• Richman acknowledges that:
o the ENA is not a Definitive Agreement and does not create a legal obligation for either party to enter into a Definitive Agreement. o the ENA does not give it any property interest in the 4-Acre Portion. o anything either party does after executing the ENA in contemplation of entering into a Definitive Agreement is not evidence of intent to be bound by that future Definitive Agreement.
o the ENA is not a representation, guaranty, or assurance by the City of future approval of any entitlement or request for financial assistance from the City.
• In order to ensure exemption from the Surplus Land Act (Government Code Section 54220 et seq.) (the “Act”), at a minimum, any Definitive Agreement will reflect that the Project on the Site will meet the requirements of Government Code section 37364 - namely,
o At least 80 percent of the area of the Site shall be used for development of housing;
o At least 40 percent of the total number of housing units developed on the Site shall be affordable to households whose incomes are equal to, or less than, 75 percent of the maximum income of lower income households, and at least half of those units shall be affordable to very low income households; and
o Dwelling units produced for persons and families of low or moderate income shall be restricted by regulatory agreement, recorded in the County’s official records, to remain continually affordable to those persons and families for the longest feasible time, but not less than 30 years, pursuant to a method prescribed by the city.
• Any Project on the Site is anticipated to be a mixed-income housing development that will comply with the Waterman & Baseline Neighborhood Specific Plan.
• Richman agrees to indemnify, defend and hold the City harmless against any and all claims arising under the ENA.
2021-2025 Strategic Targets and Goals
Approving the ENA aligns with Key Target No. 1: Improved Operational & Financial Capacity; and Key Target No. 3: Improved Quality of Life. 15 Packet Pg. 492
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Fiscal Impact
The developer will cover the costs of the City (i.e., staff time and effort) as part of negotiating a Definitive Agreement. There should be no fiscal impact to the City by the approval of the ENA.
CEQA
Approval of the ENA is not a project within the meaning of Section 15378 of the State of California Environmental Quality Act (“CEQA”) Guidelines, because it has no potential for resulting in physical change in the environment, directly or indirectly. This agreement sets the terms of negotiation between the City and Richman; it does not authorize any specific development or installation on any specific piece of property or infrastructure within the City’s boundaries.
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, approve the Exclusive Negotiating Agreement (“ENA”) between the City of San Bernardino and The Richman Group, LLC for the development of a 4-acre portion of Seccombe Lake Park at the northwest corner of Sierra Way and 7th Street; and Determine that the ENA is categorically exempt from the California Environmental Quality Act (“CEQA”).
Attachments
Attachment 1 Seccombe Lake Park - Exclusive Negotiating Agreement Ward: 1
Synopsis of Previous Council Actions: None
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1 EXCLUSIVE NEGOTIATING AGREEMENT
PARTIES: CITY OF SAN BERNARDINO AND THE RICHMAN GROUP, LLC PROPERTY: FOUR (4)-ACRE PORTION OF SECCOMBE LAKE PARK AT NW CORNER OF SIERRA WAY AND 7TH STREET
THIS EXCLUSIVE NEGOTIATING AGREEMENT (the “Agreement”) is dated as of ____________, 2022 and is entered into by and between The Richman Group of California Development Company, LLC, a California limited liability company and its permitted assigns (collectively the “Developer”) and the City of San Bernardino, in its capacity as Successor Agency and Successor Entity to the Redevelopment Agency of the City of San Bernardino (the “City”).
Developer and the City are collectively referred to herein as the “Parties.” This Agreement is entered into in light of the facts set forth in the following recital paragraphs:
RECITALS
A. WHEREAS, by quitclaim deed dated December 5, 1991 and recorded on January 15, 1992 in the Official Records of the County of San Bernardino as No. 92-016139, the State of California (the “State”) conveyed nine (9) specific parcels, known as Seccombe Lake Park (the “Park”), to the City, with the condition that it be used only for park purposes in perpetuity, unless the State Legislature, by specific act, permitted other uses, sale or disposition of the property; and B. WHEREAS, on September 30, 2006, Governor Arnold Schwarzenegger signed Assembly Bill No. 1457 (“AB 1457”) into law, which allowed the City to sell up to 12.5 acres of the Park (the “12.5-Acre Portion”) to the City’s Redevelopment Agency (“RDA”); and C. WHEREAS, the conditions of sale of the 12.5-Acre Portion for private development, as dictated by AB 1457, are as follows:
1. The City and RDA must prepare a detailed land plan showing which specific parcels of the 12.5-Acre Portion will be sold (the “Land Plan”) and which properties elsewhere in the City will be acquired or developed or both with the proceeds of such sale (the “Replacement Park Land”);
2. The Land Plan must show and the City and RDA must ensure that there is no net loss in Park acreage as a result of implementation;
3. For portions of the Replacement Park Land owned by the City or RDA as of January 1, 2006, the City shall, prior to transfer of title of any portion of the Park to the RDA, submit to the State (a) evidence of compliance with the Public Park Preservation Act of 1971 (Chapter 2.5 (commencing with Section 5400) of Division 5 of the Public Resources Code), including a copy of the recorded deed and title policy for, and map of, the Replacement Park Land, and (b) a revised map of the Park showing revised acreage;
4. For portions of the Replacement Park Land not owned by the City or RDA as of January 1, 2006 but to be owned within two (2) years after sale of all or a portion of the 12.5-Acre Portion, the City and RDA shall acquire fee title and
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2 develop for park purposes the Replacement Park Land within reasonable proximity to the Park to be used exclusively for park purposes;
5. The City shall conduct a public hearing before the City Council to review the Land Plan and take public comment;
6. The City or RDA, prior to closing any real property transactions under the Land Plan, shall submit to the State an independent appraisal (which shall be a public document) of the 12.5-Acre Portion (or any portion thereof) to be sold and the Replacement Park Land; and
7. The City shall reimburse the State for any costs or expenses associated with their review and approval of the appraisal, conveyance, and acquisition documents.
D. WHEREAS, as part of the 2011 Budget Act, the State Legislature dissolved the State’s 400-plus RDAs, and after a period of litigation, RDAs, including the City’s RDA, were officially dissolved as of February 1, 2012; and
E. WHEREAS, to help facilitate the wind-down process at the local level, successor agencies (“SAs”) were established to manage redevelopment projects currently underway, make payments on enforceable obligations, and dispose of redevelopment assets and properties. Each SA has an Oversight Board (OB) that supervises its work; and F. WHEREAS, on January 9, 2012, by Resolution No. 2012-12 (the “SA Resolution”), the City agreed to serve as the SA for the RDA and therefore, as the SA, has fee ownership and possession of the Park and the 12.5-Acre Portion within it; and G. WHEREAS, the City (as SA) seeks to develop the first phase of a proposed affordable housing project (the “Project”), located on approximately four (4) acres of the 12.5- Acre Portion of the Park, on the northwest corner of Sierra Way and 7th Street (the “Property” or the “Site”), generally depicted in Exhibit “A,” attached hereto and incorporated herein by reference; and
H. WHEREAS, on September 6, 2020, the City published a Request for Qualifications (RFQ F-21-06) (the “RFQ”), seeking qualified developers for the Project; and I. WHEREAS, on October 19, 2020, Developer submitted a response to the RFQ (the “Developer Response”); and
J. WHEREAS, through November and December 2020, the City exchanged correspondence with the State (specifically, the Office of Grants and Local Services (“OGALS”) with respect to the Project Site and the City’s ability to move forward with the Project absent additional legislation; and
K. WHEREAS, on March 22, 2021, the City met with officials from OGALS and intends to remain in close contact with OGALS and the State, as necessary and appropriate, to fully comply with AB 1457; and
L. WHEREAS, on or about April 19, 2021, OGALS notified the City that the City may sell the Property for private development without pursuing new legislation separate and apart from AB 1457; and
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3 M. WHEREAS, while the Developer Response (attached hereto as Exhibit “B”) does not set forth any terms on which the Developer is prepared to acquire any interest in the Site from the City, it does detail Developer’s personnel, experience, and expertise in constructing, maintaining, and operating affordable housing developments across the country; and N. WHEREAS, at a minimum, any Project on the Site will meet the requirements of Government Code section 37364; therefore, the Property and its ultimate disposition to Developer will be exempt from the Surplus Land Act, Government Code sections 54220 et seq. (the “Act”), pursuant to section 54221(f)(1)(A) of the Act; and
O. WHEREAS, the City intends to issue a Request for Proposals or Request for Qualifications for the remaining 8.5 acres of the 12.5-Acre Portion at some time in 2022.
P. WHEREAS, the City believes in good faith that it is free to exclusively negotiate with Developer at this time; and
NOW, THEREFORE, in view of the goals and objectives of the State of California and the City relating to the disposition of City-owned lands for potential development as an affordable housing project, and in consideration of the mutual promises of City and Developer set forth in this Agreement, the City and Developer agree as follows:
1. Incorporation of Recitals. The Recitals set forth above are true and correct and are incorporated into this Agreement, in their entirety, by this reference.
2. Effective Date and Negotiation of Definitive Agreement. (a) The rights and duties of the City and the Developer established by this Agreement shall commence on the first date on which all of the following have occurred (the “Effective Date”): (1) execution of this Agreement by the authorized representative(s) of the Developer and delivery of such executed Agreement to the City, (2) payment of the Initial Deposit to the City by the Developer, in accordance with Section 8, and (3) approval of this Agreement by the City Council and execution of this Agreement by the authorized representative of the City. (b) Subject to the terms and conditions of this Agreement, during the Negotiation Period (defined in Section 4), Developer and the City shall proceed in good faith to undertake discussion, evaluations, negotiation and documentation of the potential terms of a Purchase and Sale Agreement or Disposition and Development Agreement or some other definitive agreement to transfer the Property (“Definitive Agreement”) for the Property which is mutually satisfactory to the Parties. During the Negotiation Period, Developer and the City shall reasonably assist and cooperate with each other and supply such documents and information as may be reasonably requested by the other in writing to facilitate the conduct of such negotiations.
As the term is used in the preceding sentence and elsewhere in this Agreement, the words “assist and cooperate” when applied to the City mean and refer to the provision of information, reports or documents to Developer with respect to the Property which are already in the possession of the City or such new information, reports or documents relating to the Property and this Agreement, which do not require the City to incur any third party cost or expense which may not be reimbursed to the City upon the proposed disposition of the Property to the Developer under the terms of a future Definitive Agreement. During the Negotiation Period, both Developer and the City shall exercise reasonable efforts to conduct and complete discussions relating to the preparation of terms and conditions of the Definitive Agreement as may be mutually acceptable to the Developer and the City in the sole and absolute discretion reserved to each of them. The exact terms and conditions of the Definitive Agreement, if any, shall be determined during the
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4 course of these negotiations. Nothing in this Agreement shall be interpreted or construed to be a representation or agreement by either the Developer or the City that a mutually acceptable Definitive Agreement will be produced from negotiations under this Agreement either before or after the Effective Date. Nothing in this Agreement shall impose any obligation on either Party to agree to the approval and execution or be bound by a Definitive Agreement in the future. (c) [Intentionally Deleted.]
3. Developer Acknowledgments.
(a) This Agreement shall not be deemed to be an obligation of either Party to enter into a Definitive Agreement for the Property.
(b) Developer acknowledges and agrees that: (1) under this Agreement, the City does not commit itself or agree to enter into a Definitive Agreement or undertake any other exchange, sale, lease or other transfer of the Property to Developer; (2) no provision of this Agreement shall be deemed to be an offer by the City, nor an acceptance by the City of any offer or proposal from Developer, for the City to convey any estate or interest in the Property to Developer; (3) Developer has not acquired, nor shall the Developer acquire, by virtue of any term of this Agreement, any legal or equitable interest in real or personal property from the City; (4) further efforts by either Party to perform due diligence, arrange or obtain financing, or carry out other acts in contemplation of the possible acquisition, transfer of the Property or the development of the Project shall not be deemed evidence of intent by either Party to be bound by any term, condition, covenant, restriction or agreement relating to acquisition, transfer or development of the Property or the Project.
(c) The Developer further acknowledges and agrees that no provision of this Agreement shall be interpreted or construed to be a guaranty, warranty, representation or assurance by the City that any public agency or other entity shall give any discretionary approval or provide any development financial assistance with respect to the Project on such terms which may be acceptable to the Developer or otherwise.
4. Negotiation Period.
(a) The Negotiation Period shall begin on the date when this Agreement has become effective pursuant to Section 2 above.
(b) The Negotiation Period shall commence on the Effective Date and shall continue for One Hundred Eighty (180) consecutive days, subject to subsection (d) below or unless otherwise terminated or extended as provided herein (“Negotiation Period”). (c) If the rights and duties of the Parties which arise under this Agreement have not been expressly merged into a Definitive Agreement within One Hundred Eighty (180) days of approval of this Agreement by the City Council (subject to subsection (d)) for any reason, then in such an event, this Agreement shall terminate without further notice whereupon neither Party shall have any further rights, obligations, or liabilities to the other under this Agreement except with respect to obligations which expressly survive termination of this Agreement. (d) The Negotiation Period shall be tolled from the date that the City issues a Request for Proposals or Request for Qualifications for the remaining 8.5 acres of the 12.5-Acre Portion until the date a developer is selected by the City to develop that portion of the 12.5-Acre Portion.
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5 5. Extension of Negotiation Period. The Negotiation Period may be extended by the written agreement of the Parties; provided, however, that if the Negotiation Period is to be extended beyond one (1) year of the end of the Negotiation Period (subject to Section 4(d) above), approval of such extension and every subsequent extension must be obtained from City Council and may not be administratively approved.
6. Definitive Agreement General Provisions.
(a) General Terms and Conditions. The Parties anticipate that the Definitive Agreement shall include provisions addressing the following described subjects:
6.a.1 The Property Acquisition and Ownership by the Developer. The specific terms on which the Property shall be acquired from the City by Developer or Developer’s permitted assignee shall be set forth in the Definitive Agreement as mutually agreed to by the Parties. The City retains its sole and absolute discretion to approve, disapprove or impose conditions on the final form of the Definitive Agreement. Developer retains the right to reject any such conditions. If the Developer rejects the conditions imposed in the Definitive Agreement by the City, either Party may terminate this Agreement without liability. The words “Developer’s permitted assignee” shall refer to the provisions of the Definitive Agreement as set forth at Section
6.a.4, below.
6.a.2 [RESERVED].
6.a.3 Scope of Development. The Project is anticipated to be a mixed income housing development that will comply with the Waterman & Baseline Neighborhood Specific Plan, Government Code § 37364, and all City permits, pursuant to applicable, recorded conditions, covenants and restrictions reasonably acceptable to the Parties and each of the other Responsible Agencies, as applicable.
6.a.4 Developer Permitted Assignee. Pursuant to Section 14 and Section 19(e), City shall not unreasonably withhold approval of the assignments of the interests and rights under this Agreement to an affiliate of the Developer if requested by the Developer in a signed writing; provided, however, that City shall be deemed to have approved the assignment of Developer’s interest and rights under this agreement to a limited partnership in which Developer or its affiliate acts as a general partner.
6.a.5 Other. Such other matters as the Developer and the City may mutually agree.
(b) Developer Compliance with Laws with Respect to Project. Under the terms of the Definitive Agreement, the Developer shall comply with the requirements of all applicable City ordinances, resolutions and development entitlement approvals for the planning, design, construction and operation of the Project.
7. Costs and Expenses. All fees or expenses of engineers, architects, financial consultants, legal, planning or other consultants or contractors, retained by Developer for any study, analysis, evaluation, report, schedule, estimate, environmental review, planning or design activities, drawings, specifications or other activity or matter relating to the Property or the Project or negotiation or documentation of a future Definitive Agreement that may be undertaken by Developer during the Negotiation Period regarding any matter relating to this Agreement, a future Definitive Agreement for the Property or future development agreement for the Project, shall be the sole responsibility of and shall be undertaken at the sole cost and expense of Developer and
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6 no such activity or matter shall be deemed to be undertaken for the benefit of, at the expense of or in reliance upon the City except as may hereafter be set forth in the Definitive Agreement.
Developer shall also pay all fees, charges and costs, make all deposits and provide all bonds or other security associated with the submission to and processing by the City or any other governmental agency of any and all applications and other documents and information to be submitted to the City or such other governmental agency by Developer either pursuant to this Agreement or otherwise associated with the Project or the Property.
8. Deposit.
(a) Prior to the Effective Date, the Developer shall pay to the City a deposit in the amount of Twenty Five Thousand Dollars ($25,000) in immediately available funds (“Initial Deposit”) to ensure that the Developer will proceed diligently and in good faith to fulfill its obligations under this Agreement, as part of the consideration for the City’s agreement not to negotiate with other persons during the Negotiation Period, and to defray certain costs of the City in pursuing the contemplated negotiations with the Developer during the Negotiation Period, including staff time, consultant fees and attorneys’ fees associated with review and implementation of this Agreement or preparing the Definitive Agreement, all of which shall be charged against the Initial Deposit. The City shall provide notice to the Developer if at any time during the Negotiation Period the Initial Deposit falls below Five Thousand Dollars ($5,000), at which time Developer may make an additional deposit of any amount. If Developer opts not to make any further additional deposits, then, upon the complete exhaustion of the Initial Deposit, this Agreement shall automatically terminate without any further notice to either Party, and neither Party shall have any further rights or obligations to the other under this Agreement, except obligations that expressly survive termination of this Agreement. Any funds remaining in the Initial Deposit at the termination of this Agreement shall either be returned to the Developer or applied toward the purchase price of the Property at the Developer’s discretion. The Initial Deposit shall not include or be applied to any fees and expenses required by the City of Developer for any permit, other required entitlement or Project processing. (b) Upon each extension of the Negotiation Period, if any, the Developer shall deposit an additional Ten Thousand Dollars ($10,000) in immediately available funds with the City on the first day of any extension of the Negotiation Period (each, an “Extension Deposit”). Each Extension Deposit is intended to ensure that the Developer will proceed diligently and in good faith to fulfill its obligations under this Agreement during any extension of the Negotiation Period, as part of the consideration for the City’s agreement not to negotiate with other persons during any such extension of the Negotiation Period, and to defray certain costs of the City in pursuing the contemplated negotiations with the Developer during any such extension of the Negotiation Period, pursuant to this Agreement. Any funds remaining in the Extension Deposit at the termination of this Agreement shall either be returned to the Developer or applied toward the purchase price of the Property at the Developer’s discretion
9. No City Approval. Nothing in this Agreement, nor any comments provided by the City or City staff, nor any failure of City staff to provide comments to any submittal by the Developer pursuant to this Agreement shall: (1) modify or replace any land use entitlement process of the City applicable to the Project, (2) limit the police power land use jurisdiction of the City as it relates to the Property or the Project, (3) constitute an approval of all or any portion of the Project by the City pursuant to the police power land use jurisdiction of the City; or (4) constitute any approval of all or any portion of a future Definitive Agreement by the City.
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7 10. City Due Diligence. The City reserves the right to reasonably obtain further information, data and commitments to ascertain the ability and capacity of Developer to complete its acquisition of the Property from the City and develop the Project. Developer acknowledges that it may be requested to provide evidence of Developer’s assets, including equity, debt, and third-party financing for the Project, to the City, its staff, legal counsel or other consultants, as part of the financial due diligence investigations of the City relating to the potential sale of the Property and development of the Project by Developer and that any such disclosures by the Developer to the City, may become public records. The City shall maintain the confidentiality of financial information of Developer to the extent allowed by law. If the City receives a request for disclosure of records related to Developer, the Property, or the Project pursuant to the California Public Records Act (Gov’t Code Section 6250 et. seq.), the City, in its reasonable discretion, will provide a copy of such request to Developer, so that, in the event that the City Attorney determines that such records must be disclosed, against the wishes of Developer, Developer may seek appropriate judicial relief.
11. Developer Due Diligence. Subject to the assistance and cooperation of the City, during the Negotiation Period, Developer reserves the right to request and reasonably obtain all necessary and non-privileged information and data as it relates to the Property from the City as the Developer may deem to be appropriate. The City will deliver without representation or warranty existing information, studies, reports, site and construction plans or other documents relating to the Property in the City’s control or possession. The City will endeavor to deliver such material within ten (10) days of receipt of written request. Subject to compliance with Section 13 below, during the term of this Agreement, Developer will have the right to examine, inspect and investigate the Property to determine whether its condition is acceptable to Developer.
12. Developer Indemnity. Developer shall indemnify, defend and hold harmless the City and its elected and appointed officials, officers, agents and employees (each individually, an “Indemnified Party” and collectively, the “Indemnified Parties”) against any and all losses arising out of any claim, demand or cause of action, or any action or other proceeding, whether meritorious or not, arising under this Agreement or through activities of the Developer with respect to the Property or the Project, or Developer’s contractors or employees which may also be brought or asserted against any Indemnified Party that relates to or arises out of: (i) property damage or bodily injury or death of any person in connection with this Agreement through activities or omissions of the Developer with respect to the Property or the Project; (ii) entry upon the Property by Developer, its contractors or employees; (iii) any other inspection of the Property by Developer, its contractors or employees; or (iv) the preparation of any report or plan commissioned by Developer. No Indemnified Party shall be entitled to indemnification under this Section 12 (i), (ii), (iii) and (iv) arising from a matter caused by such Indemnified Party’s gross negligence or willful misconduct. In the event any action or proceeding is brought against an Indemnified Party by reason of a claim arising out of any loss for which Developer is obligated to indemnify, defend or hold harmless the Indemnified Party, and upon written notice from such Indemnified Party, Developer shall, at Developer’s sole expense, answer and otherwise defend such action or proceeding. The provisions of this Section 12 shall survive the expiration or termination of this Agreement.
13. Right of Entry and Developer Insurance.
(a) Without limiting Developer’s indemnification obligations as set forth in this Agreement, Developer, prior to any entry on the Property by Developer or its employees, agents, representatives, consultants, or contractors, shall seek a right of entry agreement from the City
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8 and shall procure and maintain, at its sole cost and expense, for the period of such entry, the following policies of insurance:
13.a.1 Commercial General Liability insurance written on a per occurrence basis in an amount not less than $1,000,000 per occurrence.
13.a.2 Business Auto Coverage written on a per accident basis in an amount not less than $1,000,000 per accident. If Developer or Developer’s employees use personal automobiles in connection with the performance of work under this Agreement, Developer shall provide evidence of personal auto liability coverage for each such person.
13.a.3 If applicable, Worker’s Compensation insurance providing statutory benefits as required by California law.
(b) All of the insurance policies required hereunder, except the worker’s compensation insurance, shall comply with the following requirements:
13.b.1 All insurance shall be written by insurers that are admitted and licensed to do business in the State of California and with A.M. Best rating of A- or better and a minimum financial size VII.
13.b.2 The policies shall be endorsed to name the City and its officers, officials, members, employees, and agents as additional insureds.
13.b.3 All of Developer’s insurance: (a) shall contain no special limitations on the scope of protection afforded to the additional insureds; and (b) shall be primary insurance and any insurance or self-insurance maintained by the additional insureds or any of them shall be in excess of Developer’s insurance and shall not contribute with it.
13.b.4 The policies shall be “occurrence”-based rather than “claims made”-based insurance.
13.b.5 The policies 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.
13.b.6 The policies shall prohibit Developer from waiving the right of subrogation prior to a loss.
13.b.7 The policies shall not contain any provision or definition that would serve to eliminate so-called “third party action over” claims, including any exclusion for bodily injury to an employee of the insured.
(c) Prior to any entry onto the Property by Developer or its employees, agents, representatives, consultants, or contractors, Developer shall provide the City Manager with Certificates of Insurance evidencing the above insurance coverages and said Certificates of Insurance have been reasonably approved by City. In the event any of said policies of insurance are reduced in limits or cancelled for any reason, Developer shall, prior to the cancellation date, submit new evidence of insurance, in conformance with this Section 13. (d) The provisions of any workers’ compensation or similar act shall not limit the obligations of Developer under this Agreement. Developer expressly agrees not to use any
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9 statutory immunity defenses under such laws with respect to City or its officers, officials, members, employees, agents, representatives, or volunteers acting in an official capacity. (e) Developer agrees to provide immediate notice to City of any claim or loss against Developer arising out of any acts or omissions of Developer under this Agreement. City assumes no obligation or liability by such notice, but has the right to monitor the handling of any such claim or claims if they are likely to involve the City or any officer, official, member, employee, agent, or representative of City acting in an official capacity.
14. Restrictions Against Change in Ownership, Management or Control of Developer; Assignment of Agreement During the Negotiation Period. The City and Developer acknowledge and agree that the City is entering into this Agreement with Developer on the basis of the particular experience, financial capacity, skills and capabilities of Developer. This Agreement is personal to Developer and is not assignable without the prior written consent of the City, which may be given, withheld or conditioned in City’s sole and absolute discretion; provided, however, this Agreement may be assigned to a limited partnership in which Developer or its affiliate acts as a general partner and the Definitive Agreement may contain provisions reasonably satisfactory to the City which permit assignment of the Developer interest in the Definitive Agreement to an affiliate of Developer prior to the completion of the disposition of the Property pursuant to the Definitive Agreement. For purposes of this Agreement, the term “affiliate” means any person or entity, directly or indirectly, controlling or controlled by or under common control with Developer, whether by direct or indirect ownership of equity interests, by contract, or otherwise.
15. Developer Events of Default and City Remedies.
(a) Developer Events of Default. The occurrence of any of the following shall constitute an “Event of Default” on the part of Developer under this Agreement:
15.a.1 Schedule of Performance. Failure of Developer to meet a performance milestone by the applicable date contained in the Schedule of Performance of this Agreement (Exhibit “C”), if such failure is not cured within ten (10) days after written notice from the City of such failure.
15.a.2 Misrepresentation. Any material breach of any representation or warranty made by Developer in this Agreement that is not cured within ten (10) days after written notice from the City to Developer of such breach.
15.a.3 Unauthorized Assignment. Any assignment or attempted assignment by Developer in violation of Section 14 that is not cured within ten (10) days after written notice from the City to Developer of such breach.
15.a.4 Insurance. Failure of Developer to procure or maintain any of the insurance coverage required by this Agreement resulting in a lapse in required insurance coverage which lapse is not cured within ten (10) days after written notice from the City to Developer of such breach.
15.a.5 Other Developer Defaults. Failure by the Developer to comply with any other provision of this Agreement that is not cured within thirty (30) days after written notice from the City to the Developer of such breach; provided, however, if such default is not reasonably capable of being cured within such thirty (30) day period, Developer shall have such additional time as may be reasonably necessary, provided Developer commences to cure within such thirty (30) day period and is diligently prosecuting such cure to completion.
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10 (b) City Remedies. If there is an Event of a Default by Developer, the City may, in the sole and absolute discretion of the City, terminate this Agreement by delivering written notice of termination to Developer which references this Section 15(b) of this Agreement, effective as of the day after the last day of the applicable cure period specified in Section 15(a), provided that Developer does not cure the breach within the applicable cure period. Upon any such termination, neither Party shall have any further rights or obligations to the other under this Agreement, except obligations that expressly survive termination of this Agreement. The City hereby waives any remedy of specific performance following an Event of Default by Developer arising under this Agreement. The sole and exclusive remedy for the occurrence of an Event of Default by Developer shall be the termination of this Agreement. In the event of such termination neither Party shall have any further right or obligation under this Agreement except as to the Developers indemnity obligations which may arise under Section 12.
16. City Events of Default and Developer Remedies
(a) City Events of Default. The occurrence of any of the following shall constitute an “Event of Default” on the part of the City under this Agreement.
16.a.1 Negotiation of Disposition of the Property With Other Parties. The City will be in Default under this Agreement if it begins to engage in land disposition negotiations concerning the Property with any party other than Developer before the termination of this Agreement and such breach is not corrected by the City within ten (10) days after written notice from the Developer of such breach.
16.a.2 Other City Default. Failure by the City to comply with any other provision of this Agreement which is not corrected within fifteen (15) days after written notice from Developer to the City of such breach.
(b) Developer’s Remedies. If there is an Event of a Default by the City, Developer may, in the sole and absolute discretion of Developer terminate this Agreement by delivering written notice of termination to City which references this Section 16(b) of this Agreement, effective as of the day after the last day of the applicable cure period specified in Section 16(a), provided that City does not cure the breach within the applicable cure period.
Developer hereby waives any remedy of specific performance following an Event of Default by the City. Upon any such termination, neither Party shall have any further rights or obligations to the other under this Agreement, except obligations that expressly survive termination of this Agreement. The sole and exclusive remedy for the occurrence of an Event of Default by the City shall be the termination of this Agreement. In the event of such termination neither Party shall have any further right or obligation under this Agreement except as to the Developer’s indemnity obligations which may arise under Section 12. Notwithstanding the foregoing, the Developer’s recovery of damages against the City under this Agreement shall be limited to recovering any amounts actually expended by the Developer in reasonable reliance on this Agreement not to exceed the amount of TWO HUNDRED AND SEVENTY FIVE THOUSAND DOLLARS ($275,000.00).
17. Developer Representations and Warranties. Developer represents, warrants and covenants to and for the benefit of the City that, as of the Effective Date and at all times during the Negotiation Period, as follows:
(a) Valid Existence; Good Standing; Joint Venture Relationships. Developer is a corporation duly organized and validly existing under the laws of the State of California.
Developer has all requisite power and authority to acquire the Property from the City and conduct
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11 its business as presently conducted. Developer has made all filings and is in good standing in the jurisdiction of the State of California.
(b) Authority. Developer has all requisite power and authority to enter into and perform this Agreement.
(c) No Limitation on Ability to Perform. Neither Developer’s articles of incorporation nor any other organizational document regarding Developer in any way prohibits, limits or otherwise affects the right or power of Developer to enter into or perform this Agreement.
Developer is not a party to or bound by any contract, agreement, indenture, trust agreement, note, obligation or other instrument that could prohibit, limit or otherwise affect Developer’s entry into or performance of this Agreement. To the best of Developer’s knowledge, no consent, authorization or approval of, or other action by, and no notice to or filing with, any governmental authority, regulatory body or any other person or entity is required for the due execution, delivery or performance by Developer of this Agreement or any of the terms or covenants contained in this Agreement. There is no pending or threatened suit or proceeding or undischarged judgment affecting Developer before any court, governmental agency, or arbitrator that might materially adversely affect the enforceability of this Agreement, the ability of Developer to perform the transactions contemplated by this Agreement or the business, operations, assets or condition of Developer.
(d) Valid Execution. The execution and delivery of this Agreement by Developer has been duly and validly authorized by all necessary action of Developer and others.
This Agreement will be a legal, valid and binding obligation of Developer, enforceable against Developer in accordance with its terms.
18. Notices. A notice or communication under this Agreement by either Party to the other shall be sufficiently given or delivered, if in writing and personally delivered to the other Party or delivered to the other Party by messenger, overnight commercial business mail or if delivered by email and confirmed by the delivery of U.S. First Class Mail with return receipt requested to the appropriate Party at its address as follows:
In the case of a notice or communication to the City:
City of San Bernardino
290 North “D” Street
San Bernardino, CA 92401-1734
Attn: Robert Field
Email: [email protected]
With a copy to:
Best Best & Krieger, LLP
Attn: Thomas A. Rice, Esq.
2855 E. Guasti Road, Suite 400
Ontario, CA 91761
And in the case of a notice or communication sent to Developer:
The Richman Group of California
420 31st Street, Suite B1
Newport Beach, CA 92663
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12 Attention: Rick Westberg
Email: [email protected]
Any mailing address may be changed at any time by giving written notice of such change in the manner provided above at least ten (10) days prior to the effective date of the change. All notices under this Agreement shall be deemed given, received, made or communicated on the date personal receipt or overnight delivery by a nationally recognized service actually occurs or, if such notice is given by email and confirmed by U.S. First Class Mail, on the date when the confirming mailed notice is deposited by the Party giving such email notice into U.S. First Class Mail.
19. General Provisions.
(a) Amendments. This Agreement may be amended or modified only by a written instrument signed by both City and Developer.
(b) Severability. If any provision of this Agreement, or its application to any person or circumstance, is held invalid by any court, the invalidity or inapplicability of such provision shall not affect any other provision of this Agreement or the application of such provision to any other person or circumstance, and the remaining portions of this Agreement shall continue in full force and effect, unless enforcement of this Agreement as so modified by and in response to such invalidation would be unreasonable or grossly inequitable under all of the circumstances or would frustrate the fundamental purposes of this Agreement. Without limiting the foregoing, in the event that any applicable federal or state law prevents or precludes compliance with any material term of this Agreement, the Parties shall promptly modify, amend or suspend this Agreement, or any portion of this Agreement, to the extent necessary to comply with such provisions in a manner which preserves to the greatest extent possible the benefits to each of the Parties to this Agreement. However, if such amendment, modification or suspension would deprive the Developer or the City of the substantial benefits derived from this Agreement or make performance unreasonably difficult or expensive, then the affected Party may terminate this Agreement upon fifteen (15) days written notice to the other Party. In the event of such termination, neither Party shall have any further right or obligation under this Agreement except as otherwise provided herein.
(c) Non-Waiver. No waiver made by either Party with respect to the performance, or manner or time of performance, or any obligation of the other Party or any condition to its own obligation under this Agreement will be considered a waiver with respect to the particular obligation of the other Party or condition to its own obligation beyond those expressly waived, to the extent of such waiver, or a waiver in any respect in regard to any other rights of the Party making the waiver or any other obligations of the other Party. (d) Non-Liability. No member, official, agent or employee of the City will be personally liable to Developer, or any successor in interest (if and to the extent permitted under this Agreement), in an Event of Default by the City. No director, officer, agent or employee of Developer will be personally liable to the City in an Event of Default by Developer. (e) Successors and Assigns; Third Party Beneficiary. This Agreement shall inure to the benefit of and bind the respective successors and assigns of the City and the Developer, subject to the limitations on assignment by Developer set forth in Section 14. This Agreement is for the exclusive benefit of the Parties to this Agreement and not for the benefit of any other person and shall not be deemed to have conferred any rights, express or implied, upon
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13 any other person except as the indemnity obligation of the Developer to the Indemnified Parties as set forth in Section 12.
(f) Governing Law. The City and Developer acknowledge and agree that this Agreement was negotiated, entered into and is to be fully performed in the City of San Bernardino, California. The City and the Developer agree that this Agreement shall be governed by, interpreted under, and construed and enforced in accordance with the substantive and procedural laws of the State of California, without application of conflicts or choice of laws principles. (g) Entire Agreement. This Agreement (including the attachments and exhibits) contains all of the representations of and the entire agreement between the Parties with respect to the subject matter of this Agreement. Any prior correspondence, memoranda, agreements, warranties or representations relating to such subject matter are superseded in total by this Agreement. No prior drafts of this Agreement or changes from those drafts to the signed version of this Agreement shall be introduced as evidence in any litigation or other dispute resolution proceeding by either Party or any other person and no court or other body shall consider those drafts in interpreting this Agreement.
(h) Time of the Essence. Time is of the essence with respect to each provision of this Agreement.
(i) Counterparts. This Agreement may be signed in multiple counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
(j) Approvals and Consents. (a) Excluding amendments to this Agreement which shall require the separate approval of the governing bodies of each Party, unless this Agreement otherwise expressly provides or unless applicable law requires otherwise, all approvals, consents or determinations to be made by or on behalf of the City during the Negotiation Period under this Agreement shall be made by the City Manager, Robert Field ([email protected]) or his designee. The City Manager may refer such requested consent or determination to the City Council for approval by the City of any matters he deems appropriate.
In the case of the Developer, all approvals, consents or determinations to be made by or on behalf of the Developer during the Negotiation Period shall be made by Rick Westberg, ([email protected]) (“Developer Representative”) or such other employee or agent of Developer as Developer may designate by written notice to the City to act as Developer Representative for a particular matter. Unless otherwise provided in this Agreement, whenever approval, consent or satisfaction is required of a Party pursuant to this Agreement, it shall not be unreasonably withheld, conditioned or delayed and any reasons for disapproval shall be stated in reasonable detail in writing. Such approval by Developer or City of any act or request by the other shall not be deemed to waive or render unnecessary approval of any similar or subsequent acts or requests.
(k) Relationship of the Parties. No real estate broker commission or other real property finder’s fee shall be payable by either Party to any person in connection with the approval of this Agreement by the City. Each Party shall have a duty to indemnity defend and hold the other Party harmless from any claim.
(l) The subject of this Agreement is a matter which is solely between Developer and the City as it relates to the Property. No other person or entity is a party to this Agreement. None of the provisions in this Agreement shall be deemed to render City a partner in Developer’s business, or joint venturer or member in any joint enterprise with Developer.
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14 (m) Survival of Indemnity Obligations. Notwithstanding anything to the contrary in this Agreement, each indemnity obligation under this Agreement shall survive expiration or termination of this Agreement.
(n) Non-Discrimination. Developer covenants by and for itself and its successors or assigns, and all persons claiming under or through it, and this Agreement is made and accepted upon and subject to the following conditions:
19.n.1 There shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (l) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Property; and (2) Developer for itself and any Permitted Assignee shall not establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, subtenants, sublessees, or vendees in the Property.
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15 Signature Page
TO
EXCLUSIVE NEGOTIATING AGREEMENT
IN WITNESS WHEREOF, Developer and the City have signed and entered into this Agreement by and through the signatures of their respective authorized representative(s), as follow:
CITY
CITY OF SAN BERNARDINO,
a California charter city and municipal corporation
By: ____________________________
City Manager
Date: ____________________________
Attest:
By: ____________________________
City Clerk
Approved as to form:
By: ____________________________
City Attorney
DEVELOPER
The Richman Group of California Development
Company, LLC,
a California limited liability company
By: ____________________________
Its: Executive Vice President
Date:
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16 EXHIBIT “A”
TO
EXCLUSIVE NEGOTIATING AGREEMENT
Legal Description of the Property
[Attached behind this cover page]
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17 LEGAL DESCRIPTION
THE PROPERTY
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18 EXHIBIT “B”
TO
EXCLUSIVE NEGOTIATING AGREEMENT
DEVELOPER PROPOSAL
[Attached behind this cover page]
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19 EXHIBIT “C”
TO
EXCLUSIVE NEGOTIATING AGREEMENT
Schedule of Performance
[Attached behind this cover page]
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20 Schedule of Performance
Within 150 Days of Effective Date of ENA as such time may be extended by the Parties Title Report. City to provide preliminary title report on property; Developer to commence due diligence on Property.
Preliminary Development Concept Package. Developer shall submit to the City a “Preliminary Development Concept Package,” consisting of the following:
a) a preliminary development proposal generally describing the Project for the site subject (approx. 4 acres) to City review and approval.
b) an initial estimate of development costs, including construction and non-construction costs, such as the proposed purchase price for land;
c) a preliminary description of the proposed method of financing; d) a proposed construction and operating pro forma which identifies all sources and uses of funds; e) submittal of preliminary design(s) (including a scaled site plan indicating building and parking layout) for the purpose of demonstrating compliance with the design requirements of the City and to assist the City in conducting a review under the California Environmental Quality Act (“CEQA”); and
f) evidence reasonably acceptable to the City that the Developer has the significant financial resources necessary for development.
Preliminary Agency Evaluation. Within thirty (30) days of the date of receipt of the Preliminary Development Concept Package, the City will provide its evaluation (“Preliminary City Evaluation”) to the Developer of the Preliminary Development Concept Package. Such evaluation will include:
a) The City’s evaluation of items addressed in the Preliminary Development Concept Package. The Preliminary City Evaluation shall indicate City’s preliminary determinations as to the appropriate level of review under CEQA and local planning approvals (e.g., DPA, CUP, TPM, TTM, MOD, etc).
b) The City will identify the amount of local City funding sources for infrastructure and affordable housing development
Draft Project Agreements. The City will provide the Developer with 1st drafts of the applicable documents that may include: predevelopment funding agreement, project funding commitment, and purchase and sale agreement.
Within 300 Days of Effective Date of ENA as such time may be extended by the Parties Finalize Project Agreements. Within one hundred and fifty (150) days of receipt of the 1st draft of the Project Agreements, Developer and City will conclude negotiations on final forms. It is expected that this negotiation will require multiple rounds of review and comment by Developer and City, and will also be dependent on identifying and pursuing other funding sources outside of the City.
Outreach. During the finalization of the DDA, in coordination with City staff and the City, the Developer will perform necessary community outreach to garner support for the development and the Project Agreements.
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21 Procurement of Other Funding Sources. Developer will work with the City and other affordable housing agencies at the County, State and Federal levels, with industry advocates, to identify, plan for, apply for and secure other funding sources.
Within 365 Days of Effective Date of ENA as such time may be extended by the Parties Impact of and timing of Disparate Funding Sources. The above timing commitments and subsequent Project Agreements will be impacted by the identification, pursuit and attainment of funding for the agreed upon affordable housing component of the development. The remainder of the ENA period (365 days of effective date of ENA plus any mutually agreed upon extensions, if any) allows further time for the City and Developer to gain these commitments to ensure a feasible execution. Note, most commitments for additional subsidy are predicated on project entitlements.
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Consent Calendar
City of San Bernardino
Request for Council Action
Date: May 18, 2022
To: Honorable Mayor and City Council Members
From: Robert D. Field, City Manager
Subject: Amendment No. 1 to Lease Agreement with Inland Empire 66Ers Baseball Club (Ward 1)
Recommendation
It is recommended that the Mayor and City Council of the City of San Bernardino, California, authorize the City Manager to execute Amendment No. 1 to the Lease Agreement with Inland Empire 66ers Baseball Club of San Bernardino, Inc.
Background
On November 7, 2016, the Inland Empire 66ers Baseball Club of San Bernardino, Inc. (66ers) entered into a ten (10) year lease agreement with the City of San Bernardino (City), effective January 1, 2017 and ending December 31, 2026, for the City’s baseball stadium property known as San Manuel Stadium. San Manuel Stadium consists of an approximately 1,184,832 square-foot baseball stadium and related improvements, which are municipal facilities, on a 27.20-acre parcel of land designated as Assessor’s Parcel Number 0136-111-23 and is located at 280 South “E” Street, San Bernardino California. The stadium is located near the heart of Downtown San Bernardino, and next to the San Bernardino Transit Center, where it serves as an important venue for entertainment and city-sponsored activities.
The current Lease Agreement includes provisions for up to $2,000,000 in Capital Improvements and Maintenance costs that are to be solely funded by 2010 Tax Allocation Bond proceeds. Specifically, up to $1,000,000 is provided for Capital Improvements and $200,000 per year for the first five (5) years ($1,000,000 total) for Maintenance. Pursuant to California Health and Safety Code (HSC) § 34191.4(c), proceeds from the 2010 Tax Allocation Bonds may be used to fund municipal improvements within the corporate limits of the City of San Bernardino.
The City and the 66ers now wish to amend the lease agreement in order to extend the term of the Lease Agreement, to provide additional funding for major Capital Improvements to the property, and to provide funding for Capital Maintenance expenses.
Discussion
Amendment No. 1 to the Lease Agreement will extend the term of the current lease 16 Packet Pg. 515
8965
through December 31, 2036 and also remove the Early Termination Option. Through this extended term, the Base Rent and Additional Rent provisions will remain the same; the 66ers will continue to pay one dollar ($1) per year as Base Rent and one dollar ($1) for every regular season paid baseball game attendee over 225,000 paid attendees in any baseball season.
Amendment No. 1 will also provide for up to $3,400,000 in Capital Improvement funding and annual funding of up to $250,000 per year for Capital Maintenance expenses throughout the term (up to $3,750,000 total). Total additional funding through the term of the lease will be up to $7,150,000. The additional funding is as follows:
Major Capital Improvement Funding
2022: $1,800,000
2027: $600,000
2032: $1,000,000
Capital Maintenance Funding
$250,000 within 10 days of executing Amendment No. 1.
$250,000 per year, every January 1st, for the term of the lease (Dec 31, 2036) This Amendment makes no changes to the City's ability to use the stadium for Citysponsored events or activities. In the past, the City utilized San Manuel Stadium for important activities such as the Point in Time Homeless Count. The City will be able to continue to conduct such events at San Manuel Stadium under this Amendment. This amendment also does not alter the original lease agreement's section on Source of Funds. As a result, funding for Capital Improvements and Maintenance shall come from the 2010 Tax Allocation Bond proceeds and the City will not be required to use General Fund money to fund these items.
2021-2025 Key Strategic Targets and Goals
Amendment No. 1 to the Lease Agreement with Inland Empire 66ers Baseball Club of San Bernardino, Inc. relates to Key Target No.1b: Continue to seek opportunities to secure long-term revenue sources.
Fiscal Impact
There will be no fiscal impact to the General Fund. The Capital Improvement and Capital Maintenance expenditures will be funded by the 2010 Tax Allocation Bond proceeds. In the event that all 2010 Tax Allocation Bond funds are exhausted, funds will need to be secured from another source.
FINANCIAL
DATA
Current Fiscal Year: Next Fiscal Year: Future/Ongoing Costs: Total Costs through 2036 Capital Improvement $0 $1,800,000 $1,600,000 (total) $3,400,000 Capital Maintenance $250,000 $250,000 $250,000 (per yr.) $3,750,000 TOTAL COSTS $250,000 Total $2,050,000
Total
$4,850,000 Total $7,150,000 Total
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GENERAL FUND $0 $0 $0 $0
SOURCE OF FUNDS: 2010 Tax Allocation Bonds Budget Adjustment: No Major Capital Improvement Funding
2022: $1,800,000
2027: $600,000
2032: $1,000,000
Capital Maintenance Funding
Up to $250,000 per year, every January 1st, for the term of the lease (Dec 31, 2036) Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California, authorize the City Manager to execute Amendment No. 1 to the Lease Agreement with Inland Empire 66ers Baseball Club of San Bernardino, Inc.
Attachments
Attachment 1 Amendment No. 1 to 66ers Lease Agreement
Attachment 2 Resolution 2016-237 & Lease Agreement
Ward: 1
Synopsis of Previous Council Actions:
November 7, 2016 The Mayor and City Council adopted Resolution 2016-237, approving a Lease Agreement with the Inland Empire 66ers Baseball Club of San Bernardino, Inc. for the Property Located at 280 South “E” Street, San Bernardino, California and Approving Certain Related Actions.
16 Packet Pg. 517
AMENDMENT NO. 1 TO
LEASE AGREEMENT
WITH INLAND EMPIRE 66ERS BASEBALL CLUB OF
SAN BERNARDINO, INC.
This Amendment No. 1 to the Lease Agreement is made and entered into as of May 18, 2022 (“Effective Date”) by and between the City of San Bernardino, a charter city and municipal corporation (“City”) and the INLAND EMPIRE 66ERS BASEBALL CLUB OF SAN BERNARDINO, INC., a California corporation (“Lessee”). City and Lessee are sometimes referred to herein individually as a “Party” and collectively as “Parties.”
RECITALS
A. WHEREAS, the City and the Lessee have entered into a lease agreement, dated November 7, 2016 (the “Lease Agreement”), for the purpose of operating a minor league baseball stadium on a 27.20-acre parcel of land designated as Assessor’s Parcel Number 0136-111-23 and located at 280 South E Street in the City of San Bernardino (the “Premises”).
B. WHEREAS, the Parties now desire to amend the Lease Agreement in order to extend the term of the Lease Agreement, to provide additional funding for Major Capital Improvements to the Premises, and to provide funding for Capital Maintenance expenses.
NOW, THEREFORE, in consideration of the above recitals and the mutual covenants, conditions, and promises contained in the this Amendment No. 1 and the Lease Agreement, the Parties mutually agree as follows:
AGREEMENT
1. Incorporation of Recitals. The recitals listed above are true and correct and are hereby incorporated herein by this reference.
2. Term. The term of the Lease Agreement shall be extended through December 31, 2036, unless earlier terminated pursuant to the Lease Agreement.
3. Removal of Early Termination Option. Section 4 of the Lease Agreement is deleted in its entirety and shall be of no further force and effect.
4. Amendment to Section 6(a) of the Lease Agreement. Section 6(a) of the Lease Agreement shall be amended to read as follows:
“(a) As Additional Rent, Lessee shall pay Lessor one dollar ($1.00) for each regular season baseball game paid attendee at the Premises, after attendance at Lessee’s regular season baseball games at the Premises reaches two-hundred and twenty-five thousand (225,000) paid attendees in any baseball season, inclusive of playoff games, if any. Attendance shall be determined using the MiLB Final Attendance Report issued by MLB as the official record of attendance. Additional Rent is payable on
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Packet Pg. 518 Attachment: Attachment 1 Amendment No. 1 to 66ers Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers September 30 of each year during which this Lease is in effect, or as soon thereafter as regular season attendance can be determined. Payment shall be made at Lessor’s address for purposes of notice, set forth elsewhere in this Lease. “
5. Amendment to Section 7(a) of the Lease Agreement. Section 7(a) of the Lease Agreement shall be amended to read as follows:
“(a) Lessor’s agreement to accept nominal Base Rent as set forth in Section 5 is expressly conditioned on and given in consideration of (i) Lessee’s use of the Premises for the operation of the Team within the Professional Development League System; (ii) the Team playing a full season schedule of games in accordance with the PDL Rules and Regulations; and (iii) Lessee not being in default under any provisions of this Lease. Operation of a PDL Club shall be deemed to require, without limitation, that Lessee provide food, beverage, and souvenir concessions meetings standards of health, cleanliness and attractiveness required under applicable city codes and regulations (collectively, the “Base Operating Conditions”).”
6. Amendment to Section 7(b) of the Lease Agreement. The second sentence of Section 7(b) of the Lease Agreement shall be amended to read as follows:
“If Lessee ceases operation of the Team during the term of this Lease or if the Team is no longer a PDL Club, Lessor may, subject to Section 49, terminate this Lease.”
7. Amendment to Section 8 of the Lease Agreement. The third sentence of Section 8 of the Lease Agreement is hereby amended by deleting the word “League” appearing therein and inserting “MLB PDL” in replacement thereof.
8. Addition of Section 9(a)(1) to the Lease Agreement. Section 9(a)(1) shall be added to the Lease Agreement to read as follows:
“(1) Commencing on January 1, 2022, City shall make available Major Capital Improvement funding to the Lessee, pursuant to the following schedule:
2022: $1,800,000
2027: $600,000
2032: $1,000,000
The funding as provided in this Section shall be used exclusively for Major Capital Improvements to the Premises. Major Capital Improvements to the Premises consist of, but are not limited to: replacement of seats; remodeling of group suites; reconfiguration of locker room and other team facilities; weatherproofing; stadium lighting; and parking lot repair/replacement. Major Capital Improvements may include the placement of solar/battery facilities, and construction of a ground water well for non-potable water.
Unused funding in any particular year or tranche may be carried over for future years.”
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9. Amendment to Section 9(b) of the Lease Agreement. Section 9(b) of the Lease Agreement shall be amended to read as follows:
“(b) To access the funding for the Initial Capital Improvements or Major Capital Improvements, Lessee shall submit to Lessor a proposed budget itemizing the work to be performed to accomplish the Initial Capital Improvements or Major Capital Improvements, the cost for each item of work, and the persons or entities who will perform the work. At its option, Lessee may submit multiple budgets covering different items of work involved in the construction of the Initial Capital Improvements or Major Capital Improvements. In preparing budgets, Lessee shall obtain proposals from duly qualified and licensed contractors for the construction of the Initial Capital Improvements or Major Capital Improvements.”
10. Amendment to Section 9(c) of the Lease Agreement. Section 9(c) of the Lease Agreement shall be amended to read as follows:
“(c) In obtaining proposals, and in contracting for and performing work, Lessee and its contractors and subcontractors shall comply with all federal, state, and local ordinances, regulations, and laws concerning the expenditure of public funds, including without limitation those sections of the San Bernardino Municipal Code related to purchasing goods and services, and those sections of the California Labor Code (the "Labor Code") related to prevailing wages, hours of labor and employment preferences, and all other requirements pertaining to "public works," as defined in Section 1720(a) of the Labor Code. Without limitation, any construction or improvements at the Premises, including Major Capital Improvements (the "Improvements"), shall be performed in compliance with all applicable provisions of (i) Labor Code Section 1720, et seq., and its implementing regulations regarding the payment of prevailing wages (the "State Prevailing Wage Law") and (ii) federal prevailing wage law ("Federal Prevailing Wage Law" and, together with State Prevailing Wage Law, the "Prevailing Wage Laws"). Lessee shall be solely responsible for determining applicability of, and complying with, the Prevailing Wage Laws. Lessor makes no representation as to the applicability or nonapplicability of the Prevailing Wage Laws to Improvements, or any part thereof.”
11. Amendment to Section 10(a) of the Lease Agreement. Section 10(a) of the Lease Agreement shall be amended to read as follows:
“(a) Lessee is responsible, at its sole expense except as provided in Sections 9(a), 10(b), and 10(c) of this Lease, for furnishing all labor and materials necessary for Routine and Preventative Maintenance of the Premises. For the purposes of this Lease, Routine and Preventative Maintenance shall mean projects that are incidental to the dayto-day use of facilities of this type. Routine and Preventative Maintenance shall include the following without limitation:
(1) Routine maintenance of structural parts of buildings and other improvements, including foundations, bearing and exterior walls including glass and doors, hand railings, subflooring, and roof. Examples include, but are not limited to, minor
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(2) Routine maintenance of electrical, plumbing, and sewage systems contained within the Premises. Plumbing and sewage examples include, but are not limited to responding to routine plumbing issues such as sewer blockages, clearing of plumbing lines and as well as the pumping and cleaning of grease traps. Electrical system examples, include, but are not limited to maintenance/replacement of office and stadium common area lights (except for parking lot and field lights). (3) Routine maintenance and cleaning of window frames, gutters, and downspouts.
(4) Routine maintenance of heating, ventilation and air conditioning systems servicing the Premises, including changing heating and air conditioning filters every four (4) months.
(5) Routine maintenance of landscape, field surfaces, and common areas. This maintenance shall include, but is not limited to, mowing, weeding, and similar activities.
(6) Janitorial services sufficient to keep the interior and exterior of the Premises in a clean and orderly condition (including, but not limited to: offices, stadium facility and parking lots).
(7) Monthly or more frequent inspection of the Premises to identify needed maintenance.
(8) Routine maintenance and replacement of signage for the Lessee, stadium, and sponsors/vendors.”
12. Addition to Section 10(c) of the Lease Agreement. Section 10(c) shall be added to the Lease Agreement to read as follows:
“(c) Within ten (10) days after the execution of this Amendment No. 1 by the Parties, and then on January 1 of each year thereafter during the term of the Lease Agreement as extended by this Amendment No. 1, City shall transfer $250,000 in a single lump sum payment to Lessee (the “Capital Maintenance Fund”). The Capital Maintenance Fund must be used by Lessee toward Capital Maintenance (as defined below) projects at the Premises. To the extent all of the Capital Maintenance Funds received during the year are not used during that year, the remaining funds will be carried over into the successive year and will offset that successive year’s funding. For example, if $40,000 remains in the Capital Maintenance Fund at the end of a given year, on January 1 of the following year the City shall deposit $210,000 with Lessee in order to bring the Capital Maintenance Fund back to the $250,000 threshold. Lessee shall provide Lessor an accounting of its use of these funds each year, prepared at Lessee’s expense by a certified public accountant or a professional consultant acceptable to Lessor. If upon the expiration or other termination of this Lease there remains an unused balance in the
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Packet Pg. 521 Attachment: Attachment 1 Amendment No. 1 to 66ers Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers Capital Maintenance Fund, such remaining balance shall be returned to Lessor. The budgeting and accounting procedure set forth in Section 9(b) and (f) shall apply to the use of Capital Maintenance Funds pursuant to this Section. If the performance of the maintenance described in this Section requires the expenditure of more than the maximum amount to be provided by Lessor pursuant to this Section, the additional amount required shall be provided solely by Lessee. As provided for in Section 10(a) of this Agreement, Routine and Preventative Maintenance shall remain the responsibility of the Lessee. For the purposes of this Agreement, Capital Maintenance shall mean the following:
(1) Repair and replacement of plumbing fixtures.
(2) Repair and replacement of electrical fixtures including field lights/fixtures as well as parking lot lights/fixtures. (3) Repair and replacement of HVAC systems which may include major repairs or fixture replacement of heaters, air conditioners, and/or boilers. (4) Repair and replacement of irrigation system components (including irrigation lines, sprinklers, valves, and controllers) for common areas. (5) Substantial repair or replacement of field surfaces (including, but not limited to, clay or similar synthetic surface pitching mounds, infield playing surface, grass ,sod or similar playing surfaces) as needed from time to time or if MLB specifications require changes to field surfaces.
(6) Trimming of trees in parking or stadium areas.
(7) Significant repainting of visitor areas which may include the stucco texture of non-interior portion of the facility.”
13. Amendment to Section 34 of the Lease Agreement. Section 34 of the Lease Agreement shall be amended to read as follows:
“34. Amendment. No amendment to this Lease shall be effective unless (i) it is in writing and signed by both parties, (ii) in the case of Lessor, it is approved by the Mayor and Common Council of the City of San Bernardino and (iii) all necessary PDL Approvals have been obtained in advance thereof.”
14. Addition to Section 49 of the Lease Agreement. Section 49 shall be added to the Lease Agreement to read as follows:
“49. MLB PDL Requirements.
a. This Lease and any rights granted to Lessor or Lessee hereunder shall in all respects be subordinate to the PDL Rules and Regulations, as long as Lessee is party to the Inland Empire PDL License Agreement that is in effect. The issuance, entering into, amendment or implementation of any of the PDL Rules and Regulations
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Packet Pg. 522 Attachment: Attachment 1 Amendment No. 1 to 66ers Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers shall be at no cost or liability to any MLB PDL Entity or to any individual or entity related thereto. The territory within which Lessor is granted rights under this Lease is limited to, and nothing herein shall be construed as conferring on Lessor rights in areas outside of, the PDL Club Marketing Territory (as defined in the Inland Empire PDL License Agreement). No rights, exclusivities or obligations involving the Internet or any interactive or on-line media (as defined in the applicable PDL Rules and Regulations) are conferred by this Lease, except as are specifically approved in writing by MLB PDL. b. Lessor agrees that if the date upon which any termination or suspension of this Lease falls during the regular season or postseason, the effective date of such termination or suspension shall be the first day of the month following the final home game of such season, and, in no event, shall Lessor terminate or suspend Lessee’s rights under this Lease during any regular season or postseason. c. If, at any time prior to the expiration of the term of this Lease, this Lease is terminated by Lessor for any reason (and any legal action challenging the right of Lessor to terminate this Lease and seeking specific performance has either been (i) finally adjudicated by a court of competent jurisdiction as evidenced by a final nonappealable order or (ii) settled, withdrawn or otherwise concluded, in either case solely with respect to the request for specific performance) and the Inland Empire PDL License Agreement has been terminated, Lessor agrees to offer to assign this Lease to any replacement PDL Club identified by MLB PDL to the extent that such PDL Club is reasonably acceptable to Lessor. To the extent that this Lease is not so assigned, Lessor agrees to meet promptly with MLB PDL to work together to ascertain whether a replacement PDL Club can be identified, and if such a PDL Club is so identified, Lessor shall offer to lease the Premises to such PDL Club.
d. As long as Lessee is party to the Inland Empire License Agreement that is in effect, MLB PDL is an intended third party beneficiary of the provisions of this Section 49 and each other provision in this Lease that prohibits action without first obtaining PDL Approval and, in addition to its right to waive or enforce the provisions of this Section 49, MLB PDL shall be entitled and have the right to waive or enforce such other provisions that prohibit action without first obtaining PDL Approval directly against any party hereto (or their successors and permitted assigns) to the extent that any such other provision is for the explicit benefit of MLB PDL or any other MLB PDL Entity. e. Neither MLB PDL nor any other MLB PDL Entity shall have any liability whatsoever to any Person for actions taken pursuant to this Section 49 (other than for fraudulent acts or willful misconduct with respect to this Section 49 by MLB PDL), and Lessor hereby releases MLB PDL and each other MLB PDL Entity from any and all claims arising out of or in connection with any such actions. Nothing contained in this Lease shall create any duty on behalf of MLB PDL or any other MLB PDL Entity to any other Person.
f. As used herein, the following terms shall have the following meanings:
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Packet Pg. 523 Attachment: Attachment 1 Amendment No. 1 to 66ers Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers i. “Commissioner” means the Commissioner of Baseball as elected under the Major League Constitution or, in the absence of a Commissioner, any Person or body succeeding to the powers and duties of the Commissioner pursuant to the Major League Constitution.
ii. “Inland Empire PDL License Agreement” means that certain player development license agreement entered into between Lessee and MLB PDL pursuant to which the Club has been granted the right to participate in the Professional Development League System.
iii. “Major League Baseball” or “MLB” means, depending on the context, any or all of (a) the Office of the Commissioner of Baseball, each other MLB PDL Entity and/or all boards and committees thereof and/or (b) the Major League Clubs acting collectively.
iv. “Major League Baseball Club” or “Major League Club” means any professional baseball club that is entitled to the benefits, and bound by the terms, of the Major League Constitution.
v. “Major League Constitution” means the Major League Constitution adopted by the Major League Clubs as the same may be amended, supplemented or otherwise modified from time to time in the manner provided therein and all replacement or successor agreements that may in the future be entered into by the Major League Clubs.
vi. “MLB PDL” means, depending on the context, any or all of (i) MLB Professional Development Leagues, LLC, a Delaware limited liability company, and/or (ii) the boards, committees and subcommittees related thereto. vii. “MLB PDL Entity” means each of MLB PDL, the Office of the Commissioner of Baseball, MLB Advanced Media, L.P. and/or any of their respective present or future affiliates, assigns or successors.
viii. “PDL Approval” means, any approval, consent or no-objection letter required to be obtained from MLB PDL or any other MLB PDL Entity pursuant to the PDL Rules and Regulations.
ix. “PDL Club” means a professional baseball club participating in the Professional Development League System pursuant to a player development license agreement between the owner of such club and MLB PDL pursuant to which such owner has been granted the right to participate in the Professional Development League System.
x. “PDL Governance Agreement” means that certain Professional Development Leagues Governance Agreement, effective as of February 12, 2021 by and between MLB PDL and each Club, as may be amended, modified, supplemented or restated from time to time.
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Packet Pg. 524 Attachment: Attachment 1 Amendment No. 1 to 66ers Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers xi. “PDL Governing Documents” means the following documents as in effect from time to time and any amendments, supplements or other modifications thereto and all replacement or successor documents thereto that may in the future be entered into: (i) the Major League Constitution, (ii) the Major League Rules (and all attachments thereto), (iii) the PDL Operating Guidelines, (iv) the PDL Governance Agreement and (v) the PDL License Agreements.
xii. “PDL License Agreement” means each player development license agreement entered into between a PDL Club and MLB PDL pursuant to which such PDL Club has been granted the right to participate in the Professional Development League System, including, without limitation, the Inland Empire PDL License Agreement.
xiii. “PDL Rules and Regulations” means (i) the PDL Governing Documents, (ii) any present or future agreements or arrangements entered into by, or on behalf of, MLB PDL or any other MLB PDL Entity or the Major League Clubs acting collectively that are specifically related to or generally applicable to the Professional Development League System or the PDL Clubs, including, without limitation, agreements or arrangements entered into pursuant to the PDL Governing Documents, and (iii) the present and future mandates, rules, regulations, policies, practices, bulletins, by-laws, directives or guidelines issued or adopted by, or on behalf of, the Commissioner, MLB PDL or any other MLB PDL Entity as in effect from time to time that are specifically related to or generally applicable to the Professional Development League System or one or more of the PDL Clubs.
xiv. “Person” means any individual, partnership, limited liability company, corporation or other association, entity, trustee or legal representative. xv. “Professional Development League System” means a system of professional baseball leagues comprised of professional baseball clubs that compete at different levels and serve to assist with the development of players for Major League Baseball Clubs.
xvi. “Team” means the professional baseball club currently known as the Inland Empire 66ers.
15. Full Force. Except as amended by this Amendment No. 1, all provisions of the Lease Agreement, including without limitation the indemnity and insurance provisions, shall remain in full force and effect and shall govern the actions of the Parties under this Amendment No. 1.
16. Electronic Transmission. A manually signed copy of this Amendment No. 1 which is transmitted by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Amendment No. 1 for all purposes. This Amendment No. 1 may be signed using an electronic signature.
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Packet Pg. 525 Attachment: Attachment 1 Amendment No. 1 to 66ers Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers
17. Counterparts. This Amendment No. 1 may be signed in counterparts, each of which shall constitute an original.
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Packet Pg. 526 Attachment: Attachment 1 Amendment No. 1 to 66ers Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers
SIGNATURE PAGE FOR
AMENDMENT NO. 1 TO THE LEASE AGREEMENT
WITH INLAND EMPIRE 66ERS BASEBALL CLUB OF SAN BERNARDINO, INC.
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment No. 1 on the Effective Date first herein above written.
CITY
CITY OF SAN BERNARDINO
APPROVED BY:
Robert D. Field
City Manager
ATTESTED:
Genoveva Rocha, CMC
City Attorney
APPROVED AS TO FORM:
Best Best & Krieger LLP
City Attorney
LESSEE
INLAND EMPIRE 66ERS BASEBALL
CLUB OF SAN BERNARDINO, INC.
APPROVED BY:
Joe Hudson
General Manager
ATTESTED:
Michael Bracken,
Managing Partner & Chief Economist
Development Management Group, Inc.
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Packet Pg. 527 Attachment: Attachment 1 Amendment No. 1 to 66ers Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers I RESOLUTION NO. 2016-237
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 3 SAN BERNARDINO APPROVING A LEASE AGREEMENT WITH THE INLAND EMPIRE 66ERS BASEBALL CLUB OF SAN BERNARDINO, INC. FOR THE PROPERTY 4 LOCATED AT 280 SOUTH " E" STREET, SAN BERNARDINO, CALIFORNIA AND
APPROVING CERTAIN RELATED ACTIONS
5 6
WHEREAS, the City of San Bernardino (the " City") is a charter city in the County of San Bernardino, State of California; and
7 8
WHEREAS, the Inland Empire 66ers Baseball Club of San Bernardino, Inc. ( the " 66ers") is a corporation organized under California law and operates a Class A-Advanced minor league 9 baseball team which is a member of the California League (the " League"); and 10 11
WHEREAS, pursuant to the certain lease dated June 18, 1996 by and between the City and 12 the 66ers ( the " 1996 Lease"), the 66ers currently occupy an approximately 1, 184, 832 square- foot 13 baseball stadium and related improvements, which are municipal facilities, on a 27.20- acre parcel of land designated as Assessor' s Parcel Number 0136- 111- 23 and located at 280 South " E" Street, San 14 Bernardino California( the " Property"); and
15 16
WHEREAS, the term of the 1996 Lease expires on December 31, 2016; and 17 WHEREAS, the 66ers have requested to enter into a new lease with the City for the 18 Property for a term of up to ten ( 10) years to be effective, subject to the City' s fee ownership of the 19 Property as further described herein, on or after January 1, 2017 ( the " 2017 Lease"), a copy of which is included as Exhibit "A" to this Resolution; and 20 21
WHEREAS, the proposed 2017 Lease also includes provisions for funding of up to $ 2 22 million-worth of replacement or reconfiguration of certain improvements, as well as regular maintenance costs that are needed at the Property; and
23 24
WHEREAS, the Property is currently owned by the City of San Bernardino as Successor Agency to the former Redevelopment Agency of the City of San Bernardino ( the " Successor 25 Agency"), a separate legal entity from the City established by § 34173 of the California Health and 26 Safety Code (the " HSC"); and
27 28
1 16.b
Packet Pg. 528 Attachment: Attachment 2 Resolution 2016-237 & Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers 1 WHEREAS, the City is the sponsoring entity of the Successor Agency as defined in HSC § 2 34171( n) and certain actions of the Successor Agency are subject to the approval of its Oversight 3 Board (the " Oversight Board") established by HSC § 34179; and 4 WHEREAS, pursuant to HSC § 34191. 5( b), the Successor Agency prepared and submitted 5 to the California Department of Finance ( the " DOF") a long-range property management plan 6 (" LRPMP") that was approved by DOF on December 31, 2015; and 7 WHEREAS, the LRPMP governs the Successor Agency' s disposition of its real property 8 assets, including the Property; and
9 WHEREAS, as a part of its approval of the LRPMP, DOF has required that the Property be 10 sold, and has advised the Successor Agency that the Property can be sold to a third party or to a 11 public entity, which could include the City; and
12 WHEREAS, the LRPMP requires that the Successor Agency obtain Oversight Board and 13 DOF approval of property sales; and
14 WHEREAS, the Successor Agency is proposing to sell the Property to the City at its fair 15 market value consistent with the provisions of the LRPMP and DOF' s guidance for the sale of the 16 Property; and
17 WHEREAS, the Oversight Board' s and DOF' s approval of the conveyance of the Property 18 by the Successor Agency to the City at a sales price acceptable to the City in its sole discretion are 19 conditions precedent to the effectiveness of the 2017 Lease; and 20 WHEREAS, consistent with the foregoing, the City intends to seek to purchase the 21 Property from the Successor Agency and then lease an interest therein, as more particularly 22 provided within the 2017 Lease, a copy of which is included as Exhibit " A" to this Resolution, to 23 the 66ers conditioned upon the City obtaining fee simple ownership of the Property; and 24 WHEREAS, certain of the capital improvements located at the Property require 25 replacement or reconfiguration, as well as regular maintenance costs and the Successor Agency 26 lacks funds to pay for these items and does not expect to have moneys applicable for such purpose 27 in the future; and
28 2
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Packet Pg. 529 Attachment: Attachment 2 Resolution 2016-237 & Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers I WHEREAS, the City is a municipal bankruptcy debtor in the matter of In re City ofSan 2 Bernardino, California, Case No. 6: 12- bk-28006-MJ in the United States Bankruptcy Court for the 3 Central District of California, Riverside Division; and 4 WHEREAS, in connection with its plan for the adjustment of its debts in order to achieve 5 solvency, on September 30, 2016 the City submitted to the bankruptcy court the City of San 6 Bernardino Long-Range Financial Model (the " Financial Model"); and 7 WHEREAS, the Financial Model does not include funding for the acquisition of the 8 Property or any of the replacement or reconfiguration of certain improvements, as well as regular 9 maintenance costs required at the Property and, therefore, the City shall not be required to use any 10 of its General Fund money to acquire the Property or to pay any expense contemplated by the 2017 11 Lease; and
12 WHEREAS, pursuant to HSC § 34191. 4( c), proceeds from the 2010A and 2010B Tax Allocation 13 Bonds issued by the San Bernardino Joint Powers Financing Authority on behalf of the former 14 Redevelopment Agency of the City of San Bernardino (the " 2010 Bond Proceeds") may be used to 15 fund municipal improvements within the corporate limits of the City of San Bernardino; and 16 WHEREAS, on March 21, 2016, the Successor Agency and the City entered into a Bond 17 Expenditure Agreement ( the " BEA") for the purpose of transferring responsibility for the 18 management of the use of the 2010 Bond Proceeds to the City; and 19 WHEREAS, the BEA was subsequently approved by the Oversight Board and DOF and is 20 therefore fully effective; and
21 WHEREAS, because of the foregoing, the City has approximately $ 6.2 million of 2010 22 Bond Proceeds that it may use for selected municipal facilities; and 23 WHEREAS, consistent with the foregoing, the City would use a portion of the 2010 Bond 24 Proceeds for the acquisition of the Property and up to $ 2 million for replacement or reconfiguration 25 of certain improvements, as well as regular maintenance costs that are needed at the Property subject 26 to the provisions therefor described in the 2017 Lease; and 27 WHEREAS, this Resolution has been reviewed with respect to applicability of the 28 California Environmental Quality Act (" CEQA"), the State CEQA Guidelines ( California Code of 3 16.b
Packet Pg. 530 Attachment: Attachment 2 Resolution 2016-237 & Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers I Regulations, Title 14, § 15000 et seq., hereafter the " CEQA Guidelines"), and the City' s 2 environmental guidelines; and
3 WHEREAS, this Resolution does not constitute a " project" for purposes of CEQA, as that 4 term is defined by CEQA Guidelines § 15378, because this Resolution constitutes continuing 5 administrative or maintenance activities, general policy and procedure making, and organizational 6 or administrative activity that will not result in a direct or indirect physical change in the 7 environment, per § 15378 ( b) ( 2) and( 5) of the CEQA Guidelines; and 8 WHEREAS, all of the prerequisites with respect to the approval of this Resolution have 9 been met.
10 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON 11 COUNCIL OF THE CITY OF SAN BERNARDINO, AS FOLLOWS:
12 Section 1. The foregoing recitals are true and correct and are a substantive part of this 13 Resolution.
14 Section 2. The 2017 Lease, a copy of which is included as Exhibit " A" to this 15 Resolution, is approved.
16 Section 3. The City Manager or his designee is hereby authorized and directed, for and 17 in the name of and on behalf of the City, to execute, acknowledge and deliver the 2017 Lease in 18 substantially said form, with such non-material revisions as said officers, with the approval of the 19 City Attorney, may require or approve, such approval to be conclusively evidenced by the 20 execution and delivery of said Lease, and to take such further actions and execute such other 21 documents as are necessary to effectuate the intent of this Resolution. 22 Section 4. This Resolution is not a " project" for purposes of CEQA, as that 23 term is defined by CEQA Guidelines § 15378, because this Resolution constitutes continuing 24 administrative or maintenance activities, general policy and procedure making, and organizational 25 or administrative activity that will not result in a direct or indirect physical change in the 26 environment, per § 15378 ( b) ( 2) and ( 5) of the CEQA Guidelines. 27 Section 5. This resolution shall take effect upon its adoption and execution in the 28 manner as required by the City Charter.
4 16.b
Packet Pg. 531 Attachment: Attachment 2 Resolution 2016-237 & Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers
I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO APPROVING A LEASE AGREEMENT WITH THE INLAND EMPIRE 2 66ERS BASEBALL CLUB OF SAN BERNARDINO, INC. FOR THE PROPERTY 3 LOCATED AT 280 SOUTH " E" STREET, SAN BERNARDINO, CALIFORNIA AND
APPROVING CERTAIN RELATED ACTIONS
4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 5 Common Council of the City of San Bernardino, at a joint regular meeting thereof, held on the 7`h 6 day of November, 2016, by the following vote, to wit:
7 8 Council Members Ayes Nays Abstain Absent
9 MARQUEZ X
10 BARRIOS X
11 VALDIVIA X
12 SHORETT X
NICKEL X
13 14
RICHARD X
MULVIHILL X
15 16
17 Georgeannqlanna, CMC, City Clerk
18 19 The foregoing Resolution is hereby approved this day ofNovember 2016. 20 21
22 R. Carey DaviPernardino ayor
City of San
23 24
Approved as to Form:
Gary D. Saenz, City Attorney
25 26 By: C
27 28
5 16.b
Packet Pg. 532 Attachment: Attachment 2 Resolution 2016-237 & Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers 1 EXHIBIT "A"
23 LEASE AGREEMENT WITH THE
INLAND EMPIRE 66ERS BASEBALL CLUB
4 OF SAN BERNARDINO, INC.
FOR THE PROPERTY LOCATED AT
5 280 SOUTH " E" STREET,
SAN BERNARDINO, CALIFORNIA
67 See Attachment)
89 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
6 16.b
Packet Pg. 533 Attachment: Attachment 2 Resolution 2016-237 & Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers 2016- 237
LEASE AGREEMENT
CITY OF SAN BERNARDINO
and
INLAND EMPIRE 66ers BASEBALL CLUB OF SAN BERNARDINO, INC.
LESSOR: CITY OF SAN BERNARDINO
300 North" D" Street
San Bernardino, CA 92418
LESSEE: INLAND EMPIRE 66ers BASEBALL CLUB OF SAN BERNARDINO, INC.
PARTY: Each of Lessor and Lessee
PREMISES: 280 South E Street
San Bernardino, CA 92401
Assessor' s Parcel No. 0136- 11. 1- 23
TERM: From commencement until December 31, 2026
COMMENCEMENT DATE: The later of: the date of Lessor' s acquisition of fee simple title to the leasehold premises, or January 1, 2017
DATE OF LEASE: November 7 , 2016
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Packet Pg. 534 Attachment: Attachment 2 Resolution 2016-237 & Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers 2016- 237
RECITALS
A. The City of San Bernardino (" Lessor") is a charter city in the County of San Bernardino, State of California.
B. The Inland Empire 66ers Baseball Club of San Bernardino, Inc. (" Lessee") is a corporation organized under California law. Lessee operates a Class A-Advanced minor league baseball team which is a member of the California League ( the " League"). Lessor and Lessee may be individually referred to in this Lease as a" Party," and collectively as the " Parties." C. Lessee occupies an approximately 1, 184, 832 square- foot baseball stadium Stadium") and related facilities on a 27.20- acre parcel of land designated as Assessor' s Parcel Number 0136- 111- 23 and located at 280 South E Street in the City of San Bernardino ( the Property"). A lease concerning certain rights of use as to the Property was executed by Lessor and Lessee on June 18, 1996, and expires on December 31, 2016. The leasehold interest is as to rights to use the Property and improvements thereon, all as provided under such lease.
D. The Property is owned by the City of San Bernardino as Successor Agency Successor Agency") to the former Redevelopment Agency of the City of San Bernardino (" former RDA"), a separate legal entity from Lessor established by Section 34173 of the California Health and Safety Code (" HSC"). Lessor is the sponsoring entity of the Successor Agency as defined in HSC Section 34171( n). Certain actions of the Successor Agency are subject to the approval of its Oversight Board (" Oversight Board") established by HSC Section 34179.
E. Improvements located at the Property are in need of certain repairs and improvements, as well as regular maintenance. The Successor Agency lacks funds to pay for these items and does not expect to have moneys applicable for such purpose in the future.
F. Pursuant to HSC Section 34191. 5( b), the Successor Agency prepared and submitted to the California Department of Finance (" DOF") a long-range property management plan LRPMP") which was approved by DOF on December 31, 2015. The LRPMP governs the Successor Agency' s disposition of its real property assets, including the Property. As a part of its approval of the LRPMP, DOF has required that the Property be sold, and has advised the Successor Agency that the Property can be sold to a third party or to a public entity, which could include Lessor. The LRPMP requires that the Successor Agency obtain Oversight Board and DOF approval of property sales, and requires that properties be listed for sale at or above appraised fair market value or another amount approved by the Oversight Board. Oversight Board and DOF approval of the conveyance of the Property by the Successor Agency to Lessor at a sales price acceptable to Lessor in its sole discretion are conditions precedent to the effectiveness of this Lease.
G. Consistent with the foregoing, Lessor intends to seek to purchase the Property from the Successor Agency and then lease an interest therein, as more particularly provided herein ( which leasehold interest is as to land and improvements thereto; namely the " Premises") to Lessee pursuant to this Lease Agreement (" Lease"). Therefore, the effectiveness of this Lease is conditioned upon Lessor obtaining fee simple ownership of the Property consistent with the provisions previously described.
H. Lessor is a municipal bankruptcy debtor in the matter of In re City of San Bernardino, California, Case No. 6: 12- bk-28006- MJ in the United States Bankruptcy Court for the
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Packet Pg. 535 Attachment: Attachment 2 Resolution 2016-237 & Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers 2016- 237
Central District of California, Riverside Division. In connection with its plan for the adjustment of its debts in order to achieve solvency, Lessor submitted to the bankruptcy court on September 30, 2016 the City of San Bernardino Long-Range Financial Plan ( Financial Model). The Financial Model does not include funding for the repairs and capital improvements or the maintenance that are needed at the Property. Further, Lessor shall not be required to use any of Lessor' s General Fund money to pay any expense contemplated by this Lease.
1. Pursuant to HSC Section 34191. 4( c), proceeds from the 2010A and 201013 Tax Allocation Bonds issued by the San Bernardino Joint Powers Financing Authority on behalf of the former RDA ( 2010 Bond Proceeds) may be used to fund municipal improvements within the corporate limits of the City of San Bernardino. On March 21, 2016, the Successor Agency and Lessor entered into a Bond Expenditure Agreement ( BEA) for the purpose of transferring responsibility for the management of the use of the 2010 Bond Proceeds to Lessor. The BEA was approved by the Oversight Board and DOF. Lessor therefore proposes that a portion of the 2010 Bond Proceeds be used for the repairs and improvements and maintenance that are needed at the Premises consistent with the provisions described in this Lease.
AGREEMENT
1. INCORPORATION OF RECITALS
The foregoing Recitals are true and are incorporated here and made a part ofthis Lease.
2. COMMENCEMENT AND CONDITIONS TO EFFECTIVENESS
Upon the later to occur of: (i) the Commencement Date; or ( ii) the satisfaction of those conditions set forth in part ( a) of this Section ( the " Conditions Precedent"), Lessor leases the Premises to Lessee for the term set forth herein on the terms and conditions set forth herein. a) Conditions Precedent. The obligation of Lessor to deliver possession of the Premises pursuant to this Lease and the obligations of the Parties hereto are subject to the prior satisfaction of each of the following:
1) Lessor shall have acquired fee simple title to the Property in condition acceptable to Lessor;
2) Lessee shall have provided evidence reasonably satisfactory to Lessor that Lessee is a corporation in good standing, that the individual or individuals signing this Lease on behalf of Lessee are authorized to, and by executing this Lease do, bind the Lessee, and that Lessee has obtained all necessary authorizations for Lessee to continue to operate the Inland Empire 66ers Baseball Club (the " Team") as a team in the California League, which Team must be classified Class A — Advanced or better ( or such equivalent designation as Major League Baseball (" MLB") may designate in the future);
3) Lessee shall have provided evidence reasonably satisfactory to Lessor that Lessee has obtained all insurance required to be procured by Lessee pursuant to this Lease ( including without limitation Section 24 hereof), including endorsements as set forth in Section 24 hereof, 4) No administrative action or litigation shall, to the best knowledge of either of the Parties hereto have been commenced which is inconsistent with this Lease being effective; 2 16.b
Packet Pg. 536 Attachment: Attachment 2 Resolution 2016-237 & Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers 2016- 237
5) Lessee shall have provided to Lessor a plan for the provision of security at the Premises, as more particularly described in Section 7( d) hereof, which plan shall have been approved by Lessor( the " Security Plan); and
6) Lessee shall have identified key personnel more fully described in Section 7( e) hereof.
Items ( 1) to ( 6), inclusive, together constitute the Conditions Precedent. b) Lessor shall have secured fee simple title to the Property. The effectiveness of this Lease is expressly conditioned on Lessor acquiring fee simple title to the Property on terms acceptable to Lessor; and governmental approvals necessary for the transfer of the Property to Lessor.
Lessee agrees and acknowledges that concerns regarding the provision of security are particularly acute in connection with sporting events, particularly where alcoholic beverages are served. Lessor agrees to reasonably evaluate within a reasonable time following receipt thereof, a detailed security plan as shall be submitted by Lessee; such a plan, once approved by Lessee, shall constitute the " Security Plan." The Security Plan shall be updated semiannually, with Lessor' s approval required as to each update ( subject to reasonable review by Lessor).
3. EXPIRATION
This Lease shall expire on December 31, 2026, unless earlier terminated under provisions contained elsewhere in this Lease.
4. OPTIONAL EARLY TERMINATION
Either Party may terminate this Lease for any reason or for no reason effective December 31, 2022, by giving written notice to the other Party on or before March 15, 2021, or effective December 31, 2024, by giving written notice to the other Party on or before March 15, 2023.
5. BASE RENT
a) So long as the Base Operating Conditions ( as defined in Section 7( a)) remain satisfied, Lessee shall pay Lessor one dollar ($ 1. 00) as Base Rent per year, due on January 1 of each year during which this Lease is in effect(" Base Rent Due Date"). b) During any time one or more of the Base Operating Conditions is not satisfied, the Base Rent shall be deemed to be equal to the fair market rent of the Premises in its current condition as determined in good faith by Lessor from time to time. If Lessee does not agree with Lessor' s determination of fair market rent, Lessee shall have the option to contest Lessor' s determination by obtaining an appraisal from a qualified certified appraiser ( i. e., a qualified certified appraiser/firm must demonstrate that the person in charge of appraising the property is licensed by the California Bureau of Real Estate Appraisers at not less than a Certified General Appraiser level and is a Member of the Appraisal Institute [" MAI"]), at Lessee' s cost, and shall provide Lessor a copy of the appraisal report. If Lessor does not agree to adopt the fair market rental value determined by Lessee' s appraisal report then Lessor shall have the option to obtain its own appraisal report from a qualified certified appraiser( i. e., a qualified certified appraiser/ firm must demonstrate that the person in charge of appraising the property is licensed by the California Bureau of Real Estate Appraisers at 3 16.b
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not less than a Certified General Appraiser level and is a Member of the Appraisal Institute MAI"]), at Lessor' s cost, and the average rental value of the two appraisal reports shall be deemed the fair market rent for the Premises. Base Operating Conditions will only be deemed unsatisfied under this section after the default and cure provisions of section 26 below are followed. c) Base Rent shall be paid within five ( 5) business days from the Base Rent Due Date.
Payment shall be made at Lessor' s address for purposes of notice, set forth elsewhere in this Lease.
Lessee shall be permitted to pay the first six years of Base Rent due under Section 5( a) above in a single lump sum payment upon execution of this Lease, but such payment shall not preclude the termination of this Lease before the expiration of six years if otherwise permitted under the terms of this Lease.
d) Base Rent shall bear interest from the period due date until satisfied in full at the lesser of (i) seven percent ( 7%) simple interest per annum or ( ii) the highest non- usurious rate of interest that may lawfully be charged by a charter city.
6. ADDITIONAL RENT
a) As Additional Rent, Lessee shall pay Lessor one dollar ($ 1. 00) for each regular season baseball game paid attendee at the Premises, after attendance at Lessee' s regular season baseball games at the Premises reaches two-hundred and twenty-five thousand ( 225, 000) paid attendees in any baseball season, inclusive of playoff games, if any. Attendance shall be determined using the Attendance Report of the California League as the official record of attendance. Additional Rent is payable on September 30 of each year during which this Lease is in effect, or as soon thereafter as regular season attendance can be determined. Payment shall be made at Lessor' s address for purposes of notice, set forth elsewhere in this Lease. b) In addition, in the event Lessee fails to provide insurance, indemnify against losses, and/ or provide security in conformity with the Security Plan, Lessor may, but shall not be obligated to, defray the cost to address the lack of insurance, the occurrence of any unindemnified losses, or the failure to fully implement the Security Plan. Any such costs so incurred by Lessor shall be deemed to be advances, and Lessee shall be obligated to repay Lessee for all such costs so incurred, as further Additional Rent. Payment of Additional Rent that becomes due under this Section 6( b) shall be due and payable as of the thirtieth (30th) day following presentment by Lessor. c) Additional Rent shall bear interest from the period due date until satisfied in full at the lesser of( i) seven percent ( 7%) simple interest per annum or ( ii) the highest non-usurious rate of interest that may lawfully be charged by a charter city.
7. USE OF PREMISES
a) Lessor' s agreement to accept nominal Base Rent as set forth in Section 5 is expressly conditioned on and given in consideration of( i) Lessee' s use of the Premises for the operation of the Team within the League, which shall be not lower than Class A — Advanced ( or such other equivalent designation that may be created by MLB); (ii) the Team playing a full season schedule of games in accordance with the usual operations of the League; and ( iii) Lessee not being in default under any provisions of this Lease. Operation of a minor league baseball team shall be deemed to require, without limitation, that Lessee provide food, beverage, and souvenir concessions meeting 4 16.b
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standards of health, cleanliness, and attractiveness required under applicable city codes and regulations (collectively, the " Base Operating Conditions"). b) While, and only while, Lessee continues to use the Premises as stated in Section 7( a), including the Base Operating Conditions, Lessee may use the Premises for other lawful purposes provided such other uses do not damage the Premises or interfere with the use of the Premises for minor league baseball. If Lessee ceases operation of the Team during the term of this Lease or if the Team is no longer a member of the League, or the level of the League is below Class A - Advanced, Lessor may at its option terminate this Lease.
c) Lessee shall operate and hold open to the public the Premises continuously throughout the term of this Lease, except as may reasonably be required to perform the improvements, maintenance, and upgrades described in Sections 9 and 10, and except to the extent the Premises may become unusable due to natural disaster or other cause not attributable to the conduct of Lessee.
d) Lessee shall at its sole expense provide parking, security, and janitorial personnel at all events open to the public as needed to ensure the safety and convenience of attendees. The provision of security by Lessee at the Premises is a material provision of this Lease, but for which Lessor would not have entered into this Lease. Lessee shall submit to Lessor a detailed plan for the provision of security services at the Premises, which shall apply at all times this Lease is in effect but with particular emphasis on those days and times when there is active use of the Premises. The plan shall include service levels, including number of personnel, hours, and a discussion of qualifications of personnel, chain of command, and a location of key personnel of Lessee in charge of providing or overseeing the provision of security services. Lessee agrees and acknowledges that concerns regarding the provision of security are particularly acute in connection with sporting events, especially where alcoholic beverages are served. Lessor agrees to reasonably evaluate within a reasonable time following receipt thereof, a detailed security plan as shall be submitted by Lessee; such a plan, once approved by Lessee, shall constitute the " Security Plan." The Security Plan shall be updated semiannually, with Lessor' s approval required as to each update ( subject to reasonable review by Lessor).
e) Lessee shall identify in writing upon the commencement of this Lease the key personnel of Lessee who will be responsible for the operation of the Premises, including without limitation the General Manager of the baseball team.
f) Lessor may use the Premises for non- baseball events on dates agreed to by the Parties. Lessee shall not unreasonably withhold its agreement to Lessor' s use of the Premises when requested by Lessor. Lessee shall provide parking services, security, janitorial services, and concessions for such events at the same level of service as for events conducted by Lessee and in conformity with the Security Plan. Lessor shall reimburse Lessee for the costs of materials and labor incurred by Lessee due to Lessor' s use of the Premises. Ticket sales revenues from non- baseball events conducted by Lessor shall be paid to Lessor after deducting reasonable and customary costs of sale incurred by Lessee; such costs shall in no event exceed thirty percent ( 30%) of such event revenues. Twenty percent (20%) of the gross revenues from concessions during non- baseball events conducted by Lessor shall be paid to Lessor ( gross revenue shall not include any sales taxes that are collected from concession sales). Except as provided for in this section 7( f), Lessee shall be entitled to all revenues generated from the Premises.
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g) Lessee shall use diligent efforts to identify additional sources of revenue that may be derived from the Premises for special events.
h) Lessor shall have the use of one luxury box at the Stadium for not fewer than 18 games per season. Lessor shall select the dates for the 18 games prior to the beginning of each baseball season. Such selection is anticipated to occur during the Liaison Committee meeting held prior to the beginning of each season, as described in Section 48. Lessor shall have full discretion in the use of the luxury box, include the rights to designate the guests who may use the box and to sell or transfer the rights to use the box.
8. TEAM NAME
Throughout the term of this Lease, the name of the Team shall be " Inland Empire 66ers of San Bernardino" ( the " Team Name"). The Team shall be referred to by the full Team Name in all publications, announcements, and marketing, advertising, or promotional materials disseminated by or on behalf of Lessee or any of its affiliates during the term ofthis Lease. Upon the commencement of this Lease, Lessee shall request of the League and all other professional and business organizations with which Lessee or the Team is affiliated that they henceforth refer to the Team by the Team Name in all of their publications, announcements, and marketing, advertising, or promotional materials. To the extent that a previous name of the Team is used on signage already in existence as of the commencement of this Lease, the Team Name shall be incorporated into the signage when it is replaced.
9. INITIAL CAPITAL IMPROVEMENTS; FUNDING
a) Following the effectiveness of this Lease as provided under Section 2( a), Lessor shall make available to Lessee funding of up to one million dollars ($ 1, 000,000) solely from the 2010 Bond Proceeds, to be used exclusively for initial capital improvements to the Premises, consisting of the replacement/reconfiguration of seats throughout the Stadium, joint sealing as most needed and/or stucco crack sealing and painting of superstructures (the " Initial Capital Improvements"). In addition to the foregoing, the Initial Capital Improvements may also include any non- maintenance related replacement or reconfiguration of any of the items described in Section 10( a) ( 1) through ( 5) of this Lease. Lessor shall not be required to use any funds from Lessor' s General Fund to pay for the Initial Capital Improvements. If completion of the Initial Capital Improvements in a manner satisfactory to Lessor requires the expenditure of more than one million dollars ($ 1, 000,000), the additional amount required shall be provided solely by Lessee. b) To access the funding for the Initial Capital Improvements, Lessee shall submit to Lessor a proposed budget itemizing the work to be performed to accomplish the Initial Capital Improvements, the cost for each item of work, and the persons or entities who will perform the work.
At its option, Lessee may submit multiple budgets covering different items of work involved in the construction ofthe Initial Capital Improvements. In preparing budgets, Lessee shall obtain proposals from duly qualified and licensed contractors for the construction of the Initial Capital Improvements. c) In obtaining proposals, and in contracting for and performing work, Lessee and its contractors and subcontractors shall comply with all federal, state, and local ordinances, regulations, and laws concerning the expenditure of public funds, including without limitation those sections of the San Bernardino Municipal Code related to purchasing goods and services, and those sections of the California Labor Code ( the " Labor Code") related to prevailing wages, hours of labor and 6 16.b
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employment preferences, and all other requirements pertaining to " public works," as defined in Section 1720( a) of the Labor Code. Without limitation, any construction or improvements at the Premises (" Improvements") shall be performed in compliance with all applicable provisions of (i) Labor Code Section 1720, et seq., and its implementing regulations regarding the payment of prevailing wages ( the " State Prevailing Wage Law") and ( ii) federal prevailing wage law (" Federal Prevailing Wage Law" and, together with State Prevailing Wage Law, the " Prevailing Wage Laws").
Lessee shall be solely responsible for determining applicability of, and complying with, the Prevailing Wage Laws. Lessor makes no representation as to the applicability or non-applicability of the Prevailing Wage Laws to Improvements, or any part thereof. d) Without limiting Section 23 of this Agreement, Lessee hereby releases from liability, and agrees to indemnify, defend, assume all responsibility for and hold Lessor and its respective elected officials, officers, employees, contractors, agents and representatives, harmless from any and all claims, demands, actions, suits, proceedings, fines, penalties, damages, expenses and/or increased costs," including reasonable attorney fees, court and litigation costs, and fees of expert witnesses, resulting from, arising out of, or based upon Lessee' s acts or omissions pertaining to the development, construction, and/or operation of Improvements, including, without limitation, any and all public works as defined by applicable law. " Increased costs," as used in this Section 9( d), shall have the meaning ascribed to it in Labor Code Section 1781, as the same may be amended from time to time. This obligation of Lessee applies to, without limitation, the following:
1) noncompliance by Lessee with any applicable local, state and/or federal law, including, without limitation, federal and/ or state labor laws and any applicable requirement to pay state prevailing wages and/or federal prevailing wages; 2) the implementation of Section 1781 of the Labor Code, as the same may be amended from time to time, or any other similar law; and/ or 3) failure by Lessee to provide any required disclosure or identification required by Labor Code Section 1781, as the same may be amended from time to time, or any other similar law.
e) It is agreed by the Parties that, in connection with the development of Improvements, including, without limitation, any and all public works as defined by applicable law, Lessee shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of Labor Code Section 1781, as the same may be amended from time to time, and/ or any other similar law. The foregoing indemnity shall survive termination of this Lease and shall continue after completion ofthe construction and development of Improvements by Lessee. f) Within 45 days after receipt of a budget Lessor shall approve, disapprove, or request further information on, each budget item. Upon final approval of a budget, and provided there are no uncured defaults of Lessee under this Lease, Lessor shall provide Lessee with the funding amounts allocated to the budget items subject to the requirements set forth above. g) Lessee shall require performance and payment bonds from all contractors and subcontractors engaged to perform work under this Section 9. Lessee shall keep the Premises free and clear of, and hold Lessor harmless against, any stop notices, liens, or other encumbrances or claims asserted by such contractors or subcontractors.
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h) On or before each December 31, Lessee shall submit to Lessor an accounting showing the use of the funding provided for the budgeted items for the preceding 12 months, if any, prepared at Lessee' s expense by a certified public accountant acceptable to Lessor.
10. REGULAR MAINTENANCE AND UPGRADES; FUNDING
a) Lessee is responsible, at its sole expense except as provided in Sections 9(a) and 10( b) ofthis Lease, for furnishing all labor and materials necessary for the regular maintenance ofthe Premises, including without limitation:
1) Structural parts of buildings and other improvements, including foundations, bearing and exterior walls including glass and doors, subflooring, and roof. 2) Electrical, plumbing, and sewage systems contained within the Premises. 3) Window frames, gutters, and downspouts.
4) Heating, ventilation and air conditioning systems servicing the Premises, including changing heating and air conditioning filters every four( 4) months. 5) Grounds, including parking areas, outside lighting, grass, field surfaces, turf, trees, shrubbery and other vegetation.
6) Janitorial services sufficient to keep the interior of the Premises in a clean and orderly condition.
7) Monthly or more frequent inspection of the Premises to identify needed maintenance.
b) In addition to the Initial Capital Improvements funding described in Section 9, for each of the first five calendar years this Lease is in effect, Lessor shall contribute $200,000 each year solely from the 2010 Bond Proceeds for the maintenance described in Section 10( a). Lessee shall provide Lessor an accounting of its use of these funds each year, prepared at Lessee' s expense by a certified public accountant acceptable to Lessor. To the extent all of the funds received during a year are not used during that year, the remaining funds will be carried over into successive years. If upon the expiration or other termination of this Lease there remains an unused balance of these funds, such remaining balance shall be returned to Lessor. Lessor shall not be required to use any funds from Lessor' s General Fund to pay for said maintenance. The funds provided may also be used for upgrades or improvements to the Premises at the option of Lessee, provided regular maintenance is not compromised thereby. The budgeting and accounting procedure set forth in Section 9( b) and ( f) shall apply to the use of funds pursuant to this Section. Unused amounts may be carried forward to the next year. If the performance of the maintenance described in Section 10( a) in a manner satisfactory to Lessor requires the expenditure of more than the maximum amount to be provided by Lessor pursuant to this Section 10( b), the additional amount required shall be provided solely by Lessee.
11. SOURCE OF FUNDS
Funding for the Initial Capital Improvements described in Section 9 and the regular maintenance and upgrades or improvements described in Section 10 shall come solely from the 2010 8 16.b
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Bond Proceeds referenced in Recital I. Lessor shall not be required to use its General Fund money for these purposes.
12. ALCOHOLIC BEVERAGE SALES
Provided that Lessee shall have obtained, at its cost, all necessary permits and approvals for the sale of alcoholic beverages, Lessee may sell alcoholic beverages at the Premises in compliance with all applicable regulations and licensing requirements of the California Department of Alcoholic Beverage Control and any other governmental agency, including Lessor, having jurisdiction over such sale.
13. SIGNS
Lessee shall secure Lessor' s approval of all permanent signs that are placed on the Premises.
Lessee also shall secure Lessor' s approval of all permanent signs that are placed by Lessee in other locations and that refer to the Premises. " Permanent signs" are signs that are attached to buildings or other structures, or to the ground in a manner that prevents them from being readily moved.
14. NAME OF STADIUM
The current name of the Stadium is " San Manuel Stadium" pursuant to the terms of a sponsorship agreement(" Sponsor Agreement") between Lessee and the San Manuel Band of Mission Indians (" San Manuel"). Lessee shall be permitted to enter into future Sponsor Agreements with San Manuel or other entities with Lessor' s consent and shall be allowed to change the name of the Stadium ( at Lessee' s cost) as may be required by such future Sponsor Agreements. Lessor' s consent to such future Sponsor Agreements shall not be unreasonably withheld but may be conditioned upon an equitable and mutually agreeable allocation between the Parties of revenue from such future Sponsor Agreements. Lessee shall throughout the term of this Lease provide Lessor with current updated copies of all Sponsor Agreements entered into by Lessee that are in effect during any part of the term ofthis Lease.
15. RETURN OF PREMISES
Upon the expiration or termination of this Lease, Lessee shall return the Premises in as good condition and repair as the Premises are in at the commencement of this Lease, reasonable wear and tear excepted.
16. HOLDING OVER
Lessee shall not hold over and continue to occupy the Premises after the expiration of this Lease without the written consent of Lessor, which may be given or withheld in the sole discretion of Lessor. In the event Lessee holds over with Lessor' s consent, the tenancy shall be deemed to be a tenancy from month to month upon the same terms and conditions as are set forth in this Lease.
17. TAXES
a) Lessor shall pay when due all real property taxes and general and special assessments levied and assessed against the Premises.
b) Lessee shall pay when due all sales taxes on taxable items sold at the Premises. 9 16.b
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c) Lessee acknowledges that this Lease may create a possessory interest subject to property taxation pursuant to California Revenue and Taxation Code Section 107, and that Lessee may be subject to the payment of property taxes levied on the interest. Lessee shall pay any such taxes when due. Lessee acknowledges that the levy of such taxes is determined by the County Assessor and the property value used in such a determination may bear no relationship to the stated rent under this Lease.
18. REMOVAL; WASTE; DISCHARGE OF SUBSTANCES
Lessee shall not cut timber, conduct mining operations, remove sand, gravel, or similar substances from the ground, or commit waste of any kind on the Premises, or in any manner substantially change the contour or condition of the Premises, except as may be authorized under this Lease. Lessee shall not cause or allow the discharge of any substances from the Premises which will contaminate streams or other bodies of water or otherwise become a public nuisance. Lessee shall comply with all federal, state, and local laws, regulations, ordinances, conditions, or directives relating to the discharge of substances into streams or other bodies of water.
19. HEALTH, SAFETY, AND FIRE PROTECTION
Lessee shall, at its sole expense except as provided in Sections 9 and 10, ensure that the Premises comply with all statutes, regulations, ordinances, and governmental directives pertaining to public health, safety, and fire protection, including without limitation all applicable building codes and the applicable requirements of the Americans with Disabilities Act and related state laws.
20. ALTERATIONS
Lessee shall not modify buildings or other structures or facilities on the Premises without Lessor' s prior written consent which shall not be unreasonably conditioned or withheld. If Lessee wishes to make any modifications, Lessee shall submit a written application to Lessor for such purpose. If Lessor approves any such modifications, then the cost of any such modifications shall be the sole responsibility of Lessee.
21. FIXTURES
Lessee may install shelving and fixtures, and may remove the same provided that Lessee restores the Premises to their condition at the commencement of this Lease, reasonable wear and tear excepted.
22. UTILITIES
Lessee shall pay when due all utilities provided to the Premises, including without limitation electric, gas, water, sewer, trash, fire alarm service, security, telephone, cable, and internet services.
If Lessee fails to make any utility payment when due, Lessor may (but shall not be required to) pay the unpaid amount( s), in which event Lessee shall reimburse Lessor for such amount( s), plus interest at the legal rate from the date of payment until paid in full.
23. INDEMNITY
Lessee shall indemnify and hold Lessor, its elected officials, employees, agents, and representatives harmless from all claims, actions, damages and liabilities for bodily injury, death, or 10 16.b
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property damage caused by any act or omission of Lessee, its employees, agents, or subcontractors and arising out of Lessee' s use and occupation of the Premises under this Lease, including without limitation the granting by Lessee of any concessions, licenses or other permissions for the use of the Premises. Lessee shall defend said indemnified parties against any legal actions based upon any such act or omission. Lessee waives all rights of express or implied indemnity against Lessor, its elected officials, employees, agents or representatives, with respect to third party claims against Lessee arising out of or in any way connected with this Lease.
24. INSURANCE
a) Lessee shall maintain during the term of this Lease the following insurance and shall provide evidence thereof to Lessor, including certificates of insurance:
1) Comprehensive general liability, including premises liability and operations, products and completed operations, broad form property damage, blanket contractual liability, and personal injury with a policy limit of not less than Two Million Dollars ($ 2,000, 000.00) per occurrence. Said insurance shall include, or Lessee shall obtain additional coverage to include, liability from the sale of merchandise, food and beverages, including alcohol, and from advertising and broadcasting in the event Lessee engages or subcontracts any advertising or broadcasting. 2) Automobile liability for owned, hired, and non- owned vehicles, with a policy limit of not less than One Million Dollars ($ 1, 000,000.00) per occurrence. 3) Worker' s compensation insurance as required by the State of California. b) The policy or policies described in Sections 24( a)( 1) and ( 2) shall contain or be endorsed to contain provisions to the following effect:
1) Lessor and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to liability arising out of this Lease or Lessee' s use of the Premises, and the insurance shall be considered to be separate insurance as to each named and each additional insured.
2) The policy shall not be terminated or cancelled, or the coverage reduced, without at least thirty (30) days' written notice to Lessor. 3) Coverage as provided by Lessee shall be primary ( insurance, if any, maintained by Lessor shall be excess and not contributing with respect to the insurance to be provided by Lessee).
4) All policies described in Section 24( a) shall provide or be endorsed to provide that the insurer waives subrogation against Lessor and its elected and appointed boards, officers, agents, and employees.
5) Lessee shall provide Lessor with certificates of insurance showing the coverages and endorsements described above, in a form and content approved by Lessor, prior to conducting any operations pursuant to this Lease.
6) Nothing in this section shall limit in any way Lessee' s indemnity and defense obligations set forth in Section 23.
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25. DESTRUCTION OF PREMISES
a) If any portion of the Premises becomes unusable for the purpose intended while this Lease is in effect due to causes not attributable to any act or omission of Lessee, Lessee shall restore the Premises to usable condition as promptly as reasonably possible using the funds provided pursuant to Section 10. If said funds, together with any insurance proceeds, are insufficient to restore the Premises, Lessee may make up the difference from its own funds at its option. Should Lessee decline to do so, Lessor may at its option terminate this Lease on 30 days' written notice to Lessee, or may restore the Premises at its own expense and maintain this Lease in effect. b) If any portion of the Premises becomes unusable for the purpose intended while this Lease is in effect due to any act or omission of Lessee, Lessee shall restore the Premises to usable condition as promptly as reasonably possible at its sole expense.
26. DEFAULT AND CURE
Failure by either Party to perform any obligation under this Lease shall constitute a default unless said Party performs said obligation within thirty ( 30) days following receipt of written notice from the other Party. If performance of the obligation cannot reasonably be completed within thirty 30) days of said notice, the nonperformance shall not constitute a default if the nonperforming party commences performance within said period and completes performance as soon as reasonably possible, but in no event to exceed ninety (90) days.
27. REMEDIES ON DEFAULT; TERMINATION
Default by either Party as described in Section 26 shall entitle the other Party at its option to terminate this Lease immediately upon written notice to the Party in default. With or without terminating the Lease, the Party not in default may pursue any remedies legally available to it, except that said Party shall not commence formal legal action without first pursuing arbitration pursuant to Section 28 unless immediate legal action is necessary to prevent irreparable injury to persons or property.
Notwithstanding the foregoing portion of this Section 27, in the event a Party fails to perform an obligation under this Lease, the other Party may give notice of default. If the default is not cured within the period set forth therefor in Section 26, the Party giving notice may terminate this Lease upon giving written notice to the other Party so stating without the necessity of engaging in arbitration under Section 28.
28. ARBITRATION
a) Except as provided in Section 27, neither Party shall pursue legal action against the other on account of any dispute arising out of this Lease without first demanding arbitration pursuant to this section. Within ten ( 10) days of receiving a demand for arbitration, the Party receiving the demand shall notify the other Party of its agreement to arbitrate and the Parties shall thereafter pursue arbitration as described in this section. Ifthe Party receiving a demand for arbitration does not notify the other Party of its agreement to arbitrate within said ten ( 10) day period, the other Party may commence legal action for the sole purpose of compelling arbitration. 12 16.b
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b) Arbitration pursuant to this section shall be conducted according to the provisions of Title 9 of Part 3 of the California Code of Civil Procedure, with the exception of Chapter 4 of said Title. Alternatively, at the Parties' election, arbitration may be conducted through IVAMS Arbitration and Mediation Services pursuant to the IVAMS Administrative and Arbitration Rules as amended January 28, 2013 or thereafter.
c) Arbitration pursuant to this section shall be nonbinding. A Party dissatisfied with the outcome of any arbitration may pursue any and all remedies legally available to it. d) Costs of arbitration shall be borne equally by the Parties. Each Party shall bear its own attorney fees associated with arbitration.
e) Applicable statutes of limitations on any claims pursued through arbitration shall be tolled from the sending of a demand for arbitration until thirty ( 30) days following the final arbitration decision.
29. LESSOR' S ACCESS TO PREMISES
Lessor and its authorized representatives shall have the right to enter the Premises at all reasonable times upon at least twenty-four ( 24) hours' notice to Lessee for purposes of inspection, repair or maintenance, display of the Premises to prospective brokers, agents, buyers, tenants, or lenders, or any other purpose reasonably related to Lessor' s ownership of, and investment in, the Premises. Lessor shall exercise its right of access in a manner that minimizes any inconvenience to Lessee.
30. NOTICES
a) Any notices required under this Lease shall be given by personal delivery, private delivery service, or United States Mail. Notices are effective on receipt, which shall be rebuttably presumed to be the day of delivery as established by written evidence thereof. Notices shall be valid if delivered to the following addresses:
TO LESSOR: TO LESSEE:
City of San Bernardino Inland Empire 66ers Baseball
ATTN: City Manager Club of San Bernardino, Inc.
300 N. " D" Street, 6`" Floor ATTN: General Manager
San Bernardino, CA 92418 280 South E Street
San Bernardino, CA 92401
b) Either Party may change its address for delivery of notices by notifying the other Party in conformity with this section.
31. ASSIGNMENT
Lessee shall not voluntarily or by operation of law assign, transfer, sublet or encumber Lessee' s interest in the Premises in whole or in part without Lessor' s prior written consent to be given or withheld in Lessor' s sole discretion. Any attempted assignment, transfer, subletting, or encumbrance made without such consent shall be void and shall constitute a breach of this Lease and cause for the termination of this Lease. Regardless of Lessor' s consent, no subletting or assignment 13 16.b
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shall release Lessee of its obligation to perform all of its obligations hereunder for the term of this Lease. Lessee may license the use of the Premises to its concessionaires or other third parties with Lessor' s prior written consent, which shall not be unreasonably withheld.
32. ENTIRE AGREEMENT
This Lease constitutes the Parties' entire agreement and understanding with respect to the subject matter addressed herein and supersedes any prior or contemporaneous agreements and understandings relating to said subject matter.
33. REMEDIES AND WAIVER
All remedies available to either Party for breach of this Lease by the other Party are cumulative and may be exercised separately or concurrently without waiver of any other remedy.
The delay or failure of either Party to require performance by the other of any of its obligations under this Lease shall not be deemed a waiver of the right to require such performance. No waiver of any provision of this Lease shall be effective unless it is made in writing and signed by a duly authorized representative of the Party against whom it is sought to be enforced. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of such right or remedy with respect to any future occurrences or events and shall not be deemed a continuing waiver.
34. AMENDMENT
No amendment to this Lease shall be effective unless it is in writing and signed by both Parties and, in the case of Lessor, approved by the Mayor and Common Council of the City of San Bernardino.
35. SUCCESSORS AND ASSIGNS
This Lease shall be binding on and inure to the benefit ofthe Parties' successors and assigns.
36. COVENANTS AND CONDITIONS
The obligations of the Parties under this Lease shall be deemed to be both covenants and conditions.
37. CHOICE OF LAW
This Lease shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws.
38. VENUE
Venue for any legal action or proceeding arising out of this Lease shall be the Superior Court of the State of California for the County of San Bernardino or the United States District Court for the Central District of California, Riverside Division. This choice of venue is intended to be mandatory and not permissive.
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39. PUBLIC RECORDS ACT DISCLOSURE
Lessee acknowledges that all information received by Lessor concerning this Lease, including the Lease itself, may be treated as public information subject to disclosure under the California Public Records Act, Government Code Section 6250 et seq.
40. CONDEMNATION
If any legally constituted authority condemns all or part of the Premises for a public use through the exercise of the power of eminent domain, and said condemnation results in a taking of property that renders the Premises unsuitable for the purposes of this Lease, this Lease shall terminate when the public authority takes possession of such property.
41. INTERPRETATION
This Lease was jointly negotiated and drafted by both Parties and shall not be construed in favor of or against either Party on account of authorship of any of its provisions.
42. COUNTERPARTS
This Lease may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement.
43. FORCE MAJEURE
A Party shall not be liable for any failure or delay in the performance of this Lease for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to earthquakes or other natural disasters, acts of war, strikes or labor disputes, embargoes, governmental orders or any other force majeure event.
44. COMPLIANCE WITH LAW
Lessee agrees to abide by all federal, state, and local laws, ordinances and regulations.
45. NON-DISCRIMINATION
In the performance of this Lease, the use ofthe Premises, and in the hiring and recruitment of employees, Lessee shall not engage in, or permit its officers, employees or agents to engage in, discrimination against any person because of his or her race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law.
46. REGULATORY AUTHORITY
Lessee acknowledges and agrees that Lessor in its capacity as a municipality and a charter city has certain governmental regulatory authority over the Premises. Lessee agrees that nothing in this Lease shall require Lessor to exercise that authority in any particular manner. Lessee agrees in its use and operation of the Premises to comply with all requirements imposed by Lessor in its capacity as a governmental regulatory body. Lessee agrees that all costs of such compliance are the sole responsibility of Lessee.
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47. RELATIONSHIP OF PARTIES
The Parties are separate and independent entities. Execution and performance of this Lease shall not make Lessee or its officers, agents, employees, or contractors the agents or employees of Lessor.
48. LIAISON COMMITTEE
Each Party shall each appoint an appropriate number of representatives to a joint committee to communicate on a continual basis. The committee shall conduct at least two ( 2) in-person meetings annually to tour the Premises and discuss the financial condition of the Parties and the physical condition of the Premises. Further, at least one of the Liaison Committee meetings shall occur before the baseball season begins.
IN WITNESS WHEREOF, Lessor and Lessee have caused this Lease Agreement to be executed by their duly authorized respective officers, effective as of the day and year as set forth above.
CITY OF SAN BERNARDINO:
By: Date:
Title:
INLAND EMPIRE 66ers BASEBALL CLUB OF SAN BERNARDINO, INC.
By: Date:
Title:
APPROVED AS TO FORM:
GARY D. SAENZ, City Attorney
r
By:
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Packet Pg. 550 Attachment: Attachment 2 Resolution 2016-237 & Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers 2016- 237
M
LEASE AGREEMENT
CITY OF SAN BERNARDINO
and
INLAND EMPIRE 66ers BASEBALL CLUB OF SAN BERNARDINO, INC.
LESSOR: CITY OF SAN BERNARDINO
300 North" D" Street
San Bernardino, CA 92418
LESSEE: INLAND EMPIRE 66ers BASEBALL CLUB OF SAN BERNARDINO, INC.
PARTY: Each of Lessor and Lessee
PREMISES: 280 South E Street
San Bernardino, CA 92401
Assessor' s Parcel No. 0136- 111- 23
TERM: From commencement until December 31, 2026
COMMENCEMENT DATE: The later of: the date of Lessor' s acquisition of fee simple title to the leasehold premises, or January 1, 2017
DATE OF LEASE: November_ 7 , 2016
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RECITALS
A. The City of San Bernardino (" Lessor") is a charter city in the County of San Bernardino, State of California.
B. The Inland Empire 66ers Baseball Club of San Bernardino, Inc. (" Lessee") is a corporation organized under California law. Lessee operates a Class A-Advanced minor league baseball team which is a member of the California League ( the " League"). Lessor and Lessee may be individually referred to in this Lease as a" Party," and collectively as the " Parties." C. Lessee occupies an approximately 1, 184, 832 square- foot baseball stadium Stadium") and related facilities on a 27. 20- acre parcel of land designated as Assessor' s Parcel Number 0136- 111- 23 and located at 280 South E Street in the City of San Bernardino ( the Property"). A lease concerning certain rights of use as to the Property was executed by Lessor and Lessee on June 18, 1996, and expires on December 31, 2016. The leasehold interest is as to rights to use the Property and improvements thereon, all as provided under such lease.
D. The Property is owned by the City of San Bernardino as Successor Agency Successor Agency") to the former Redevelopment Agency of the City of San Bernardino (" former RDA"), a separate legal entity from Lessor established by Section 34173 of the California Health and Safety Code (" HSC"). Lessor is the sponsoring entity of the Successor Agency as defined in HSC Section 34171( n). Certain actions of the Successor Agency are subject to the approval of its Oversight Board (" Oversight Board") established by HSC Section 34179.
E. Improvements located at the Property are in need of certain repairs and improvements, as well as regular maintenance. The Successor Agency lacks funds to pay for these items and does not expect to have moneys applicable for such purpose in the future.
F. Pursuant to HSC Section 34191. 5( b), the Successor Agency prepared and submitted to the California Department of Finance (" DOF") a long-range property management plan LRPMP") which was approved by DOF on December 31, 2015. The LRPMP governs the Successor Agency' s disposition of its real property assets, including the Property. As a part of its approval of the LRPMP, DOF has required that the Property be sold, and has advised the Successor Agency that the Property can be sold to a third party or to a public entity, which could include Lessor. The LRPMP requires that the Successor Agency obtain Oversight Board and DOF approval of property sales, and requires that properties be listed for sale at or above appraised fair market value or another amount approved by the Oversight Board. Oversight Board and DOF approval of the conveyance of the Property by the Successor Agency to Lessor at a sales price acceptable to Lessor in its sole discretion are conditions precedent to the effectiveness of this Lease.
G. Consistent with the foregoing, Lessor intends to seek to purchase the Property from the Successor Agency and then lease an interest therein, as more particularly provided herein ( which leasehold interest is as to land and improvements thereto; namely the " Premises") to Lessee pursuant to this Lease Agreement (" Lease"). Therefore, the effectiveness of this Lease is conditioned upon Lessor obtaining fee simple ownership of the Property consistent with the provisions previously described.
H. Lessor is a municipal bankruptcy debtor in the matter of In re City of San Bernardino, California, Case No. 6: 12- bk-28006- MJ in the United States Bankruptcy Court for the
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Central District of California, Riverside Division. In connection with its plan for the adjustment of its debts in order to achieve solvency, Lessor submitted to the bankruptcy court on September 30, 2016 the City of San Bernardino Long- Range Financial Plan ( Financial Model). The Financial Model does not include funding for the repairs and capital improvements or the maintenance that are needed at the Property. Further, Lessor shall not be required to use any of Lessor' s General Fund money to pay any expense contemplated by this Lease.
I. Pursuant to HSC Section 34191. 4( c), proceeds from the 2010A and 2010B Tax Allocation Bonds issued by the San Bernardino Joint Powers Financing Authority on behalf of the former RDA ( 2010 Bond Proceeds) may be used to fund municipal improvements within the corporate limits of the City of San Bernardino. On March 21, 2016, the Successor Agency and Lessor entered into a Bond Expenditure Agreement ( BEA) for the purpose of transferring responsibility for the management of the use of the 2010 Bond Proceeds to Lessor. The BEA was approved by the Oversight Board and DOF. Lessor therefore proposes that a portion of the 2010 Bond Proceeds be used for the repairs and improvements and maintenance that are needed at the Premises consistent with the provisions described in this Lease.
AGREEMENT
1. INCORPORATION OF RECITALS
The foregoing Recitals are true and are incorporated here and made a part ofthis Lease.
2. COMMENCEMENT AND CONDITIONS TO EFFECTIVENESS
Upon the later to occur of. (i) the Commencement Date; or ( ii) the satisfaction of those conditions set forth in part ( a) of this Section ( the " Conditions Precedent"), Lessor leases the Premises to Lessee for the term set forth herein on the terms and conditions set forth herein. a) Conditions Precedent. The obligation of Lessor to deliver possession of the Premises pursuant to this Lease and the obligations of the Parties hereto are subject to the prior satisfaction of each of the following:
1) Lessor shall have acquired fee simple title to the Property in condition acceptable to Lessor;
2) Lessee shall have provided evidence reasonably satisfactory to Lessor that Lessee is a corporation in good standing, that the individual or individuals signing this Lease on behalf of Lessee are authorized to, and by executing this Lease do, bind the Lessee, and that Lessee has obtained all necessary authorizations for Lessee to continue to operate the Inland Empire 66ers Baseball Club (the " Team") as a team in the California League, which Team must be classified Class A — Advanced or better ( or such equivalent designation as Major League Baseball (" MLB") may designate in the future);
3) Lessee shall have provided evidence reasonably satisfactory to Lessor that Lessee has obtained all insurance required to be procured by Lessee pursuant to this Lease ( including without limitation Section 24 hereof), including endorsements as set forth in Section 24 hereof, 4) No administrative action or litigation shall, to the best knowledge of either of the Parties hereto have been commenced which is inconsistent with this Lease being effective; 2 16.b
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5) Lessee shall have provided to Lessor a plan for the provision of security at the Premises, as more particularly described in Section 7( d) hereof, which plan shall have been approved by Lessor( the " Security Plan); and
6) Lessee shall have identified key personnel more fully described in Section 7( e) hereof.
Items ( 1) to ( 6), inclusive, together constitute the Conditions Precedent. b) Lessor shall have secured fee simple title to the Property. The effectiveness of this Lease is expressly conditioned on Lessor acquiring fee simple title to the Property on terms acceptable to Lessor; and governmental approvals necessary for the transfer of the Property to Lessor.
Lessee agrees and acknowledges that concerns regarding the provision of security are particularly acute in connection with sporting events, particularly where alcoholic beverages are served. Lessor agrees to reasonably evaluate within a reasonable time following receipt thereof, a detailed security plan as shall be submitted by Lessee; such a plan, once approved by Lessee, shall constitute the " Security Plan." The Security Plan shall be updated semiannually, with Lessor' s approval required as to each update ( subject to reasonable review by Lessor).
3. EXPIRATION
This Lease shall expire on December 31, 2026, unless earlier terminated under provisions contained elsewhere in this Lease.
4. OPTIONAL EARLY TERMINATION
Either Party may terminate this Lease for any reason or for no reason effective December 31, 2022, by giving written notice to the other Party on or before March 15, 2021, or effective December 31, 2024, by giving written notice to the other Party on or before March 15, 2023.
5. BASE RENT
a) So long as the Base Operating Conditions ( as defined in Section 7( a)) remain satisfied, Lessee shall pay Lessor one dollar ($ 1. 00) as Base Rent per year, due on January 1 of each year during which this Lease is in effect(" Base Rent Due Date"). b) During any time one or more of the Base Operating Conditions is not satisfied, the Base Rent shall be deemed to be equal to the fair market rent of the Premises in its current condition as determined in good faith by Lessor from time to time. If Lessee does not agree with Lessor' s determination of fair market rent, Lessee shall have the option to contest Lessor' s determination by obtaining an appraisal from a qualified certified appraiser ( i. e., a qualified certified appraiser/firm must demonstrate that the person in charge of appraising the property is licensed by the California Bureau of Real Estate Appraisers at not less than a Certified General Appraiser level and is a Member of the Appraisal Institute [" MAI"]), at Lessee' s cost, and shall provide Lessor a copy of the appraisal report. If Lessor does not agree to adopt the fair market rental value determined by Lessee' s appraisal report then Lessor shall have the option to obtain its own appraisal report from a qualified certified appraiser ( i. e., a qualified certified appraiser/ firm must demonstrate that the person in charge of appraising the property is licensed by the California Bureau of Real Estate Appraisers at 3 16.b
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not less than a Certified General Appraiser level and is a Member of the Appraisal Institute MAI"]), at Lessor' s cost, and the average rental value of the two appraisal reports shall be deemed the fair market rent for the Premises. Base Operating Conditions will only be deemed unsatisfied under this section after the default and cure provisions of section 26 below are followed. c) Base Rent shall be paid within five ( 5) business days from the Base Rent Due Date.
Payment shall be made at Lessor' s address for purposes of notice, set forth elsewhere in this Lease.
Lessee shall be permitted to pay the first six years of Base Rent due under Section 5( a) above in a single lump sum payment upon execution of this Lease, but such payment shall not preclude the termination of this Lease before the expiration of six years if otherwise permitted under the terms of this Lease.
d) Base Rent shall bear interest from the period due date until satisfied in full at the lesser of (i) seven percent ( 7%) simple interest per annum or ( ii) the highest non- usurious rate of interest that may lawfully be charged by a charter city.
6. ADDITIONAL RENT
a) As Additional Rent, Lessee shall pay Lessor one dollar ($ 1. 00) for each regular season baseball game paid attendee at the Premises, after attendance at Lessee' s regular season baseball games at the Premises reaches two-hundred and twenty-five thousand ( 225, 000) paid attendees in any baseball season, inclusive of playoff games, if any. Attendance shall be determined using the Attendance Report of the California League as the official record of attendance. Additional Rent is payable on September 30 of each year during which this Lease is in effect, or as soon thereafter as regular season attendance can be determined. Payment shall be made at Lessor' s address for purposes of notice, set forth elsewhere in this Lease. b) In addition, in the event Lessee fails to provide insurance, indemnify against losses, and/or provide security in conformity with the Security Plan, Lessor may, but shall not be obligated to, defray the cost to address the lack of insurance, the occurrence of any unindemnified losses, or the failure to fully implement the Security Plan. Any such costs so incurred by Lessor shall be deemed to be advances, and Lessee shall be obligated to repay Lessee for all such costs so incurred, as further Additional Rent. Payment of Additional Rent that becomes due under this Section 6( b) shall be due and payable as of the thirtieth (30th) day following presentment by Lessor. c) Additional Rent shall bear interest from the period due date until satisfied in full at the lesser of( i) seven percent ( 7%) simple interest per annum or ( ii) the highest non-usurious rate of interest that may lawfully be charged by a charter city.
7. USE OF PREMISES
a) Lessor' s agreement to accept nominal Base Rent as set forth in Section 5 is expressly conditioned on and given in consideration of( i) Lessee' s use of the Premises for the operation of the Team within the League, which shall be not lower than Class A — Advanced ( or such other equivalent designation that may be created by MLB); (ii) the Team playing a full season schedule of games in accordance with the usual operations of the League; and ( iii) Lessee not being in default under any provisions of this Lease. Operation of a minor league baseball team shall be deemed to require, without limitation, that Lessee provide food, beverage, and souvenir concessions meeting 4 16.b
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standards of health, cleanliness, and attractiveness required under applicable city codes and regulations ( collectively, the " Base Operating Conditions"). b) While, and only while, Lessee continues to use the Premises as stated in Section 7( a), including the Base Operating Conditions, Lessee may use the Premises for other lawful purposes provided such other uses do not damage the Premises or interfere with the use of the Premises for minor league baseball. If Lessee ceases operation of the Team during the term of this Lease or ifthe Team is no longer a member of the League, or the level of the League is below Class A - Advanced, Lessor may at its option terminate this Lease.
c) Lessee shall operate and hold open to the public the Premises continuously throughout the term of this Lease, except as may reasonably be required to perform the improvements, maintenance, and upgrades described in Sections 9 and 10, and except to the extent the Premises may become unusable due to natural disaster or other cause not attributable to the conduct of Lessee.
d) Lessee shall at its sole expense provide parking, security, and janitorial personnel at all events open to the public as needed to ensure the safety and convenience of attendees. The provision of security by Lessee at the Premises is a material provision of this Lease, but for which Lessor would not have entered into this Lease. Lessee shall submit to Lessor a detailed plan for the provision of security services at the Premises, which shall apply at all times this Lease is in effect but with particular emphasis on those days and times when there is active use of the Premises. The plan shall include service levels, including number of personnel, hours, and a discussion of qualifications of personnel, chain of command, and a location of key personnel of Lessee in charge of providing or overseeing the provision of security services. Lessee agrees and acknowledges that concerns regarding the provision of security are particularly acute in connection with sporting events, especially where alcoholic beverages are served. Lessor agrees to reasonably evaluate within a reasonable time following receipt thereof, a detailed security plan as shall be submitted by Lessee; such a plan, once approved by Lessee, shall constitute the " Security Plan." The Security Plan shall be updated semiannually, with Lessor' s approval required as to each update ( subject to reasonable review by Lessor).
e) Lessee shall identify in writing upon the commencement of this Lease the key personnel of Lessee who will be responsible for the operation of the Premises, including without limitation the General Manager of the baseball team.
f) Lessor may use the Premises for non- baseball events on dates agreed to by the Parties. Lessee shall not unreasonably withhold its agreement to Lessor' s use of the Premises when requested by Lessor. Lessee shall provide parking services, security, janitorial services, and concessions for such events at the same level of service as for events conducted by Lessee and in conformity with the Security Plan. Lessor shall reimburse Lessee for the costs of materials and labor incurred by Lessee due to Lessor' s use of the Premises. Ticket sales revenues from non- baseball events conducted by Lessor shall be paid to Lessor after deducting reasonable and customary costs of sale incurred by Lessee; such costs shall in no event exceed thirty percent ( 30%) of such event revenues. Twenty percent (20%) of the gross revenues from concessions during non- baseball events conducted by Lessor shall be paid to Lessor ( gross revenue shall not include any sales taxes that are collected from concession sales). Except as provided for in this section 7( f), Lessee shall be entitled to all revenues generated from the Premises.
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g) Lessee shall use diligent efforts to identify additional sources of revenue that may be derived from the Premises for special events.
h) Lessor shall have the use of one luxury box at the Stadium for not fewer than 18 games per season. Lessor shall select the dates for the 18 games prior to the beginning of each baseball season. Such selection is anticipated to occur during the Liaison Committee meeting held prior to the beginning of each season, as described in Section 48. Lessor shall have full discretion in the use of the luxury box, include the rights to designate the guests who may use the box and to sell or transfer the rights to use the box.
8. TEAM NAME
Throughout the term of this Lease, the name of the Team shall be " Inland Empire 66ers of San Bernardino" ( the " Team Name"). The Team shall be referred to by the full Team Name in all publications, announcements, and marketing, advertising, or promotional materials disseminated by or on behalf of Lessee or any of its affiliates during the term of this Lease. Upon the commencement of this Lease, Lessee shall request of the League and all other professional and business organizations with which Lessee or the Team is affiliated that they henceforth refer to the Team by the Team Name in all of their publications, announcements, and marketing, advertising, or promotional materials. To the extent that a previous name of the Team is used on signage already in existence as of the commencement of this Lease, the Team Name shall be incorporated into the signage when it is replaced.
9. INITIAL CAPITAL IMPROVEMENTS; FUNDING
a) Following the effectiveness of this Lease as provided under Section 2( a), Lessor shall make available to Lessee funding of up to one million dollars ($ 1, 000, 000) solely from the 2010 Bond Proceeds, to be used exclusively for initial capital improvements to the Premises, consisting of the replacement/reconfiguration of seats throughout the Stadium, joint sealing as most needed and/or stucco crack sealing and painting of superstructures (the " Initial Capital Improvements"). In addition to the foregoing, the Initial Capital Improvements may also include any non-maintenance related replacement or reconfiguration of any of the items described in Section 10( a) ( 1) through ( 5) of this Lease. Lessor shall not be required to use any funds from Lessor' s General Fund to pay for the Initial Capital Improvements. If completion of the Initial Capital Improvements in a manner satisfactory to Lessor requires the expenditure of more than one million dollars ($ 1, 000,000), the additional amount required shall be provided solely by Lessee. b) To access the funding for the Initial Capital Improvements, Lessee shall submit to Lessor a proposed budget itemizing the work to be performed to accomplish the Initial Capital Improvements, the cost for each item of work, and the persons or entities who will perform the work.
At its option, Lessee may submit multiple budgets covering different items of work involved in the construction of the Initial Capital Improvements. In preparing budgets, Lessee shall obtain proposals from duly qualified and licensed contractors for the construction of the Initial Capital Improvements. c) In obtaining proposals, and in contracting for and performing work, Lessee and its contractors and subcontractors shall comply with all federal, state, and local ordinances, regulations, and laws concerning the expenditure of public funds, including without limitation those sections of the San Bernardino Municipal Code related to purchasing goods and services, and those sections of the California Labor Code ( the " Labor Code") related to prevailing wages, hours of labor and 6 16.b
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employment preferences, and all other requirements pertaining to " public works," as defined in Section 1720( a) of the Labor Code. Without limitation, any construction or improvements at the Premises (" Improvements") shall be performed in compliance with all applicable provisions of (i) Labor Code Section 1720, et seq., and its implementing regulations regarding the payment of prevailing wages ( the " State Prevailing Wage Law") and ( ii) federal prevailing wage law (" Federal Prevailing Wage Law" and, together with State Prevailing Wage Law, the " Prevailing Wage Laws").
Lessee shall be solely responsible for determining applicability of, and complying with, the Prevailing Wage Laws. Lessor makes no representation as to the applicability or non-applicability of the Prevailing Wage Laws to Improvements, or any part thereof. d) Without limiting Section 23 of this Agreement, Lessee hereby releases from liability, and agrees to indemnify, defend, assume all responsibility for and hold Lessor and its respective elected officials, officers, employees, contractors, agents and representatives, harmless from any and all claims, demands, actions, suits, proceedings, fines, penalties, damages, expenses and/or increased costs," including reasonable attorney fees, court and litigation costs, and fees of expert witnesses, resulting from, arising out of, or based upon Lessee' s acts or omissions pertaining to the development, construction, and/or operation of Improvements, including, without limitation, any and all public works as defined by applicable law. " Increased costs," as used in this Section 9( d), shall have the meaning ascribed to it in Labor Code Section 1781, as the same may be amended from time to time. This obligation of Lessee applies to, without limitation, the following:
1) noncompliance by Lessee with any applicable local, state and/ or federal law, including, without limitation, federal and/ or state labor laws and any applicable requirement to pay state prevailing wages and/or federal prevailing wages; 2) the implementation of Section 1781 of the Labor Code, as the same may be amended from time to time, or any other similar law; and/ or 3) failure by Lessee to provide any required disclosure or identification required by Labor Code Section 1781, as the same may be amended from time to time, or any other similar law.
e) It is agreed by the Parties that, in connection with the development of Improvements, including, without limitation, any and all public works as defined by applicable law, Lessee shall bear all risks of payment or non-payment of prevailing wages under California law and/ or the implementation of Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law. The foregoing indemnity shall survive termination of this Lease and shall continue after completion of the construction and development of Improvements by Lessee. f) Within 45 days after receipt of a budget Lessor shall approve, disapprove, or request further information on, each budget item. Upon final approval of a budget, and provided there are no uncured defaults of Lessee under this Lease, Lessor shall provide Lessee with the funding amounts allocated to the budget items subject to the requirements set forth above. g) Lessee shall require performance and payment bonds from all contractors and subcontractors engaged to perform work under this Section 9. Lessee shall keep the Premises free and clear of, and hold Lessor harmless against, any stop notices, liens, or other encumbrances or claims asserted by such contractors or subcontractors.
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h) On or before each December 31, Lessee shall submit to Lessor an accounting showing the use of the funding provided for the budgeted items for the preceding 12 months, if any, prepared at Lessee' s expense by a certified public accountant acceptable to Lessor.
10. REGULAR MAINTENANCE AND UPGRADES; FUNDING
a) Lessee is responsible, at its sole expense except as provided in Sections 9(a) and 10( b) of this Lease, for furnishing all labor and materials necessary for the regular maintenance ofthe Premises, including without limitation:
1) Structural parts of buildings and other improvements, including foundations, bearing and exterior walls including glass and doors, subflooring, and roof. 2) Electrical, plumbing, and sewage systems contained within the Premises. 3) Window frames, gutters, and downspouts.
4) Heating, ventilation and air conditioning systems servicing the Premises, including changing heating and air conditioning filters every four( 4) months. 5) Grounds, including parking areas, outside lighting, grass, field surfaces, turf, trees, shrubbery and other vegetation.
6) Janitorial services sufficient to keep the interior of the Premises in a clean and orderly condition.
7) Monthly or more frequent inspection of the Premises to identify needed maintenance.
b) In addition to the Initial Capital Improvements funding described in Section 9, for each of the first five calendar years this Lease is in effect, Lessor shall contribute $200,000 each year solely from the 2010 Bond Proceeds for the maintenance described in Section 10( a). Lessee shall provide Lessor an accounting of its use of these funds each year, prepared at Lessee' s expense by a certified public accountant acceptable to Lessor. To the extent all of the funds received during a year are not used during that year, the remaining funds will be carried over into successive years. If upon the expiration or other termination of this Lease there remains an unused balance of these funds, such remaining balance shall be returned to Lessor. Lessor shall not be required to use any funds from Lessor' s General Fund to pay for said maintenance. The funds provided may also be used for upgrades or improvements to the Premises at the option of Lessee, provided regular maintenance is not compromised thereby. The budgeting and accounting procedure set forth in Section 9( b) and ( f) shall apply to the use of funds pursuant to this Section. Unused amounts may be carried forward to the next year. If the performance of the maintenance described in Section 10( a) in a manner satisfactory to Lessor requires the expenditure of more than the maximum amount to be provided by Lessor pursuant to this Section 10( b), the additional amount required shall be provided solely by Lessee.
11. SOURCE OF FUNDS
Funding for the Initial Capital Improvements described in Section 9 and the regular maintenance and upgrades or improvements described in Section 10 shall come solely from the 2010 8 16.b
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Bond Proceeds referenced in Recital I. Lessor shall not be required to use its General Fund money for these purposes.
12. ALCOHOLIC BEVERAGE SALES
Provided that Lessee shall have obtained, at its cost, all necessary permits and approvals for the sale of alcoholic beverages, Lessee may sell alcoholic beverages at the Premises in compliance with all applicable regulations and licensing requirements of the California Department of Alcoholic Beverage Control and any other governmental agency, including Lessor, having jurisdiction over such sale.
13. SIGNS
Lessee shall secure Lessor' s approval of all permanent signs that are placed on the Premises.
Lessee also shall secure Lessor' s approval of all permanent signs that are placed by Lessee in other locations and that refer to the Premises. " Permanent signs" are signs that are attached to buildings or other structures, or to the ground in a manner that prevents them from being readily moved.
14. NAME OF STADIUM
The current name of the Stadium is " San Manuel Stadium" pursuant to the terms of a sponsorship agreement(" Sponsor Agreement") between Lessee and the San Manuel Band of Mission Indians (" San Manuel"). Lessee shall be permitted to enter into future Sponsor Agreements with San Manuel or other entities with Lessor' s consent and shall be allowed to change the name of the Stadium ( at Lessee' s cost) as may be required by such future Sponsor Agreements. Lessor' s consent to such future Sponsor Agreements shall not be unreasonably withheld but may be conditioned upon an equitable and mutually agreeable allocation between the Parties of revenue from such future Sponsor Agreements. Lessee shall throughout the term of this Lease provide Lessor with current updated copies of all Sponsor Agreements entered into by Lessee that are in effect during any part of the term of this Lease.
15. RETURN OF PREMISES
Upon the expiration or termination of this Lease, Lessee shall return the Premises in as good condition and repair as the Premises are in at the commencement of this Lease, reasonable wear and tear excepted.
16. HOLDING OVER
Lessee shall not hold over and continue to occupy the Premises after the expiration of this Lease without the written consent of Lessor, which may be given or withheld in the sole discretion of Lessor. In the event Lessee holds over with Lessor' s consent, the tenancy shall be deemed to be a tenancy from month to month upon the same terms and conditions as are set forth in this Lease.
17. TAXES
a) Lessor shall pay when due all real property taxes and general and special assessments levied and assessed against the Premises.
b) Lessee shall pay when due all sales taxes on taxable items sold at the Premises. 9 16.b
Packet Pg. 560 Attachment: Attachment 2 Resolution 2016-237 & Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers 2016- 237
c) Lessee acknowledges that this Lease may create a possessory interest subject to property taxation pursuant to California Revenue and Taxation Code Section 107, and that Lessee may be subject to the payment of property taxes levied on the interest. Lessee shall pay any such taxes when due. Lessee acknowledges that the levy of such taxes is determined by the County Assessor and the property value used in such a determination may bear no relationship to the stated rent under this Lease.
18. REMOVAL; WASTE; DISCHARGE OF SUBSTANCES
Lessee shall not cut timber, conduct mining operations, remove sand, gravel, or similar substances from the ground, or commit waste of any kind on the Premises, or in any manner substantially change the contour or condition of the Premises, except as may be authorized under this Lease. Lessee shall not cause or allow the discharge of any substances from the Premises which will contaminate streams or other bodies of water or otherwise become a public nuisance. Lessee shall comply with all federal, state, and local laws, regulations, ordinances, conditions, or directives relating to the discharge of substances into streams or other bodies of water.
19. HEALTH, SAFETY, AND FIRE PROTECTION
Lessee shall, at its sole expense except as provided in Sections 9 and 10, ensure that the Premises comply with all statutes, regulations, ordinances, and governmental directives pertaining to public health, safety, and fire protection, including without limitation all applicable building codes and the applicable requirements ofthe Americans with Disabilities Act and related state laws.
20. ALTERATIONS
Lessee shall not modify buildings or other structures or facilities on the Premises without Lessor' s prior written consent which shall not be unreasonably conditioned or withheld. If Lessee wishes to make any modifications, Lessee shall submit a written application to Lessor for such purpose. If Lessor approves any such modifications, then the cost of any such modifications shall be the sole responsibility of Lessee.
21. FIXTURES
Lessee may install shelving and fixtures, and may remove the same provided that Lessee restores the Premises to their condition at the commencement of this Lease, reasonable wear and tear excepted.
22. UTILITIES
Lessee shall pay when due all utilities provided to the Premises, including without limitation electric, gas, water, sewer, trash, fire alarm service, security, telephone, cable, and internet services.
If Lessee fails to make any utility payment when due, Lessor may ( but shall not be required to) pay the unpaid amount( s), in which event Lessee shall reimburse Lessor for such amount( s), plus interest at the legal rate from the date of payment until paid in full.
23. INDEMNITY
Lessee shall indemnify and hold Lessor, its elected officials, employees, agents, and representatives harmless from all claims, actions, damages and liabilities for bodily injury, death, or 10 16.b
Packet Pg. 561 Attachment: Attachment 2 Resolution 2016-237 & Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers 2016- 237
property damage caused by any act or omission of Lessee, its employees, agents, or subcontractors and arising out of Lessee' s use and occupation of the Premises under this Lease, including without limitation the granting by Lessee of any concessions, licenses or other permissions for the use of the Premises. Lessee shall defend said indemnified parties against any legal actions based upon any such act or omission. Lessee waives all rights of express or implied indemnity against Lessor, its elected officials, employees, agents or representatives, with respect to third party claims against Lessee arising out of or in any way connected with this Lease.
24. INSURANCE
a) Lessee shall maintain during the term of this Lease the following insurance and shall provide evidence thereof to Lessor, including certificates of insurance:
1) Comprehensive general liability, including premises liability and operations, products and completed operations, broad form property damage, blanket contractual liability, and personal injury with a policy limit of not less than Two Million Dollars ($ 2,000, 000. 00) per occurrence. Said insurance shall include, or Lessee shall obtain additional coverage to include, liability from the sale of merchandise, food and beverages, including alcohol, and from advertising and broadcasting in the event Lessee engages or subcontracts any advertising or broadcasting. 2) Automobile liability for owned, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars ($ 1, 000, 000. 00) per occurrence. 3) Worker' s compensation insurance as required by the State of California. b) The policy or policies described in Sections 24( a)( 1) and ( 2) shall contain or be endorsed to contain provisions to the following effect:
1) Lessor and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to liability arising out of this Lease or Lessee' s use of the Premises, and the insurance shall be considered to be separate insurance as to each named and each additional insured.
2) The policy shall not be terminated or cancelled, or the coverage reduced, without at least thirty (30) days' written notice to Lessor. 3) Coverage as provided by Lessee shall be primary ( insurance, if any, maintained by Lessor shall be excess and not contributing with respect to the insurance to be provided by Lessee).
4) All policies described in Section 24( a) shall provide or be endorsed to provide that the insurer waives subrogation against Lessor and its elected and appointed boards, officers, agents, and employees.
5) Lessee shall provide Lessor with certificates of insurance showing the coverages and endorsements described above, in a form and content approved by Lessor, prior to conducting any operations pursuant to this Lease.
6) Nothing in this section shall limit in any way Lessee' s indemnity and defense obligations set forth in Section 23.
11 16.b
Packet Pg. 562 Attachment: Attachment 2 Resolution 2016-237 & Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers 2016- 237
25. DESTRUCTION OF PREMISES
a) If any portion of the Premises becomes unusable for the purpose intended while this Lease is in effect due to causes not attributable to any act or omission of Lessee, Lessee shall restore the Premises to usable condition as promptly as reasonably possible using the funds provided pursuant to Section 10. If said funds, together with any insurance proceeds, are insufficient to restore the Premises, Lessee may make up the difference from its own funds at its option. Should Lessee decline to do so, Lessor may at its option terminate this Lease on 30 days' written notice to Lessee, or may restore the Premises at its own expense and maintain this Lease in effect. b) If any portion of the Premises becomes unusable for the purpose intended while this Lease is in effect due to any act or omission of Lessee, Lessee shall restore the Premises to usable condition as promptly as reasonably possible at its sole expense.
26. DEFAULT AND CURE
Failure by either Party to perform any obligation under this Lease shall constitute a default unless said Party performs said obligation within thirty (30) days following receipt of written notice from the other Party. If performance of the obligation cannot reasonably be completed within thirty 30) days of said notice, the nonperformance shall not constitute a default ifthe nonperforming party commences performance within said period and completes performance as soon as reasonably possible, but in no event to exceed ninety( 90) days.
27. REMEDIES ON DEFAULT; TERMINATION
Default by either Party as described in Section 26 shall entitle the other Party at its option to terminate this Lease immediately upon written notice to the Party in default. With or without terminating the Lease, the Party not in default may pursue any remedies legally available to it, except that said Party shall not commence formal legal action without first pursuing arbitration pursuant to Section 28 unless immediate legal action is necessary to prevent irreparable injury to persons or property.
Notwithstanding the foregoing portion of this Section 27, in the event a Party fails to perform an obligation under this Lease, the other Party may give notice of default. If the default is not cured within the period set forth therefor in Section 26, the Party giving notice may terminate this Lease upon giving written notice to the other Party so stating without the necessity of engaging in arbitration under Section 28.
28. ARBITRATION
a) Except as provided in Section 27, neither Party shall pursue legal action against the other on account of any dispute arising out of this Lease without first demanding arbitration pursuant to this section. Within ten ( 10) days of receiving a demand for arbitration, the Party receiving the demand shall notify the other Party of its agreement to arbitrate and the Parties shall thereafter pursue arbitration as described in this section. Ifthe Party receiving a demand for arbitration does not notify the other Party of its agreement to arbitrate within said ten ( 10) day period, the other Party may commence legal action for the sole purpose of compelling arbitration. 12 16.b
Packet Pg. 563 Attachment: Attachment 2 Resolution 2016-237 & Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers 2016- 237
b) Arbitration pursuant to this section shall be conducted according to the provisions of Title 9 of Part 3 of the California Code of Civil Procedure, with the exception of Chapter 4 of said Title. Alternatively, at the Parties' election, arbitration may be conducted through IVAMS Arbitration and Mediation Services pursuant to the IVAMS Administrative and Arbitration Rules as amended January 28, 2013 or thereafter.
c) Arbitration pursuant to this section shall be nonbinding. A Party dissatisfied with the outcome of any arbitration may pursue any and all remedies legally available to it. d) Costs of arbitration shall be borne equally by the Parties. Each Party shall bear its own attorney fees associated with arbitration.
e) Applicable statutes of limitations on any claims pursued through arbitration shall be tolled from the sending of a demand for arbitration until thirty ( 30) days following the final arbitration decision.
29. LESSOR' S ACCESS TO PREMISES
Lessor and its authorized representatives shall have the right to enter the Premises at all reasonable times upon at least twenty-four ( 24) hours' notice to Lessee for purposes of inspection, repair or maintenance, display of the Premises to prospective brokers, agents, buyers, tenants, or lenders, or any other purpose reasonably related to Lessor' s ownership of, and investment in, the Premises. Lessor shall exercise its right of access in a manner that minimizes any inconvenience to Lessee.
30. NOTICES
a) Any notices required under this Lease shall be given by personal delivery, private delivery service, or United States Mail. Notices are effective on receipt, which shall be rebuttably presumed to be the day of delivery as established by written evidence thereof. Notices shall be valid if delivered to the following addresses:
TO LESSOR: TO LESSEE:
City of San Bernardino Inland Empire 66ers Baseball
ATTN: City Manager Club of San Bernardino, Inc.
300 N. " D" Street, 6`" Floor ATTN: General Manager
San Bernardino, CA 92418 280 South E Street
San Bernardino, CA 92401
b) Either Party may change its address for delivery of notices by notifying the other Party in conformity with this section.
31. ASSIGNMENT
Lessee shall not voluntarily or by operation of law assign, transfer, sublet or encumber Lessee' s interest in the Premises in whole or in part without Lessor' s prior written consent to be given or withheld in Lessor' s sole discretion. Any attempted assignment, transfer, subletting, or encumbrance made without such consent shall be void and shall constitute a breach of this Lease and cause for the termination of this Lease. Regardless of Lessor' s consent, no subletting or assignment 13 16.b
Packet Pg. 564 Attachment: Attachment 2 Resolution 2016-237 & Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers 2016- 237
shall release Lessee of its obligation to perform all of its obligations hereunder for the term of this Lease. Lessee may license the use of the Premises to its concessionaires or other third parties with Lessor' s prior written consent, which shall not be unreasonably withheld.
32. ENTIRE AGREEMENT
This Lease constitutes the Parties' entire agreement and understanding with respect to the subject matter addressed herein and supersedes any prior or contemporaneous agreements and understandings relating to said subject matter.
33. REMEDIES AND WAIVER
All remedies available to either Party for breach of this Lease by the other Party are cumulative and may be exercised separately or concurrently without waiver of any other remedy.
The delay or failure of either Party to require performance by the other of any of its obligations under this Lease shall not be deemed a waiver of the right to require such performance. No waiver of any provision of this Lease shall be effective unless it is made in writing and signed by a duly authorized representative of the Party against whom it is sought to be enforced. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of such right or remedy with respect to any future occurrences or events and shall not be deemed a continuing waiver.
34. AMENDMENT
No amendment to this Lease shall be effective unless it is in writing and signed by both Parties and, in the case of Lessor, approved by the Mayor and Common Council of the City of San Bernardino.
35. SUCCESSORS AND ASSIGNS
This Lease shall be binding on and inure to the benefit of the Parties' successors and assigns.
36. COVENANTS AND CONDITIONS
The obligations of the Parties under this Lease shall be deemed to be both covenants and conditions.
37. CHOICE OF LAW
This Lease shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws.
38. VENUE
Venue for any legal action or proceeding arising out of this Lease shall be the Superior Court of the State of California for the County of San Bernardino or the United States District Court for the Central District of California, Riverside Division. This choice of venue is intended to be mandatory and not permissive.
14 16.b
Packet Pg. 565 Attachment: Attachment 2 Resolution 2016-237 & Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers 2016- 237
39. PUBLIC RECORDS ACT DISCLOSURE
Lessee acknowledges that all information received by Lessor concerning this Lease, including the Lease itself, may be treated as public information subject to disclosure under the California Public Records Act, Government Code Section 6250 et seq.
40. CONDEMNATION
If any legally constituted authority condemns all or part of the Premises for a public use through the exercise of the power of eminent domain, and said condemnation results in a taking of property that renders the Premises unsuitable for the purposes of this Lease, this Lease shall terminate when the public authority takes possession of such property.
41. INTERPRETATION
This Lease was jointly negotiated and drafted by both Parties and shall not be construed in favor of or against either Party on account of authorship of any of its provisions.
42. COUNTERPARTS
This Lease may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement.
43. FORCE MAJEURE
A Party shall not be liable for any failure or delay in the performance of this Lease for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to earthquakes or other natural disasters, acts of war, strikes or labor disputes, embargoes, governmental orders or any other force majeure event.
44. COMPLIANCE WITH LAW
Lessee agrees to abide by all federal, state, and local laws, ordinances and regulations.
45. NON-DISCRIMINATION
In the performance of this Lease, the use of the Premises, and in the hiring and recruitment of employees, Lessee shall not engage in, or permit its officers, employees or agents to engage in, discrimination against any person because of his or her race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law.
46. REGULATORY AUTHORITY
Lessee acknowledges and agrees that Lessor in its capacity as a municipality and a charter city has certain governmental regulatory authority over the Premises. Lessee agrees that nothing in this Lease shall require Lessor to exercise that authority in any particular manner. Lessee agrees in its use and operation of the Premises to comply with all requirements imposed by Lessor in its capacity as a governmental regulatory body. Lessee agrees that all costs of such compliance are the sole responsibility of Lessee.
15 16.b
Packet Pg. 566 Attachment: Attachment 2 Resolution 2016-237 & Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers 2016- 237
47. RELATIONSHIP OF PARTIES
The Parties are separate and independent entities. Execution and performance of this Lease shall not make Lessee or its officers, agents, employees, or contractors the agents or employees of Lessor.
48. LIAISON COMMITTEE
Each Party shall each appoint an appropriate number of representatives to a joint committee to communicate on a continual basis. The committee shall conduct at least two ( 2) in-person meetings annually to tour the Premises and discuss the financial condition of the Parties and the physical condition of the Premises. Further, at least one of the Liaison Committee meetings shall occur before the baseball season begins.
IN WITNESS WHEREOF, Lessor and Lessee have caused this Lease Agreement to be executed by their duly authorized respective officers, effective as of the day and year as set forth above.
CITY OF SAN BERNARDINO:
By: At Date: l -7- l/,
Title: C% 4/ s v—
INLAND PIRE 66ers B S BALL CLUB OF SAN BERNARDINO, INC.
BY: WDate:
Title:
APPROVED AS TO FORM:
GARY D. SAENZ, City Attorney
By:
16 16.b
Packet Pg. 567 Attachment: Attachment 2 Resolution 2016-237 & Lease Agreement (8965 : Amendment No. 1 to Lease Agreement with Inland Empire 66Ers
Consent Calendar
City of San Bernardino
Request for Council Action
Date: May 18, 2022
To: Honorable Mayor and City Council Members
From: Cheryl Weeks, Council Administrative Supervisor
Subject: City Board, Commission, and Citizen Advisory Committee Minutes Approved March/April 2022 (All Wards)
Recommendation
It is recommended that the Mayor and City Council of the City of San Bernardino receive and file the minutes from the City board, commission, and citizen advisory committee meetings approved in March and April 2022.
Background
On February 7, 2018, the Mayor and City Council adopted general provisions for the City’s boards, commissions and citizen advisory committees under Municipal Code Chapter 2.17 requiring meeting minutes to be provided to the Mayor and City Council.
Discussion
In keeping with the reporting requirements established in Municipal Code Chapter
2.17.080 the minutes for the board, commission and citizen advisory committee meetings approved in March and April 2022 are presented for review by the Mayor and City Council including the:
1. Animal Control Commission - March 9, 2022
2. Charter Review Commission - January 13, 2022; March 3, 2022
3. Downtown Advisory Committee - March 23, 2022
4. General Plan Advisory Committee - February 17, 2022; March 17, 2022
5. Parks, Recreation and Community Services Commission - October 21, 2021
6. Planning Commission - March 8, 2022
7. Public Safety and Human Relations Commission - March 14, 2022
8. Water Board - March 8, 2022; March 22, 2022; April 12, 2022 2021-2025 Key Strategic Targets and Goals
Providing the agendas and minutes from each of the City’s Boards, Commissions and Citizen Advisory Committees to the Mayor and City Council is in alignment with Key Target No. 2: Focused, Aligned Leadership and Unified Community by building a culture that attracts, retains, and motivates the highest quality talent.
Fiscal Impact
No fiscal impact to the City.
17 Packet Pg. 568
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Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino receive and file the minutes from the City board, commission, and citizen advisory committee meetings approved in March and April 2022.
Attachments
Attachment 1 City Board, Commission and Citizen Advisory Committee Meeting minutes approved in March and April 2022
Ward: All
17 Packet Pg. 569
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Packet Pg. 570 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 571 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 572 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 573 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 574 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 575 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 576 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 577 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 578 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 579 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 580 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 581 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 582 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 583 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 584 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 585 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 586 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 587 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 588 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 589 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 590 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 591 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
17.a
Packet Pg. 592 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 593 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 594 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 595 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
17.a
Packet Pg. 596 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
17.a
Packet Pg. 597 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 598 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 599 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 600 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 601 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 602 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 603 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 604 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 605 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 606 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 607 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 608 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 609 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 610 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 611 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 612 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 613 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 614 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 615 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
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Packet Pg. 616 Attachment: Attachment 1 - MCC.October.2021 & January.February.March.April.2022 BCCAC Approved Minutes (8944 : City Board,
Consent Calendar
City of San Bernardino
Request for Council Action
Date: May 18, 2022
To: Honorable Mayor and City Council Members
From: Robert D. Field, City Manager
By: Barbara Whitehorn, Director of Finance
Subject: Approval of Commercial and Payroll Disbursements (All Wards)
Recommendation
It is recommended that the Mayor and City Council of the City of San Bernardino, California approve the commercial and payroll disbursements for April 2022.
Background
Completed commercial and payroll disbursement registers are submitted to the Mayor and City Council for approval. This happens on a regular basis, typically every meeting for the most recently completed disbursement registers.
The detailed warrant registers are available on the City Website, and are updated weekly by the Finance Department. The registers may be accessed by copying the following link into an internet browser: <http://sbcity.org/cityhall/finance/warrant_register.asp> Discussion
Gross Payroll
Bi-Weekly for April 28, 2022 $2,391,346.05
Total Payroll Demands: $2,391,346.05
The following check registers are being presented for approval:
April 22, 2022 2021/22 (Register #41) $1,033,429.82
April 28, 2022 2021/22 (Register #42) $569,792.02
Total commercial check demands: $1,603,221.84
The following Electronic Funds Transfer (EFT) registers presented for approval:
April 7 to April 20, 2022 2021/22 (Register #1289-#1295) $ 1,683,208.27 Total commercial EFT demands: $ 1,683,208.27
2021-2025 Key Strategic Targets and Goals
Approval of the noted check and EFT registers for commercial and payroll disbursements align with Key Target No. 1: Improved Operational & Financial Capacity by creating a framework for spending decisions.
18 Packet Pg. 617
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Fiscal Impact
Amounts noted in the disbursement registers have no further fiscal impact. Amounts were paid consistent with existing budget authorization and no further budgetary impact is required.
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino approve the commercial and payroll disbursements for April 2022.
Attachments
Attachment 1 Payroll Summary Report for April 2022
Attachment 2 Commercial checks & Payroll Register #41
Attachment 3 Commercial checks & Payroll Register #42
Attachment 4 Commercial EFT Registers #1289-1295
Ward: All
18 Packet Pg. 618
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Packet Pg. 619 Attachment: FN. Attachment 1 - Payroll Summary Report April 2022 (8940 : Approval of Commercial and Payroll Disbursements (All Wards))
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Packet Pg. 620 Attachment: FN. Attachment 2 - Commercial Checks & Payroll Register #41 (8940 : Approval of
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Packet Pg. 621 Attachment: FN. Attachment 2 - Commercial Checks & Payroll Register #41 (8940 : Approval of
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Packet Pg. 622 Attachment: FN. Attachment 2 - Commercial Checks & Payroll Register #41 (8940 : Approval of
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Packet Pg. 623 Attachment: FN. Attachment 2 - Commercial Checks & Payroll Register #41 (8940 : Approval of
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Packet Pg. 624 Attachment: FN. Attachment 2 - Commercial Checks & Payroll Register #41 (8940 : Approval of
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Packet Pg. 625 Attachment: FN. Attachment 2 - Commercial Checks & Payroll Register #41 (8940 : Approval of
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Packet Pg. 626 Attachment: FN. Attachment 2 - Commercial Checks & Payroll Register #41 (8940 : Approval of
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Packet Pg. 627 Attachment: FN. Attachment 2 - Commercial Checks & Payroll Register #41 (8940 : Approval of
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Consent Calendar
City of San Bernardino
Request for Council Action
Date: May 18, 2022
To: Honorable Mayor and City Council Members
From: Robert D. Field, City Manager
By: René Anderson, Director of Human Resources
Subject: Side Letter Agreement Between the City and General Unit Employees (All Wards)
Recommendation
Adopt Resolution No. 2022-99 of the Mayor and City Council of the City of San Bernardino, California, authorizing the City Manager to execute a Side Letter Agreement to the Memorandum of Understanding (MOU) between the City of San Bernardino and the General Unit Employees, amending Article III-Compensation, Section 7: Shift Differential.
Background
On December 1, 2021, the Mayor and City Council authorized staff to develop a shift differential pay for Business Registration Inspectors to work evenings and weekends.
Discussion
The California Meyers-Milias-Brown-Act (MMBA) requires the City to meet and confer, in good faith, with its bargaining groups on all matters relating to employment conditions and employer-employee relations including but not limited to wages, hours, and other terms and conditions of employment. Pursuant to the MMBA, the City met with the International Union of Operating Engineers (IUOE) representing the General Unit employees for amendments to shift differential pay provisions under the Memorandum of Understanding (MOU). After meeting and conferring in good faith, the City and the IUOE have reached an agreement to amend the MOU to include the following language under Article III-Compensation, Section 7: Shift Differential:
Unit employees assigned to the Identification Bureau, Patrol and Police Records within the Police Department, and Business Registration Inspectors within the Finance Department shall receive the following pay differential in addition to their pay for actual shift work designated as either the swing, graveyard, or weekend shift.
In addition, a weekend differential was discussed and established with the following language being added to the MOU:
An employee assigned to the weekend shift (normal start and ending time 19 Packet Pg. 670
8757
occurring on Saturday and/or Sunday) shall receive $200 per month extra for all hours actually worked during such assignment. Shift differentials are not cumulative; thus, if more than one differential applies, then the differential that provides the highest pay will be paid to the employee. Only employees in the following classification shall be eligible for the weekend shift differential: Business Registration Inspectors.
The shift and weekend differential changes will be effective the first full 28-day work period following Mayor and City Council approval.
2021-2025 Key Strategic Targets and Goals
The proposed Side Letter Agreement aligns with Key Target No. 2: Focused, Aligned Leadership and Unified Community: Build a culture that attracts, retains, and motivates the highest quality talent.
Fiscal Impact
Staff estimates the cost of the Business Registration Inspectors’ amendment to shift differential pay for the remainder of Fiscal Year 2021/22 at less than $1,000. The annual cost is expected to be approximately $5,000.
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California, adopt Resolution No. 2022-99, authorizing the City Manager to execute a Side Letter Agreement to the Memorandum of Understanding (MOU) between the City of San Bernardino and the General Unit Employees, amending Article III-Compensation, Section 7: Shift Differential.
Attachments
Attachment 1 Resolution No. 2022-99
Attachment 2 Resolution No. 2022-99; Exhibit A - Side Letter Attachment 3 General Unit Employees Memorandum of Understanding (2020-2025)
Ward: All
Synopsis of Previous Council Actions:
November 3, 2021 The Mayor and City Council of the City of San Bernardino, California, adopted Resolution No. 2021-268 approving the Middle Management Employees Memorandum of Understanding (MOU), the General Unit Employees Memorandum of Understanding
(MOU), Job Descriptions, and Updating the City-wide Salary Schedule.
19 Packet Pg. 671
Resolution No. 2022-99
Resolution 2022-99
RESOLUTION NO. 2022-99
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
AUTHORIZING THE CITY MANAGER TO EXECUTE A
SIDE LETTER AGREEMENT TO THE MEMORANDUM OF
UNDERSTANDING (MOU) BETWEEN THE CITY OF SAN
BERNARDINO AND THE GENERAL UNIT EMPLOYEES,
AMENDING ARTICLE III-COMPENSATION, SECTION 7:
SHIFT DIFFERENTIAL
WHEREAS, Hiring Business Registration Inspectors for the evening and weekend shifts is continuing to be a challenge;
WHEREAS, the Mayor and City Council authorized staff to develop a shift differential pay program for Business Registration Inspectors working evenings and weekends; WHEREAS, the City and the International Union of Operating Engineers (IUOE) representing General Unit employees met and conferred in good faith and reached a tentative agreement to amend the Memorandum of Understanding.
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The above recitals are true and correct and are incorporated herein by this reference.
SECTION 2. The Mayor and City Council hereby authorize the City Manager to execute the Side Letter Agreement attached hereto and incorporated herein, marked as Exhibit A.
SECTION 3. The Mayor and City Council finds this Resolution is not subject to the California Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty, as in this case, that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.
SECTION 4. Severability. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications, and to this end the provisions of this Resolution are declared to be severable.
SECTION 5. Effective Date. This Resolution shall become effective the first full 28-day work period following adoption.
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Packet Pg. 672 Attachment: Attachment 1 - Resolution No. 2022-99 Side Letter Agreement Between the City and General Unit Employees [Revision 4] (8757 :
Resolution No. 2022-99
Resolution 2022-99
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this ___ day of __________ 2022.
John Valdivia, Mayor
City of San Bernardino
Attest:
Genoveva Rocha, CMC, City Clerk
Approved as to form:
Sonia Carvalho, City Attorney
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Packet Pg. 673 Attachment: Attachment 1 - Resolution No. 2022-99 Side Letter Agreement Between the City and General Unit Employees [Revision 4] (8757 :
Resolution No. 2022-99
Resolution 2022-99
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
CITY OF SAN BERNARDINO )
I, Genoveva Rocha, CMC, City Clerk, hereby certify that the attached is a true copy of Resolution No. 2022-99, adopted at a regular meeting held on the ___ day of _______ 2022 by the following vote:
Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ _____ _____ _______ _______
IBARRA _____ _____ _______ _______
FIGUEROA _____ _____ _______ _______
SHORETT _____ _____ _______ _______
REYNOSO _____ _____ _______ _______
CALVIN _____ _____ _______ _______
ALEXANDER _____ _____ _______ _______
WITNESS my hand and official seal of the City of San Bernardino this ___ day of ____________ 2022.
Genoveva Rocha, CMC, City Clerk
19.a
Packet Pg. 674 Attachment: Attachment 1 - Resolution No. 2022-99 Side Letter Agreement Between the City and General Unit Employees [Revision 4] (8757 :
EXHIBIT A
SIDE LETTER TO THE MEMORANDUM OF UNDERSTANDING
BETWEEN THE CITY OF SAN BERNARDINO (“CITY”) AND THE
INTERNATIONAL UNION OF OPERATING ENGINEERS (“UNION”)
REPRESENTING THE GENERAL UNIT EMPLOYEES
The City and the Union hereby agree to a modification of the terms and conditions set forth in the Memorandum of Understanding (2020-2025) between the City and the Union (hereinafter referred to as “MOU”) as follows:
1. Article III, Section 7, Subsection C of the MOU shall be revised to read follows:
Unit employees assigned to the Identification Bureau, Patrol and Police Records within the Police Department, and Business Registration Inspectors within the Finance Department shall receive the following pay differential in addition to their pay for actual shift work designated as either the swing, graveyard, or weekend shift.
A. An employee assigned to the swing shift (normal start and ending time of 4:00 p.m. to 12 midnight, respectively) shall receive $65 per month extra for all hours actually worked during such assignment; or,
B. An employee assigned to the graveyard shift (normal start and end time of 12 midnight to 8:00 a.m., respectively) shall receive $100 per month extra for all hours actually worked during such assignment; or,
C. An employee assigned to the weekend shift (normal start and ending time occurring on Saturday and/or Sunday) shall receive $200 per month extra for all hours actually worked during such assignment. Shift differentials are not cumulative; thus, if more than one differential applies, then the differential that provides the highest pay will be paid to the employee. Only employees in the following classification shall be eligible for the weekend shift differential: Business Registration Inspectors.
D. Any employee who is permanently assigned to the swing or graveyard shift will receive the additional monthly pay. The additional pay will only begin and end on the 1st and the 16th of the month. Whenever permanent swing or graveyard shift employees work overtime on another shift, their hourly pay will include the additional monthly pay as part of their regular rate of pay for FLSA purposes.
E. Any non-swing/graveyard shift employees who work overtime in a swing or graveyard shift will only be paid at the regular rate of pay (no additional differential pay).
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Packet Pg. 675 Attachment: Attachment 2 - Resolution No. 2022-99; Exhibit A - Side Letter [Revision 5] (8757 : Side Letter Agreement Between the City and
EXHIBIT A
F. Shift and weekend differentials are not cumulative; thus, when more than one differential applies, the differential that provides the highest pay will be paid to the employee.
G. The Departments, by memo, will inform Payroll which employees are permanently assigned to swing and graveyard shifts and should receive the additional monthly pay.
Permanent is defined as working thirty (30) days or more.
3. This Side Letter Agreement shall become effective the first full 28-day work period following City Council approval.
4. All other terms and conditions of the MOU will remain the same. ___________________________________
International Union of Operating Engineers
Date: ____________________________
___________________________________
City of San Bernardino
Date: ____________________________
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Packet Pg. 676 Attachment: Attachment 2 - Resolution No. 2022-99; Exhibit A - Side Letter [Revision 5] (8757 : Side Letter Agreement Between the City and NI
s
UM
IN
Made andl Entered tnto Between
The City of San Bernardin:o
and
The lnternationali Uni\on of Operatiing Engineerrs (l1UOEJ Local12
July 1, 2020, to June 30, 2025
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Packet Pg. 677 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All
TABLE OF CONTENTS
Page
Article/Section Title No.
Definition of Terms ............................................................................................... 5
ARTICLE I
Section 1
Section 2
Section 3
Section 4
Section 5
Section 6
Section 7
Section 8
ADMINISTRATION ........................................................................................ .
Parties to MOU ............................................................................................ .
Recognition ............................................................................................ .
Management Rights ....................................................................................... .
Employee Rights ............................................................................................ .
Agency Personnel Rules ................................................................................ .
Safety Committee ........................................................................................... .
Labor-Management Committee ...................................................................... .
Employee Stewards · ....................................................................................... . 6 6
6 6
7 7
8 9
10 ARTICLE II EMPLOYER-EMPLOYEE RELATIONS......................................................... 10 Section 1
Section 2
Section 3
Section 4
Section 5
Section 6
Section 7
Section 8
Recognition/Union Security ............................................................................ .
No Strike ............................................................................................ .
Payroll Deduction for Union Dues/Service (Fair Share) Fees ........................ .
Employee Lists ............................................................................................ .
Budget Documents ......................................................................................... .
Employee Orientation .................................................................................... ..
New Employee Information ............................................................................ .
Union Logos ............................................................................................ . 10 10
11 12
12 12
12 12
ARTICLE Ill COMPENSATION ......................................................................................... . 13 Section 1
Section 2
Section 3
Section 4
Section 5
Section 6
Section 7
Section 8
Section 9
Section 10
Section 11
Section 12
Salaries . . . . . .. . .. ... . . . . . . .. .. . .. . . . . . . . . . . ... .. . . .. . . . . . . . . . .. . . ... . .. . .. . . . . . . . . . . . . . . . . . . . . . . . . .. 13 Classification/Compensation Study . .. . . . . . . . . . . . . . .. . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Retirement Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Overtime ............................................................................................. 14 Higher Acting Classification Pay . .. . . . .................. ..... .. . . . . . .. . . . . . .. . . . . . . . .. . . . . . . . . . . . . . . . 15 Call-Back/Standby Assignment and Pay......................................................... 16 Shift Differential . . .. .. . .. ... . . .. . . .. . . . . .. . . . . . . . . . . .. .. . . . . . .. . . . .. . .. . . . . . . .. . .. .. . . . .. . . . . . . . . . . . . . . .. . .. . 18 Personal Tool Replacement Allowance........................................................... 18 Fines ............................................................................................. 19 Bilingual Pay . .. ... . .. . .. .. . .. .. . . .. . .. . . .. .. . .. . .. .. .. .. ... .. .. .. ... . .. ... .. .. .. .. . .. .. .. . . .. .. . .. .. .. . . . 19 Special Certification Pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Training Pay ......................................... ........................................... ...... ... 20 ARTICLE IV FRINGE BENEFITS........................................................................................ 21 Section 1
Section 2
Section 3
Health Benefits and Life Insurance ............................................................... ..
Post Employment Health Plan ........................................................................ .
Uniforms, Rain Gear & Safety Equipment.. .................................................... . 3 21
22 22
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Packet Pg. 678 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All
ARTICLE V LEAVES
····························································································· 23 Section 1 Section 2
Section 3
Section 4
Section 5
Section 6
Vacation ............................................................................................ .
Holiday Leave ............................................................................................ .
Sick Leave ............................................................................................ .
Payment of Sick Leave .................................................................................. .
Election Leave ............................................................................................ .
Other Leaves ............................................................................................ . 23 25
26 28
29 29
ARTICLE VI WORKING CONDITIONS.............................................................................. 29 Section 1 Work Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 ARTICLE VII GENERAL PROVISIONS............................................................................... 30 Section 1
Section 2
Section 3
Section 4
Section 5
Full Understanding; Waiver ............................................................................ .
Severability ............................................................................................ .
Support of Agreement .................................................................................... .
Term of Memorandum of Understanding ....................................................... .
Notice of Intent to Reopen ............................................................................ . 30 31
31 31
31 SIGNATURE PAGE
INDEX
................................................................................................... 33 APPENDIX A MOU Provisions to be Included as Part of the City of San Bernardino's Uniform Policies
Section B 1 - Contract for Services
Section B2 - Grievance Procedure
Section B3- Skelly Rights
Section B4 - Non-Discrimination
Section B5 - Personnel Files
Section B6 - Bulletin Boards
Section B7 - Education Tuition Assistance
Section 88 - Employee Assistance Program (EAP)
Section 89 - Catastrophic Leave
Section 810- Injury Leave
Section 811 - Leave of Absence without Pay
Section B 12 - Witness Leave
Section 813 - Military Leave
Section 814- Jury Duty
Section B15 - Physical Examinations
Section 816 - Probationary Period
Section 817 - Seniority
Section 818- Reasonable Suspicion Drug and Alcohol Testing 4 34
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Packet Pg. 679 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All City:
Day:
Exclusion:
General Unit:
Mandatory and
Permissive:
Regular Full-Time
Employee:
Union:
DEFINITION OF TERMS
The City of San Bernardino
As it pertains to a sick leave day or a vacation day, one (1) "day" equals eight (8) hours, unless otherwise specified.
Excluded from the General Unit for purposes of representation are: classification titles designated as management/confidential, middle-management or safety; positions established and created under federal contract; and temporary, part-time, provisional and probationary individuals.
Includes titles listed in the City's Salary Schedule, as may be amended. Additional titles in the General Unit may be
established by the Mayor and City Council. Also reference "Exclusions" above.
"Shall" is mandatory; "may" is permissive.
Memorandum of Understanding
An Employee who has been appointed to a Regular, Full-Time position and has completed their probation period.
The exclusive bargaining representative for the General Unit 5 19.c
Packet Pg. 680 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All
ARTICLE I
ADMINISTRATION
Section 1 - Parties to Memorandum of Understanding
The Memorandum of Understanding is made and entered into by and between the City of San Bernardino ("City") and the GENERAL UNIT EMPLOYEES represented by the International Union of Operating Engineers ("IUOE"), Local 12, pursuant to Government Code Sections 3500 et seq.
Section 2 - Recognition
The City hereby recognizes the IUOE as the exclusive representative for those employees employed by the City in the general unit classifications referenced in the City's Salary Schedule, subject to the applicable provisions of law.
Section 3 - Management Rights
This MOU shall not be deemed to limit or curtail the City in any way in the exercise of the rights, powers and authority, which the City had prior to adopting this MOU, except to the extent that the provisions of this MOU specifically curtail or limit such rights, powers and authority. Furthermore, the City retains all its exclusive rights and authority under City Charter, ordinances, resolutions, state and federal laws and expressly and exclusively retains its management rights, which include but are not limited to: the exclusive right to determine the mission of its constituent departments, commissions and boards; set standards of selection for employment promotions; direct its employees; establish and enforce dress and grooming standards; determine the methods and means to relieve its employees from duty because of lack of work or other lawful reasons; maintain the efficiency of governmental operations; determine the methods, means and numbers and kinds of personnel by which government operations are to be conducted; determine the content and intent of job classifications; determine methods of financing; determine style and/or types of City-issued wearing apparel, equipment or technology, means, organizational structure and size and composition of work force and allocate and assign work by which the City operations are to be conducted; determine and change the number of work locations, relocations and types of operations, processes and materials to be used in carrying out all City functions, including but not limited to, the right to contract for or subcontract any work or operations of the City; assign work to and schedule employees in accordance with requirements as determined by the City, and establish and change work schedules and assignments upon reasonable notice; establish and modify productivity and performance programs and standards; discharge, suspend, demote, reprimand, withhold salary increases and benefits or otherwise discipline employees in accordance with the applicable law; establish employee performance standards including, but not limited to quality and quantity standards; and, carry out its mission in emergencies and exercise complete control and discretion over its organization and the technology of performing its work.
6 19.c
Packet Pg. 681 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All Section 4 - Employee Rights
A. Employees have the right to a safe and harassment free work environment as set forth in the City's policy on Non-Discrimination/Workplace Harassment. Employees of the City have the right to form, join and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employeremployee relations, including but not limited to: wages, hours and other terms and conditions of employment. Employees of this City also shall have the right to refuse to join or participate in the activities of employee organizations and shall have the right to represent themselves. No employee shall be interfered with, intimidated, restrained, coerced or discriminated against by the City or by employee organizations because of the exercise of these rights. Representation rights of the Union as exclusive representative shall not be compromised.
B. The City, through its representatives, shall meet and confer in good faith only with representatives of formally recognized employee organizations regarding matters within the scope of representation, including wages, hours and other terms and conditions of employment.
C. Individual Agreement - The City of San Bernardino shall not negotiate with or enter into memorandum of understanding or grant rights or benefits not covered in this agreement to any employee unless such action is with IUOE concurrence.
Section 5 - Agency Personnel Rules
A. Purpose. It is understood and agreed that there exists within the City in written or unwritten form, certain personnel rules, policies, practices and benefits generally contained in the applicable City of San Bernardino Municipal Code; The City of San Bernardino Uniform Personnel Rules and Policies, as amended; Resolution No. 10584, Establishing Uniform and Orderly Methods of Communications Between the City and its Employees for the Purpose of Promoting Improved Employer-Employee Relations, as amended, and, Resolution No. 10585, Adopting Rules and Regulations Relating to Employer-Employee Relations, as amended, which documents will continue in effect, except for provisions modified by the City Council in accordance with federal or state laws, orders, regulations, official instructions or policies.
B. Department Work Rules. The City may prepare, issue and enforce rules and safety regulations necessary for the safe, orderly, and efficient department operations.
Any departmental work rules initiated, established and promulgated by the City shall be posted on b ulletin boards ten (10) days prior to their effective date, except in emergency situations. A copy of such rules shall be sent to the Union office. The reasonableness of any discipli nary action taken as a result of a violation of any departmental work rule may be determined in the grievance procedure at the employee's election. The City shall make reasonable efforts to acquaint employees with work rules. Work rules shall be uniformly applied.
7 19.c
Packet Pg. 682 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All Each Department of the City, with the exception of the Police, shall provide IUOE with a current copy of their Departmental Work Rules on an annual basis, no later than June 30 of each year. The Police department will provide updates as they occur.
C. MOU Personnel Rules. The City represents that in implementing Section 508 of the City of San Bernardino's new Charter that became effective on January 31, 2017, the following provisions of the previous MOU between the City and the IUOE, dated January 1, 2011 to June 30, 2012, shall be included as part of the City's uniform policies:
a) Article 1, Section 5, Contract for Services
b) Article II, Section 4, Grievance Procedure
c) Article II, Section 6, Skelly Rights
d) Article II, Section 7, Non-Discrimination
e) Article II, Section 8, Personnel Files
f) Article II, Section 9, Bulletin Boards
g) Article IV, Section 4, Education Tuition Assistance
h) Article IV, Section 6, Employee Assistance Program (EAP) i) Article V, Section 5, Catastrophic Leave
j) Article V, Section 6, Injury Leave
k) Article V, Section 7, Leave of Absence without Pay
I) Article V, Section 8, Witness Leave
m) Article V, Section 11, Military Leave
n) Article V, Section 12, Jury Duty
o) Article VI, Section 2, Physical Examinations
p) Article VI, Section 3, Probationary Period
q) Article VI, Section 4, Seniority
r) Article VI, Section 5, Reasonable Suspicion Drug and Alcohol Testing The above Sections will be attached to this MOU as Appendix Band will be considered as part of this MOU. In addition, these Sections will be included as part of the City's uniform personnel policies and/or part of the City of San Bernardino's Municipal Code.
Section 6 - Safety Committee
There is established a City-wide Safety Committee in which the General Unit has membership (three (3) members). The IUOE shall appoint three (3) members from the General Unit to the Safety Committee and also three (3) alternative members. The appointments should not include more than one member and one alternate from each City Department. The Committee will review all recordable accidents (both City equipment and personal injury of City employee) and make recommendations to the City Manager or their designee for all corrective actions in establishing better job safety.
The Comm ittee will improve safety communications throughout the City and review each accident on or off City property. The Committee will investigate all "industrial type" accidents and "vehicular" accidents and make recommendations on how the accident 8 19.c
Packet Pg. 683 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All could have been prevented. The Committee is expected to establish its own rules of conduct, to elect its own officers at the first meeting in January and keep minutes of all its meetings, findings and recommendations.
The Committee is expected to meet no less than once a month at a time agreeable to all members. Upon completion of reviews by the Committee of accidents/ incider:-its, the Committee will make recommendations for corrective measures to establish safer working conditions and may recommend disciplinary action.
It is of mutual benefit to the City and to the employee to be fully aware of and comply with all safety rules and regulations. The City, Union and employees agree to work towards preventing job-related injuries to employees and damage to both public and private property.
Guests and/or speakers will be allowed to attend based on advance notice to the City and mutual agreement.
In the event a representative from either side is unable to attend a meeting, the spokesperson from each side may, with two (2) working days' notice to the other side, select an alternate from a predesignated pool of employees.
The Safety Committee shall forward to the IUOE office a copy of all minutes, findings and recommendations at the conclusion of each meeting.
Section 7 - Labor-Management Committee
The Labor-Management Committee shall continue for the term of this MOU. Its continuing purpose is for the discussion of common problems that are not addressed in other existing procedures. The Union shall designate three (3) representatives to serve on the Committee from different departments. The City shall also designate three (3) representatives to serve on the Committee. The Committee will select a chairperson who will be responsible for receiving items, establishing agendas and informing participants of the time and place of meetings. The Committee shall normally meet at least quarterly or may meet more often if necessary at a mutually agreed upon time and place. Either the City or the IUOE may request a meeting with the Labor-Management Committee to review issues. Upon request, the other party agrees to meet in an attempt to clarify and resolve issues. Recommendations shall be considered by management. The Union will provide a list of the three (3) Committee members to the Director of Human Resources each July.
Guests and/or speakers will be allowed to attend based on advance notice to the City and mutual agreement.
In the event a representative from either side is unable to attend a meeting, the spokesperson from each side may, with two (2) working days' notice to the other side, select an a lternate from a pre-designated pool of employees. The "pool" will consist of up 9 19.c
Packet Pg. 684 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All to three (3) employees, whose names will be exchanged by the City and the Union each July.
Section 8 - Employee Stewards
IUOE may designate no more than five (5) stewards from any Department/Division.
Employees designated or assigned to a committee will be allowed reasonable release time to contact IUOE, Local 12 Business Representatives and participate in required committee meetings. Union stewards shall not receive any additional time or compensation for the designation. Union stewards will not represent General Unit employees in disciplinary action meetings, investigation interviews, and/or any meeting that may lead to disciplinary action. IUOE shall provide the City an initial list of stewards and thereafter upon request by the City. The position of steward shall not interfere with the daily operations of the City.
ARTICLE II
EMPLOYER-EMPLOYEE RELATIONS
Section 1 - Recognition/Union Security
The City hereby acknowledges that the IUOE has been and is recognized by the City as the exclusive representative for the General Unit employees for purposes of meeting and conferring on wages, hours, and other terms and conditions of employment and for all other matters related to employer-employee relations for these employees. The granting of "exclusive" recognition shall not preclude employee self-representation in matters where individual rights, protections and concerns are involved; provided, however, the representation rights of the Union as exclusive representative shall not be compromised thereby. If a unit member does not wish to be represented by the Union in matters pertaining to grievances and disciplinary appeals and wishes to represent himself/herself, such member shall be required to provide the Union and the City with a signed statement waiving the right to Union representation in such matters.
Section 2 - No Strike
It is the purpose of the MOU, for the parties hereto, to confirm and maintain the spirit of cooperation, which has existed between the City and the employees of the City. It is recognized that any work disruptions are unproductive to City operations and services provided to its citizens. The Union and the City agree that they shall, at no time or in any way, jeopardize the public health, welfare and safety of the City's business and residential communities. Thus, the Union and the City will strive to promote a harmonious relationship between the parties to this MOU that will result in benefits to the City and will provide continuous and uninterrupted employee services. It is, therefore, further agreed that the Union shall not, on behalf of itself and its members, individually or collectively engage in any curtailment or restriction of work at any time during the term of this MOU. 10 19.c
Packet Pg. 685 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All Section 3 · Payroll Deduction for Union Dues/Service (Fair Share) Fees A. The City agrees to provide Union dues deductions for Union members only as long as the Union remains the exclusive representative for the employees within the bargaining unit. Conversely, no other employee organization shall be permitted dues deduction privileges for employees within the bargaining unit. The City shall not be liable to the Union, employees or any other person by reason of the requirements of this article for the remittance of any sum other than that constituting actual deductions made from employee wages earned.
Dues shall be deducted from the pay of each employee. Dues deduction shall be a specified uniform amount for each employee and any change in the amount of dues deducted shall be by written authorization from the Union, provided however, that the Union shows proof that the general membership has voted and approved any change in the amount of dues.
All unit members who were members of the Union on January 1, 2011, and those employees who thereafter become members shall remain as members in good standing of said Union the duration of this MOU, except as provided for in this article.
8. Agency Shop
Since IUOE has certified it has an IUOE membership of at least fifty percent (50%) of the total number of full-time employees in the General Unit, IUOE is allowed to collect a "Fair Share" fee from non-IUOE members who are employees in the General Bargaining Unit. Membership in IUOE or payment of the IUOE Fair Share fee is not a condition of City employment.
Any employee who is a member of a bona fide religion, body or sect that has historically held conscientious objections to joining or financially supporting public employee organizations, upon presentation of active membership in such religion, body, or sect, shall not be required to join or financially support any public employee organization as a condition of employment. The employee may be required, in lieu of periodic dues, initiation fees or agency shop fees, to pay sums equal to the dues, initiation fees or agency shop fees, to pay sums equal to the dues, initiation fees or agency shop fees to a non-religious, no-labor charitable fund exempt from taxation under Section 501 © (3) of the Internal Revenue Code.
The City agrees to deduct and transmit to IUOE all deductions authorized on a form provided by IUOE to deduct and transmit to IUOE all Fair Share fees from City employees in the General Unit who do not elect to become members of IUOE. Such authorized dues deduction and Fair Share fees shall be remitted monthly to IUOE along with an adequate itemized record of deductions. The Union shall indemnify, defend and hold the City harmless against any claims made and against any suit instituted against the City in regard to employee organization dues and fair share fees. In addition, the 11 19.c
Packet Pg. 686 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All Union shall refund to the City any amounts paid to it in error, upon presentation of supporting evidence.
Section 4 • Employee Lists
The City agrees to provide a list of names of General Unit Employees by City department to the Union as requested.
Section 5 • Budget Documents
The City agrees to provide the Union at no cost one ( 1) copy of the annual financial report, preliminary budget, final budget and resolutions or ordinances as requested by the Union.
Section 6 • Employee Orientation
The City will distribute the Memorandum of Understanding, or contract term and conditions, as part of the employee orientation program conducted by the City for new employees. The City will allow the union to make a presentation at employee orientations.
Section 7 • New Employee Information
Upon request by the Union, the Human Resources Department will furnish the Union with information on new General Unit employees, excluding their home addresses. Data will include name, title, department, department phone number and date of hire.
Section 8 - Union Logos
A. General Unit employees wishing to demonstrate their support for, or affiliation with, IUOE shall be permitted to wear a Union button, badge, logo, or pin as long as the button, badge, logo, or pin does not create a safety or health issue or interfere with the efficient operations of the employer.
B. In consideration of the above, said button, badge, logo, or pin must be consistent with all of the following:
1. Removable;
2. For uniformed employees only, it must be centered and fit on the pocket flap or in the area where the pocket flap is supposed to be on the jacket, shirt, blouse, or sweater;
3. It may not carry a message that is libelous, obscene or defamatory.
Employees required to wear protective headwear may display a button, badge, logo, or pin on the headwear provided it does not compromise the safety integrity of the headwear.
C. General Unit employees will be permitted to wear a union button or pin as long as it does not create a safety or health issue, interfere with the efficient operations of the 12 19.c
Packet Pg. 687 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All employer, or conflict with previously adopted uniform standards in department work rules/operating procedures.
Section 1 - Salaries
ARTICLE Ill
COMPENSATION
Effective the first full pay period following October 1, 2021, the salary ranges for all unit members shall be increased by four and twenty-seven hundredths percent (4.27%), effective the first full pay period following July 1, 2022, the salary ranges for all unit members shall be increased by three and two tenths percent (3.20%), effective the first full pay period following July 1 , 2023, the salary ranges for all unit members shall be increased by three percent (3%), effective the first full pay period following July 1, 2024, the salary ranges for all unit members shall be increased by three percent (3%). All salary ranges for classifications represented by the IUOE shall be amended by the City Council in accordance with these provisions.
Section 2 - Classification and Compensation Study
The City agrees to implement the classification and salary study that was conducted during fiscal year 2019-2020. Effective the first full pay period following July 1, 2021, members would be moved to the minimum of their new compensation range. When an employee falls out of range, the member's current compensation is less than the bottom step of the new compensation range, the member will be moved to the bottom step of the new compensation range. Any employee within the range of the updated compensation range will be eligible for an increase at their annual merit increase date The City agrees to conduct a classification and salary study ("Study") during fiscal year 2024-2025. The purpose of the Study will be to review current IUOE employee Classifications and propose revisions that provide fair and rational internal and external relationships. A joint job evaluation/compensation committee will be established to review the Study recommendations and develop a plan for implementing the study. The City and the IUOE agree to address any salary adjustments to individual classifications during fiscal year 2025-2026 and any adjustments may be implemented in a subsequent MOU.
Any salary equity adjustments to individual classifications will be considered with any across-the-board salary adjustments as to the total cost of bargaining unit salaries.
Annual salary adjustments, which may include equity adjustments resulting from the Study, will be based upon availability of funds and will be evaluated in the context of the City's long term financial plan.
Section 3- Retirement Benefits
IUOE members are provided retirement benefits under the California Public Employees' Retirement System (CalPERS) as follows:
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Packet Pg. 688 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All Tier I:
Tier II:
Tier Ill:
Employees hired on or before October 3, 2011 shall receive a 2. 7% @ 55 retirement benefit;
CalPERS "Classic Members" hired on or after October 4, 2011 shall receive a 2% @ 55 retirement benefit;
CalPERS "New Members" hired on or after January 1, 2013 shall receive a 2% @ 62 retirement benefit in accordance with the Public Employees' Pension Reform Act of 2013 (PEPRA).
Emolovee Share. Effective 2/1/2013, all Tier I and Tier II employees shall pay the employee's share of the retirement contribution, either 8% for the 2.7@@ 55 formula or 7% for the 2%@ 55 formula. Effective 1/1/2013, Tier Ill employees shall pay the employee contribution required by the PEPRA, calculated at 50% of the normal cost.
Emolover Share. Effective 2/1/2013, all employees shall pay 1.304% of their salary toward the employer cost of retirement in accordance with Section 20516 of the California Government Code.
The City will pay the employer contribution for the Fourth Level 1959 Survivor Benefit.
For Tier I and II employees, the final compensation retirement calculation shall be based upon their single highest year of compensation earnable as provided under Section 20042 of the California Government Code. The compensation earnable period for Tier Ill PEPRA employees will be three years.
The City· and IUOE acknowledge that the PEPRA laws and regulations shall govern a determination of whether employees are hired as "new members" or "classic or legacy" members.
Section 4 - Overtime
All employees in the General Unit will receive overtime based on the requirements of the Fair Labor Standards Act (FLSA). Employees shall be paid overtime compensation at the FLSA rate for all hours worked over 40 hours in the designated work week. Holiday, compensatory time, concession leave, workers' compensation, and authorized unpaid leave hours shall not apply towards hours worked in the work week.
Overtime work shall not be authorized unless the employee has obtained the prior approval of their Department Head or designated Division Head. Emergency overtime work may be authorized by the employee's supervisor without such prior approval, if obtained at the earliest possible time after the performance of emergency work. 14 19.c
Packet Pg. 689 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All In instances where standby and call-back work is required and directed, it shall be regulated by, and paid in accordance with, the provisions contained in Article Ill, Section
8. Compensatory Time Bank: When an employee works overtime, they shall earn overtime at the FLSA rate. Following prior approval of overtime as described above, the employee will either be paid for the overtime worked or the number of overtime hours worked will be placed in a compensatory time bank, based on the employee's request. The Finance Department (Payroll) will track the compensatory time accrued and used, and the compensatory time balance will appear on the employee's paycheck. Department Head approval will be required in order for employees to use time from the compensatory time bank.
Once an employee's compensatory time bank reaches eighty (80) hours, the employee will be paid for all subsequent overtime worked. By the end of June 30 each year, an employee's compensatory time bank must be reduced to forty (40) hours. Any hours in the compensatory time bank in excess of forty (40) hours as of June 30 of each year will be paid at the employee's regular rate of pay, and will be included on the first paycheck in December (December 15).
If the employee terminates employment or if the employee is promoted to a position in the City, the compensatory time bank will be paid off at the then current rate of pay.
Section 5 - Higher Acting Classification Pay
Upon approval by the City Manager, a Department/Division Head may assign or reassign a qualified unit employee to discharge the duties of a higher classification when a position is vacant or in the absence of the incumbent due to resignation, termination, promotion, or an extended leave of absence, or other emergency circumstances.
An employee so assigned in writing by the Department/Division Head, with the approval of the City Manager, shall receive acting duty pay starting on the sixth consecutive day of each acting duty assignment. No acting duty pay will be paid for the first five (5) days of each acting duty assignment, except for those employees who can prove that they have served a total of twenty (20) days in a higher-acting classification during the previous twenty-four (24) months, based upon their official Human Resources Department records.
No General Unit employee that is on probation shall be placed in a higher acting classification. Further, no General Unit employee shall be in a higher acting classification for more than one (1) year. As a condition to receiving the higher acting pay, the Department designee must complete the required Personnel Action Forms (PAFs) and the Department Head and the City Manager must approve the request.
An employee assigned to work in a higher classification on an acting basis shall receive at least five percent (5%) above their current base rate of pay. 15 19.c
Packet Pg. 690 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All The City will not circumvent the intent of this article by using various employees to thwart the intention of this article.
Employees who believe they are performing duties of a higher level outside of their current classification, and who believe they have been unable to resolve the situation satisfactorily, shall have the right to appeal their issue via the current grievance procedure (Appendix B, 82).
To be eligible for higher acting pay, unit members shall: 1) perform the full range and majority of the duties in the higher level classification that are unrelated to an employee's current classification; and, 2) perform the full range and majority of the higher classification duties for five full working days based upon the unit member's assigned work schedule.
Section 6- Call-Back/Standby Assignment and Pay
An employee who is free to engage in their own pursuits while off duty, subject only to carrying a phone or to the understanding that the employee leave word with the Department Head or designee where the employee can be reached, is not working while on standby. If called back, the employee shall be paid for the time actually worked in accordance with Article Three, Section V (Overtime).
If a Department Head places an employee on standby, defined as the employee being in a state of readiness and immediate availability to come to work outside of their normal work hours, the IUOE and the City hereby agree that the following is compensation in full for the hours of work of the employee when in such standby status:
Standby Status
For the employee's five (5) work days
during their work week (or prorate at 1.5 hrs/day)
For the employee's two (2) non-work days
during their work week (or pro rate at 2.0 hrs/day)
OR,
For all seven (7) days during a work week
AND,
For any holiday, as described in this MOU,
durin g which the employee stands by for all
or any portion of the 24-hour day
Hours Compensated
7 .5 hours for 5 days
4 hours for 2 days
10 work hours
2 extra work hours
per scheduled holiday -
added to the above
Payment for hours described above shall be compensated at the regular rate of pay. 16 19.c
Packet Pg. 691 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All General Unit Call-Back Pay: An employee cannot be in standby status and call-back status at the same time.
Employees not formally assigned to standby status may still be called back to work. If reached by their supervisor and called back to work, the employee will be paid for actual hours of work at the FLSA overtime rate of time-and-one-half (1-1/2) unless the employee has worked less than forty (40) hours in the work week due to use of paid or unpaid sick time, vacation, holiday, and compensatory time. In such cases, employee will be paid straight time. An employee called back to work shall be paid for a minimum of two (2) hours of work.
The General Unit employees covered by this MOU are not so severely restricted in their activities while in standby status as to be "working while 'on call"' as that term is used in the Fair Labor Standards Act 29 CFR 785.17.
Departments and Divisions, which utilize call-back/standby, will prepare a qualified list of employees. Department/Division Heads will consider the following factors in establishing and maintaining call-back and standby lists: employee seniority; special qualifications and skills.
For Departments and Divisions assigning call-back and standby on a rotation basis, only the employee who appears first on the list may reject an assignment to call-back or standby. Rejecting an assignment will automatically place the first employee at the bottom of the list. The employee listed next must take the assignment.
Departments and Divisions may use procedures that vary from the above, if the procedures are: (1) consistent with Department/Division work rules; or, (2) implemented result of an emergency situation.
All Animal Control Officers within the Animal Services Department shall rotate by being placed on the standby list. No Animal Control Officer shall be left out of standby rotation.
Employee Court Subpoena Time: All City employees appearing in court on their day off for a work-related court subpoena will receive compensation for the actual time spent in court, with a three (3) hour minimum. Additionally, employees will receive one-half (1/2) hour travel time for going to court. Employees will be reimbursed for all parking fees associated with the court appearance.
In the event an employee is placed on standby on their day off for a work-related court subpoena, the employee will receive three (3) hours standby pay for each day on a standby status.
For morning standby subpoenas where employees are called to court and do not go beyond 12:00 p.m. on that day, total compensation will consist of the three (3) hours standby along with one-half ( 1 /2) hour of travel time. If employees have to appear in court 17 19.c
Packet Pg. 692 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All after the noon recess, the actual additional time along with one-half (1/2) hour of travel time will be added to the three (3) hours standby. In cases where the subpoena is for 1 :30 p.m. or another time, the standby will start with the time stated on the subpoena.
All court-related compensation will be paid as time worked and at the appropriate straight time, or where applicable, at the FLSA overtime rate. Such compensation is in addition to compensation for any prior time actually worked pursuant to such subpoena.
It is hereby agreed by and between the parties hereto that the General Unit employees covered by this provision are not so severely restricted in their activities while on standby status as to be "working while 'on call'," as that term is used in the Fair Labor Standards Act 29 CFR 785.17.
Section 7 - Shift Differential
Unit employees assigned to the Communications Division, Identification Bureau, Patrol and Police Records within the Police Department, and the garage within the Public Works Department, shall receive the following pay differential in addition to their pay for actual shift work designated as either the swing or graveyard shift.
A. An employee assigned to the swing shift (normal start and ending time of 4:00 p.m. to 12 midnight, respectively) shall receive $65 per month extra for all hours actually worked during such assignment; or,
B. An employee assigned to the graveyard shift (normal start and end time of 12 midnight to 8:00 a.m., respectively) shall receive $100 per month extra for all hours actually worked during such assignment.
C. Any employee who is permanently assigned to the swing or graveyard shift will receive the additional monthly pay. The additional pay will only begin and end on the 1st and the 161h of the month. Whenever permanent swing or graveyard shift employees work overtime on another shift, their hourly pay will include the additional monthly pay.
D. Any non-swing/graveyard shift employees who work overtime in a swing or graveyard shift will only be paid at the regular rate of pay (no additional differential pay).
E. The Departments, by memo, will inform Payroll which employees are permanently assigned to swing and graveyard shifts and should receive the additional monthly pay.
Permanent is defined as working thirty (30) days or more.
Section 8- Personal Tool Replacement
The City shall provide a tool replacement allowance for damaged, lost or stolen personal tools in an amount not to exceed $500.00 per year, per employee. Only those employees in the following position classifications shall be entitled to such allowance:
18 19.c
Packet Pg. 693 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All Department/Division
1 . Fleet Division
2. Engineering
3. Public Works
Classification( s)
Mechanics & Lead Workers; Equipment
Service Worker
Traffic Signal Electricians
Maintenance Personnel (includes Plumbers);
Electricians I & II
The City will provide insurance coverage for Fleet Mechanic employee tools, whether the entire toolbox or any tools are stolen from City property.
Claims against the above tool replacement allowance shall be honored provided that: (1) the personal tools had been required by the City; (2) the tool had been marked and inventoried by the employee; (3) a report of such inventory had been filed with the Department Head; and, (4) said tools had been properly maintained. Tools stolen or damaged through no fault of the employee will be replaced by the employee and reimbursement thereof will be made by the City, after submission of an appropriate City form accompanied by an approved invoice or receipt. All reimbursements of stolen or damaged tools will be completed on the first available processing date with the Finance Department.
During the term of this MOU, all newly-employed mechanic personnel in the Fleet Division, who may be required by their Department Head to purchase personal metric tools in order to effectively accomplish work assignments, shall be eligible to receive a one-time tool purchase allowance not to exceed $100 to assist in making such purchase.
Section 9- Fines
The City shall pay for court fines imposed upon any permanent Employee within the unit of representation as a result of their conviction of a violation as a result of being directed to operate any faulty vehicle or equipment, where such fault is the proximate cause of the violation.
Section 10 - Bilingual Pay
General U nit employees, as designated by the City Manager and who meet the certification and eligibility requirements as developed by the City, shall be compensated at the rate of seventy-five dollars ($75) per month. The duties of the employee receiving bilingual pay may be reviewed annually to determine that bilingual duties assigned to an employee are being performed on a regular and frequent basis. The designated employees may be tested annually for certification and recertification. 19 19.c
Packet Pg. 694 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All Not more than forty (40) General Unit employees may be designated to receive bilingual pay. The City Manager or designee will retain the right to select the forty (40) eligible employees and to determine the departments where use of employee bilingual skills would be best served. The City shall reserve the right to determine languages for which testing will be conducted.
Section 11 - Special Certification Pay
Employees in the following classifications:
• Code Enforcement Officers
• Equipment Mechanics
• Animal Control Officers
shall receive, in addition to their regular compensation, $50 a month payment ($25 paid each pay period) for obtaining and maintaining the following certifications:
• ICBO or AACE Certificate
• ASE designation of Master Certified Mechanic
• NACA (3) Certificates
It shall be the responsibility of the department and the employee to provide payroll with a copy of their certifications and or renewal. All certification pay will be effective on the date of the employee's certification or recertification.
Certificate pay is limited to $50 per month per eligible employee.
Section 12 -Training Pay
Eligible and qualified employees as identified below will receive additional compensation for training as assigned by a Department Head. In or about July of each year this MOU is effective, a Department may establish a list of employees who, in the sole determination of the Department Head, are qualified to serve as a trainer for new and/or probationary employees. Each Department may establish requirements to serve as a trainer and may develop in-house evaluation procedures to measure qualifications. Such evaluation procedures may include, without limitation, the completion of an application, testing, and interviews. Any of the qualified trainers on the eligible list may be called upon during the year to train new employees. Training assignments will be assigned in one (1) week increments; for example, training assignments may be for one (1) week to one (1) month or more. As a condition to receiving training compensation under this Section, all training assignments must be designated as to length and scope of training on Departmental forms. All training assignments must also be approved in writing by the Department Head or their designee prior to the commencement of the training assignment.
Qualified employees assigned to training will receive compensation of $37.50 per week. 20 19.c
Packet Pg. 695 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All Training assignments may be discontinued at any time and for any reason, and will be based, in part, upon the needs and budget of the Department.
Positions that could potentially qualify for a training pay program include the following:
Community Service Officers I and II; Criminal Investigation Officer; Animal Control Officer; Shelter Attendant (Animal Services); Senior Customer Service Representative/Dispatcher (Animal Services); Community Engagement Specialist; Community Policing Specialist; Forensic Specialist II (assuming all Forensic Specialist I flex to Forensic Specialist II when completing probation/training); Parking Enforcement; and, Police Records Technician (assuming all Police Records Technician I flex to Police Records Technician II when completing probation/training)."
ARTICLE IV
FRINGE BENEFITS
Section 1 - Health Benefits and Life Insurance
A. Effective the first full pay period following July 1, 2021, the City will contribute $715.00 per month toward health premiums for Employee Only, $1,289.00 per month for Employee Plus One Dependent, and $1,724.00 per month for Employee Plus Two or More Dependents.
The amount of the City's contribution is based on the selection of the "medical" enrollment category. If an employee elects "employee only" medical coverage, then the "employee only" allowance is provided to the employee. Any contribution not utilized by the employee shall revert to the City.
B. Insurance benefits available for purchase by employees include: medical, dental, vision, and supplemental life and accidental death and dismemberment insurance.
Unless otherwise specified, City contributions cannot be used for any voluntary benefits offered to unit members.
C. An employee must purchase insurance offered through the City in order to utilize the contributions described in Section A above.
D. Employees may use any of the amounts described in Section A to purchase any/all of the insurance benefits described in Section B.
E. Cafeteria monies may be redesigned or a change of plans may be made in accordance with the rules established by the insurance plan selected by the employee.
F. The City shall provide each employee with $10,000 basic life insurance and $ 25,000 Accidental Death and Dismemberment (AD&D).
21 19.c
Packet Pg. 696 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All G. An employee who does not want to enroll in any health care plan offered by the City must provide evidence of health care insurance coverage, and execute a "Waiver of Benefits and Release Agreement" releasing the City from any responsibility or liability to provide health care insurance coverage on an annual basis. Employees who elect to waive the City's health care insurance may receive a stipend as shall be determined by the City on an annual basis. Employees who elect to waive the City's health care insurance will receive a stipend. The parties acknowledge that the stipend for calendar year 2021 is $3,250 and will be paid in December 2021. The stipend for calendar year 2022 is $3,500 and will be paid in December 2022.Thereafter, for the term of this MOU, health care stipends in an amount of $3,500 will be paid to those employees who elect to waive the City's health care insurance and will be paid in December of the Plan Year.
Health Care stipends are not considered compensation for purposes of CalPERS retirement calculations and are subject to federal and state withholding taxes.
H. The Union agrees to participate in the City's Joint Labor-Management Health Benefits Committee ("Committee") to evaluate, on an annual basis, City-wide plan designs for health care. All plan designs and City contributions shall be effective on January 1st annually. During the term of this MOU, the City intends to review health care provider options especially in light of potential changes to the current Affordable Care Act ("ACA"). During the term of this MOU, City reserves the right, and the Union agrees, to reopen this MOU on providers and/or any provision in this Section.
I. All full-time, regular employees will be covered under the City's Long Term Disability (LTD insurance plan. The City will pay 100% of the LTD insurance plan premiums for full-time, regular employees during the length of this MOU.
J. Employees must be in a paid status for fifteen (15) consecutive days, in any given month, to receive the benefits of this Article, unless the employee is on a qualifying approved leave, such as Family Medical Leave, and is eligible for benefit ,continuation under applicable state or federal law. Members who have been suspended or discharged pending an administrative appeal shall be eligible for continuation of benefits pending final disposition of the disciplinary matter by the City's Personnel Commission.
Section 2 - Post Employment Health Plan (PEHP)
'The City agrees to participate in the Post Employment Health Plan (PEHP) in accordance with the terms and conditions of the Plan's Participation Agreement. Participation in the PEHP will be discussed on an annual basis as part of the City's Joint Labor-Management Health Benefits Committee 'as provided in Article IV, Section 1 (H)." Section 3 - Uniforms, Rain Gear & Safety Equipment
The City shall provide uniforms to any employee required to wear a uniform. The City shall purchase uniform shorts for use as part of the uniform. Each department will establish guidelines for wearing shorts and employees will not be allowed to wear shorts 22 19.c
Packet Pg. 697 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All when performing activities that may create a safety hazard. The City shall make appropriate rain gear available.
The City will annually reimburse members of the General Unit funded by the Enterprise Fund, fifty dollars ($50) toward the purchase of work footwear consistent with City policy.
Employees shall wear such footwear at all times while on duty.
ARTICLE V
LEAVES
Section 1 - Vacation
A. All employees within the bargaining unit covered by this MOU shall be entitled to annual paid vacations as follows:
status.
Completed Years of
Continuous Service*
1 year**
5 years
15 years
20 years
Rate of Accrual
per pay Period
3.0769 hours
4.6153 hours
6.1538 hours
7.6923 hours
Equivalent Hours
Per Year
80 hours
120 hours
160 hours
200 hours
*Service year begins on initial date of employment in a full-time, regular **No vacation granted or accrued, if service is less than one year.
At the time of voluntary and involuntary termination of employment, an employee shall be entitled to receive compensation for the number of vacation hours, which have been accrued but not used. In the event said employee has been permitted to take vacation, which exceeds number of hours actually accrued, a deduction shall be made from the employee's final compensation for the number of hours in excess of the accrual.
B. The amount of accrual shall not exceed the specified number of hours granted per year.
C. Employees shall not be permitted to work in their City position in lieu of taking vacation in order to receive additional compensation.
D. Vacation credits may be accrued and accumulated up to a maximum of two (2) years total accumulated vacation credits upon approval of the Department Head, as per the employee's rate of accrual. Vacations or portions thereof from a prior year may be taken consecutively with vacations or portions thereof of a succeeding year, subject to the approval of the Department Head. Except as approved by the Department Head, 23 19.c
Packet Pg. 698 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All no vacation or portion thereof from a prior year shall run consecutively with the vacation of a succeeding year; and, a period of three (3) or more months should normally elapse between the expiration of one year's vacation and the commencement of the next year's vacation.
Requests to utilize accrued vacation shall be submitted in writing on City approved forms to the Department Head. Department Heads shall respond to vacation requests submitted on City approved forms within five (5) work days. Department Heads shall not unreasonably delay responses to employee vacation requests. Nothing in this article shall be construed to prevent a response to the employee's request before the expiration of five (5) work days.
The vacation period to which any employee shall be entitled shall be assigned by the Department Head in the calendar year when due, except when the Department Head with the approval of the City Manager or their designee determines that an emergency or other valid factors prevent the employee from utilizing their vacation during the calendar year when due. Should this occur, the employee's vacation should be rescheduled at the very earliest mutually acceptable date.
In the event an employee is compensated for less than fifty percent (50%) of the payroll period, they shall not be credited with any vacation accrual for that pay period.
E. Upon termination, payment for earned vacation or deduction for unearned vacation shall be made on the basis of the hourly rate of pay being received by the employee on the date of termination.
F. Whenever the terms "year'' or "years of employment" appear herein, they shall be deemed to include all services for the City of San Bernardino.
G. The employee shall not lose any vacation time off due to action by the City.
H. Vacation credits may be taken off in increments according to Department Work Rules with prior Department Head approval.
I. When an employee returns to work after a break in continuous service, and when such break in continuous service shall have been by leave of absence with the approval of the City Manager or their designee, vacation time shall not accrue during such break in co ntinuous service, but shall accrue from the date of return to service from such approved leave of absence, based upon the total length of service of the employee.
J. Employees may sell back up to forty (40) hours of vacation time per year providing th at the following conditions have been met:
1. Employees must have a minimum of one hundred twenty ( 120) hours in their vacation balance before sell back occurs.
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Packet Pg. 699 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All
2. Employees must have taken a one-consecutive (1) week vacation during the past year prior to the sell back of hours.
3. Employees must complete a sell back form, which must include a Department Head signature.
4. Forms must be submitted to the Finance Department on or before April 15th of each year.
5. Payment for vacation sell back hours will be paid (using current Council approved salary rates in the salary resolution) on the employee's paycheck in May of each year.
Section 2 - Holiday Leave
A. Holiday Leave Accrual. City Designated Holidays: Employees shall be entitled to twelve (12) City-designated holidays, the equivalent of one hundred and eight (108) holiday hours each year for those employees on a 5/40 or a 9/80 regular work schedule.
Those employees on a 4/10 work schedule shall be entitled to twelve (12) City-designated holidays, the equivalent of one hundred twenty (120) holiday hours each year. The following days will be holidays for the purpose of this MOU:
New Year's Day
Martin Luther King, Jr. Day
President's Day
Memorial Day
Independence Day
Labor Day
Traditional Veteran's Day (November 11)
Thanksgiving Day
Day after Thanksgiving
Christmas Eve Day
Christmas Day
New Year's Eve Day
In addition to the above, all employees, including new employees, shall be credited with eighteen (18) hours of Holiday Account time per calendar year (formerly floating Holidays). All hours of holiday leave will be credited to an employee's account on January 1st of each year this MOU is in effect.
8. Holiday Leave Carrv-Over. On June 30th of each year that this MOU is in effect, General Unit employees may carry over up to forty (40) hours of accrued holiday leave.
Any holiday leave in excess of forty ( 40) hours on June 30th will be forfeited. 25 19.c
Packet Pg. 700 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All C. Scheduling Holiday Leave. All full-time employees within the bargaining unit, with the exception of those employees shown in the following paragraphs, shall be allowed the above holidays at full pay when such holidays occur within the regularly assigned working periods, provided they are in a paid status during any portion of the working day immediately preceding or succeeding the holiday. If it becomes necessary for an employee to work on any of the above-mentioned holidays, except as provided herein, they shall receive pay at the regular rate and shall be allowed another day off at full pay as approved by the Department Head. Each Department Head shall consider employees' requests for scheduling the eighteen (18) holiday account hours per calendar year, provided however, the final right to allot the hours to be observed is reserved exclusively to the Department Head. The Department Head will not unreasonably withhold permission to take time off. The employee may supplement the holiday with accrued vacation, accrued holiday time, or compensatory time.
D. Other Provisions:
1 . Employees who, due to scheduling, must work on a recognized City holiday will be compensated on the basis of the number of hours worked on said holiday, excluding lunch/dinner break. The hours accruing to the employee's holiday account for that day will be based upon the employee's work schedule as provided in Article VI, Section 1 Work Periods.
2. If a holiday occurs on a normal day off for an employee, the employee shall receive no additional pay.
3. The decision as to whether in-lieu of time off or pay is to be received shall be based on the availability of funds and needs of the department, as determined by the Department Head. If in-lieu of time off is directed by the Department Head, it may be added to the regular annual vacation period, but must be taken within one (1) year of the date in-lieu time was earned.
4. On or about November 3Qth of each calendar year, the City Manager shall determine, and the Human Resources Department will distribute, the schedule of specific days that the above holidays will be observed. For example, holidays listed above may be allowed on a Monday, if any such holiday falls on Sunday, and may be allowed on the preceding Friday, if such holiday falls on a Saturday for all employees, except those covered by other provisions herein.
5. Holidays earned in any twelve (12) month period may not be accumulated beyond the total number of holidays allowed each year by this MOU.
F. Upon separation from the City, employees shall be paid for ninety percent (90%) of their current holiday account.
Section 3 .. Sick Leave
26 19.c
Packet Pg. 701 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All A. Definition: Sick leave means the absence from duty of an employee because of illness or injury, exposure to contagious disease or attendance upon a member of their immediate family who is seriously ill and requires the care of or attendance of any employee. Immediate family means: husband; wife; grandmother; grandfather; mother; father; sister; brother; son; daughter; uncle; aunt; mother-in-law; father-in-law; stepparents; stepchildren; grandchildren; and, step-grandchildren.
Sick Leave Usage for Family Members: Not more than eighty (80) hours of sick leave within any calendar year may be granted to an employee for the care of or attendance upon members of their immediate family, as defined above.
Not more than forty (40) hours of sick leave within any calendar year may be approved for an employee for each absence for purposes of attending the funeral of a member of the employees' immediate family. The City may require an employee to submit evidence of eligibility to use sick leave for purposes of attending the funeral of a member of the employee's immediate family.
B. Sick Leave Usage for Employees
1. Upon the department's request, an employee must provide a physician's statement to justify a sick leave of forty (40) consecutive hours or longer. Employees suspected of abuse or excessive use of sick leave may also be required to furnish a written statement from their health care provider supporting the use of sick leave and/or the ability to return to work. If a physician's statement is requested, the Department Head or their designee must notify the employee prior to or on the first day of leave. Thereafter, the employee may be required to submit additional physician statements.
2. No absence due to illness or injury in excess of forty (40) hours shall be approved, except after the presentation of satisfactory evidence of illness or injury. A certificate from a practicing physician or an authorized practicing chiropractor may be required by the Department or Division Head, and shall be subject to their approval concerning such absence. The City Manager, or their designee, may require that any person claiming the sick leave benefits of this MOU be examined at any reasonable time or intervals by a designated physician, and in the event of an adverse report, to reject such claim for sick leave, in whole or in part and to terminate sick leave compensation. In the event of the refusal of any person to submit to such examination after notification, the City Manager, or their designee, may terminate sick leave compensation and reject any claim therefor. The City Manager shall have the right to require the presentation of a certificate from a practicing physician or a designated physician stating that an employee is physically or psychologically able to perform their work and duties satisfactorily before permitting an employee who has been on sick leave to return to work.
3. In order to receive compensation while absent on sick leave, employees shall notify their immediate supervisor or designee prior to or within thirty (30) minutes of the time set for beginning their daily duties, or as may be specified in Department/Division work rules.
27 19.c
Packet Pg. 702 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All
4. Sick leave with pay shall be granted to all regular employees and to all temporary full-time employees whose positions are funded under federal law who are regularly employed in permanent or federally-funded positions, if such benefit is required by said federal law. Sick leave shall not be considered as a right which employees may use at their discretion, but shall be allowed only in case of necessity and actual personal sickness or disability, except as otherwise provided herein.
5. Whenever an employee is compensated hereunder for sick leave or injury and has not had a vacation at the end of the current calendar year, the employee must take the vacation time not utilized due to illness or injury during the next calendar year.
6. Regular full-time employees hired on or after July 1 , 2017 and who are covered by this MOU are eligible to receive thirty (30) hours of paid sick leave after the new employees have been employed with the City for ninety (90) days. Such paid sick leave may be used for employee or family illness or for medical reasons or other reasons provided under the City's Paid Sick Leave Policy (AB 1522) adopted by the Mayor and Common Council on June 18, 2015 by Resolution 2015-116 and incorporated into this MOU. At no time may employee accrue more than 1,040 hours of sick leave.
C. Employees shall not accumulate sick leave while compensated under the provisions of Appendix B, 89, Catastrophic Leave, and Appendix B, 811, Leave of Absence without Pay.
Time off with pay for sick leave shall be considered as time worked for purposes of the accrual of sick leave only. Sick leave usage shall not be decreased by the fact that any legal holiday occurs during the time off on account of illness. The words "legal holiday" shall have the meaning ascribed to them in Article V, Section 2. Sick leave shall not accumulate during periods of leave of absence without pay.
In the event an employee works less than fifty percent (50%) of the total normal work hours in the pay period, they shall accrue no sick leave for such pay period and shall not be credited with the four ( 4) hours sick leave.
Approved vacation, sick leave, holiday or compensatory time off shall be considered as time worked for the purpose of computing sick leave benefits only.
Whenever an employee uses all allowable sick leave, further absences may be charged against accrued vacation upon approval of the Department Head. If all allowable sick leave has been used and use of accrued vacation is disapproved, the employee will take loss of pay for the time not covered by allowable sick leave.
Section 4 • Payment of Sick Leave
A. Payment for Unused Sick Leave: At the time of separation from service, an employee having six (6) or more years of service is eligible for compensation for unused 28 19.c
Packet Pg. 703 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All post-petition sick leave as follows: a) 288 hours or less= no cash value; b) 289-479 = cash payment of 20% of accrued post-petition sick leave; c) 480-959 =cash payment of 25% of accrued post-petition sick leave; d) 960 or more hour = cash payment of 35% .of accrued post-petition sick leave.
B. Sick Leave Sell Back: On or before February 15th of each year this MOU is in effect, eligible employees will be allowed to cash out up to forty (40) hours of sick leave per year, providing the employee has at least one hundred and sixty (160) hours in their sick leave account after the sell back.
Employees must complete a sell back form, which must include the Department Head's signature. Forms must be submitted to the Finance Department on or before February 15th each year.
Payment for sick leave sell back will be paid (using the current City Council approved salary rates in the salary resolution) to employees in their March payroll check.
Section 5 - Election Leave
Time off with pay to vote in any general or direct primary elections shall be granted as provided in the State of California Elections Code, and notice that an employee desires such time off shall be given in accordance with the provisions of said Code.
Section 6 - Other Leaves
The City complies with the applicable provisions of the Federal Family and Medical Leave Act (FMLA), the Federal Pregnancy Discrimination Act (PDA), the California Family Rights Act of 1992 (CFRA), the California Pregnancy Disability Leave Law (POL), and other medical and/or family leave benefits applicable under both Federal and California law. Applicable California and Federal statutory rights and obligations regarding leaves of absence which now exist or that may become in effect during the term of this MOU and are not specifically addressed in this MOU are incorporated by reference. 'City policies and procedures for administering current and new laws and regulations impacting employee leaves and benefits are available from the City's Human Resources Department.
Section I - Work Periods
ARTICLE VI
WORKING CONDITIONS
A. City Work Schedules: City work schedules shall be as herein defined, except as otherwise provided for:
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Packet Pg. 704 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All
1. 5/40 Work Schedule: The 5/40 work schedule shall consist of a forty- (40) hour work week consisting of five (5), eight (8) hour work days, exclusive of any meal periods assigned by management.
2. 9/80 Work Schedule: The 9/80 work schedule shall consist of eighty (80) work hours in a two (2) week period, consisting of eight (8), nine (9) hour work days and one (1 ), eight (8) hour work day, exclusive of any meal periods assigned by management.
3. 4/10 Work Schedule: The 4/10 work schedule shall consist of a forty- (40) hour work week consisting offour(4), ten (10) hour work days, exclusive of any meal periods assigned by management.
Work schedules shall be posted on all department bulletin boards showing the employees' shift, work days and where known, hours.
B. Work Schedule Adjustments: It is understood and agreed that Department Heads shall establish such work schedules as may be necessary for the efficient and economical provision of services for the public, and to make such adjustment in work shifts as are from time to time required. The City shall give the employees and the Union two (2) weeks' notice of any proposed changes in scheduled work shifts prior to implementation. If the Union wishes to consult with management regarding the proposed changes, it shall notify the City within seven (7) calendar days from receipt of notice. Upon notification by the Union, both parties shall meet within ten (10) calendar days in an earnest effort to reach a mutually satisfactory resolution of any problems arising as a result of the proposed changes. Work schedule changes resulting from an emergency situation or circumstances, which disrupt normal City operations as determined by the Department Head, are not bound by the two- (2) week notice requirement.
If a light-duty assignment for an employee will result in a shift change, e.g., from day shift to graveyard shift, the City shall give the employee and the Union two (2) weeks' notice of any proposed shift changes prior to implementation. The procedures described in the first paragraph of Section B above shall apply.
1. This section does not include minor adjustments in the starting and ending times of employee shifts
2. During the two-week notification period, the employee continues on current status/schedule.
ARTICLE VII
GENERAL PROVISIONS
Section 1 - Full Understanding, Waiver
30 19.c
Packet Pg. 705 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All The parties acknowledge that during the meet and confer process which resulted in this MOU, each had the unlimited right and opportunity to make demands and proposals with respect to any subject or matter not removed by law, City Charter, ordnance, resolution, personnel and departmental rules and regulations, from the scope of negotiable issues and that the understandings arrived at by the parties after the exercise of that right and opportunity are set forth herein. Therefore, the City and the Union, for the life of this MOU, each voluntarily and unqualifiedly waives the right to meet and confer and each agrees that the other shall not be obligated to meet and confer with respect to any subject or matter referred to or covered in this MOU or with respect to any subject or matter not specifically referred to or covered in this MOU, even though such subject or matter may not have been within the knowledge or contemplation of either or both of the parties at the time they negotiated or signed this MOU.
Section 2 - Severability
It is understood and agreed that this MOU is subject to all current and future applicable federal and state laws and regulations and the current provisions of the charter, ordinances, resolutions and of the rules and regulations of the City. If any part or provision of this MOU is in conflict or inconsistent with such applicable provisions of those federal, state or city enactments, or it is otherwise held to be invalid or unenforceable by any court or competent jurisdiction, such part or provision shall be superseded by such applicable law or regulations, and the remainder of this MOU shall not be affected thereby. The parties hereto agree to refrain from initiating any action that would invalidate any part of the MOU.
Section 3 - Support of Agreement
By entering into this MOU, the City and the IUOE have arrived at a final understanding through the meet and confer process, resolving any differences which may have arisen during that process. Accordingly, it is agreed that the IUOE and the City will support the MOU for its term and for purposes of Union ratification and Council Approval. Nothing contained in this MOU shall become biding upon the parties until such time as the City Council, by legislative enactment and allocation of funds, agrees and adopts it terms and conditions.
Section 4 - Term of Memorandum of Understanding
The term of this MOU extends through June 30, 2025. If negotiations regarding an MOU are in progress at the time the current MOU expires or if the parties are at impasse, the current MOU shall remain in effect until a successor MOU is adopted by the Mayor and Common Council. During the term of this MOU, the provisions regarding allocation, use, and payoffs for pre-petition leave time provided in side letter 2015-271 shall continue to be in effect.
Section 5 - Notice of Intent to Reopen
31 19.c
Packet Pg. 706 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All The parties agree that, if either party desires to propose changes in the. terms or conditions of this MOU for the period following expiration of this MOU, such requested meeting shall be held at least one hundred twenty (120) days before the expiration of the MOU. Such notice shall request a meeting to begin negotiations and establish ground rules which shall include, at a minimum, the date beyond which no further proposals may be submitted by either party.
32 19.c
Packet Pg. 707 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All
INTERNATIONAL UNION OF OPERATING ENGINEERS
LOCAL 12 ("IUOE")
MEMORANDUM OF UNDERSTANDING
2020-2025
Executed this I ath day of De.cem bt>r"" I 2021 .
JEli __ _
Robert D. Field
City Manager
Genoveva Rocha
City Clerk
Approved as to form: r Sonia Carvalho, City Attorney
Pf "
--~
33 David Sikorski, IUOE Local 12
Financial Secretary
Per Hawkins, ll!_OE Local
Treasurer
eonard Cross, IUOE Local 12
Business Representative
Business Manager
12 19.c
Packet Pg. 708 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All INDEX
Title Page
Agency Personnel Rules......................................................................................................... 8 Bilingual Pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Budget Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . 13 Call-Back/Standby Assignment & Pay . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . .. . . . . . . . . . . . . 17 Classification/Compensation Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .. .. . .. . . . . . . 14 Definition of Terms .... ,............................................................................................................. 6 Election Leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Employee Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Employee Orientation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Employee Rights..................................................................................................................... 8 Employee Stewards . .. . . . . . . . .. . . . .. . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .. . . . . . . . . .. .. . . . . . .. .. . . . . . .. . . . . . . . . . . .. . . 11 Fines ....................................................................................................................................... 20 Full Understanding; Waiver..................................................................................................... 32 Health Benefits and Life Insurance ......................................................................................... 22 Higher Acting Classification Pay . .. . . .. .... . . . .... ....... ... ... .. . .. . .... ... .. ...... .... .. ... ... .. . .... .. . .. ..... .. ... ....... 16 Holiday Leave......................................................................................................................... 26 Labor-Management Committee . ... .. . ...... .... . ..... .. .... .. ....... ... ... . .. ... . ...... .. ... ... .. . .. .. . .. . ...... ... . .. . ... .. 10 Management Rights................................................................................................................ 7 New Employee Information..................................................................................................... 13 No Strike................................................................................................................................. 11 Notice of Intent to Reopen . ... . .. ... .. . .... ... ..... ... ...... ... .. . ... ... .... . .. ..... ... ...... ........ .... ...... .... . . .. . .. . ... . 33 Other Leaves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Overtime................................................................................................................................. 15 Parties to MOU . . . . . . . . . .. . . . . . .. . . . . . . . . . . . . . .. . . . . . . .. . . . . . . . . .. . . . . . . . . . . . . .. . . . .. . . . . . .. . .. . . . . .. . .. . . . . . . . . . . . . .. . .. . . . . . . .. . . .. . 7 Payment of Sick Leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Payroll Deduction for Union Dues/Service (Fa.ir Share) Fees .................................................. 12 Personal Tool Replacement Allowance................................................................................... 19 Post Employment Health Plan (PEHP)... ..... ... ... .... . .. ..... .... . ... .. ... .. .. .... .. .. .. .. . ... .... ......... .. . .. ....... 24 Recognition............................................................................................................................. 7 Recognition/Union Security..................................................................................................... 11 Retirement Benefits . . . . . . . . . . . . . . . . . . . .. . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . .. . . . . . . . . . . . . . 14 Safety Committee................................................................................................................... 9 Salaries ..................................................... : ............................................................................. 14 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Shift Differential . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . 19 Sick Leave . ............................................................................................................................. 28 Special Certification Pay ................................................................................................... ...... 21 Support of Agreement........................................................................................................... .. 33 Term of Memorandum of Understanding................................................................................. 33 Training Pay .... .. ... .. . . . .. . . . . .. .. .. . . . . . . . .. .. . . .. . .. .. .. . . . . . . . . . . . .. . . . . . . . . . . . .. . . . . . . . . . .. . . .. . . . .. . . . . . . . . . . . . . . . .. . . . . . . . . . . . . 21 Uniforms, Rain Gear & Safety Equipment............................................................................... 24 Union Logos .. .. . . .. . . . . .. . .. .. ... . ... . . .. . ... ........ ... .... .. . . . .. .. ..... .. . . . ... . .. . .. .. . .. .... ... . .. .. .. . . . ... . . .. . .. .... ... . . .... . 13 Vacations.. . ............................................................................................................................. 24 Work Periods ......................................................................................................................... 31 34 19.c
Packet Pg. 709 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All
APPENDIX A
MOU Provisions to be Included
as Part of
The City of San Bernardino's
Uniform Policies
35 19.c
Packet Pg. 710 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All
OVERVIEW
The City represents that in implementing Section 508 of the City of San Bernardino's new Charter that became effective on January 31, 2017, the following provisions of the previous MOU between the City and the Union, dated July 1, 2006 to June 30, 2009, shall be included as part of the City's uniform policies a) Article 1, Section 5, Contract for Services
b) Article II, Section 4, Grievance Procedure
c) Article II, Section 6, Skelly Rights
d) Article II, Section 7, Non-Discrimination
e) Article II, Section 8, Personnel Files
f) Article II, Section 9, Bulletin Boards
g) Article IV, Section 4, Education Tuition Assistance
h) Article IV, Section 6, Employee Assistance Program (EAP) i) Article V, Section 5, Catastrophic Leave
j) Article V, Section 6, Injury Leave
k) Article V, Section 7, Leave of Absence without Pay
I) Article V, Section 8, Witness Leave
m) Article V, Section 11, Military Leave
n) Article V, Section 12, Jury Duty
o) Article VI, Section 2, Physical Examinations
p) Article VI, Section 3, Probationary Period
q) Article VI, Section 4, Seniority
r) Article VI, Section 5, Reasonable Suspicion Drug and Alcohol Testing The above Sections will be attached to this MOU as Appendix B and will be considered as part of this MOU. In addition, these Sections will be included as part of the City's uniform personnel policies and/or part of the City of San Bernardino's Municipal Code.
36 19.c
Packet Pg. 711 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All Section 81 - Contract for Services
It is not the intent of the City to cause employees to lose their jobs because of a decision to contract work. If a decision is made by the City to contract work not now contracted, and that decision will result in change in the work conditions or status of employees in the unit, the City agrees to meet and confer in good faith with the Union prior to making a final recommendation to the City Council.
If the City puts out a bid for contract services, the affected department will have the opportunity to bid for services. Contract awards are subject to the City Council approval and will not be part of this agreement.
Section 82 - Grievance Procedure
Definition of Employee Grievance: A grievance is an alleged violation of the terms of the MOU or of the laws, ordinances, resolutions concerning or affecting wages, hours or other conditions of employment. The remedy selected by the employee shall be the exclusive remedy pursued, either through the grievance procedure or through disciplinary appeals to the Personnel Commission. If the employee chooses to appeal disciplinary action to the Personne'1 Commission, they shall be precluded from filing a grievance.
Additionally, allegations of discrimination and harassment shall be submitted to the Equal Employment Officer. The Equal Employment Officer/Director of Human Resources may recommend that the matter be brought as a formal grievance.
As used in this procedure, the term "immediate supervisor" means the lowest level of supervisor not within the general employee representation unit. The ,procedure provides a mechanism for settling the grievance informally with the "immediate supervisor," up to and including the Division Head.
If this proves unsatisfactory, the grievance may be formally presented to the Department Head or designee, the Director of Human Resources, and finally to the City Manager who will be the ultimate authority.
The aggrieved employee shall have the right to be represented, if they desire, by the designated Union representative.
Working Day: As used in this section, "working day"' shall refer to the employee's working day or to the working day of the other party involved (supervisor, Division Head, Department Head, Director of Human Resources, City Manager and/or their designees), depending upon whose response or action is pending.
Procedural Steps for Handling Grievances:
A. Informal: An attempt shall be made to ascertain all facts and adjust all grievances on an informal basis between the employee and a supervisor in the employee's chain of 37 19.c
Packet Pg. 712 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All command, up to and including the Division Head. Oral presentation of the grievance must be submitted to the Informal Step within ten (10) working days of the incident causing the grievance or of the grievant's knowledge of the incident's occurrence. The date and the subject of the incident should be provided with the request for the informal meeting. Within ten (10) working days of the presentation of the grievance, the supervisor shall provide an oral response to the employee. The supervisor will document (for record purposes) their response to the employee in the event the grievance proceeds to the Formal level.
B. Formal:
1. If the grievance is not adjusted to the satisfaction of the employee involved, the grievance shall be submitted in writing by the employee or their designated representative to the Department Head or their designee within ten (10) working days from the date of the oral response. The Department Head or their designee shall meet with the employee and/or their designated representative within the next ten ( 10) working days of receipt of the written grievance and shall deliver their answer in writing to the employee within ten (10) working days after the meeting.
2. If the grievance is still not adjusted, the aggrieved party may file a written appeal with the Director of Human Resources within ten (10) working days from the date of delivery of said answer. The Director of Human Resources or their designee shall meet with the employee, and if the employee desires, the designated Union representative, within ten (10) working days after receipt of the appeal, shall deliver their answer in writing to the employee within ten ( 10) working days after the meeting.
3. If the grievance is still not adjusted, the aggrieved party may file a written appeal with the City Manager or their designated representative within ten (10) working days from the date of delivery of said answer.
The City Manager or their designated representative shall deliver their answer in writing within ten (10) working days after receipt of the appeal.
4. The decision of the City Manager or their designated representative is final and binding on all parties, unless reversed by a court decision.
5. All grievances shall be treated as confidential, and no publicity shall be given the final resolution of the grievance.
C. Time Limits: Any grievance not answered by the City within the specified time limit listed above shall be deemed settled on the basis of the Union's original demand.
Likewise, any specified adjustment not appealed by the employee or their designated representat ive within the specified time limits listed above shall be deemed settled on the basis of the last City official's answer. Time lines as above may be extended by mutual agreement only.
38 19.c
Packet Pg. 713 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All D. Consolidation of Grievances: In order to avoid the necessity of processing numerous similar grievances at one time, a single "class" grievance may be filed as long as the grievances are from employees within a single department. The City also has the right to consolidate responses to such grievances. If the grievant is a group of three (3) or more employees within a department, the group shall appoint one (1) or two (2) employees who signed the grievance to speak for the collective group throughout the grievance process.
Section 83 - Skelly Rights
It is mutually agreed that the City subscribes to the concept and application of progressive discipline. Discipline shall be imposed upon an employee only for just cause.
If the employer has reason to reprimand an employee, it shall be done in a manner that will not embarrass the employee before other employees or the public.
When an action for suspension or termination has been taken, subject to appeal, the employee will be apprised of the action, the reason therefore, and will be provided with a copy of the charges including material on which the action was based. Employees have the right to Union representation as provided under Government Code Section 3500 et seq. (Meyers-Milias-Brown Act).
A. The employee shall receive reasonable advance notice of the proposed disciplinary action per the City's Personnel Rules.
B. The notice shall contain the reasons, charges, and statement of the events or circumstances upon which the proposed action is based.
C. The employee shall be given the materials, if any, upon which the action is based.
D. The employee shall have the right to respond either orally or in writing within five (5) working days of receipt of Skelly package to the appointing authority (Department Head/Division Head) imposing the discipline.
E. The disciplinary procedure should be used for all serious disciplinary actions, which are normally considered (1) demotions; (2) discharges; (3) reductions in pay; and, (4) suspensions.
Section 84 - Non-Discrimination
The City and the Union agree that there shall be no discrimination against employees within the bargaining unit because of race, color, religious creed, national origin, ancestry, sex, age, marital status, physical disability, medical conditions, sexual orientation, pregnancy. childbirth or related medical conditions of any female employee, any other classification protected by law, or Union membership or any other protected class as 39 19.c
Packet Pg. 714 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All defined under applicable state and federal laws. Union membership also includes Union activities.
Further, there shall be no discrimination against qualified individuals with disabilities as defined by the Americans with Disabilities Act (ADA) of 1990, as amended, when those individuals do not pose a risk to the health or safety of themselves or others. The ADA expressly identifies reassignment to a vacant position as one form of reasonable accommodation.
Section BS - Personnel Files
A. The Human Resources Department shall keep and maintain an official personnel file for employees, which shall contain information relative to the employee. No other files, records or notations shall be official except as may be prepared or used by the City or its counsel in the course of preparation for any pending case, such as the Department of Fair Employment and Housing or Personnel Commission matter or grievance.
B. An employee's department may maintain a file pertaining to an employee, which shall contain job-related information only. It shall be the supervisor's responsibility to inform the employee, with a copy thereof, of any detrimental material in the file that may affect the employee's performance evaluation. An employee may grieve over the factuality of, or propriety of, any material in such file. Such files shall be confidential. Both the City and the Union agree that an employee's failure to challenge any material in such file does not justify the conclusion that the employee is in agreement with any such materials. Such files shall not contain a copy of any disciplinary action against an employee.
C. Employees and/or their authorized representatives, if authorized by the employee, shall have the right upon written request to review the contents of their official personnel files and department files. Such review may be made during working hours with no loss of pay for time spent, and the employee may be accompanied by their authorized representative if they so wish. Reasonable requests to copy documents in the files shall be honored.
D. A copy of any disciplinary action or material related to employee performance, which is placed in the personnel file, shall be served upon the employee (the employee so noting receipt), or sent by certified mail (return receipt requested) to their last address appearing on the records of the City. It is the obligation of each employee to provide the City with their current address.
E. A full-time, permanent employee shall have thirty (30) working days in which to file a written response to an employee performance evaluation entered in his or her personnel file. Such written response shall be attached to the employee performance evaluation.
The thirty (30) working days will commence with the date the employee receives the evaluation for signature. The Human Resources Department will distribute to all City 40 19.c
Packet Pg. 715 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All departments a memorandum explaining employee performance evaluation response procedures for General Unit employees.
F. Employees may request that any documents contained in the file of a derogatory nature will be purged from their files after a period of twenty-four (24) months and no further actions have occurred similar in nature. The department head shall review said request and notify the employee and the I UOE of their decision in writing within seven (7) calendar days. After review by the Department Head, if the employee is not satisfied with the outcome, the employee may request that the City Manager and/or the Director of Human Resources review all requests to purge negative items from personnel files. The decision of the City Manager and/or the Director of Human Resources as to what will be purged from the personnel files shall be final and binding. · Section BS - Bulletin Boards
The City will provide adequate space on bulletin boards in each department/division for the purpose of the Union posting notice of pertinent Union business. The Union agrees that nothing libelous, obscene, defamatory or of a partisan political nature shall be posted.
In the event that there is a dispute arising out of the pertinence of any literature the Union chooses to post, the City Manager or their designated representative and a Union representative will meet as soon as possible to resolve the problem.
Section B7 - Education Tuition Reimbursement
A. Purpose: The education tuition assistance program has been established to encourage the employees of the City to take college courses and special training courses, which will better enable them to perform their present duties and prepare them for increased responsibilities. and to provide financial assistance to eligible employees for education and training.
B. Procedures:
1. To be eligible for tuition reimbursement employees must complete an "Education Reimbursement Form" prior to the start date of the course and submit it to their Department Head for advanced approval.
2. When approved and signed by the Department Head, the form will be forwarded to Human Resources for review and verification of availability of budgeted funds. If approved, the forms will be returned to the employee to maintain until the completion of the course.
3. The employee will submit their copy of the pre-approved application for reimbursement within sixty (60) calendar days of the completion of the course. A copy of the final grade and the appropriate receipts for tuition and textbooks must be attached for reimbursement. If objective ratings are not rendered for a specific course, then a certificate of successful completion 41 19.c
Packet Pg. 716 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All must be submitted. Applications not submitted to the Human Resources Department within the established time frame following the completion of the course become void.
4. Once all paperwork has been forwarded to Human Resources for reimbursement and HR has determined that it is in compliance with the outlined conditions it will be forwarded to Finance for payment.
5. Reimbursement is not authorized for courses for which the employee is receiving financial assistance from other sources such as the GI Bill, scholarships, and similar sources.
C. Eligibility:
To be eligible for tuition reimbursement an employee must:
1. Be considered a full time, regular employee who has completed probation.
2. Enroll in courses that are directly related to the employee's job or directly related to a 'promotional position.
3. Enroll in courses that are required to qualify for a degree that is related to the employee's job.
4. Enroll in courses given by accredited colleges, universities, or adult education courses under the sponsorship of the Board of Education.
5. No mail-order courses will be approved.
Workshops, seminars, conferences, and similar activities not identifiable as a formal course of instruction within the recognized educational institution do not fall within the purview of this program.
D. Reimbursement:
1. Reimbursement costs will consist of tuition, registration fees, or textbooks for each course. Additional expenses such as meals or parking fees are not reimbursable.
2. Costs for required texts are eligible for fifty percent (50%) reimbursement.
The employee may retain the books.
3. Maximum tuition and book reimbursement is $125 per semester. Summer session shall be considered a separate semester for purposes of this provision.
Section 88 - Employee Assistance Program (EAP)
42 19.c
Packet Pg. 717 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All The City's Employee Assistance and Counseling Program (EAP) is designed to help employees and their immediate families find direction. in solving personal or emotional problems. All counseling services are completely confidential. The Human Resources Department maintains a supply of brochures explaining the program more fully.
Section 89 - Catastrophic Leave
Upon request of an employee who is experiencing catastrophic illness, and upon approval of the City Manager and/or Department Head, an employee's vacation or holiday leave credits may be transferred from one or more employees to the affected employee under the following conditions:
A. The employee with a catastrophic illness or injury has exhausted all other leave accruals and has completed at least one (1) year of continuous service with the City.
B. The donation must be in four (4) hour increments of by employees who have completed at least one (1) year of continuous service with the City.
C. Employees may not donate leave they would otherwise forfeit. For example, employees who are separating from City employment may donate leave only up to the amount of the payment they would receive upon separation. Only post-petition leave may be donated or transferred. Sick leave accruals cannot be transferred among employees.
D. Donations shall be on a form developed by the Human Resources Department Head, signed by the donating employee, approved by the Department Head and verified by the Finance Department. Procedures shall be as approved by the City Manager.
E. Unused donated time that has been credited to the requesting employee's account will not be returned to the donor's account, nor can donated time be cashed out Section 810 - Injury Leave
Effective with the first day of necessary absence by an injury or illness arising out of, and in th e course of, their duties the eligible employee shall be protected by workers' compensat ion benefits. Upon written request by the employee accumulated sick, vacation, holiday and compensatory time credit can be utilized to supplement the amount of temporary disability (2/3 of average weekly earnings) to not exceed the total sum of payment equal to their normal weekly compensation. The utilization of sick leave for this purpose shall end with the termination of the temporary disability or when the accumulated sick leave credits have been exhausted, whichever occurs first.
How to file a workers' compensation claim?
When an e mployee believes to have sustained an injury or illness arising out of, and in the course of, their duties, the employee should immediately notify their supervisor. The 43 19.c
Packet Pg. 718 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All supervisor is required to provide the injured employee an "Employee's Claim for Workers' Compensation Benefits (DWC-1 Form)" within 24 hours from the date of knowledge. Once the injured employee returns the completed DWC-1 Form, the supervisor will then need to complete "Report of Occupational Injury or Illness (5020 Form)" in order to document the date, time and description of incident. The supervisor should then refer to the workers' compensation injury report kit to complete the claim. In the event the employee is unable to prepare the form due to hospitalization, serious illness or injury; the supervisor or a member of the department/division staff shall prepare the required report.
The employee has the right to be examined and treated by a physician of their choice, as long as a predesignating of physician form has been signed off by both the employee and predesignated physician at the time of injury or illness, as required by the California Labor Code.
The City shall have the right to require the employee to be examined by a physician designated by the City to assist in determining the length of time during which the employee is unable to perform the assigned usual and customary duties, and if the disability is attributable to the "injury involved."
Section 811 - Leave of Absence without Pav
Leave of absence without pay is a temporary, non-pay status and absence from duty granted at the request of the employee. Leave of absence without pay may be granted by the City Manager for a period not to exceed six (6) months, upon the positive recommendation of the Department Head. Under justifiable conditions, said leave may be extended by the City Manager for additional periods. Leave of absence without pay will be considered favorably, if it is expected that the employee will return to duty and that at least one of the following benefits will result: increased job ability, protection or improvement of the employee's health, retention of a desirable employee or furtherance of a program of interest to the City. Examples of or conditions for which a leave of absence without pay may be granted are:
A. For an employee who is a disabled veteran requiring medical treatment; B. For an employee who is temporarily mentally or physically unable to perform their duties;
C. For an em~loyee who files for or assumes elected office; D. For maternity or paternity leave beyond that required by federal and state law, upon the recommendation of a physician;
E. For military leave when the employee has less than one ( 1 ) year of service to qualify for leave with pay;
F. For Union activities, upon designation by the Union. 44 19.c
Packet Pg. 719 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All An approved leave of absence without pay for sixty (60) days or less in any calendar year will not be considered a break in service. Leave in excess of sixty (60) days shall result in the advancement of the employee's anniversary date and compensation advancement date to such date as will account for the total period of uncompensated time off. Failure to return to duty at the expiration of the approved leave of absence without pay shall constitute an abandonment of the position and shall be prosecuted consistently therewith.
Unless otherwise required under State of Federal law, the City's contribution towards an employee's health and life insurance premium will not be extended beyond the last day of the month in which a leave of absence without pay begins, if the leave of absence without pay becomes effective during the first fifteen (15) days of the month, nor beyond the last day of the next succeeding month, if the leave of absence without pay becomes effective after the fifteenth day of the month, unless the employee returns to work from leave of absence without pay status prior to the date the City's contribution would be accumulated. In the event the employee desires to maintain full health and life insurance coverage while on leave of absence without pay status, they may arrange to pay the insurance premiums for the coverage desired (both the employee and employer portions). It is the responsibility of the employee to contact the City's payroll section in this regard. The payment of the amount of the premiums must be made to the City's payroll section prior to the date on which the City's participation will terminate. Payments must be made monthly thereafter until the employee either returns to work or their employment with the City is terminated.
Upon an employee's return to work, the City's contribution towards the employee's health and life insurance premiums will begin on the first day of the month following the end of the leave of absence without pay, if that leave of absence without pay terminated between the first and the fifteenth day of the month, or on the first day of the next succeeding month, if the leave of absence without pay terminates after the fifteenth day of the month.
Notwithstanding any other provision of this section to the contrary, the City will continue its contribution for health and life insurance premiums of an employee on leave of absence due to any injury or illness arising out of and in the course of their employment with the City.
In circumstances in which the Federal Family Medical Leave Act, the California Family Rights Act, California Pregnancy Disability Leave Law, American with Disabilities Act (ADA), Pregnancy Discrimination Act or Fair Employment and Housing Act apply, the City shall adhere to the requirements of the applicable laws and regulations with respect payment of health benefits and granting of leaves. Employees requesting leave under the provisions of these referenced laws should direct such requests to the Human Resources Department.
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Packet Pg. 720 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All Section 812 ·Witness Leave
Employees shall only be entitled to a paid leave of absence when subpoenaed to testify as a witness in civil litigation involving the City, such subpoena being properly issued by a court, agency or commission legally empowered to subpoena witnesses. This benefit shall not apply in any case in which the subpoenaed employee is a party to the action. Witness leave shall not be charged against any accumulated leave balances and shall be compensated at the employee's base hourly rate. Employees shall only be entitled to paid witness leave if they provide a copy of the subpoena to the City within twenty-four (24) hours of receipt.
S.ection 13 • Military Leave
Unit members on leave for military duty shall be compensated pursuant to California Military and Veterans Code Sections 395, et seq. and the Federal Uniformed Services Employment and Reemployment Rights Act (38 U.S.C. §§ 4301 et seq. The specific compensation and reemployment rights of individual employees shall be determined based upon the applicable requirements of the aforesaid State and Federal law, copies of which may be obtained through the Department of Human Resources. All military service shall be counted as City service when calculating whether the employee has twelve (12) months of service with the City.
Replacements for unit members on military leave will be hired with regular (rather than temporary) position status. However, they will be subject to layoff when unit employees on leave return.
Section 14 • Jury Duty
Every general permanent employee of the City of San Bernardino and every employee, whose position is funded under federal law or is employed in a federally funded position, if such benefit is required by said federal law, are covered by this section.
Employees shall provide prior notice to their supervisors regarding jury service. In cases where the completion on any day of such jury service does not exceed a period of four ( 4) hours duration of the employ~e's assigned work shift, it shall be the responsibility of the employee to return to work within a reasonable time after their release or discharge from such jury service on that day. However, where such employee is required to continue in jury service for a period in excess of four (4) hours duration on any such regularly scheduled working day, said employee shall not be required to work on that same day of their release or discharge from jury duty. If the start of the employee's shift is two (2) hours or more prior to the commencement of jury duty, the employee shall be required to report to work. This is subject to adjustment based on the location of jury service.
Under such circumstances of compensable jury service, every general permanent employee or every federally funded general employee as aforesaid, shall be paid their regular pay, less jury duty fees while serving on jury duty, provided a copy of all jury fees 46 19.c
Packet Pg. 721 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All paid to the individual employee, less automobile expenses allowed, are submitted to the City Finance Department.
Employees shall notify their superiors of any call for jury service promptly upon receipt of notice thereof, and of any absence from duties due to such jury service in order that a replacement or substitute may perform their duties. When an employee fails to promptly report the receipt of a call to jury service when so required, or fails to promptly notify their superiors regarding the absence for jury service, said employee shall be considered as absent without leave and no salary compensation shall be paid.
In the event, during the course of any jury service, an employee is ordered by a judge or other officially recognized judicial body into a state of sequester, the employee shall be paid the regular wage during such time of sequester without supplement from any accrued bank of time.
Any employee who is summoned to Grand Jury Service shall be entitled to all benefits, restrictions and requirements of this section.
The City will pay for all working days and/or partial days in a calendar year of a covered employee who is required to serve jury duty.
Whenever a covered employee is duly summoned as a witness, except where the employee is a litigant or defendant in a criminal case or any action brought about '3S a result of his or her own misconduct, he or she shall receive regular compensation for any regularly scheduled working hours spent in actual performance of such service.
Section 815 - Physical Examinations
The City shall pay medical fees for the physical examination of any unit member within the unit of representation when such examination is required and directed by the City after employment. The City may arrange with a physician or medical group for such examination, or if the situation warrants, the City may authorize an employee to be examined by a doctor of their choice. In the event an employee is authorized to be examined by a doctor of their choice, reimbursement shall be made by the City for the cost thereof, provided, however, that the amount of reimbursement shall not exceed the cost the City would have paid its contract physician or medical group.
Section 816 - Probationary Period
All new or newly promoted employees must serve a one (1) year probationary period.
Section 817 - Seniority
Department Heads will consider seniority in authorizing vacations, scheduling shift assignments and transfers. Seniority shall prevail when all other factors are not significantly different. "All other factors" is defined as special qualifications, skills, work 47 19.c
Packet Pg. 722 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All performance, as well as attendance and safety. An employee shall not attain seniority until the completion of a probationary period, upon which time the seniority date shall be from the last date of hire within the department, division or section. In the event of layoffs, due to lack of work or funds that the department deems it necessary to reduce the working force, the last employee hired within the classification so reduced shall be the first laid off unless they possesse special qualifications or whose loss of skills would adversely affect the public welfare or has superior work performance that can be documented. An employee shall be given at least thirty (30) days notice prior to layoff.
Section 818 - Reasonable Suspicion Drug and Alcohol Testing In addition to employees already covered under the Department of Transportation (DOT) drug and alcohol testing, all General Unit employees will participate in reasonable suspicion drug and alcohol testing, following the reasonable suspicion Drug/Alcohol Testing Procedure described in the City of San Bernardino's Policy on Drug and Alcohol Testing of Employees with Commercial Driver's Licenses ("Policy"), effective August 1, 2013. The Human Resources Department will review, update, and develop forms and procedures to implement the City's Drug/Alcohol Testing Policy. For purposes of this Section, the provisions of the Policy are binding and are incorporated herein.
If a supervisor has a reasonable suspicion that an employee has been abusing drugs or alcohol, that supervisor will take one of the steps listed below prior to referring an employee for a test, and will document their observations on a reasonable suspicion checklist:
A. Seek the concurrence of another supervisor if a second supervisor is in the immediate vicinity; or,
B. Notify their Department Director, Assistant Director, immediate supervisor or the Human Resources Department if a second supervisor is not in the vicinity.
The conduct of the employee must be witnessed by a supervisor who has received training consisting of at least two (2) hours on identification of actions, appearance or conduct which are indicative of the use of drugs or alcohol. A supervisor must directly observe and document the behavior. Reasonable suspicion may not be based on hearsay.
Training will be coordinated by the Human Resources Department in accordance with the provisions of the Policy.
48 19.c
Packet Pg. 723 Attachment: Attachment 3 - IUOE MOU 2020-2025 [Revision 1] (8757 : Side Letter Agreement Between the City and General Unit Employees (All