.27
Principal Management Analyst 6557 $40.73 6597 $49.73 6617 $54.94 Principal Engineer 6567 $42.82 6607 $52.27 6640 $61.62
Program Specialist 6364 $15.55
Public Services Technician I 6413 $19.86 6453 $24.25 6487 $28.73 Public Services Technician II 6423 $20.88 6463 $25.49 6497 $30.20 Public Services Technician III 6443 $23.07 6483 $28.16 6517 $33.36 Public Works Inspector I 6444 $23.19 6484 $28.31 6518 $33.53 Public Works Inspector II 6464 $25.62 6504 $31.27 6538 $37.05 Purchasing Clerk 6368 $15.87 6408 $19.37 6418 $20.37
Receptionist 6364 $15.55 6382 $17.02 6392 $17.89
Records Clerk 6364 $15.55 6384 $17.19 6432 $21.83
Records Coordinator 6372 $16.19 6412 $19.77 6459 $24.98 Recreation Leader II* 6364 $15.55
Secretary 6394 $18.07 6434 $22.06 6444 $23.18
Senior Accountant 6498 $30.35 6538 $37.05 6571 $43.68
Senior Civil Engineer 6543 $37.99 6583 $46.37 6620 $55.77 Senior Information Technology Analyst 6558 $40.94 6598 $49.97 6618 $55.22 Signal and Lighting Technician 6452 $24.12 6492 $29.46 6530 $35.60 Theatre Technician I* 6364 $15.55
Theatre Technician II* 6407 $19.27
Veterinarian 6579 $45.46 6619 $55.50 6652 $65.42
Veterinary Assistant 6407 $19.27 6447 $23.52 6481 $27.88 Veterinary Technician 6437 $22.40 6477 $27.33 6511 $32.38 * Single Step
ATTACHMENT 6
Part Time City Positions Salary Schedule
July 1, 2023
DATE:June 21, 2023
TO:President and Members of the Board of Directors
FROM:John R. Gillison, City Manager
INITIATED BY: Robert Neiuber, Senior Human Resources Director Lucy Alvarez-Nunez, Management Analyst
SUBJECT: Consideration to Approve Resolution Adopting a Memorandum of Understanding Between the Rancho Cucamonga Fire Protection District and Rancho Cucamonga Fire Management Employees Group Relative to Wages, Benefits, and Other Terms and Conditions for the Period of July 2023 through June 2026, and Adoption of the Updated Salary Schedule for Fiscal Year 2023-2024. (RESOLUTION NO. FD 2023-017 AND RESOLUTION NO. FD 2023-018) (FIRE)
RECOMMENDATION:
Staff recommends the Fire Board of the Rancho Cucamonga Fire Protection District approve the attached resolution adopting a memorandum of understanding between the Rancho Cucamonga Fire Protection District and the Rancho Cucamonga Management Employees Group relative to wages, benefits, and other terms and conditions for the period of July 1, 2023, through June 30, 2026, and the attached resolution adopting the updated salary schedule for fiscal year 2023-2024.
BACKGROUND:
The Rancho Cucamonga Fire Board previously approved the existing Memorandum of Understanding between the Rancho Cucamonga Fire Protection District (District) and Fire Management Employees Group (Fire MEG) which is set to expire on June 30, 2023.
In January of 2023, Fire District and Fire MEG representatives met and conferred in good faith to bargain on the terms and conditions for a successor Memorandum of Understanding.
On June 2023, the parties reached an agreement for a three-year (3) Memorandum of Understanding (MOU) commencing July 1, 2023, through June 30, 2026.
This MOU provides a cost of living adjustment (COLA) effective the first full pay period in July 2023, reflected in the updated fiscal year 2023-2024 salary schedules.
The Fire Board traditionally adopts salary resolutions biannually for classifications employed by the City of Rancho Cucamonga. These resolutions are updated to reflect changes in salaries, additions and deletions of classifications, changes in job titles, and other terms of employment.
ANALYSIS:
The negotiated and agreed upon MOU was settled in mutual recognition of the current economic conditions in the State of California, the ongoing adjustments to CalPERS, the ongoing fiscal challenges facing all local agencies, and prudent public policy, while balancing the need to maintain competitive compensation levels.
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The three-year (3 yr) agreement includes:
•3% Cost of Living Adjustment effective the first full pay period in July of each year during the term of the MOU.
•Equity Adjustments to bring positions within the bargaining unit closer to market as follows:
Fire Chief gets 1% equity adjustment effective the first full pay period in January 2024 and 2026; Deputy Chief gets 4% equity adjustment effective the first full pay period in January of each year during the term of the MOU; and Battalion Chief gets 3% equity adjustment effective the first full pay period in January 2024 and 2025, and 2% effective the first full pay period in January 2026.
•1% pick-up of cost sharing on the employer side by all Classic CalPERS covered members effective the first full pay period in July 2024.
•Reopener during the third year of the MOU to discuss cost sharing should PEPRA rates increase during the term of the contract.
•Effective the first full pay period in July 2023, the Battalion Chief assigned to a 40-hour schedule as Training Officer or a special assignment will receive additional compensation of 11% stipend, based on the step the employee is currently earning. •Effective the first full pay period of the MOU ratification, the City Manager may provide a vacation accrual rate up to the equivalent of a ten-year employee for new Fire MEG employees upon hire.
•Amendment to vacation buy-back of up to a maximum of 200 hours per year. •Additional Bereavement Leave of 40 hours for 40-hour personnel and 56 hours for shift personnel when the bereavement leave is related to a close family member or relative. •Change to Natal and Adoption Leave with Pay from 2 days to 120 hours. •Language clarifying that Deferred Compensation is paid into the 401a plan. •Removal and update of MOU language.
In addition, parties agree that if the Finance Department cannot process equity adjustments for the first full pay period in January due to the end of the calendar year workload, they will process the equity adjustments and provide them by the second full pay period in January.
Upon Council approval, this agreement of memorandum of understanding is to be effective the first full pay period in July 2023 or the first full pay period after the District adoption, whichever is later.
The updated Fire Management salary schedule includes a 3% COLA for job classifications employed within the Fire MEG bargaining unit effective the first full pay period in July 2023, as provided in the attached MOU.
Staff recommends the Fire Board approve the attached resolution adopting the agreed upon Memorandum of Understanding between the Fire District and the Fire Management Employees Group, including the adoption of updated salary schedules for fiscal year 2023-2024.
FISCAL IMPACT:
The fiscal impact resulting from this agreement has a year one cost of $153,780, year two cost of $120,380, and year three cost of $133,940, a total cost of $408,100 for the term of the contract.
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COUNCIL MISSION / VISION / GOAL(S) ADDRESSED:
This item addresses the Council’s core value of working cooperatively and respectfully with one another, and intentionally embracing and anticipating the future by taking actions to further attract and retain an exceptional workforce.
ATTACHMENTS:
Attachment 1 – Resolution No. FD 2023-017
Attachment 2 – Memorandum of Understanding
Attachment 3 – Resolution No. FD 2023-018
Attachment 4 – Fire Management Employees Group Salary Schedule
Resolution No. FD 2023-XXX
RESOLUTION NO. FD 2023-
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE
RANCHO CUCAMONGA FIRE PROTECTION DISTRICT,
RANCHO CUCAMONGA, CALIFORNIA, APPROVING THE
MEMORANDUM OF UNDERSTANDING BETWEEN THE
DISTRICT AND RANCHO CUCAMONGA FIRE MANAGEMENT
EMPLOYEES GROUP RELATIVE TO WAGES, BENEFITS AND
OTHER TERMS AND CONDITIONS OF EMPLOYMENT FOR
THE PERIOD OF JULY 1, 2023, THROUGH JUNE 30, 2026.
WHEREAS, Representatives of the Rancho Cucamonga Fire Protection District ("District": hereinafter) and the Rancho Cucamonga Fire Management Employee Group “Fire MEG” have met and conferred pursuant to the provisions of the Meyers-Milias-Brown Act (California Government Code §3500, et seq.) with regard to terms and conditions of employment; and
WHEREAS, Representatives of the District and Fire MEG have agreed upon and presented to this Board a Memorandum of Understanding pertaining to the Fire MEG effective, July 1, 2023, specifying the results of said meet and confer process; and WHEREAS, All legal prerequisites to the adoption of this Resolution have occurred; and NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of the Rancho Cucamonga Fire Protection District of the City of Rancho Cucamonga that in all respects, as set forth in the recitals of this Resolution, the attached Memorandum of Understanding entered into by and between District representatives and the Fire Management Employees Group for the period July 1, 2023, through June 30, 2026.
PASSED, APPROVED, AND ADOPTED by the Board of Directors, this 21 st day of June 2023.
AYES:Alexander, Michael, Spagnolo, Steinorth, Williams
NOES:None
ABSENT:None
ABSTAINED:None
ATTACHMENT 1
1 Fire MEG MOU 2023-2026
MEMORANDUM OF UNDERSTANDING
RANCHO CUCAMONGA FIRE PROTECTION DISTRICT
AND
RANCHO CUCAMONGA FIRE PROTECTION DISTRICT
FIRE MANAGEMENT EMPLOYEES’ BARGAINING GROUP
2023 - 2026
2 Fire MEG MOU 2023-2026
Contents
PREAMBLE................................................................................................................................................5 ARTICLE I RECOGNITION.....................................................................................................................5 ARTICLE II COMPENSATION................................................................................................................5 § 1. Salary Ranges .............................................................................................................................5 § 2. Salary Plan ....................................................................................................................................8 A. Salary Ranges................................................................................................................................8
1. Salary on appointment.................................................................................................................8
2. Merit Salary Adjustments..............................................................................................................8
3. Salary on Promotion......................................................................................................................9
4. Salary on Demotion.......................................................................................................................9
5. Salary on Transfer.......................................................................................................................10
6. Salary on Position Reclassification...........................................................................................10
7. Salary on Re-Employment..........................................................................................................10
8. Salary on Rehire..........................................................................................................................10
9. Acting Pay.....................................................................................................................................10
10. Salary on Change in Range Assignment.................................................................................11
11. Training Officer Assignment Pay...............................................................................................11
12. Bilingual Compensation..............................................................................................................11 B. Deferred Compensation..............................................................................................................11 C. Voluntary Employee Benefit Association (VEBA)....................................................................11 § 3. Work Periods and Overtime .................................................................................................12 A. Work Periods................................................................................................................................12 B. Work Shifts....................................................................................................................................12 C. Flex Time.......................................................................................................................................12 D. 4/10 Schedule...............................................................................................................................13 E. Overtime Pay................................................................................................................................13 F. Call Back.......................................................................................................................................14 § 4. Uniform Allowance ..................................................................................................................14 § 5. Employee Group Insurance ..................................................................................................15
3 Fire MEG MOU 2023-2026
A. Health Insurance .........................................................................................................................15 B. Dental Insurance .........................................................................................................................16 C. Vision Insurance .........................................................................................................................16 D. Life Insurance ..............................................................................................................................16 § 6. Education Incentive .................................................................................................................16 § 7. Retirement Plan ........................................................................................................................17 A. Benefits: Safety Members...........................................................................................................17 B. Benefits: Miscellaneous Members.............................................................................................21 § 8. Work Related Injuries .............................................................................................................24 § 9. Carpooling ..................................................................................................................................24 § 10. IRS 125 Plan ...............................................................................................................................25 ARTICLE III LEAVES.............................................................................................................................25 § 1. Holidays .......................................................................................................................................25 § 2. Holiday Facility Closure .........................................................................................................27 § 3. Vacation Leave ..........................................................................................................................27 § 4. Sick Leave ..................................................................................................................................28 § 5. Conversion Factor ...................................................................................................................31 § 6. Personal Leave .........................................................................................................................32 § 7. Bereavement Leave .................................................................................................................32 A. 40-hour Personnel.......................................................................................................................32 Shift Personnel............................................................................................................................32 B. Immediate Family is Defined as:................................................................................................32 § 8. Compensatory Time ................................................................................................................32 § 9. Administrative Leave ..............................................................................................................33 § 10. Military Leave ........................................................................................................................33 § 11. Jury Duty .................................................................................................................................34 § 12. Civil Subpoena/Criminal Subpoena ...............................................................................34 A. Civil Subpoena.............................................................................................................................34 B. Criminal Subpoena......................................................................................................................35 § 13. Leaves of Absence without Pay ......................................................................................35 § 14. Natal and Adoption Pay .....................................................................................................36 A. Natal and Adoption Leave with Pay..........................................................................................36 B. Natal and Adoption Leave without Pay.....................................................................................36
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ARTICLE IV GRIEVANCE PROCEDURE...........................................................................................36 § 1. Purpose .......................................................................................................................................36 § 2. Objectives ...................................................................................................................................36 § 3. General Provisions ..................................................................................................................37 § 4. Informal Grievance Procedure .............................................................................................38 § 5. Formal Grievance Procedure ...............................................................................................38 A. Step I..............................................................................................................................................38 B. Step II............................................................................................................................................38 C. Step III............................................................................................................................................39 ARTICLE V DISCIPLINE........................................................................................................................41 ARTICLE VI SAFETY.............................................................................................................................41 § 1. Compliance ................................................................................................................................41 § 2. No Discrimination ....................................................................................................................41 § 3. Safety Equipment .....................................................................................................................41 § 4. Employee Responsibility .......................................................................................................42 § 5. Smoking Policy .........................................................................................................................42 ARTICLE VII MANAGEMENT RIGHTS...............................................................................................42 § 1. Scope of Rights ........................................................................................................................42 § 2. Emergency Conditions ...........................................................................................................43 ARTICLE VIII EMPLOYEE RIGHTS....................................................................................................43 ARTICLE IX MAINTENANCE OF BENEFITS....................................................................................43 ARTICLE X APPROVAL BY THE BOARD OF DIRECTORS..........................................................44 ARTICLE XI PROVISIONS OF LAW...................................................................................................44 ARTICLE XII TERM................................................................................................................................44 ARTICLE XIII NEGOTIATIONOF SUCCESSOR MOU.....................................................................44
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PREAMBLE
This Memorandum of Understanding (“MOU” hereinafter) is made and entered into by and between the Rancho Cucamonga Fire Protection District (“District” hereinafter), and the Rancho Cucamonga Fire Protection District Fire Management Employees Bargaining Group (“Fire MEG” hereinafter). The terms and conditions contained in this MOU are applicable to all full-time employees within this unit and contain the complete results of negotiations concerning wages, hours and other terms and conditions of employment for said employees represented herein.
ARTICLE I RECOGNITION
A. Pursuant to the provisions of existing rules and regulations and applicable State law, District hereby acknowledges Fire MEG as the exclusive recognized employee organization for the representation unit, which includes all management employees of District, who are employed on a full-time basis. The classes represented include Fire Chief, Fire Deputy Chief, Fire Battalion Chief, and Fire Marshal.
B. Fire MEG represents the classification of Fire Chief. However, Fire Chief is an at-will position, not subject to Article IV or V of this MOU or the District’s Personnel Rules. At- will positions may be terminated at any time with or without cause or notice at the will of the City Manager or Rancho Cucamonga Fire Protection District in its sole discretion and without any right due process or appeal right. Furthermore, the Fire Chief is precluded from acting as a Fire MEG representative or being a member of the Fire MEG Board.
ARTICLE II COMPENSATION
§ 1. Salary Ranges
A. Cost of Living Adjustment- All bargaining unit members shall receive a cost-of-living adjustment according to the following schedule:
3% cost of living adjustment effective the first full pay period in July 2023; 3% cost of living adjustment effective the first full pay period in July 2024; 3% cost of living adjustment effective the first full pay period in July 2025.
B. Equity Adjustment – Bargaining unit members shall receive equity adjustments according to the following schedule:
Fire Chief 1% equity adjustment effective the first full pay period in January 2024 1% equity adjustment effective the first full pay period in January 2026 Deputy Chief 4% equity adjustment effective the first full pay period in January 2024 4% equity adjustment effective the first full pay period in January 2025
4% equity adjustment effective the first full pay period in January 2026 Battalion Chief 3% equity adjustment effective the first full pay period in January 2024 3% equity adjustment effective the first full pay period in January 2025
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2% equity adjustment effective the first full pay period in January 2026 If the Finance Department is unable to process the equity adjustments for the first full pay period in January due to end of the calendar year workload constraints, they will process the equity adjustments and provide them by the second full pay period in January.
C. Survey Cities: Fire MEG and District agree that the survey cities shall be the cities of West Covina, Corona, Ontario, Riverside, Pasadena and Chino Valley Fire District. A survey of the identified labor market cities will be completed, reviewed by the Fire MEG and District, and used as the comparison basis for any negotiations regarding market equity adjustment and cost of living adjustment. The survey will be completed and available for review by District and Union no later than December 1 of the year prior to MOU expiration unless mutually agreed otherwise by the parties. Survey data will be those compensation amounts known and in effect as of the December 1 survey date. In the event a survey agency has a MOU that extends beyond the end of the fiscal year during which the survey is performed, the survey elements known and scheduled to be in force as of the following July will also be surveyed and included in the total compensation survey by the December 1 date.
D. Survey Elements:
1. Top step base pay for Fire Chief, Deputy Fire Chief, and Battalion Chief. Fire Marshall Pay shall not be surveyed, but figured at 7.26% above each Battalion Chief step;
2. Agency pick-up of member contributions to the Public Employees’ Retirement System (“PERS”); employer contribution to PERS, net of any employee cost sharing;
3. Uniform Pay;
4. Employer Contribution to Deferred Compensation;
5. Maximum employer contribution to Voluntary Employee Benefit Association (VEBA). For the purposes of the survey, this benefit will be reflected as a fringe benefit under MSA;
6. Maximum employer contribution to medical, dental, vision and long-term disability plans for new employees; and
7. Any other incentive or premium that 50% or more of the individuals given in a classification at an agency are eligible to receive, if it is also provided by more than 50% of the survey agencies, exclusive to the District.
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An individual is “eligible to receive” an incentive or premium if that individual can receive the item upon satisfaction of specified conditions (if any), without limits as to the number of individuals who can receive the incentive. For example, if a specialized training incentive is available to each individual who achieves the specific technical qualifications, the individual is “eligible to receive” that incentive even if he or she has not yet attained the technical certification that is required to actually receive it.
Conversely, if a department offers a premium that requires training but only grants that premium to a limited number of individuals or only to individuals in a certain limited number of assignments, the number of individuals above the limit are not eligible to receive the premium. In those instances, the stipends may be reviewed and discussed on an individual basis.
E. Survey Procedures and Users: Any survey element that is expressed as a percent of salary will be converted to a dollar amount using the top step base pay for the classification and agency involved. Multi-tiered survey elements involving medical benefits or other health and welfare benefits will be surveyed based on the compensation provided to new employees for that element. If applicable, other multi-tiered incentives will be surveyed at the highest amount of incentive pay obtainable, so long as the thresholds in Item C.5 are met. For comparison purposes in determining a market average, the high and low (of those that receive any given benefit) will be dropped for each salary element, except base salary, where all survey agencies will be used. After dropping the high and low agency, the mean average for the applicable survey element will be calculated. The resulting average numbers for each survey element will be added together to determine a cumulative average total compensation.
The results may be used for comparison purposes in negotiations involving future compensation adjustments. There is no obligation to implement and salary element or to make any compensation adjustment based on the survey results and the parties acknowledge that other factors, including revenue, staffing, PERS contributions and other post-employment benefit (“OPEB”) costs play a significant factor in the ability of the District to implement any survey element.
Survey Example:
1. Look at a particular benefit at the maximum level achievable (in this example highlighted in yellow for each city):
Chino Valley Fire District 7%
City of West Covina Benefit X 3% or 5%
City of Riverside Benefit X 5%; 10% or 15%
City of Pasadena Benefit X 3% or 6%
City of Ontario N/A
City of Corona Benefit X 2%
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2. Drop high (Riverside 15%) and low (Corona 2%) from among the five agencies that offer the benefit.
3. Average remaining three cities [(W.C 5% + Pasadena 6% + CVFD 7%) / 3 = 6%].
4. Thus, Benefit X for market comparison purposes is assumed to be 6%. § 2. Salary Plan
A. Salary Ranges
Effective the first full pay period in August 2019, “A” step salaries in the salary schedule, for all ranks, will be removed. The salary steps will be reorganized, where step B step becomes the new step A, step C becomes the new step B, etc., G step will drop off from the salary range for Fire Chief and Fire Deputy Chief positions and F step will drop off from the salary range for Fire Battalion and Fire Marshal. No changes to the employees pay rates will result from these changes.
The base salary for Fire Chief, Deputy Fire Chief consists of ranges having six (6) steps, labeled A through F, with approximately five percent (5%) between each step.
The base salary for Battalion Chief and Fire Marshall consists of ranges having five (5) steps, labeled A through E, with approximately five percent (5%) between each step. The salary for Fire Marshal is set at 7.26% above the 40 hour a week Fire battalion Chief.
Placement within the range shall be in accordance with the following:
1. Salary on appointment
New employees shall be compensated at Step “A” of the salary range to which their class is allocated. If unusual recruitment difficulties are encountered or a candidate is exceptionally well qualified, appointment at a higher step in the salary range may be authorized by the Fire Chief.
2. Merit Salary Adjustments
Advancement within a salary range shall not be automatic, but shall be based upon job performance and granted only on the recommendation of the employee’s supervisor and approval of the Fire Chief. Employees shall be considered for merit salary increases in accordance with the following:
a. Employees who are placed at Step A upon original employment, reinstatement, or promotion are eligible for a merit salary review after six (6) months of service.
Subsequent merit salary review dates shall fall upon the completion of twelve (12) month service intervals.
b. Employees who are placed at Step B or above upon original employment, reinstatement, or promotion shall be eligible for a merit salary review after six
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months of service. Subsequent review dates shall fall upon the completion of twelve (12) month service intervals.
c. The granting of an official leave of absence of more than thirty (30) continuous calendar days, other than military leave, shall cause the employee’s merit salary review date to be extended the number of calendar days he or she was on leave.
d. If, in the supervisor’s judgement, the employee’s performance does not justify a salary increase on the review date, the employee shall be reevaluated before the expiration of six (6) months dating from the employee’s review date. If the period of postponement exceeds three (3) months and the employee receives a salary increase, the employee shall be assigned a new review date based on the date the increase was granted.
e. Authorized salary step increases shall become effective at the beginning of the pay period nearest the employee’s review date.
f. Should an employee’s review date be overlooked, and upon discovery of the error, the employee is recommended for a salary increase, the employee shall receive a supplemental payment compensating him or her for the additional he or she would have received had the increase been granted at the appropriate time.
g. The normal merit salary increase shall be one (1) step granted in accordance with the preceding. However, to reward outstanding achievement and performance, the Fire Chief may grant one (1) additional step increase not to exceed one (1) step in any given six (6) month period.
h. In order to address a situation where in application of this section would result in the inequitable treatment of employee and upon the recommendation of the Fire Chief and approval of the Board, an employee may be placed at any step in the salary range for his or her class.
3. Salary on Promotion
An employee, who is promoted to a position in a class with a higher salary range than the class in which he or she formerly occupied a position, shall receive the nearest higher monthly salary in the higher salary range that would constitute a minimum five percent (5%) salary increase over his or her base salary rate, provided that no employee may receive a rate in excess of the top step of the promotional class. If the promotion occurs within sixty (60) days of a scheduled merit salary review date, the employee shall receive the merit increase (if otherwise entitled to it) and the promotional increase concurrently. The employee shall be given a new merit salary review date for purposes of future salary step advancement. The new date shall be based upon the effective date of promotion.
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4. Salary on Demotion
An employee who is demoted to a position in a class with a lower salary range shall receive a new merit salary review date based upon the effective date of the demotion and receive a salary in accordance with the following:
a. Disciplinary demotion – any designated salary step in the lower salary range which will result in the employee’s receiving at least a five (5) percent reduction in pay.
b. Non-disciplinary demotion – that salary step he or she would have received in the lower class if his or her services had been continuous in said lower class.
5. Salary on Transfer
An employee who is transferred from one position to another in the same class or to another position in a similar class having the same salary range shall receive the same step in the salary range previously received ad the merit salary review date shall not change.
6. Salary on Position Reclassification
When an employee’s position is reclassified and the employee is appointed to the position, salary shall be determined as follows:
a. If the position is reclassified to a class with a higher salary range than the former class, salary and merit salary review date shall be set in the same manner as if he or she had been promoted.
b. If the salary of the employee is the same or less than the maximum of the salary range of the new class and the salary range of the new class is the same as the previous class, the salary and merit salary review date will not change. c. If the salary of the employee is greater than the maximum of the range of the new class, the salary of the employee shall be designated as a “Y-rate” and shall not change during continuous regular service until the maximum of the salary range to which the class is assigned exceeds the salary of the employee.
7. Salary on Re-Employment
An employee recalled after a layoff shall receive the same salary step in the range of the class which he or she was receiving upon layoff.
8. Salary on Rehire
Upon rehire, an employee shall be placed at such salary step as may be recommended by the Supervisor and approved by the Fire Chief. The employee’s merit salary review date shall be based on the date of rehire.
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9. Acting Pay
Acting pay shall be one (1) step, approximately five percent (5%), above the affected employee’s base salary rate. To receive acting pay the employee must:
a. Be formally assigned only doing the duties appropriate to the higher class. b. Work in the higher class at least fifteen (15) consecutive workdays, five (5) shifts for employees working twenty-four (24) hour shifts. Acting pay will be paid beginning with the sixteenth (16 th) consecutive day worked in an acting capacity, sixth (6th) shift for employees working twenty-four (24) hour shifts. c. In any instance where it is reasonably anticipated at the commencement of the acting assignment that the assignment is likely to extend beyond fifteen (15) consecutive workdays or five (5) shifts, the described five percent (5%) acting pay shall commence being earned from the first day/shift of the acting assignment.
10. Salary on Change in Range Assignment
When a class is reassigned to either a higher or lower salary range by the Board, the salary of each incumbent in such a class on the date the reassignment is effective shall be adjusted to the step her or she was receiving in the former range.
11. Training Officer Assignment Pay
The Battalion Chief assigned to a 40-hour schedule as the Department Training Officer or a special assignment shall receive additional compensation (stipend) based on the step the employee is currently earning. The compensation (stipend) shall be in addition to the regular compensation paid to the employee. Effective the first full pay period in July 2023, the stipend shall be 11%.
12. Bilingual Compensation
Bargaining Unit members who qualify for bilingual pay shall be compensated at the rate of seventy-five dollars ($75.00) per month. Employees must pass an examination demonstrating their proficiency in the Spanish, Chinese or Korean languages.
B. Deferred Compensation
The District contributes a percentage of monthly base salary into the 401a plan. The District-paid contributions are as follows:
Fire Chief 8%
Deputy Fire Chief 6%
Battalion Chief and Fire Marshal 4%
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C. Voluntary Employee Benefit Association (VEBA)
The City has established a Voluntary Employee Benefit Association (VEBA) through the California Government Voluntary Employee Benefit Association to assist employees with planning for future health care expenses. Represented employees shall be eligible to participate in the plan according to a schedule to be established as an addendum to this MOU.
Contributions to the Plan shall be made as District contributions through a salary reduction arrangement and are made on a pre-tax basis in accordance with IRS provisions. At the discretion of the Union, employee contributions may be amended once per year provided that such amendment is permitted by IRS regulations and in conformity with the Plan Document.
Effective the first full pay period in August 2019, the Fire District will contribute 2% of base salary per pay-period. Example: A bi-weekly base pay of $2,000 equals a biweekly contribution of $40.
§ 3. Work Periods and Overtime
A. Work Periods
1. Employees assigned to 24-hour shifts shall work a Kelly Schedule that consists of a 24-day rotation pursuant to section 207 (k) of the Fair Labor Standards Act (FLSA) as follows:
SUN MON TUES WED THURS FRI SAT On Off On Off On Off On
Off Off Off Off On Off On
Off On Off On Off Off Off
Off Off Off
2. The pay period for shift personnel is 14 days. Overtime is paid for time worked in excess of one hundred six (106) hours in the pay period.
3. The work period for forty (40) hour personnel is seven (7) days with overtime being time worked in excess of forty (40) hours in the period.
B. Work Shifts
1. All twenty-four (24) hour work shifts begin at 0800 and end at 0800 the following day, twenty-four (24) hours thereafter.
2. Personnel assigned to a forty (40) hour schedule shall work Monday through Thursday from 0700 to 1800 inclusive of paid breaks and unpaid sixty (60) minute meal period.
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C. Flex Time
1. The work schedules of employees assigned to other than fire suppression is subject to change depending on needs of the service or desires of the concerned employee(s) (see item 3).
2. The District shall not change work schedules when the sole purpose of the change is to avoid payment of time and one-half for overtime. This, however, is not to be interpreted as preventing a schedule change upon the mutual agreement of the District and affected employee.
3. Employees may request schedule changes to address personal interests.
Whenever possible such requests will be accommodated, provided however, that needs of the service as determined by the District will take precedence over employee preferences.
4. The District will not affect schedule changes but for good and sufficient cause.
5. Management employees shall be allowed to work a flexible work week upon the approval of their supervisor.
D. 4/10 Schedule
With the 4/10 implementation, employees who experience hardship due to childcare issues, may request alteration of their schedule by taking a ½ hour lunch and arriving at work ½ hour late or leaving work ½ hour early. Additionally, employees who carpool at least 60% of the pay period and 60% of the distance into their normally assigned workplace are eligible to leave ½ hour early from work or arrive ½ hour late.
E. Overtime Pay
1. The rate of pay for overtime hours worked shall be at the rate of time and one-half (1.5) the regular rate of pay, for those employees eligible for overtime.
2. Wages: The Battalion Chief in Training and suppression Battalion Chiefs will be paid overtime at the fifty-six (56) hour rate for any overtime worked at time-and one-half (1.5) rate of pay.
3. For purposes of computing overtime pay under the Fair Labor Standards Act, military leave shall be the only leave of absence not considered hours worked.
4. For the purposes of this section, work time shall not include traveling to and from the normal work site.
5. All non-exempt full-time employees who are called back to work from off-duty as a result of an emergency, shall be paid at the rate of time and one-half (1/2) for any hours worked, with a minimum of two (2) hours pay for each emergency recall.
Employees required to work more than fifteen (15) minutes shall be compensated for a minimum of one (1) hour; any time worked over one (1) hour will be paid in
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one-half (1/2) hour increments (fifteen (15) minutes work shall constitute one-half (1/2) hour). Time spent in traveling to and from the worksite shall be compensated in accordance with FLSA.
Employees required (held over) to work more than (15) minutes overtime shall be compensated for a minimum of one (1) hour. Any overtime worked in excess of one (1) hour will be paid in half hour increments. Provisions shall be made for an equitable distribution of overtime, consistent with efficient operations of the District.
6. The Deputy Chief will be paid an amount equal to State and/or Federal reimbursements received by the District for the work performed through State and/or Federal requests for hours worked beyond the normal forty (40) hour work week (e.g. strike teams), at the Deputy Chiefs normal rate of pay, provided the Deputy Chief is acting in a management capacity consistent with their normal position under the Fair Labor Standards Act. The requisite amounts equal to the time worked beyond the normal forty (40) hour work week will be paid to the Deputy Chief during the pay period in which the work performed through State and/or Federal requests for hours worked beyond the normal forty (40) hour work week (e.g. strike teams) occurs. This section is intended to allow a Deputy Chief to lead a strike team, if necessary, as would a regular shift Battalion Chief, without having to use accrued vacation leave.
F. Call Back
A minimum of two (2) hours of work time will be credited to an employee who responds to a District call to come to work during off-duty hours. This section is not to be interpreted as requiring said minimum in the event of an extended workday or when the employee begins his or her regular work shift before the normal starting time. § 4. Uniform Allowance
A. The District shall provide three (3) sets of work uniforms for each employee who is required to wear a uniform prior to his or her start date. The value of these initial uniforms provided shall be reported to CalPERS as compensation in accordance with applicable CalPERS requirements. Suppression members must buy their own class A uniforms at the completion of probation.
B. The District stipulates that its goal on Uniform Allowance is to provide for the purchase of uniform articles as specified in the District’s rules and regulations, to a maximum of $1,500 Annually per employee for the purchase of four (4) uniforms to start. The Uniform Allowance will be paid concurrent with the first full pay period after the beginning of the new fiscal year, in a separate check from the regular paycheck. § 5. Employee Group Insurance
District agrees to provide group insurance plans in accordance with the following:
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A. Health Insurance
1. District will provide medical insurance through the State of California Public Employee’s Medical and Hospital Care Program (PEMHCA).
2. District will provide fully paid employee and family health insurance for all existing full-time and retired employees as of November 17, 1994.
3. District shall provide paid employee and family health insurance for all full-time employees hired after November 17, 1994, at a monthly amount equal to the average eligible “Public Employees Medical and Hospital Care Program” (PEMHCA) medical rates available to active Fire MEG unit members covering San Bernardino County. The monthly contribution amount averages will be calculated annually during the open enrollment period with changes going into effect when the new rates go into effect.
4. All new full-time employees hired after November 17, 1994, want to maintain medical insurance through the State of California, Public Employees Medical and Hospital Care Program, upon their retirement, shall be responsible for paying their own premiums.
5. Upon written request of the employee, along with verification that their spouse and/or family can provide full health insurance, cash compensation in lieu of medical benefits in the amount of $200.00 for single employees or $300.00 for employees with dependents, may be provided to the employee. Selection of compensation shall be at the employee’s discretion. The employee may reenter the District’s health plan at any time.
6. Affordable Care Act (ACA) Reopener. The District may reopen negotiations on the issue of health insurance benefits to address changes to or statutory scheme that may result from an interpretation of the ACA an in order to avoid penalties or taxes under the ACA or other statutory scheme by the Internal Revenue Service or other federal agency (including, but not limited to, a revenue ruling, regulation or other guidance) or state agency, or a ruling by a court of competent jurisdiction. These negotiations will not result in a reduction in the amount the District provides for employee health coverage.
B. Dental Insurance
District shall continue to provide fully paid employee and family dental insurance plan for all full-time employees.
C. Vision Insurance
The District shall continue to provide vision care coverage for all full-time continuous employees with a maximum payment not to exceed $22.25 a month.
Employees agree to contribute 0.02% of their salary adjustment to fund their
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contribution of $2.00 a month for vision insurance. The above amount of $22.25 includes the employees’ contribution. The employee shall pay the cost of vision insurance in excess of $22.25.
In the event that vision insurance premiums exceed $22.25 during the term of the contract, the District shall provide advanced notice to the representatives, if possible, at least thirty (30) days.
D. Life Insurance
The District shall provide a fully paid $50,000 life insurance policy for all Fire MEG members.
§ 6. Education Incentive
The District shall provide to employees an educational incentive equal to the following:
Bachelor of Arts/Bachelor of Science of Fire Officer Certification = $317/ month Master of Arts/Master of Science or Chief Officer Certification = $475/ month Eligibility for the above-mentioned education incentive requires proof of graduation and receipt of degree from a college or university that is accredited by a national recognized accrediting agency approved by the United States Secretary of Education and found on the United Stated Department of Education website. Compliance with the Fire Officer/Chief Officer certification requires proof of satisfactory completion (C or better or “pass” in a pass/fail class) of all required classes for the Certification Track currently authorized and approved by the California State Fire Marshall for Fire Officer or Chief Officer. Degrees earned online shall be accompanied by a declaration under penalty of perjury that the subject employee personally performed all requirements for issuance of the degree. The Fire Chief’s determination regarding eligibility for an education incentive shall be final. The Fire Chief’s determination regarding eligibility for an education incentive shall be final.
The above-mentioned education incentives shall be non-cumulative, meaning that an employee who meets the highest recognized education incentive, which would be the Master of Arts/Master of Science or Chief Officer Certification, shall receive only one incentive pay regardless of whether they have also met the lower recognized education incentive also. Neither shall an employee receive education incentive pay for both a degree and a certification.
§ 7. Retirement Plan
A. Benefits: Safety Members
District is enrolled in the State of California Public Employee’s Retirement System.
Except as described herein, all benefits provided District employees under the District’s Plan are paid by the District. Present benefits for public safety employees include the following:
1. Tier 1 - Employees hired prior to July 9, 2011:
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§ 21362.2 3% at 50 Full Formula
§ 21574 4th Level 1959 Survivor
§ 20042 1 Year Final Compensation
Effective June 24, 2023, employees contribute 9% of the normal CalPERS member contribution, eliminating EPMC per resolution FD 2023-011.
Fire Chief Position, hired prior to July 9, 2011:
Effective June 24, 2023, Fire Chief contributes 9% of the normal CalPERS member contribution, eliminating EPMC per resolution FD 2023-011, and contributes 1% towards the Districts’ CalPERS employer contribution.
2. Tier 2 - Employees hired on or after 7/9/11 and through 12/31/12, and Classic PERS members, as defined by PERS, who are hired on or after January 1, 2013:
§ 21363.3 3% at 55 Full Formula
§ 21574 4th Level 1959 Survivor
§ 20037 3 Year Final Compensation
Effective June 24, 2023, employees contribute a total of 9% of the normal CalPERS member contribution, eliminating EPMC per resolution FD 2023-011.
Fire Chief Position, hired prior to July 1, 2011, and through December 31, 2012, as well as Classic PERS members who are hired on or after January 1, 2013:
Effective June 24, 2023, employees in the Fire Chief position pay 9% of the normal CalPERS member contribution, eliminating EPMC per resolution FD 2023-011, and contribute 1% towards the Districts’ CalPERS employer contribution.
3. Employees who are New PERS Members, as defined by PERS, who are hired on or after January 1, 2013:
Employees are classified as New Members of PERS when they meet the definition of a "new member" for purposes of retirement pension benefits pursuant to the Public Employees’ Pension Reform Act of 2013. Generally, this includes employees that were hired into a regular position on or after January 1, 2013 or former PERS members who have more than a six-month break in service.
CalPERS ultimately determines who is a new member in compliance with the law.
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Employees who are classified as New Members shall be eligible for the 2.7% at 57 Formula, 3 year final compensation average.
The employee contribution for new members shall be one-half the normal cost, as determined by CalPERS. As of the effective date of this MOU, the required employee contribution for new members is 11.5% of reportable compensation.
This amount will be adjusted periodically by CalPERS, and the District employee contribution adjusted accordingly per state statute.
The District has adopted a resolution providing that all employee CalPERS contributions shall be deducted on a pre-tax basis per IRC 414(h)(2).
It is understood that all contributions paid by the employee as described in Parts 1 through 2 above shall be calculated based upon the pay rate (i.e. full base salary of the employee), plus any additional special compensation, including any Employer Paid Member Contributions (EPMC), and as described above in Part 3 above, on the pensionable compensation as defined in the California Public Employee’s Pension Reform Act of 2013 (”PEPRA”).
The District adopted a resolution providing that all employee CalPERS contributions shall be deducted on a pre-tax basis to the extent permitted by law or IRS regulation. All employee payments of the employer share are odne pursuant to Government Code Section 20516(f).
There shall be no sunset date to any provisions in Article II Section 7 Retirement Plan.
B. Benefits: Miscellaneous Members
District is enrolled in the State of California Public Employee’s Retirement System. All benefits provided District employees under District’s Plan are paid by the District.
Present benefits for miscellaneous employees include the following:
1. Tier 1 - Employees hired prior to July 9, 2011:
§ 21354.4 2.5% at 55 Full Formula
§ 21574 4th Level 1959 Survivor
§ 20042 1 Year Final Compensation
Effective June 24, 2023, employees contribute a total of 8% of the normal CalPERS member contribution, eliminating EPMC per resolution FD 2023-011.
The District adopted a resolution providing that all employee CalPERS contributions to the employer share pursuant to this section shall be deducted on a pre-tax basis.