Mayor and City Council of the City of San Bernardino Page 1
CITY OF SAN BERNARDINO
AGENDA
FORTHE
REGULAR MEETING OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO,
MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO ACTING AS THE SUCCESSOR
AGENCY TO THE REDEVELOPMENT AGENCY, MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO ACTING AS THE SUCCESSOR HOUSING AGENCY TO THE REDEVELOPMENT
AGENCY, AND MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO ACTING AS THE
HOUSING AUTHORITY, AND MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO
ACTING AS THE SAN BERNARDINO JOINT POWERS FINANCING AUTHORITY WEDNESDAY, MAY 17, 2023
5:30 PM CLOSED SESSION 7:00 PM OPEN SESSION
FELDHEYM CENTRAL LIBRARY • SAN BERNARDINO, CA 92410 • WWW.SBCITY.ORG Theodore Sanchez Helen Tran Damon L. Alexander
COUNCIL MEMBER, WARD 1 COUNCIL MEMBER, WARD 7
MAYOR
Sandra Ibarra Charles E. McNeely
COUNCIL MEMBER, WARD 2 INTERIM CITY MANAGER
Juan Figueroa Sonia Carvalho
COUNCIL MEMBER, WARD 3 CITY ATTORNEY
Fred Shorett Genoveva Rocha
MAYOR PRO TEM, WARD 4 CITY CLERK
Ben Reynoso
COUNCIL MEMBER, WARD 5
Kimberly Calvin
COUNCIL MEMBER, WARD 6
Welcome to a meeting of the Mayor and City Council of the City of San Bernardino.
PLEASE VIEW THE LAST PAGES OF THE AGENDA FOR PUBLIC
COMMENT OPTIONS, OR CLICK ON THE FOLLOWING
LINK: TINYURL.COM/MCCPUBLICCOMMENTS
Please contact the City Clerk's Office (909) 3845002 two working days prior to the meeting for any requests for reasonable accommodation, to include interpreters.
To view PowerPoint presentations, written comments, or any revised documents for this meeting date, use this link: tinyurl.com/agendabackup. Select the corresponding year and meeting date folders to view documents.
Mayor and City Council of the City of San Bernardino Page 2
CALL TO ORDER
Attendee Name
Council Member, Ward 1 Theodore Sanchez
Council Member, Ward 2 Sandra Ibarra
Council Member, Ward 3 Juan Figueroa
Mayor Pro Tem, Ward 4 Fred Shorett
Council Member, Ward 5 Ben Reynoso
Council Member, Ward 6 Kimberly Calvin
Council Member, Ward 7 Damon L Alexander
Mayor Helen Tran
Interim City Manager Charles E. McNeely
City Attorney Sonia Carvalho
City Clerk Genoveva Rocha
5:30 P.M.
CLOSED SESSION PUBLIC COMMENT
CLOSED SESSION p. 11
A) PUBLIC EMPLOYEE APPOINTMENT (Pursuant to Government Code Section 54957) City Manager (Recruitment Process)
7:00 P.M.
INVOCATION AND PLEDGE OF ALLEGIANCE
CLOSED SESSION REPORT
PUBLIC COMMENTS FOR ITEMS LISTED AND NOT LISTED ON THE AGENDA
CITY MANAGER UPDATE
MAYOR & CITY COUNCIL UPDATES/REPORTS ON CONFERENCES & MEETINGS
PRESENTATIONS
1. Proclamation for National Public Works Week in the City of San Bernardino – May 21st –27th, 2023 (All Wards) p. 12
2. Proclamation for National Salvation Army Week in the City of San Bernardino – May 15th – 21st, 2023 (All Wards) p. 14
APPOINTMENTS
3. Public Safety and Human Relations Commission Reappointment (Ward 2) p.16 Mayor and City Council of the City of San Bernardino Page 3
CONSENT CALENDAR
4. Management Agreement with Local Golf Management LLC p. 25 Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California, adopt Resolution No. 2023063, approving a Management Agreement with Local Golf Management LLC.
5. Fiscal Year 202324 Assessment Levies for Previously Formed Assessment Districts. (All Wards) p. 95
Recommendation:
It is recommended that the Mayor and City Council adopt Resolution Nos. 2023064, 2023 065, 2023066, 2023067, and 2023068 of the Mayor and City Council of the City of San Bernardino, California, declaring intention to levy and collect assessments for Fiscal Year 202324 within various assessment districts within the City of San Bernardino, approving engineer’s reports for each assessment district and providing notice of the time and place of hearing on proposed assessments in each assessment district.
6. Approve the Professional Services Agreement with Kosmont Companies for Economic Development Advisory Services (All Wards) p. 125 Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California:
1. Approve a Professional Services Agreement with Kosmont Companies for Economic Development Advisory Services; and
2. Authorize the City Manager, or designee, to execute the Professional Services Agreement with Kosmont Companies; and
3. Adopt Resolution No. 2023069 authorizing the Agency Director of Administrative Services to amend the Adopted FY 2022/2023 General Fund Operating Budget in the amount of $75,000; and
4. Authorize the Agency Director of Administrative Services to issue a Purchase Order in an amount not to exceed $75,000 to Kosmont Companies.
7. Approval of Commercial and Payroll Disbursements (All Wards) p. 259 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 2023.
8. Adoption of Resolution No. 2023070 Appointing an Interim Agency Director of Community, Housing, and Economic Development (All Wards) p. 303 Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California:Adopt Resolution No. 2023070 appointing Mary E. Lanier as Agency Director of Community, Housing, and Economic Development on an interim basisApprove a Retired Annuitant Employment Agreement.
9. Approve Final Tract Map No. 20494 for the Warmington Residential Project (Ward 6) Recommendation: p. 315
It is recommended that the Mayor and the City Council of the City of San Bernardino, California:
1. Adopt Resolution No. 2023071 of the Mayor and City Council of the City of San Bernardino, California, approving Final Tract Map No. 20494 (Subdivision 21 12) involving the subdivision of one parcel (APN 014319159) containing approximately 9.9 acres into ninetyfive (95) singlefamily residential lots and nine (9) lettered lots for common facility improvements, located on the south side of W.
Highland Avenue, approximately 600 feet west of N. Medical Center Drive; and Mayor and City Council of the City of San Bernardino Page 4
2. Accepting the public dedications as set forth on said map; and
3. Authorizing execution of the standard form of agreement for the subdivision improvements.
10. Amendment No. 1 to Agreement with Anser Advisory Management, LLC (All Wards) Recommendation: p. 444
It is recommended that the Mayor and City Council of the City of San Bernardino, California, authorize the execution of Amendment No. 1 to Professional Services Agreement with Anser Advisory Management, LLC for construction management and inspection services extending the agreement until May 17, 2024.
11. Concept Plan Approval for Eastside Skate Park Improvements at Speicher Park (Ward 2) p. 465
Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California, adopt Resolution No. 2023072:
Authorizing the Agency Director of Administrative Services to amend the FY 2022/23 Capital Improvement Plan to record a supplemental appropriation in the amount of $230,000.00 from the AB 1600 Parkland and Op (Fund 268) for the Skate Park Improvements at Speicher Park (“Project”).
12. PreApproval of Mayor Travel for FY 2022/2023 (All Wards) p. 475 Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California, preapprove the Mayor’s specified travel for Fiscal Year 2022/23.
DISCUSSION
13. Adopt a Policy Designating a Meeting Minute Taker and Procedures for the Taking and Storing of Minutes Pertaining to Closed Session meetings of The Mayor and City Council p. 502
Recommendation:
It is recommended that the City Council provide direction to staff or approve Resolution No. 2023073 adopting the policy designating a meeting minute taker and procedures for the taking and storing of minutes pertaining to closed session meetings of the Mayor and City Council.
14. Responding to the City’s Urgent Homeless Crisis p. 511 Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California:
1. Adopt Resolution No. 2023075 authorizing the City of San Bernardino to submit a joint application with Hope the Mission to apply for Homekey 3.0 grant funding for the development SB HOPE Campus and authorize the City Manager, or designee, to sign any documents that may be required to apply for funding, including making minor and nonsubstantive changes;
2. Approve the Professional Service Agreement with Hope the Mission to oversee the City’s Homeless Outreach Project;
3. Authorize staff to negotiate and bring back a contract with Hope the Mission to act as developer and lead operator of the Navigation Center (SB HOPE Campus);
4. Approve the Mobile Shower Pilot Agreement between the City of San Bernardino (City) and Community Action Partnership of San Bernardino County (CAPSBC), from June 1, 2023, to May 31, 2024, in a total amount not to exceed $150,000 of American Rescue Plan Act (ARPA) funding;
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5. Approve the reallocation of $973,500 in ARPA funds from San Bernardino Valley College and the City’s Relocation Assistance Program to provide interim housing for unhoused individuals during the development of the SB HOPE Campus; and
6. Adopt Resolution No.2023-076, the City of San Bernardino Homelessness State of Emergency Implementation Plan.
PUBLIC HEARING
15. Public Hearing Regarding Solid Waste Rate Increases and Resolution Adopting Rates for Solid Waste Services, Approving Third Amendment to the City’s Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing and Disposal Services with Burrtec Waste Industries, Inc., and Finding the Action Exempt from the California Environmental Quality Act (All Wards) p. 717 Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California execute the following actions:
1. Conduct a Public Hearing to receive comments on the proposed rate increases and Third Amendment to the City’s Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing and Disposal Services with Burrtec Waste Industries, Inc. (“Burrtec”); and
2. Close the Public Hearing after all public comments have been heard; and
3. Determine if written protests have been received from the owners and tenants from parcels which are subject to the solid waste service rate increases, and, if a majority protest is not received; and
4. Adopt Resolution No. 2023074, a Resolution of the Mayor and City Council of the City of San Bernardino, California, Approving Third Amendment to the Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing, and Disposal Services with Burrtec Waste Industries, Inc., Adopting Maximum Permitted Service Rates, and Finding this Action Exempt from the California Environmental Quality Act.
ADJOURNMENT
The next joint regular meeting of the Mayor and City Council and the Mayor and City Council Acting as the Successor Agency to the Redevelopment Agency will be held on June 07, 2023 at the Feldheym Central Library located at 555 West 6th Street, San Bernardino, California 92401.
Closed Session will begin at 5:30 p.m. and Open Session will begin at 7:00 p.m.
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CERTIFICATION OF POSTING AGENDA
I, Genoveva Rocha, CMC, City Clerk for the City of San Bernardino, California, hereby certify that the agenda for the May 17, 2023 Regular Meeting of the Mayor and City Council and the Mayor and City Council acting as the Successor Agency to the Redevelopment Agency was posted on the City's bulletin board located at 201 North "E" Street, San Bernardino, California, at the Feldheym Central Library located at 555 West 6th Street, San Bernardino, California, and on the City's website sbcity.org on Friday, May 12, 2023.
I declare under the penalty of perjury that the foregoing is true and correct.
I declare under the penalty of perjury that the foregoing is true and correct.
Mayor and City Council of the City of San Bernardino Page 7 NOTICE:
Any member of the public desiring to speak to the Mayor and City Council and the Mayor and City Council Acting as the Successor Agency to the Redevelopment Agency concerning any matter on the agenda or not on the agenda, which is within the subject matter jurisdiction of the Mayor and City Council and the Mayor and City Council Acting as the Successor Agency to the Redevelopment Agency may address the body during the period reserved for public comments.
In accordance with Resolution No. 201889 adopted by the Mayor and City Council on March 21, 2018, the following are the rules set forth for Public Comments and Testimony:
Public Comments and Testimony:
Rule 1. Public comment shall be received on a first come, first served basis. If the presiding officer determines that the meeting or hearing may be lengthy or complicated, the presiding officer may, in his or her discretion, modify these rules, including the time limits stated below.
Rule 2. All members of the public who wish to speak shall fill out a speaker' s reservation card and turn in the speaker reservation card to the City Clerk prior to the time designated on the agenda. Comments will be received in the order the cards are turned in to the City Clerk. Failure of a person to promptly respond when their time to speak is called shall result in the person forfeiting their right to address the Mayor and City Council.
Rule 3. The presiding officer may request that a member of the public providing comment audibly state into the microphone, if one is present, his or her name and address before beginning
comment. If that person is representing a group or organization the presiding officer may request that the speaker identify that group or organization, including that group or organization' s Address.
Rule 4. Notwithstanding the provisions of Rule 2 and 3 above, a person shall not be required to provide their name or address as a condition of speaking.
Rule 5. Time Limits:
5. 01 Each member of the public shall have a reasonable time, not to exceed three ( 3) minutes per meeting, to address items on the agenda and items not on the agenda but within the subject matter jurisdiction of the Mayor and City Council.
5. 02 Notwithstanding the time limits set forth in subsection 5. 01 above, any member of the public desiring to provide public testimony at a public hearing shall have a reasonable time, not to exceed ( 3) minutes, to provide testimony during each public hearing.
Mayor and City Council of the City of San Bernardino Page 8 Any member of the public desiring to speak to the Mayor and City Council and the Mayor and City Council Acting as the Successor Agency to the Redevelopment Agency concerning any matter not on the agenda but which is within the subject matter jurisdiction of the Mayor and City Council and the Mayor and City Council Acting as the Successor Agency to the Redevelopment Agency may address the body at the end of the meeting, during the period reserved for public comments. Said total period for public comments shall not exceed 60 minutes, unless such time limit is extended by the Mayor and City Council and the Mayor and City Council Acting as the Successor Agency to the Redevelopment Agency. A threeminute limitation shall apply to each member of the public, unless such time limit is extended by the Mayor and City Council and the Mayor and City Council Acting as the Successor Agency to the Redevelopment Agency. No member of the public shall be permitted to "share" his/her three minutes with any other member of the public.
Speakers who wish to present documents to the governing body may hand the documents to the City Clerk at the time the request to speak is made.
The Mayor and City Council and the Mayor and City Council Acting as the Successor Agency to the Redevelopment Agency may refer any item raised by the public to staff, or to any commission, board, bureau, or committee for appropriate action or have the item placed on the next agenda of the Mayor and City Council and the Mayor and City Council Acting as the Successor Agency to the Redevelopment Agency. However, no other action shall be taken nor discussion held by the Mayor and City Council and the Mayor and City Council Acting as the Successor Agency to the Redevelopment Agency on any item which does not appear on the agenda unless the action is otherwise authorized in accordance with the provisions of subdivision (b) of Section 54954.2 of the Government Code.
Public comments will not be received on any item on the agenda when a public hearing has been conducted and closed.
Mayor and City Council of the City of San Bernardino Page 9
PUBLIC COMMENT OPTIONS
Please use ONE of the following options to provide a public comment:
1) Written comments can be emailed to [email protected]. Written public comments received up to 4:00 p.m. on the day of the meeting (or otherwise indicated on the agenda) will be provided to the Mayor and City council and made part of the meeting record. They will not be read aloud unless you require an ADA accommodation.
Please note: messages submitted via email and this page are only monitored from the publication of the final agenda until the deadline to submit public comments. Please contact the City Clerk at 9093845002 or [email protected] for assistance outside of this timeframe. 2) Attend the meeting in person and fill out a speaker slip. Please note that the meeting Chair decides the cutoff time for public comment, and the time may vary per meeting. If you wish to submit your speaker slip in advance of the meeting, please submit your request to speak using the form on the following page: https://tinyurl.com/mccpubliccomments 3) REMOTE PARTICIPATION VIA ZOOM (For public comment only meeting will not be viewable on Zoom)
a) You can use a mobile phone or a landline to dial into a Zoom meeting. i) Dial (669) 9006833. When prompted, enter the Meeting ID: 6778459453 Passcode:2023 The public may begin joining the meeting on Zoom or by callingin to be added to the speaker queue at 5:15 PM for Closed Session.
Once admitted to the Zoom Public Comment meeting to request to speak at the appropriate time:
ii) Dial *9 from your phone to raise your hand via Zoom If calling in staff will confirm the last four digits of the caller's phone number and unmute them, the caller must then press *6 to speak from their device. Callers are encouraged, but not required, to identify themselves by name. Each caller will be provided three (3) minutes to speak.
If you are calling in, please turn your volume down on your television or other devices to limit any feedback when you speak.
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8) Join the Meeting by clicking on the Zoom link below:
Mayor and City Council of the City of San Bernardino Page 10 https://us06web.zoom.us/j/6778459453?pwd=ZTkzdUJtcDMrbmFNQnVDSFhva XQxZz09 Meeting ID: 677 845 9453
Passcode:2023
You can also Go to Zoom.us and click "Join a Meeting" at the top.
Enter the Meeting ID: 6778459453
Passcode:2023
Public Hearings:
If you are commenting on a Public Hearing, please stay signed on to the Zoom session or sign on when the Public Hearing is announced. You will be prompted by staff when the item is being discussed.
CLOSED SESSION
City of San Bernardino
Request for Council Action
Date: May 17, 2023
To: Honorable Mayor and City Council Members
From: Sonia Carvalho, City Attorney
Department: City Attorney's Office
Subject: Closed Session
Recommendation:
A) PUBLIC EMPLOYEE APPOINTMENT (Pursuant to Government Code Section 54957) City Manager (Recruitment Process)
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PRESENTATIONS
City of San Bernardino
Request for Council Action
Date: May 17, 2023
To: Honorable Mayor and City Council Members
From: Helen Tran, Mayor
Department: Mayor's Office
Subject: Proclamation for National Public Works Week in the City of San Bernardino – May 21st –27th, 2023 (All
Wards)
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National Public Works Week Proclamation
May 21st –27th, 2023
“Connecting the World Through Public Works”
WHEREAS, public works professionals focus on infrastructure, facilities and services that are of vital importance to sustainable and resilient communities and to the public health, high quality of life and well-being of the people of City of San Bernardino; and,
WHEREAS, these infrastructure, facilities and services could not be provided without the dedicated efforts of public works professionals, who are engineers, managers, and employees at all levels of government and the private sector, who are responsible for rebuilding, improving, and protecting our nation’s transportation, water supply, water treatment and solid waste systems, public buildings, and other structures and facilities essential for our citizens; and,
WHEREAS, it is in the public interest for the citizens, civic leaders and children in the City of San Bernardino to gain knowledge of and to maintain an ongoing interest and understanding of the importance of public works and public works programs in their respective communities; and,
WHEREAS, the year 2023 marks the 63rd annual National Public Works Week sponsored by the American Public Works Association/Canadian Public Works Association be it now.
NOW THEREFORE BE IT RESOLVED THAT the Mayor of the City of San Bernardino, do hereby designate the week May 21st –27th, 2023 as National Public Works Week; I urge all citizens to join with representatives of the American Public Works Association and government agencies in activities, events, and ceremonies designed to pay tribute to our public works professionals, engineers, managers, and employees and to recognize the substantial contributions they make to protecting our national health, safety, and quality of life.
Presented this 17th day of May 2023
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PRESENTATIONS
City of San Bernardino
Request for Council Action
Date: May 17, 2023
To: Honorable Mayor and City Council Members
From: Helen Tran, Mayor
Department: Mayor's Office
Subject: Proclamation for National Salvation Army Week in the City of San Bernardino – May 15th – 21st, 2023 (All
Wards)
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PROCLAMATION OF
THE MAYOR & CITY COUNCIL
PROCLAIMING NATIONAL SALVATION ARMY WEEK
MAY 15TH – 21ST, 2023
WHEREAS, The Salvation Army has been serving the people of San Bernardino for more than 137 years, physically, emotionally, and spiritually; and, WHEREAS, The Salvation Army is present wherever the need is greatest, especially during times of crisis, where vulnerable citizens are more at risk of becoming homeless, hungry, addicted, or spiritually tired; and,
WHEREAS, The Salvation Army invites the people of San Bernardino to “Love Beyond” and help the organization continue to provide life-changing aid by serving those who need it most; and,
WHEREAS, it is fitting and proper on Salvation Army Week to recognize the tremendous impact of philanthropy, volunteerism, and community service in the city of San Bernardino; and,
WHEREAS, National Salvation Army Week is an opportunity to encourage citizens to serve others with their resources and time during the difficult period many of us are experiencing.
NOW THERFORE BE IT PROCLAIMED THAT the Mayor and City Council of San Bernardino herby recognize the week of May 15TH – 21ST, 2023, as National Salvation Army Week in the City of San Bernardino and encourage all citizens to join together to give back to the community in any way that is personally meaningful.
Presented this 17th day of May 2023
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APPOINTMENTS
City of San Bernardino
Request for Council Action
Date: May 17, 2023
To: Honorable Mayor and City Council Members
From: Cheryl Weeks, Council Administrative Supervisor
Department: Council Office
Subject: Public Safety and Human Relations Commission
Reappointment (Ward 2)
Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California, approve the reappointment of Ms. Sean Kelley to the Public Safety and Human Relations Commission representing Ward 2 with the term ending December 2026. Council Staff has verified that appointee is a registered voter within the City.
Background
The Public Safety and Human Relations Commission was established by Resolution No. 2018-46, on February 21, 2018, and is charged with studying and making recommendations to the Mayor and City Council on matters concerning the City’s law enforcement and fire services, emergency preparedness and traffic safety (including traffic law enforcement and traffic engineering).
The commission is comprised of nine (9) members who serve at the pleasure of the Mayor and City Council. Pursuant to Chapter 2.17 of the Municipal Code, each City Council member shall nominate one member who shall serve during and for the term of the nominating Council member, and the Mayor shall nominate two members who shall serve during and for the term of the Mayor.
2021-2025 Strategic Targets and Goals
The proposed commission appointment aligns with Strategic 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 City.
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, Packet Pg. 16
California, approve the reappointment of Ms. Sean Kelley to the Public Safety and Human Relations Commission with the term ending December 2026. Council Staff has verified that appointee is a registered voter within the City.
Attachments
Attachment 1 – Commission Application – Sean Kelley
Attachment 2 – Resolution No. 2018-46
Ward:
Second Ward
Synopsis of Previous Council Actions:
February 21, 2018 Resolution No. 2018-46 establishing the Public Safety and Human Relations Commission was adopted.
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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: May 17, 2023
To: Honorable Mayor and City Council Members
From: Charles E. McNeely, Interim City Manager;
Nathan Freeman, Agency Director of Community, Housing,
and Economic Development
Department: Community, Housing, & Economic Development (CED) Subject: Management Agreement with Local Golf Management LLC
Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California, adopt Resolution No. 2023-063, approving a Management Agreement with Local Golf Management LLC.
Background
The Shandin Hills Golf Course is owned by the City of San Bernardino and consists of three (3) parcels (APNs 0148-011-30; 0148-021-59; 0148-022-06) totaling 112.18 acres and is located at 3380 Little Mountain Drive. The Shandin Hills Golf Course was constructed between 1980 and 1986 and consists of an 18-hole golf course, an 18,409 square foot clubhouse/banquet facility and maintenance facility. The subject property is designated as Public/Commercial Recreational (“PCR”) on both the General Plan Land Use Map and on the Zoning Map.
The subject property was originally owned by the former San Bernardino Redevelopment Agency (“Agency”) and records indicate that the Agency purchased the property through three separate property transactions. The land that comprises the subject property was acquired by the Agency in order to meet the revitalization goals of the City and to alleviate the existence and spread of physical and economic blight throughout the City.
Over the years, there have been a number of operators that have managed the operations/maintenance of the golf course and the related ancillary facilities. In August 2014, the lease was assigned to CF Shandin Hills ARCIS LLC (“ARCIS”). In 2015, subsequent to the approval of the Long Range Property Management Plan, the Packet Pg. 25
Shandin Hills Golf Course was transferred from the Successor Agency to the former Redevelopment Agency of the City of San Bernardino to the City.
On April 6, 2020, the City of San Bernardino received a letter from CF Shandin Hills ARCIS, notifying the City of their intention to terminate their lease with the City within 30 days from the date of the letter. This letter was received right on the heels of the onset of the COVID 19 pandemic. Shortly thereafter, the County of San Bernardino ordered that a variety of public facilities county-wide be closed, including golf courses. Based on discussions between ARCIS and the City, ARCIS’ lease was terminated, but ARCIS agreed to manage the golf course on an interim basis while the City evaluated its long-term options for the facility.
On June 6, 2020, the City Council approved an Interim Golf Course Management Agreement (the “Interim Agreement”) between the City of San Bernardino and ARCIS for a period of 12 months. The Interim Golf Course Management Agreement afforded the City time to evaluate and determine the highest and best use of the Shandin Hills Golf Course. Staff also intended to evaluate the conditions of the entire facility to identify the costs related to deferred maintenance. On June 16, 2021, the Interim Agreement was amended to extend the term of the agreement. On August 18, 2021, ARCIS and the City entered into Amendment No. 2 to the Interim Agreement which extended the term of the agreement, increased the Management Fee paid to ARCIS, and provided for revenue sharing between ARCIS and the City.
Discussion
ARCIS has expressed its desire to terminate the Interim Management Agreement with the City at the earliest opportunity. To avoid detrimental impacts to the management of the golf course, City staff were able to negotiate one final extension with ARCIS. An essential part of ARCIS agreeing to this extension was the City’s expedited negotiations with a new management company and a further guarantee that a new management company would take over soon.
Given the need to avoid gaps in management coverage, City staff moved forward with selecting a new vendor pursuant to the fallback provision outlined in San Bernardino Municipal Code section 3.04.010(D)(3). That section provides a fallback exemption from the City’s Purchasing System for purchases approved by the Mayor and City Council. In response to ARCIS’ request, staff entered into negotiations with a new management company, Local Golf Management, LLC.
On April 28, 2023, City staff received a communication from Western Golf and Hospitality, expressing interest in offering future management services for the Shandin Hills Golf Course. Given the timing of this communication, City still recommends proceeding with the proposed Management Agreement with Local Golf Management given that the current Interim Management Agreement is set to expire on May 31, 2023.
Unless ARCIS agrees to an additional extension of time (which they have indicated that they are uninterested in doing so), this would result in the absence of a Packet Pg. 26
management operator for the Shandin Hills Golf Course. This would create a severe disruption to the services offered at the Shandin Hills Golf Course, encourage vandalism and theft, as well as a substantial loss of revenue to the City.
The new Management Agreement term is for a period of five years and contains similar terms to the previous arrangement with ARCIS. Under this new agreement, Local Golf Management is responsible for the day-to-day operations of the Shandin Hills Golf Course.
Similar to the ARCIS arrangement, the Management Fee owed to Local Golf Management is a flat monthly rate of $15,000 paid out of the revenues generated by the Shandin Hills Golf Course. In the event that revenues fall below this amount, the City will be responsible for covering the remaining amount owed. Based on analysis of previous revenues generated by the Shandin Hills Golf Course, it is not anticipated that the revenues would actually decline such that the City would need to make up the Management Fee owed to Local Golf Management.
Local Golf Management is an experienced management company with a tailored approach to match each golf course to the needs of the community it serves. Their approach is not a “one size fits all” model that caters only to golfers, but it is a purposefully fluid model that listens, adapts, and grows organically to maximize local utility and financial sustainability.
Local Golf Management is the wholly owned management arm of Preservation Golf (PG). It is built on a nimble platform that promotes client accountability, forward planning, maintenance excellence, and the professional growth of its employee partners. PG is a well-capitalized privately held golf company owned and operated by Mike Winn, Ken Arimitsu, and Lee Neibart. PG was formed in 2020 with a mission to acquire, preserve, and invigorate classic neighborhood golf courses in California. Its first acquisition was Arrowhead Country Club in San Bernardino (2020) and it has since purchased Riverlakes Ranch Golf Course in Bakersfield (2022).
Mike Winn, Local Golf Management’s Operational Manager, is an award-winning general manager. Known for his outstanding work ethics and enthusiasm, he brings the leadership and knowledge base of both a Professional Golfers Association (PGA) Class A General Manager as well as a class A Golf Course Superintendent with the Golf Course Superintendents Association of America (GCSAA). He has decades-long experience working with both institutional and private golf owners. This has engrained in him the requisite knowledge base to streamline decision making, communication, and operational accountability.
Based on Local Golf Management’s qualifications and the immediate need for a new management company, City staff recommends that an agreement be entered into with Packet Pg. 27
Local Golf Management. Local Golf Management is prepared to assume management and operations of the Shandin Hills Golf Course on June 1, 2023. This will allow for the seamless transition from the Interim Management Agreement with ARCIS and will not disrupt services.
2021-2025 Strategic Targets and Goals
The approval of the Management Agreement with Local Golf Management LLC, for the operation and maintenance of the Shandin Hills Golf Course, is consistent with Key Target No. 1: Improved Operational & Financial Capacity and Key Target No. 3:
Improved Quality of Life. The continued management of the Shandin Hills Golf Course is anticipated to generate revenue for the City and ensure that the City is able to provide opportunities for recreational activities to the public.
Fiscal Impact
The adoption of the five (5) year Golf Course Management Agreement will allow the golf course to continue to operate, generating much needed general fund revenue. From the revenue generated, the City will pay Local Golf Management $15,000 per month to maintain the golf course. The remaining revenue after operating costs are deducted will go to the City, which is anticipated to be approximately $17,000 per month.
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California, adopt Resolution No. 2023-063, approving the Management Agreement with Local Golf Management LLC.
Attachments
Attachment 1 Resolution No. 2023-063, Shandin Hills Management Agreement with Local Golf Management, LLC
Attachment 2 Local Golf Management, LLC Brochure
Attachment 3 Shandin Hills Management Agreement - Local Golf Management LLC
Attachment 4 Resolution No. 2020-123 – Interim Agreement with
ARCIS, LLC
Attachment 5 Resolution No. 2021-161 - Amendment No. 1 to Interim Agreement with ARCIS, LLC
Attachment 6 Resolution No. 2021-209 – Amendment No. 2 to Interim Agreement with ARCIS, LLC
Attachment 7 Resolution No. 2023-058 - Amendment No. 3 to Interim Management Agreement with ARCIS,
LLC
Ward:
Fifth Ward
Synopsis of Previous Council Actions:
Packet Pg. 28
June 3, 2020 Mayor and City Council adopted Resolution No. 2020-123 ratifying the Interim Golf Course Management Agreement between the City of San Bernardino and CF Shandin Hills ARCIS LLC for the Shandin Hills Golf Course.
June 16, 2021 Mayor and City Council adopted Resolution No. 2021-161 which approved the First Amendment to the Interim Agreement resulting in a 60-day term extension.
August 18, 2021 Mayor and City Council adopted Resolution No. 2021-209 which approved the Second Amendment to the Interim Agreement that extended the term of the Agreement, increased the Management Fee and provided for revenue sharing.
May 4, 2023 Mayor and City Council approved Resolution No. 2023-058, Amendment No. 3 with ARCIS, LLC extending the date of the Agreement until May 31, 2023.
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Resolution No. 2023-063
Resolution No. 2023-063
May 17, 2023
RESOLUTION NO. 2023-063
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
APPROVING A MANAGEMENT AGREEMENT BETWEEN
THE CITY OF SAN BERNARDINO AND LOCAL GOLF
MANAGEMENT LLC
WHEREAS, on April 6, 2020, the City Manager received a Termination Letter from CF Shandin Hills ARCIS LLC (“ARCIS”) informing the City that they would be terminating their lease with the City to manage and maintain the Shandin Hills Golf Course in 30 days from the date of the letter; and
WHEREAS, the termination of the golf course lease and the emergency caused by the spread of COVID-19 pandemic, created an urgent need to ensure the City’s golf course property is maintained and preserved; and
WHEREAS, on May 20, 2020, in accordance with Section 2.46.090.A.6.b., the City Manager took immediate action to execute the Interim Golf Course Management Agreement (“Interim Agreement”) to ensure the preservation of the Shandin Hills Golf Course property and to protect an important revenue stream to the City; and WHEREAS, on June 3, 2020, the Mayor and City Council Adopted Resolution No. 2020- 123 ratifying the Interim Agreement between the City and ARCIS to manage and operate the Shandin Hills Golf Course for the City; and
WHEREAS, on June 16, 2021, the Mayor and the City Council entered into Amendment No. 1 to the Interim Agreement extending the term of the Agreement for a period of 60 days to finalize the negotiations to extend the Agreement for a longer term; and WHEREAS, on August 18, 2021, the Mayor and City Council entered into Amendment No. 2 to the Interim Agreement for the purpose of extending the term of the Interim Agreement, increasing the Management Fee paid to ARCIS, and instituting revenue sharing provisions between the Parties; and
WHEREAS, ARCIS provided notice to the City that it desires to cease managing the Shandin Hills Golf Course; and
WHEREAS, ARCIS has continued to manage the Shandin Hills Golf Course on a monthto-month basis; and WHEREAS, on [***INSERT DATE***], the Mayor and City Council entered into Amendment No. 3 to the Interim Agreement to accurately reflect ARCIS’ management responsibilities from January 1, 2023 to May 31, 2023; and Packet Pg. 30
Resolution No. 2023-063
Resolution No. 2023-063
May 17, 2023
WHEREAS, in light of ARCIS’ desire to cease its management responsibilities, the City has been in the process of negotiating with Local Golf Management LLC to take over management of the Shandin Hills Golf Course; and
WHEREAS, City staff has negotiated a new management agreement with Local Golf Management LLC (the “Management Agreement”) for a term of five (5) years; and WHEREAS, Local Golf Management LLC is ready to take over management of the Shandin Hills Golf Course on June 1, 2023.
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 approves the Management Agreement, attached hereto as Exhibit “A”, and authorizes the Interim City Manager or designee to execute the Management Agreement.
SECTION 3. The Mayor and City Council hereby authorize the Finance Director to [***INSERT BUDGET ACTION HERE***] to address the commitments included in the Management Agreement.
SECTION 4. 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 5. 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 6. Effective Date. This Resolution shall become effective immediately.
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this 17th day of May 2023.
Helen Tran, Mayor
City of San Bernardino
Attest:
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Resolution No. 2023-063
Resolution No. 2023-063
May 17, 2023
Genoveva Rocha, CMC, City Clerk
Approved as to form:
Best Best & Krieger LLP, City Attorney
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Resolution No. 2023-063
Resolution No. 2023-063
May 17, 2023
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. 2023-063, adopted at a regular meeting held on the 17th day of May 2023 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 ____________ 2023.
Genoveva Rocha, CMC, City Clerk
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Why we do what we do.
The fundamental tenet that drives Local Golf Management is the belief that all golf courses should be Local. They should serve as important community touchstones -- providing invaluable open outdoor spaces, neighbourhood identity, and critical social and entertainment outlets.
Local Golf Management focuses on heightening the relevance of each of its courses to match the specific needs of the community it serves. Ours is not a “one size fits all” model that catering only to golfers, but it is a purposefully fluid model that listens, adapts, and grows organically to maximize Local utility and financial sustainability.
1 Local Golf
Management
Packet Pg. 34
Who we are.
Local Golf Management (LGM) is the wholly owned management arm of Preservation Golf. It is built on a nimble platform that promotes client accountability, forward planning, maintenance excellence, and the professional growth of its employee partners. LGM is committed to maintaining the highest levels of customer service & operational transparency.
Preservation Golf (PG) is a well-capitalize privately held golf company owned and operated by Mike Winn, Ken Arimitsu, and Lee Neibart. PG was formed in 2020 with a mission to acquire, preserve, and invigorate classic neighbourhood golf courses in California. Its first acquisition was Arrowhead Country Club in San Bernardino (2020) and it has since purchased Riverlakes Ranch Golf Course in Bakersfield (2022). PG has a disciplined growth strategy rooted in acquiring only those properties where PG can make a difference in the community.
Operational Leadership Mike Winn, LGM’s Operational Manager, is an award-winning general manager. Known for his outstanding work ethics and enthusiasm, he brings the leadership and knowledge base of both a PGA Class A General Manager as well as a class A Golf Course Superintendent with the GCSAA.
He has decades long experience working with both institutional and private golf owners. This has engrained in him the requisite knowledge base to streamline decision making, communication, and operational accountability. 2
Local Golf
Management
Packet Pg. 35
Organizational Chart.
Golf
Operations
• Mike Winn
• Alice Arimitsu
Food &
Beverage
• Fariel Winn
Financial &
Reporting
• Ken Arimitsu
• Patty Georges
(CPA)
3 Local Golf
Management
PRESERVATON GOLF LLC
LOCAL GOLF MANAGEMENT
Local Golf Management
3433 Parkside Drive
San Bernardino California
Contact: Mike Winn, Partner
General: (909) 882-1638
Mobile: (858) 922-5579
Email: [email protected]
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Considerations
When deciding whether to
manage a golf course, the three
basic considerations are: Market
Relevance, Property Condition, &
Can We Move the Needle.
Market Relevance
Is the golf course and
its business model
sustainable in the
market it serves?
Property
Condition
Can We Move the
Needle
4 Packet Pg. 37
Considerations
When deciding whether to
manage a golf course, the three
basic considerations are: Market
Relevance, Property Condition, &
Can We Move the Needle.
Market Relevance Property
Condition
What capital
investments need to
be addressed to
insure operational
sustainability? Does
this make sense?
Can We Move the
Needle
5 Packet Pg. 38
Considerations
When deciding whether to
manage a golf course, the three
basic considerations are: Market
Relevance, Property Condition, &
Can We Move the Needle.
Market Relevance Property
Condition
Can We Move the
Needle
A better mousetrap.
What are the
operational and
physical changes you
need to address to
make a difference?
6 Packet Pg. 39
1 MANAGEMENT AGREEMENT
This MANAGEMENT AGREEMENT (“Agreement”) is made and entered into to be effective as of June 1, 2023 (the “Commencement Date”) by and between the City of San Bernardino, California, a charter city and municipal corporation (“City”), and Local Golf Management LLC, a California limited liability company (“Manager”). City and Manager may be individually referred to as a “Party” and collectively as the “Parties”.
RECITALS
A. Manager, together with its affiliates, is engaged in the ownership, management and operation of golf courses and country clubs in the United States.
B. City is the owner of that certain real property located in San Bernardino, California, known as “Shandin Hills Golf Club” which includes an 18-hole golf course, clubhouse and other related amenities, buildings, structures and improvements related thereto, as depicted on Exhibit “A” to this Agreement (the “Facility”).
C. The Facility has previously been operated by Arcis Golf (“Prior Operator”) under an agreement with City which has expired.
D. City desires to utilize the services and expertise of Manager in the management, and operation of the Facility, and Manager desires to render such services upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, City and Manager hereby agree as follows:
ARTICLE 1 - DEFINITIONS
As used in this Agreement, terms not otherwise defined in the body of this Agreement shall have the respective meanings set forth in Exhibit “B” to this Agreement.
ARTICLE 2 - TERM OF AGREEMENT
2.1 Term. The term of this Agreement shall commence on the Commencement Date and shall continue for a period of five (5) years (the “Term”). Upon the expiration of the Term, this Agreement may continue on a month-to-month basis upon the mutual Agreement of the Parties. In the event that this Agreement continues on a month-to-month basis, the Agreement may be terminated by either Party upon sixty (60) days written notice.
ARTICLE 3 – MANAGER RESPONSIBILITIES
3.1 Grant to Manager. Except as otherwise expressly provided in this Agreement, City grants to Manager the right to manage and operate the Facility pursuant to the terms of this Agreement, and Manager agrees it will manage and operate the Facility in accordance with the approved Annual Plan, and in a manner comparable to and consistent with the management and operational practices of the Comparable Facility to the extent established in the Annual Plan and approved by City (except as otherwise set forth in this Agreement). Manager shall perform its Packet Pg. 40
2 services in a professional, timely and diligent manner. Without in any way limiting Manager’s right to manage and operate the Facility in accordance with the terms of this Agreement, Manager, subject to the approval of City and in accordance with the Annual Plan and the terms of this Agreement, shall have the authority and responsibility to: (a) implement each approved Annual Plan; (b) determine, establish, and implement the policies, standards, and schedules for the operation and maintenance of the Facility and all matters affecting customer relations; (c) hire, train, and supervise the general manager, course superintendent, and all Facility employees; (d) supervise and direct all phases of advertising, sales, marketing and business promotion for the Facility; and (e) establish payroll procedures and functions for the Facility. To the extent the foregoing duties are discussed, detailed or included in the Annual Plan, Manager will carry out such duties consistent with the Annual Plan. City agrees it will reasonably cooperate with Manager to permit and assist Manager to carry out its duties under this Agreement. Manager shall work with, and obtain any necessary approvals from, the City’s designated project manager, the City of San Bernardino City Manager, and/or the City’s designated Department Director.
3.2 Annual Plans.
3.2.1 Preparation. Manager will submit to City at least sixty (60) days in advance of each Operating Year an “Annual Plan” consisting of (a) a budget which shall include for the ensuing year estimates covering the projected revenues of the Facility (broken down on a line item basis) and the projected expenditures for (i) property operations and ordinary repairs, replacements, alterations and maintenance, (ii) Furnishings and Equipment and Operating Inventory, (iii) advertising, sales, and business promotion and (iv) employee compensation and (b) an operating/business plan for the Facility setting forth a marketing and promotions plan, a schedule of proposed golf charges, an operating schedule (which shall include hours of operation and staffing levels), a maintenance plan, and to the extent applicable, membership sales plans, membership dues and initiation fee schedules. City acknowledges that the Annual Plans and budgets and operating/business plans contained therein are estimates and will not and do not constitute a guarantee of the actual revenues or expenses of operating the Facility. The Parties understand that, as provided in Article 10, budgets for Major Capital Improvements will be treated separately and will not form part of the Annual Plans. The Annual Plan for the Initial Operating Year is attached as Exhibit “C” to this Agreement.
3.2.2 Approvals. Each Annual Plan shall be subject to the prior written approval of City, and the new Annual Plan for a given Operating Year cannot go into effect without such approval from the City’s designated project manager, the City of San Bernardino City Manager, and/or the City’s designated Department Director, such approval not to be unreasonably withheld.
It is contemplated by the Parties that the Annual Plan will be agreed upon by the Parties not later than forty (45) days following delivery of the Annual Plan by Manager to City. If City fails to advise Manager of any objections to the Annual Plan within such 45-day period, then City shall be deemed to have approved the Annual Plan as submitted. In the event of a dispute with regard to an Annual Plan, the Parties shall use good faith efforts to resolve such dispute. Pending the resolution of such dispute, Manager shall continue to manage and operate the Facility in accordance with the standards set forth in this Agreement and the most recent approved Annual Plan, as it may have been mutually amended by the Parties during the preceding year in accordance with the Agreement, at a level of expenditures comparable to those of the preceding year subject to reasonable increases in Operating Expenses requested by Manager and approved by City due to (a) Packet Pg. 41
3 increases in the number of guests using the Facility, (b) increases in Gross Revenues, or (c) other matters beyond the reasonable control of Manager (e.g., without limitation, increases in utility charges, etc.). Once approved, Manager may propose amendments or revisions to the Annual Plan to take into consideration variables or events that did not exist, or could not be anticipated by Manager, at the time the Annual Plan was prepared. Any such proposed amendments or revisions shall be submitted in writing and shall be subject to City’s prior approval. City must advise Manager of any objects to amendments/revisions to the Annual Plan within fifteen (15) days of receipt. If City fails to advise Manager of any objects to the amendments/revisions during this 15-day period, then the City shall be deemed to have approved the revisions/amendments as submitted. Further, Manager and City shall meet on a quarterly basis during the Term to review the Annual Plan, discuss the revenues and expenditures during the prior quarter, identify any discrepancies between the Annual Plan and actual expenditures, and to the extent commercially reasonable and practicable in order to permit Manager to continue operating the Facility to the standards required herein, consider potential revisions to the Annual Plan as may be necessary to address any reduced revenues or increased expenses which were not contemplated in the Annual Plan.
3.2.3 Compliance. Manager shall use its best efforts to operate the Facility in accordance with the applicable Annual Plan. If Manager reasonably anticipates that Operating Expenses will exceed amounts so budgeted in the Annual Plan for a given Operating Year, it shall promptly notify City of the same.
3.2.4 Emergency Expenditures. Notwithstanding anything in this Agreement to the contrary, in the event an emergency arises by act of God or any event or act beyond the control of Manager, or a dangerous condition exists that requires immediate repair, or a governmental directive or order is issued to City, Manager is authorized to take such actions as may in its reasonable discretion be required (including expending any funds reasonably necessary to respond to such condition or event) to the extent required by that emergency; provided, however, that Manager shall immediately notify City of the emergency situation (or governmental directive or order) and the action Manager proposes to take, or has taken (including the amount of any expenditures).
3.3 Consulting Services. Upon City’s prior written request and approval, Manager may provide to the Facility additional consulting services not contemplated by this Agreement which would not otherwise be performed in the ordinary course of day-to-day operations of the Facility, including but not limited to special legal consultation, construction and design consultation and construction supervision related to Major Capital Improvements (“Consulting Services”). Upon City’s written request for the performance of a Consulting Services project, Manager shall prepare a scope of work and budget and submit to City for review and approval.
Manager shall not commence any Consulting Services project without City’s prior approval.
3.4 Responsibilities of Manager. Without in any way limiting Manager’s right and obligation to manage and operate the Facility in accordance with and subject to the Annual Plan, Manager shall perform the following services, or cause the same to be performed for the Facility:
(a) Upon prior written approval of City, enter into contracts for the furnishing of utilities and maintenance and other services to the Facility. Manager shall ensure that any Packet Pg. 42
4 contracts comply with applicable Legal Requirements, including, but not limited to, prevailing wage and maintain insurance in forms acceptable to the City In the event that, that (i) any such contract which is for a term terminating after the next Annual Plan is due and for an aggregate cost in excess of five thousand dollars ($5,000) and is not otherwise approved via an Annual Plan shall be approved in advance by City, and (ii) in the event of a termination of this Agreement for any reason, City or City’s designee shall assume any such contracts which are then in effect and unexpired at the time of such termination and indemnify and hold harmless Manager from and against any additional obligations thereunder which may accrued after termination of this Agreement;
(b) make all repairs, decorations, revisions, alterations and improvements to the Facility as shall be reasonably necessary for maintenance of the Facility in good, safe and sanitary order, condition and repair; all such maintenance, repairs, decorations, revisions, alterations and improvements noted in this section to be Operating Expenses of the Facility; (c) incur such expenses, as Operating Expenses of the Facility, as shall be necessary for the operation and maintenance of the Facility to the quality standards contemplated by this Agreement and the Annual Plans, including without limitation incurring lease expenses for Furnishings and Equipment and costs for Operating Inventory, expenses for insurance premiums in accordance with insurance coverage required hereunder, and payment of attorney’s fees and other costs of legal compliance;
(d) maintain a level of Operating Inventory necessary to satisfy the quality standards contemplated by this Agreement and the Annual Plans and to supply the needs of the Facility and its customers;
(e) apply for, and use its commercially reasonable efforts to obtain and maintain, in addition to the liquor license described in section 3.8 below, all licenses and permits reasonably required by City (or by applicable Legal Requirements) in connection with the operation and management of the Facility, in Manager’s name; and City agrees to execute any and all applications and such other documents as shall be reasonably required and to otherwise cooperate, in all reasonable respects, with Manager in the application for, and obtaining and maintenance of, such licenses and permits;
(f) use its commercially reasonable efforts to do, or cause to be done, all such acts and things in and about the Facility as shall be reasonably necessary to comply with all Legal Requirements, and to discharge any lien, encumbrance or other charge on the Facility, including, with City’s prior written consent, hiring legal representation and paying attorney’s fees, as an Operating Expense of the Facility, as necessary to comply with Legal Requirements and defend the Facility against legal claims;
(g) maintain a method of accounting in accordance with generally accepted accounting principles consistently applied (“GAAP”) which accurately reflects the Gross Revenues and Operating Expenses and disbursements of Manager in connection with the Facility’s operations;
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5 (h) routinely inspect and report on the condition of golf course improvements, facilities and equipment;
(i) submit a 5-year Capital Improvements program plan, updated annually, to City before the end of November of each contract year;
(j) assist, as needed, in the preparation of the Master Plan for the Facility; (k) work with City in establishing realistic goals and practices in limiting golf course irrigation water consumption;
(l) allow the meeting room to be available for City meetings at no cost to City unless the room has been rented and generating revenue; (m) comply with all applicable ordinances, resolutions and local policies; and (n) comply with all applicable laws and regulations, including State-required prevailing wages, as this is a “public work,” in accordance with Labor Code Section 1770 et seq. as further described in Section 11.27 of this Agreement. Manager shall pay wages in accordance with the determination of the Director of the Department of Industrial Relations regarding the prevailing rate of per diem wages. Copies of those rates are on file with the Public Works Director and are available to any interested party upon request.
3.5 Personnel.
3.5.1 General. Subject to the Annual Plan and the terms of this Agreement, Manager shall employ all of the employees of the Facility, and all such employees shall be deemed employees of Manager and not employees of City or joint employees of City and Manager.
Manager shall recruit, hire, train, discharge, promote and supervise the management staff of the Facility (i.e., the general manager or course manager, the assistant managers, the course superintendent, department heads and other key personnel), and Manager shall supervise through the management staff the recruiting, hiring, training, discharge, promotion and work of all other employees of the Facility. For a period of one year after the date of termination of this Agreement pursuant to Section 7.1, City shall not solicit or hire as an independent contractor, agent or employee any general manager or superintendent hired or employed by Manager after the Effective Date for the Facility, without the written consent of Manager; provided however, City may solicit or hire or engage any general manager or superintendent employed at the Facility prior to the Effective Date without the consent of Manager. In the event that City is dissatisfied with the performance of any Manager personnel, the following procedure shall be followed: (i) City shall communicate any complaints regarding personnel below the rank of general manager to the general manager and shall communicate complaints regarding the general manager to Manager’s president or vice-president, and (ii) Manager shall reasonably and promptly investigate and take appropriate action, as determined by Manager, with respect to City’s complaints. The Compensation of the management staff and all other Facility employees shall be approved by City as part of the Annual Plan (or, in the event that a change in management staff occurs during an Operating Year and after the Annual Plan has been finalized, then as otherwise approved in writing by City) and be an Operating Expense of the Facility payable by City in accordance with this Agreement.
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6 3.5.2 Benefit Plans. Manager shall have the right to provide eligible employees of the Facility with profit sharing and other employee retirement benefits and disability, health and welfare benefits and other benefit plan or plans now or hereafter available to employees of Other Manager Facilities, if such benefits have been approved in the Annual Plan, and to charge the Facility with its allocable share of such Manager plan or plans.
3.5.3 Temporary Assignment of Other Manager Personnel. If Manager shall reasonably deem it advisable, and after City’s prior written approval, Manager may temporarily assign to the Facility the general manager, the head golf professional and other members of the management staff from the employees of Manager or Affiliates of Manager or from the staff of Other Manager Facilities. During such time as these employees are temporarily assigned to the Facility, all such employees will be paid their regular Compensation, and the pro-rata share of such employees’ Compensation equal to the actual time such employees worked at the Facility shall be an Operating Expense of the Facility.
3.5.4 Nondiscriminatory Treatment. Manager shall not unlawfully discriminate against any individual based on race, color, religion or religious creed, national origin, ancestry, ethnic group identification, primary language, physical disability, mental disability, medical condition, genetic information, marital status, gender, gender identity, gender expression, sex, sexual orientation, age, immigration status, citizenship or military and veteran status. Manager understands and agrees that it is bound by and will comply with all legal nondiscrimination mandates. Manager shall take commercially reasonable steps to ensure that its subcontractors, if any, comply with this Section 3.6.4.
3.6 Liquor License. Manager shall, as an Operating Expense of the Facility, obtain from Prior Operator the current liquor license issued by the State of California in Manager’s name, permitting the sale of alcoholic beverages (including beer, wine and liquor) at the Facility.
Manager, as City’s agent, shall be solely responsible for liquor sales at the Facility and agrees to comply with all requirements of the rules and regulations of the State of California governing the sale of alcoholic beverages. As an Operating Expense of the Facility, Manager shall maintain in its name (and City shall reasonably cooperate with Manager in maintaining) the liquor license(s) in good standing, pay all required fees in connection therewith, and otherwise ensure the proper right and permission to sell alcoholic beverages at the Facility. Upon the termination of this Agreement for any reason, Manager shall cooperate in all respects and take all steps necessary to effectuate the transfer of the Facility’s liquor license to City or City’s designee, at no cost to City other than ordinary regulatory fees and reasonable attorneys’ fees. From and after the termination date and continuing until the date which is six (6) months thereafter, Manager shall cooperate with City in City’s efforts to obtain its own liquor licenses (or a transfer of Manager’s liquor licenses) to serve alcoholic beverages at the Facility. Manager agrees, on the termination date, to cause Manager to enter into (or cause the holders of the current liquor licenses to enter into) mutually acceptable bills of sale, interim management agreements, concession agreements, leases and other documents reasonably relating to, among other things, the continued sale and service of alcoholic beverages at the Facility pending the transfer or issuance of all appropriate licenses and permits to City.
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7 ARTICLE 4 – INSURANCE
4.1 Coverage.
(a) Manager agrees to procure and maintain, as an Operating Expense of the Facility, at all times during the Term, the insurance set forth on Exhibit “D”:
(b) Manager shall have the right to raise the minimum amount of any insurance to be maintained with respect to the Facility under Subsections 4.1(a) above to make such coverage comparable to the amount of insurance carried with respect to Other Manager Facilities, taking into account the size, character and location of the Facility. At least sixty (60) days prior to the beginning of each Operating Year, the Party procuring such insurance will submit to the other Party a schedule setting forth any changes to the insurance pursuant to this Section to be maintained by the procuring Party during the ensuing Operating Year in connection with the Facility.
4.2 Policies and Endorsements.
4.2.1 Policies. All insurance coverage provided for under Section 4.1 above shall be secured through policies issued by insurance companies of good reputation and of sound and adequate financial responsibility which are approved to do business in the State of California. The Party procuring such insurance shall deliver to the other Party all of the policies of insurance so procured, naming the other Party as an additional insured, and in the case of insurance about to expire, shall deliver certificates of insurance with respect to renewal policies not less than ten (10) days prior to the respective dates of expiration.
4.2.2 Endorsements. All policies of insurance provided for under this Article 4 shall, to the extent obtainable, have attached an endorsement that such policy shall not be cancelled or materially changed without at least thirty (30) days prior written notice to City and Manager. All insurance policies required under Section 4.1 shall contain an endorsement to the effect that such insurance shall be primary and non-contributory to any similar insurance that may be carried by the other Party.
4.3 Waiver of Subrogation. Neither Manager nor City shall assert against the other, and Manager and City hereby waive with respect to each other, any claims and rights of recovery for any losses, damages, liability or expenses (including attorneys’ fees) incurred or sustained by either of them on account of injury to persons or damage to property arising out of the ownership, operation and maintenance of the Facility, to the extent that the same are covered by the insurance required under this Article 4. City and Manager hereby grant to each other, on behalf of any insurance company providing insurance under this Agreement, a waiver of any right of subrogation which any insurer or party may acquire against the other party by virtue of payment of any loss under any insurance policy. City and Manager shall give notice to the insurance companies providing insurance under this Agreement of the mutual waiver of subrogation contained in this Section 4.3, and City and Manager shall cause each such insurance company to provide a written subrogation waiver indicating that such insurance company waives all right of recovery by way of subrogation which such insurance company may acquire against City or Manager (as the case may be) and their insurance companies.
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8 ARTICLE 5 - MANAGEMENT FEES
5.1 Management Fee. In consideration of Manager’s services during the Term, City shall pay to Manager a “Management Fee” equal to One Hundred Eighty Thousand Dollars ($180,000.00) per year, payable in twelve (12) monthly installments of $15,000.00. The Management Fee shall be paid to Manager in accordance with Section 5.2 of this Agreement. The Management Fee shall be increased annually by CPI.
5.2 Payment Schedule. City shall pay Manager the Management Fee in advance, no later than five (5) days following the first day of each month during the Term. City shall permit and hereby authorizes Manager to pay to Manager, from the Operating Account, the Management Fee and other fees and expenses which are legally due and owing hereunder.
ARTICLE 6
BANK ACCOUNTS; WORKING FUNDS;
RECORDS AND REPORTS; MANAGER PROPERTY
6.1 Bank Accounts. In connection with operation and management of the Facility, the following bank accounts shall be established by City and Manager in a bank or banks approved by City, and shall be subject to City’s control, audit and inspection (the “Bank Accounts”):
6.1.1 City Account and Operating Account. Manager shall establish a bank account for the Facility at a banking institution or institutions approved by City, such account to be in City’s name, and individuals designated and approved by City and Manager shall be signatories on the account (the “Operating Account”). Manager will collect, receive and deposit into the Operating Account all monies received by Manager from the operation of the Facility. City shall deposit all funds required to be furnished by City as working capital funds under Section 6.3 of this Agreement into the Operating Account, and Manager will disburse those monies from the Operating Account only for the purposes set forth in this Agreement. Notwithstanding the provisions of the foregoing, Manager shall be entitled to maintain funds in reasonable amounts in “cash register banks” or in petty cash funds at the Facility but Manager shall not open any other bank accounts related to the Facility except for the Operating Account. All records and bank statements shall be subject to access and inspection by City pursuant to the terms recited herein.
All Gross Revenues of the Facility shall be collected, received and deposited by Manager exclusively through the Operating Account. Upon termination of this Agreement for any reason, any funds remaining in the Operating Account after payment of all final expenses, costs and obligations of the Facility incurred during the Term shall be paid to City.
6.2 Expenditures. Manager is authorized to pay, from the Operating Account such amounts at such times as are required in connection with the ownership, operation, maintenance, repair, and improvement of the Facility and related facilities and Manager’s performance under this Agreement in accordance with the approved Annual Plan, subject to the provisions of this Agreement, including but not limited to all amounts specifically payable to or reimbursable to Manager hereunder.
6.3 Account Funding. City shall deposit into the Operating Account all funds required for Manager to operate and maintain the Facility in accordance with this Agreement and Packet Pg. 47
9 the Annual Plans, including, without limitation, funds for Manager to timely fund Operating Deficits, if any. Upon execution of this Agreement, City shall cause the working capital sum established in the Annual Plan for the Initial Operating Year (the “Working Capital Amount”) to be deposited into the Operating Account as initial working capital for the Facility. On the first day of each month during the Term, Manager shall notify City of the total funds then in the Operating Account, and within seven (7) business days following such notification, City shall deposit additional funds into the Operating Account in the amount required to bring the Operating Account balance to an amount necessary to pay the projected Operating Expenses for the upcoming month, which amount Manager shall request along with a detailed accounting of the projected Operating Expenses for the upcoming month. Manager shall not, under any circumstance, be required to, or be deemed to have any duty to, advance any of its own funds for the operation of the Facility. Manager shall analyze all bills received for services, work and supplies in connection with maintaining and operating the Facility. Manager shall pay, on behalf of City, all such bills in accordance with the Annual Plan as and when the same shall become due and payable. If there are insufficient funds in the Operating Account to make any payment, Manager shall promptly notify City prior to any delinquency so that City shall have an opportunity to transfer sufficient funds for Manager to make such payment prior to the imposition of any penalty or late charge as provided herein. In the event that Manager should advance any of its own funds for the operation of the Facility due to the failure of City to timely fund the Working Capital Amount as required hereunder, or to make any other payment to Manager required hereunder, Manager shall be entitled, without any further approval or authorization of City, to reimburse itself for such advances, from the Operating Account upon funding of the Operating Account by City; provided, however, that in such situation Manager shall notify City in writing of such reimbursement.
6.4 Accounting Procedures.
6.4.1 Inspection and Disclosure of Records. Upon advance written notice to Manager setting forth the time of inspection and records to be inspected during normal business hours, City or its authorized auditors and representatives shall have access to and the right to audit and reproduce any of Manager’s records to the extent City deems necessary to ensure City is receiving all monies to which City is entitled under this Agreement or for other purposes relating to this Agreement. Manager acknowledges that the City must comply with the California Public Records Act (Cal. Gov. Code §§ 6250 et seq.). Accordingly, any and all records required to be provided to City under this Agreement are subject to public disclosure at any time, without notice, pursuant thereto, including but not limited to this Agreement in its entirety.
6.4.2 Records Preservation. Manager shall maintain and preserve all such records for a period of at least three (3) years after termination of this Agreement. Upon termination of the Agreement, Manager shall transfer currently maintained records to the City.
6.5 No Default due to Lack of Funds. If Manager is unable to perform any of its agreements or covenants under this Agreement because of the failure on the part of City to provide the funds pursuant to Section 6.3, such failure of performance on the part of Manager shall not be deemed a default on the part of Manager and shall not give rise to any right of termination, damages or any other remedy against Manager, unless the failure to provide the funds is due to the Packet Pg. 48
10 occurrence of a breach of this Agreement by Manager or the gross negligence, willful misconduct or fraud by Manager.
6.6 Books and Records. Manager shall keep full and accurate books of account and such other records as are necessary to reflect the results of the operation of the Facility. For this purpose, City agrees it will make available to Manager, or Manager’s representatives, all books and records in City’s possession relating to the Facility, including contract documents, invoices and construction records. All books and records for the Facility shall be located at the Facility.
6.7 Reports to City. Manager will deliver, or will cause to be delivered, to City the following forecasts and statements:
(a) within twenty (20) days after the end of each calendar month, an update to the Annual Plan together with monthly and year-to-date financial statements which shall include a balance sheet, a profit and loss statement (on an accrual basis) showing the results of operation of the Facility for such month and for the year to date; and (b) within sixty (60) days after the end of each Operating Year, financial statements, including a balance sheet, a profit and loss statement and actual versus budget comparison showing the results of operation of the Facility for such year (it being understood and agreed that such annual statement will reflect the annual Management Fee paid to Manager, calculated as provided in Article 5).
6.8 Accounting Firm; Audit. Manager shall, if requested by City, but not more than one time during a twelve month period, hire an independent certified public accounting firm selected by City to audit the financial statements required under this Agreement and/or all other records or written materials used by Manager in generating the financial statements or perform agreed upon procedures requested by City. Manager shall promptly furnish all documents requested by City, train the accounting firm with respect to the use and application of Manager’s accounting software and supervise the work of the accounting firm. All fees and charges of the accounting firm shall be an Operating Expense of the Facility.
6.9 Manager Accounting Software; Other Personal Property Owned by Manager. The Parties acknowledge and understand that the accounting software used at the Facility is owned or licensed or leased by Manager, and City shall have no rights or interests in such software. Upon the expiration or earlier termination of this Agreement, the accounting software and other personal property at the Facility owned by Manager shall be removed from the Facility by Manager within thirty (30) days of such expiration or termination; provided, however, the financial data of and related exclusively to the Facility shall remain the property of City.
Manager shall transfer such data to the City during this 30-day period.
ARTICLE 7 - TERMINATION RIGHTS
7.1 Termination by City. City shall have the right to terminate this Agreement upon the occurrence of any one of the following events:
(a) Manager fails to keep, observe or perform any material covenant, agreement, term or provision of this Agreement, to be kept, observed or performed by Manager, Packet Pg. 49
11 and such default continues for a period of thirty (30) days after written notice of such default by City to Manager; or
(b) (i) Manager applies for or consents to the appointment of a receiver, trustee or liquidator of Manager or of all or a substantial part of its assets; (ii) Manager files a voluntary petition in bankruptcy or commences a proceeding seeking reorganization, liquidation, or an arrangement with creditors; (iii) Manager files an answer admitting the material allegations of a bankruptcy petition, reorganization proceeding, or insolvency proceeding filed against Manager; (iv) Manager admits in writing its inability to pay its debts as they come due; (v) Manager makes a general assignment for the benefit of creditors; or (vi) an order, judgment or decree is entered by a court of competent jurisdiction, on the application of a creditor, adjudicating Manager a bankrupt or insolvent or approving a petition seeking reorganization of Manager or appointing a receiver, trustee or liquidator of Manager or of all or a substantial part of its assets, and such order, judgment or decree continues unstayed and in effect for any period of sixty (60) consecutive days.
City’s right to terminate pursuant to this Section 7.1 shall be exercised upon thirty (30) days additional written notice to Manager given at any time after the applicable cure period has expired. City’s termination notice shall specify the effective date of such termination.
7.2 Termination by Manager. Manager shall have the right to terminate this Agreement upon the occurrence of any one of the following events:
(a) City fails to keep, observe, or perform any other material covenant, agreement, term or provision of this Agreement to be kept, observed or performed by City, and such default continues for a period of thirty (30) days after notice of such default by Manager to City; or
(b) (i) City applies for or consents to the appointment of a receiver, trustee or liquidator of City or of all or a substantial part of its assets; (ii) City files a voluntary petition in bankruptcy or commences a proceeding seeking reorganization, liquidation, or an arrangement with creditors; (iii) City files an answer admitting the material allegations of a bankruptcy petition, reorganization proceeding, or insolvency proceeding filed against City; (iv) City admits in writing its inability to pay its debts as they come due; (v) City makes a general assignment for the benefit of creditors; or (vi) an order, judgment or decree is entered by a court of competent jurisdiction, on the application of a creditor, adjudicating City a bankrupt or insolvent or approving a petition seeking reorganization of City or appointing a receiver, trustee or liquidator of City or of all or a substantial part of the assets of City, and such order, judgment or decree continues unstayed and in effect for any period of sixty (60) consecutive days;
Manager’s right to terminate pursuant to this Section 7.2 shall be exercised upon thirty (30) days additional written notice to City given at any time after the applicable cure period has expired. Manager’s termination notice shall specify the effective date of such termination.
7.3 Curing Defaults. Any default by Manager or City under the provisions of Section 7.1 or 7.2, as the case may be, which is susceptible of being cured shall not constitute a basis for termination of this Agreement if the nature of such default shall not permit it to be cured within the cure period allotted; provided that within such cure period the alleged Party in default Packet Pg. 50
12 shall have given notice of its intent to cure, has commenced to cure such default, and is proceeding to complete the cure in good faith and with reasonable diligence by a date which is not more than six (6) months after the date of notice of default.
7.4 Effect of Termination. The termination of this Agreement under the provisions of this Article 7 shall not affect the rights of the terminating Party with respect to pursuing any remedies available to it including pursuing specific performance and/or the collection of damages it has suffered as a result of any breach of this Agreement, nor shall it affect the rights of either Party with respect to any liability or claims accrued, or arising out of events occurring, prior to the date of termination. Should either Party hereto institute any action or proceeding in court to enforce any provision hereof or for damages by reason of any alleged breach of any provision of this Agreement or for any other judicial remedy, the prevailing Party shall be entitled to receive from the losing Party all reasonable attorneys’ fees and costs incurred in connection with said proceeding.
7.5 Remedies Cumulative. Neither the right of termination, nor the right to sue for damages, nor any other remedy available to a Party under this Agreement shall be exclusive of any other remedy given under this Agreement or now or hereafter existing at law or in equity.
7.6 Indemnification for Post-Termination Events. City shall indemnify and hold harmless Manager and its owners, officers, directors, and employees from all costs, expenses, claims, damages, and liabilities arising or resulting from the failure of City following the expiration or earlier termination (for whatever cause) of this Agreement to fulfill its legal obligations to assume and provide any tournaments, banquets, meetings, and other group functions to be held at the Facility (collectively, “Events”) contracted for by Manager prior to such expiration of termination of the Agreement pursuant to its rights and obligations under this Agreement (or contracted for prior to the Commencement Date), which Events are to be provided after the expiration or termination of this Agreement, provided that, on or before termination of the Agreement, Manager has paid to City an amount equal to all deposits received from clients for reservation of such Events.
7.7 Transition. Upon the proper termination of this Agreement, City and Manager shall cooperate, in good faith, to ensure an orderly transition of the management and operation of the Facility from Manager to City.
7.7.1 Licenses and Permits. Upon termination of this Agreement, Manager shall, at no cost to Manager and City, if possible (and if not possible to do so at no cost to either Party, then at City’s cost), transfer any and all licenses and permits which are in Manager’s name to City or City’s designated new operator, and/or assist City or City’s designated new operator in obtaining new licenses and permits as necessary.
ARTICLE 8 - ASSIGNMENT
8.1 Assignment.
8.1.1 Prohibited Assignments. Except as provided in Sections 8.1.2 and 8.1.3, neither Party shall assign this Agreement without the prior written consent of the other Party, which shall not be unreasonably withheld, delayed or conditioned. It is understood and agreed that Packet Pg. 51
13 any consent granted by a Party to any such assignment shall not be deemed a waiver of any consent required under this Section 8.1.1 as to any future assignment.
8.1.2 Permitted Assignment by Manager. Manager shall have the right, without the consent of City, to assign this Agreement to any Affiliate of Manager or in connection with the sale of all or a substantial portion of Manager’s assets by providing notice to City, provided that the Affiliate or purchaser of Manager’s assets expressly assumes all of Manager’s obligations hereunder, and further provided that in the event of a sale of all or a substantial portion of Manager’s assets to a third party, City shall have the right but not the obligation to terminate this Agreement with thirty (30) days written notice to Manager.
8.1.3 Permitted Assignment by City. City shall have the right, without the consent of Manager, to assign this Agreement to any Affiliate or to any third party in connection with the sale of the Facility, provided that the Affiliate, assignee or transferee (as applicable) expressly assumes all of City’s obligations hereunder, and further provided that in the event of a sale of the Facility to a third party, Manager shall have the right but not the obligation to terminate this Agreement upon fifteen (15) days advance written notice to both City and its assignee.
8.1.4 Remedies. Any assignment by either Party of this Agreement in violation of the provisions of this Section 8.1 shall be null and void and shall result in a termination of this Agreement. In addition to any other remedies available to the Parties, the provisions of this Section 8.1 shall be enforceable by injunctive proceeding or by a suit for specific performance.
8.2 Successors and Assigns. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the Parties and their respective heirs, legal representatives, successors and assigns.
ARTICLE 9 - DAMAGE OR DESTRUCTION; EMINENT DOMAIN
9.1 Damage or Destruction. Should the Facility be destroyed or substantially damaged by fire or other casualty, City, by written notice to Manager given within sixty (60) days following the occurrence of such event, shall have the right to terminate this Agreement, and in such event neither Party shall have any further obligation to the other Party under this Agreement, except with respect to liabilities accruing, or based upon events occurring, prior to the effective date of such termination. For the purpose of this Section 9.1, the Facility shall be deemed to have been substantially damaged if, in the reasonable opinion of City, full and productive economic use of the Facility cannot be made and the estimated length of time required to restore the Facility substantially to its condition and character just prior to the occurrence of such casualty shall be in excess of six (6) months. If this Agreement is not terminated in the event of damage to the Facility because the damage does not amount to substantial damage as described above, then City shall proceed with all due diligence to commence restoration of the Facility , but only to the extent that City has received insurance proceeds in connection with such damage or destruction.
9.2 Eminent Domain. If all of the Facility or premises (or such a substantial portion of the premises so to make it unfeasible, in the reasonable opinion of City, to restore and continue to operate the remaining portion of the premises for the purposes contemplated in this Agreement) shall be taken through the exercise (or by agreement in lieu of the exercise) of the Packet Pg. 52
14 power of eminent domain, then upon the date that City shall be required to surrender possession of the premises or of that substantial portion of the premises, this Agreement shall terminate and neither Party shall have any further obligation to the other Party under this Agreement except with respect to liabilities accruing, or based upon events occurring, prior to the effective date of such termination. If such taking of a portion of the Facility shall not make it unfeasible, in the reasonable opinion of City, to restore and continue to operate the remaining portion of the premises for the purposes contemplated in this Agreement, then this Agreement shall not terminate, and City shall proceed to repair any damage to the Facility, but only to the extent that City has received compensation in connection with such taking.
ARTICLE 10 - MAJOR CAPITAL IMPROVEMENTS
Any Capital Improvement involving an addition to the Facility or renovation or refurbishing designed to upgrade or change the nature or image of the Facility, which costs more than $25,000 in the aggregate, shall be deemed to be a “Major Capital Improvement.” Any Major Capital Improvement project is in City’s sole control and discretion, and all costs and expenses of any Major Capital Improvement shall be paid solely by City. The Parties acknowledge and agree that this Agreement imposes no responsibilities or obligations on the part of Manager with respect to any aspect of a Major Capital Improvement project, including design, construction, or supervision.
ARTICLE 11 - GENERAL PROVISIONS
11.1 Purchases by Manager. Manager shall use reasonable efforts to obtain the optimum combination of quality, price and terms for all purchases for the Facility utilizing its extensive contacts and experience in purchasing golf course related items.
11.2 Purchases from Manager Affiliates. If any purchases of goods or services for the Facility are made from or through an Affiliate of Manager, the charges to the Facility for such goods or services shall be on the same terms as those made to Other Manager Facilities, and such charges shall not exceed the market prices for such goods and services.
11.3 Indemnities.
11.3.1 Manager’s Indemnity. Manager agrees to indemnify, protect, defend and hold harmless City and City’s officials, officers, and employees from and against any and all claims, demands, actions, lawsuits, proceedings, damages, liabilities, judgments, penalties, fines, attorneys’ fees, costs, and expenses:
(a) which result from any act or omission constituting gross negligence or willful misconduct or fraud by Manager or any Affiliate, officer, director, agent, independent contractor, or employee of Manager in connection with Manager’s performance under this Agreement or under the Annual Plans; or
(b) which result from any action taken by Manager or its Affiliates, employees or agents relating to the Facility (i) that is expressly prohibited by this Agreement or by any Annual Plan (unless an exception to the Annual Plan was approved by City or is otherwise permitted herein), or (ii) that is not within Manager’s delegated authority under this Agreement or Packet Pg. 53
15 under any Annual Plan (unless an exception to the Annual Plan was approved by City or is otherwise permitted herein).
Manager’s indemnity obligations under this Section 11.3.1 shall not apply to any acts or omissions taken (or in the case of omissions, not taken) to the extent they are at the express direction or with the express approval of City, or to the extent any acts or omissions taken (or in the case of omissions, not taken) constitute gross negligence or willful misconduct by City, unless such act or omission constitutes gross negligence or willful misconduct or fraud on the part of any employee of Manager.
11.3.2 City’s Indemnity. City agrees to indemnify, protect, defend, and hold harmless Manager and its owners, officers, directors, and employees from and against any and all claims, demands, actions, lawsuits, proceedings, damages, liabilities, judgments, penalties, fines, attorneys’ fees, costs and expenses relating to the Facility, or the operations thereof:
(a) To the extent resulting from any act or omission by Manager in connection with the management and operation of the Facility (i) that is expressly authorized by this Agreement, or (ii) that is within the scope of Manager’s duties under this Agreement, or (iii) that is within Manager’s delegated authority under this Agreement, or (iv) that was at the express direction or with the express approval of City, unless and to the extent that such act or omission constitutes gross negligence or willful misconduct or fraud on the part of any employee of Manager (and was neither at the express direction of City nor with the express approval of City) in which event Manager shall not be indemnified, protected, defended or held harmless under this Section 11.3.2.
11.4 Facility Names. The Facility shall be known by such trade names and/or trademarks or logos as may from time to time be determined by City. All names, logos and designs used at the Facility shall be the exclusive property of City; provided, however, during the term of this Agreement Manager shall have a non-exclusive license to use such names, logos and designs in connection with the operation of the Facility. Manager may identify the Facility as a golf course managed and operated by Manager.
11.5 Notices. All notices, demands, requests, consents, approvals, replies and other communications (“Notices”) required or permitted by this Agreement shall be in writing and may be delivered by any one of the following methods: (a) by personal delivery; (b) by deposit with the United States Postal Service as certified or registered mail, return receipt requested, postage prepaid to the addresses stated below; or (c) by deposit with an overnight express delivery service.
Notice deposited with the United States Postal Service in the manner described above shall be deemed effective three (3) business days after deposit with the Postal Service. Notice by overnight express delivery service shall be deemed effective one (1) business day after deposit with the express delivery service. Notice by personal delivery shall be deemed effective at the time of personal delivery. Notice also may be given by means of e-mail; provided, however, that in order for an e-mail Notice to be deemed effective, the Party giving notice by e-mail shall provide a “hard copy” of the e-mail Notice thereafter to the other Party pursuant to one of the three methods of “hard copy” delivery specified in this Section.
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16 For purposes of Notices hereunder, the address of City shall be:
City of San Bernardino, California
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attention: City Manager
With a copy to:
City Attorney
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
For purposes of Notices hereunder, the address of Manager shall be:
Local Golf Management LLC
3433 Parkside Dr.
San Bernardino, California 92404
Attention: Ken Arimitsu
With a copy to:
Addison Law Firm
5429 LBJ Freeway, Suite 400
Dallas, Texas 75240
Attention: Timothy J. Clow
Each Party shall have the right to designate a different address within the United States of America by the giving of notice in conformity with this Section 11.5.
11.6 No Partnership or Joint Venture. Nothing contained in this Agreement shall be construed to be or create a partnership or joint venture between City and its successors and assigns, on the one part, and Manager and its successors and assigns, on the other part. Manager shall perform all activities hereunder as an independent contractor, and no employer-employee or principal-agent relationship shall be established by this Agreement or the performance hereof.
11.7 Modification and Changes. This Agreement may be amended or modified only by a writing signed by both Parties.
11.8 Understandings and Agreements. This Agreement constitutes all of the understandings and agreements of whatever nature or kind existing between the Parties with respect to Manager’s management and operation of the Facility.
11.9 Headings. The Article, Section and Subsection headings contained in this Agreement are for convenience and reference only and are not intended to define, limit or describe the scope or intent of any provision of this Agreement.
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17 11.10 Consents. Each Party agrees that it will not unreasonably withhold any consent or approval requested by the other Party pursuant to the terms of the Agreement, and that any such consent or approval shall not be unreasonably delayed or qualified. Similarly, each Party agrees that any provision of this Agreement which permits such Party to make requests of the other Party shall not be construed to permit the making of unreasonable requests.
11.11 Survival of Covenants. Any covenant, term or provision of this Agreement which in order to be effective must survive the termination of this Agreement shall survive any such termination.
11.12 Third Parties. None of the obligations under this Agreement of either Party shall run to or be enforceable by any Party other than the Parties to this Agreement or by a Party deriving rights under this Agreement as a result of an assignment, subordination or similar agreement permitted pursuant to the terms hereof.
11.13 Waivers. No failure by Manager or City to insist upon the strict performance of any covenant, agreement, term or condition of this Agreement or to exercise any right or remedy consequent upon the breach of this Agreement shall constitute a waiver of any such breach or any subsequent breach of the same covenant, agreement, term or condition. No covenant, agreement, term or condition of this Agreement and no breach of this Agreement shall be waived, altered or modified except by a written instrument. A waiver of any breach of this Agreement shall only affect this Agreement to the extent of the specific waiver, and all covenants, agreements, terms and conditions of this Agreement shall continue in full force and effect.
11.14 Applicable Law; Venue. This Agreement shall be construed and interpreted in accordance with, and shall be governed by, the laws of the State of California. Venue for any action relating to this Agreement shall be properly in San Bernardino County.
11.15 No Presumption Regarding Drafter. City and Manager acknowledge and agree that the terms and provisions of this Agreement have been negotiated and discussed between City and Manager, and that this Agreement reflects their mutual agreement regarding the subject matter of this Agreement. Because of the nature of such negotiations and discussions, it would be inappropriate to deem either City or Manager to be the drafter of this Agreement, and therefore no presumption for or against the drafter shall be applicable in interpreting or enforcing this Agreement.
11.16 Enforceability of Any Provision. If any term, condition, covenant, or obligation of this Agreement shall be determined to be unenforceable, invalid, or void, such determination shall not affect, impair, invalidate, or render unenforceable any other term, condition, covenant, or obligation of this Agreement.
11.17 United States Currency. All amounts payable pursuant to this Agreement shall be paid in lawful money of the United States of America.
11.18 Counterparts. This Agreement and any amendment may be executed in counterparts, and upon all counterparts being so executed each such counterpart shall be considered as an original of this Agreement or any amendment and all counterparts shall be considered together as one agreement. A signed copy of this Agreement transmitted by fax or Packet Pg. 56
18 email to either of City or Manager shall be deemed to have the same legal effect as delivery of an original executed copy of this Agreement for all purposes. This Agreement and any amendment may be executed using an electronic signature.
11.19 Gender and Number. Whenever appropriate in this Agreement, the singular shall be deemed to refer to the plural and the plural to the singular, and pronouns of certain gender shall be deemed to include either of both of the other genders.
11.20 Further Assurance. City and Manager agree that at any time or from time to time after the execution of this Agreement, each shall, upon the request of the other, execute and deliver such further documents and do such further acts and things as such Party may reasonably request in order to fully effect the purpose of this Agreement.
11.21 Waiver of Jury Trial. The Parties hereby waive trial by jury in any action, proceeding, or counterclaim brought by either of the Parties hereto on any matter whatsoever arising out of or in any way connected with this Agreement.
11.22 Conflict of Interest. City acknowledges that an affiliate of Manager owns and operates the Comparable Facility and City hereby waives any claim that such ownership and operation violates City’s conflict of interest code or policy. Nothing contained in this Agreement shall be construed to restrict or prevent, in any manner, any Party or any Party’s affiliates, parent corporation or representatives or principals from engaging in any other businesses or investments.
11.23 Force Majeure. Neither City nor Manager shall be responsible for delays or failures in performance resulting from acts beyond the control of either Party. Such acts shall include but are not be limited to acts of God, riots, acts of war, epidemics, fire, earthquakes, or other disasters.
11.24 Taxes. Manager shall be liable for and agrees to pay promptly and prior to delinquency, at its own expense and not as an Operating Expense of the Facility, any tax or assessment which may be levied by any governmental authority solely against Manager, related to Manager’s corporate existence or corporate operations, separate and independent from any taxes which are levied by any governmental authority and related to the ownership, operation or possession of the Facility, which shall be Operating Expenses of the Facility.
11.25 Exclusive Negotiating Period. As additional consideration for the execution of this Agreement, until the date provided for in this Section, City shall not, directly or indirectly, negotiate, initiate, solicit or encourage any inquiries or the making or implementation of any proposal or offer with any person or entity other than Manager regarding the development or re-development of the Facility or any portion thereof, or solicit or entertain bids or proposals to do so. For purposes of this Section, the term “Manager” shall mean Manager as of the date of this Agreement or an entity formed by Manager, in which Manager is a general partner or administrative member or managing member, for the purpose of developing or re-developing the Facility. Manager acknowledges, however, that City may, from time to time, be contacted by other developers regarding the Facility and that such contact is permitted so long as City does not initiate the contact and indicates to such other developers that City has executed this Agreement with Manager and that City is unable to discuss negotiations with Manager, or entertain any offer or Packet Pg. 57
19 proposals, or to negotiate with any other developer with respect to the Facility, until this Exclusive Negotiating Period expires or the Agreement is terminated. City will cause its directors, officers, employees, agents and other representatives to comply with this Section 11.25. During the final year of the Term of this Agreement, City and Manager shall negotiate potential terms of an Agreement extension. If the City and Manager have not agreed to a contract extension by October 1, 2027, then the Exclusive Negotiating Period outlined in this Section shall end and the City shall be free to negotiate, initiate, solicit or encourage with any person or entity regarding the Facility.
Notwithstanding the foregoing, this Section shall not include the negotiation for Major Capital Improvements as further described in Article 10 of this Agreement.
11.26 Independent Entity. City recognizes and acknowledges that Manager is an independent entity, chartered under the laws of the State of California, to whom City will solely look and who is solely responsible for the obligations and liabilities of Manager related to the transactions contemplated hereby. City further recognizes and acknowledges that no other entity or entities, including any individual or any entity affiliated with Manager, is in any manner liable or responsible for the obligations and liabilities of Manager related to the transactions contemplated hereby. City agrees that the parent or affiliated entities of Manager may form, organize, provide services to, provide loans and funds to, negotiate for, provide personnel to, make representations on behalf of, and from time to time take actions on behalf of or for the benefit of Manager by direct dealings with City or those acting for it, and that any such actions shall be deemed to be the actions of Manager and not of the affiliate, even if the affiliate is paid a fee by Manager.
11.27 Benefit of Shandin Hills Golf Club. City and Manager agree that any actions taken by Manager under this Agreement shall be for the sole benefit of the operations of the Shandin Hills Golf Club and not in furtherance of other golf courses that are managed in Manager within the City’s jurisdiction. To that extent, City and Manager agree to expressly to deal with each other honestly, fairly and in good faith in all respects in furtherance of their mutual performances with respect to this Agreement. In the interest of transparency, Manager agrees to allow City to inspect certain records related to Manager’s operations at other golf courses within the City’s jurisdiction. Such requests may not occur more than once per year.
11.28 Prevailing Wage. Manager is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, Manager agrees to fully comply with such Prevailing Wage Laws, if applicable. It shall be mandatory upon the Manager and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1).
If the Services are being performed as part of an applicable “public works” or “maintenance” Packet Pg. 58
20 project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Manager and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Manager shall maintain registration for the duration of the Project and require the same of any subcontractors, as applicable. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Manager’s sole responsibility to comply with all applicable registration and labor compliance requirements. [REMAINDER OF PAGE IS INTENTIONALLY BLANK]
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21 IN WITNESS WHEREOF, the Parties have executed or caused this Agreement to be executed effective as of the day and year first written above. “CITY”
CITY OF SAN BERNARDINO, CALIFORNIA
Approved By:
By:
Name:
Title:
Attested By:
By:
Name:
Title:
Approved as to Form:
By:
Name:
Title:
“MANAGER”
LOCAL GOLF MANAGEMENT LLC
By:
Name:
Title:
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22 EXHIBIT A
FACILITY MAP
(See Attached)
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23 Packet Pg. 62
24 EXHIBIT B - DEFINITIONS
Affiliate means any and all corporations, partnerships, trusts, limited liability companies and other entities directly or indirectly controlled by, controlling, or subject to direct common control of an entity or person.
Capital Improvements means any alteration or addition to, or rebuilding or renovation of, the Facility which is considered a capital expenditure under GAAP, the cost of which is not charged to ordinary property operations, repair, replacement, alteration and/or maintenance.
Community Special Events means hosting a variety of golf and non-golf events such as movie nights, 4th of July, concerts at the course, food/beverage tastings, 5k or 10k runs, tournaments, disc golf, foot golf and youth activities/programs.
Comparable Facility means Arrowhead Country Club in San Bernardino, California.
Compensation means the direct salaries and wages paid to or accruing for the benefit of any manager or other employee, together with all fringe benefits payable to or accruing for the benefit of such manager or other employee, including employer’s contribution under the Federal Insurance Contributions Act (“FICA”); unemployment compensation, or other employment taxes; pension fund contributions, worker’s compensation, group life and accident and health insurance premiums as well as any payments made by Manager which fall within the deductible amounts of any such policies; profit sharing; retirement; disability; and other similar benefits but only to the extent established in the Annual Plan and approved by City or otherwise approved by City as set forth in Section 3.6.1.
CPI means The United States Department of Labor, Bureau of Labor Statistics, All Items Consumer Price Index for All Urban Consumers (all items for Riverside, San Bernardino, Ontario, California on the basis of 1982 - 1984 equals 100). Notwithstanding the foregoing, if the format or components of the CPI are materially changed after the date hereof, then City and Manager shall mutually agree to a substitute index which is published by the Bureau of Labor Statistics or similar agency and which is most nearly equivalent to the CPI in effect as of the date hereof.
Furnishings and Equipment means all furniture, furnishings, trade fixtures, apparatus and equipment, including golf course maintenance vehicles and equipment, golf carts, driving range pickers and pullers, mats, buckets, cash registers, rental golf clubs, ball washers, benches, uniforms, and other personal property used in or held in storage for use in the operation of the Facility, other than Operating Inventory and fixtures attached to and forming part of the Improvements.
Gross Revenues means all amounts received as a result of the operation of the Facility and the sale of goods and services at the Facility, determined on an accrual basis and consistent with the income/operating statements generated by Manager in the ordinary course of business. Gross Revenues shall include, without limitation, the following generated at the Facility: all green fees; rental fees for golf carts, golf clubs, and other rental items; range balls; rental and concession payments; food and beverage sales; liquor sales; revenue generated from space rentals and from Packet Pg. 63
25 meetings, banquets, parties, receptions, tournaments, and other group gatherings; merchandise sales; instruction fees; vending sales (or, if applicable, receipts from vending companies); and proceeds from business interruption insurance. Gross Revenues shall not include the following:
(a) Cash refunds or credits allowed on returns by customers; (b) Sales taxes, excise taxes, gross receipts taxes and other similar taxes now or later imposed upon the sale of food, beverages, merchandise or services and paid to the appropriate taxing authority, whether added to or included in the selling price; (c) Fees charged by a golf professional functioning as an independent contractor for the teaching of golf lessons and instruction to the extent the Facility operation does not receive revenue from such golf lessons
(d) Receipts in the form of refunds from, or the value of merchandise, supplies or equipment returned to, shippers, suppliers or manufacturers; (e) The amount of any gratuities paid or given by customers to Facility employees;
(f) Proceeds of insurance other than business interruption insurance or similar types of insurance;
(g) Any interest earned on any City provided bank account or funds; (h) The actual uncollectible amount of any check or bank draft received as payments for goods or services and returned from a bank as being uncollectible; and (i) The actual uncollectible amount of any sale of merchandise or services for which a credit card was accepted.
Legal Requirements means all laws, statutes, ordinances, orders, rules, regulations, permits, licenses, authorizations, directives and requirements of all governments and governmental authorities, which now or hereafter may be applicable to the Facility and the operation of the Facility.
Major Capital Improvements has the meaning set forth in Article 10.
Operating Expenses means utility costs, costs of purchasing Operating Inventory, Compensation and expenses of the management staff and other employees directly employed at the Facility, advertising and promotion, ordinary repairs, replacements, alterations and maintenance, cart and equipment lease payments, insurance premiums, the Management Fee, taxes and all other expenses relating to the operation of the Facility and/or payable under the Annual Plan that would be expensed in accordance with GAAP, except as provided in the next paragraph. Operating Expenses shall not include principal and interest payments on any promissory note or other debt instrument and payments under a deed of trust or mortgage (if any); depreciation; amortization; costs incurred as a result of any assignment of this Agreement or sale of the Facility; income taxes paid or payable by City on the income from the Facility.
Packet Pg. 64
26 Operating Inventory means consumable items used in or held in storage for use in the operation of the Facility, including scorecards and cart tickets, driving range balls, professional shop merchandise, food and beverages, paper and plastic ware, fuel, cleaning materials, fertilizers, pesticides, linens, glassware, sanitation supplies and other similar items.
Operating Year means any 365 day period during the Term beginning on the Commencement Date or any anniversary of the Commencement Date.
Other Manager Facilities means all other golf course facilities within the United States owned, leased, managed and/or operated, directly or indirectly, by Manager.
Packet Pg. 65
27 EXHIBIT C
ANNUAL PLAN FOR
INITIAL OPERATING YEAR
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28 Packet Pg. 67
29 Packet Pg. 68
30 EXHIBIT D
SCHEDULE OF REQUIRED INSURANCE
I. Property and Business Interruption Insurance.
A. All risk property insurance for the full replacement value covering physical loss or damage to all buildings and improvements now existing or hereafter erected upon or above the Facility, which shall include extended coverage against such perils of fire, lightning, windstorm, collapse, and sprinkler leakage. Such policy shall also provide (a) comprehensive boiler and machinery coverage, including pressure vessels, air tanks, boilers, machinery pressure piping, heating, air conditioning, (b) earthquake coverage, if applicable and available at commercially reasonable rates in the region where the Facility is located, and (c) flood coverage in an amount not to exceed $1,000,000 if the Facility is not in a special flood hazard zone, and, if the Facility is in a special flood hazard zone, flood coverage in an amount available at commercially reasonable rates through the applicable governmental agency. Such policy shall also cover all equipment, fixtures, motors, machinery, furnishings and furniture installed and owned or leased by Owner and used in connection with the Facility or with the buildings and improvements upon or above the Facility, including all alterations, rebuilding, replacements and additions thereto (as hereinafter defined) at the option of City. If any insurer, or any governmental agency or authority having jurisdiction over the Facility, shall at any time require that the foundations be insured in order to relieve the insured from the responsibility as a co-insurer or for any other purpose, the obligations with respect to insurance herein shall henceforth be increased to the extent so required.
B. Business Interruption Insurance providing coverage in an amount equal to twelve (12) months of net operating income at the Facility, or such other amount as is mutually satisfactory to Manager and City.
II. Liability Insurance.
A. Commercial general liability insurance against claims for bodily injury, death, property damage and sexual abuse and molestation occurring on, in or about the Facility with a combined single limit of not less than Two Million Dollars ($2,000,000); Employee Benefits Liability insurance with a combined single limit for each occurrence involving personal injury, death or property damage (including any loss of use resulting therefrom) in an amount not less than that generally provided with respect to the Comparable Facilities, but in no event shall the limits of such coverage be less than One Million Dollars ($1,000,000) per location and per single occurrence and Two Million Dollars ($2,000,000) in the aggregate per location. For the avoidance of doubt, this policy shall be a location based policy.
B. Liquor liability insurance having coverage terms at least as broad as those found in standard ISO forms. Such policy shall have an aggregate limit of at least One Million Dollars ($1,000,000) per single occurrence and in the aggregate. Manager shall be entitled, from time to time, to designate such higher limits as it deems reasonably necessary (or as required under any loan and/or plan documents). In the event that Manager, or Manager’s Affiliate, holds the liquor Packet Pg. 69
31 license for the Facility, Manager shall be the named insured (and City shall be an additional insured) with respect to the foregoing insurance coverage.
C. Automobile liability insurance on vehicles operated in conjunction with the Facility against claims for damages on owned vehicles, non-owned vehicles, and uninsured motorist coverage (where required by statute), with a combined single limit for each occurrence involving personal injury, death or property damage (including any loss of use resulting therefrom) in an amount not less than that generally provided with respect to the Comparable Facilities, but in no event shall the limits of such coverage be less than One Million Dollars ($1,000,000) per occurrence.
D. Umbrella liability insurance with limits of not less than Ten Million Dollars ($10,000,000) per single occurrence and in the aggregate.
E. Pollution insurance policy (including, but not limited to Herbicide and Pesticide coverage) with a limit of not less than One Million Dollars ($1,000,000) per single occurrence, including coverage for on-site and off-site clean up as well as third party coverage for on-site and off-site third party claims for bodily injury and property damage.
F. Privacy liability insurance covering employee and member/guest data at the Comparable Facilities with limits as determined by Manager and City. This coverage does not apply to computers at facilities not on the Manager network or networks managed by Manager.
III. Workers Compensation and Employer’s Liability (provided that Manager employs the employees).
A. Workers’ compensation and Employer’s liability insurance as may be required under applicable laws covering all of Manager and its Affiliates’ employees employed at the Facility.
B. Comprehensive crime insurance covering Manager employee theft and dishonesty with a limit of at least One Million Dollars ($1,000,000) per occurrence.
C. Employment practices liability insurance covering Manager employees with a limit of at least One Million Dollars ($1,000,000) per occurrence.
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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: May 17, 2023
To: Honorable Mayor and City Council Members
From: Charles E. McNeely, Interim City Manager
By: Barbara Whitehorn, Agency Director of Administrative Services; and Nathan Freeman, Agency Director of
Community, Housing, and Economic Development
Department: Finance
Subject: Fiscal Year 2023-24 Assessment Levies for Previously Formed Assessment Districts. (All Wards)
Recommendation:
It is recommended that the Mayor and City Council adopt Resolution Nos. 2023-064, 2023-065, 2023-066, 2023-067, and 2023-068 of the Mayor and City Council of the City of San Bernardino, California, declaring intention to levy and collect assessments for Fiscal Year 2023-24 within various assessment districts within the City of San Bernardino, approving engineer’s reports for each assessment district and providing notice of the time and place of hearing on proposed assessments in each assessment district.
Background
The City Council previously adopted a resolution initiating proceedings to levy and collect assessments for Fiscal Year 2023-24 in various assessment districts previously established by the City of San Bernardino and ordered the preparation of an engineer’s report for each assessment district. The engineer’s reports which have been prepared by Spicer Consulting Group, LLC, the Engineer of Record, detail the assessments proposed to be levied on assessable lots and parcels of property within each of the assessment districts and have been filed with the City Clerk.
Discussion
The attached engineer’s reports detail the assessments proposed to be levied and Packet Pg. 95
collected from the owners of property within the City’s various assessment districts for Fiscal Year 2023-24 to pay the costs of the maintenance, servicing and operating of public landscaping, landscaping and lighting, sewer lift stations, landscaping and sewer lift stations, and landscaping, detention basin and storm drains and appurtenant facilities during Fiscal Year 2023-24.
The assessment of an annual fee upon properties within each assessment district provides the revenue to offset the cost of maintenance of the public improvements within each assessment district. The amount of the assessments which are proposed to be levied on all parcels of assessable land within each assessment district has been determined pursuant the methodology in each engineer’s report and is based on special benefit conferred upon each such parcel from the payment of the cost of the maintenance, servicing and operation of the public improvements.
Annually, the City Council considers adoption of resolutions declaring intention to levy and collect assessments within the various assessment districts. The attached resolutions call a public hearing for July 19, 2023 on each engineer’s report and the assessments to be levied on assessable lots and parcels of property in each assessment district for Fiscal Year 2023-24.
2021-2025 Strategic Targets and Goals
This project is consistent with Key Target No. 1: Improved Operational & Financial Capacity and Key Target No. 3: Improved Quality of Life, under 3d: Improve the City’s appearance, cleanliness and attractiveness. This project will contribute to ensure that the City is clean and attractive and provide infrastructure designed for long term economic growth.
Fiscal Impact
The assessment on properties within the assessment districts provides revenue to offset the cost of maintenance of public improvements to serve the development project. The engineering reports set forth the “Maximum Allowable Assessment” for each parcel. There is no fiscal impact to the City.
Conclusion
It is recommended that the Mayor and City Council adopt resolution Nos. 2023-064, 2023-065, 2023-066, 2023-067, and 2023-068 of the Mayor and City Council of the City of San Bernardino, California, declaring intention to levy and collect assessments for Fiscal Year 2023-24 within various assessment districts within the City of San Bernardino, approving engineer’s reports for each assessment district and providing notice of the time and place of hearing on proposed assessments in each assessment district.
Attachments
Attachment 1 – Resolution No. 2023-064 – Levy FY 2023-24 Assessment District Nos. 1017, 1019, 1020, 1023, and 1024
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Attachment 2 – Resolution No. 2023-065 – Levy FY 2023-24 Assessment District Nos. 1025 & 1027
Attachment 3 – Resolution No. 2023-066 – Levy FY 2023-24 Assessment District No. 1022
Attachment 4 – Resolution No. 2023-067 – Levy FY 2023-24 Assessment District Nos. 1028-1068
Attachment 5 – Resolution No. 2023-068 – Levy FY 2023-24 Assessment District Nos. 951-1016
Ward:
All Wards
Synopsis of Previous Council Actions:
4/19/2023 City Council adopted a Resolution Initiating Proceedings to Levy and Collect Assessments for Fiscal Year 2023-24 in various Assessment Districts Pursuant to the California Constitution and the City Charter, Appointing the Engineer of Record and Ordering Preparation of Engineer’s Reports
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Resolution No. 2023-064
Resolution No. 2023-064
May 17, 2023
RESOLUTION NO. 2023-064
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
DECLARING INTENTION TO LEVY AND COLLECT
ASSESSMENTS WITHIN ASSESSMENT DISTRICTS NOS.
1017, 1019, 1020, 1023 AND 1024 FOR FISCAL YEAR 2023-24, APPROVING THE ENGINEER’S REPORT AND
PROVIDING NOTICE OF THE TIME AND PLACE OF
HEARING ON PROPOSED ASSESSMENTS
WHEREAS, the City Council of the City of San Bernardino (the “City Council”) has established Assessment District No. 1017, 1019, 1020, 1023 and 1024 of the City of San Bernardino (collectively, the “Assessment Districts”) pursuant to the Charter of the City of San Bernardino and Section 19 of Article 16 and in compliance with Article XIII D of the Constitution of the State of California (the “Assessment Law”); and
WHEREAS, on April 19, 2023, the City Council adopted a resolution initiating proceedings to levy and collect assessments for fiscal year 2023-24 within the Assessment Districts and ordering the preparation of a report regarding assessments to be levied and collected within the Assessment Districts for fiscal year 2023-24 to pay the costs of the maintenance, servicing and operation of public landscaping and appurtenant facilities authorized by the Assessment Law; and WHEREAS, Spicer Consulting Group, LLC, the engineer designated by the City Council to prepare such report, has filed its report with the City Clerk and such report has been presented to and considered by the City Council; and
WHEREAS, it is necessary that the City Council adopt a resolution of intention pursuant to the Assessment Law and, among other things, fixing and giving notice of the time and place of a public hearing on said report and the proposed assessments for said fiscal year;
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. Findings. The City Council finds that:
(a) The above recitals are true and correct and are incorporated herein by this reference; (b) The report of Spicer Consulting Group, LLC (the “Report”) contains all matters required by the Assessment Law and may, therefore, be approved by the City Council; and (c) The assessments which are proposed to be levied on all parcels of assessable land within the Assessment Districts for fiscal year 2023-24 are determined pursuant the methodology in the engineer’s report based on special benefit conferred upon each such parcel from the payment of the cost of the maintenance, servicing and operation of public landscaping and appurtenant facilities.
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Resolution No. 2023-064
Resolution No. 2023-064
May 17, 2023
SECTION 2. Intention. The City Council declares that it intends to levy assessments on all lots and parcels of assessable land within the Assessment Districts for fiscal year 2023-24, as set forth in the Report. Those assessments will be collected at the same time and in the same manner as county taxes are collected, and all laws providing for the collection and enforcement of county taxes shall apply to the collection and enforcement of the assessments.
SECTION 3. Improvements. (i) The improvements authorized for Assessment Districts Nos. 1017, 1019, 1020 and 1023 are:
(a) The installation or planting of public landscaping and appurtenant facilities; (b) The installation or construction of any facilities which are appurtenant to any of the foregoing or which are necessary or convenient for the maintenance, servicing and operation thereof, including water, irrigation, drainage or electrical facilities; and (c) The maintenance or servicing, or both, of any of the foregoing, including all matters specified in the Assessment Law and the original engineer’s report which are applicable thereto.
(ii) The improvements authorized for Assessment District No. 1024 are:
(a) The installation or planting of landscaping and sewer lift stations and appurtenant facilities;
(b) The installation or construction of any facilities which are appurtenant to any of the foregoing or which are necessary or convenient for the maintenance or servicing thereof, and
(c) The maintenance or servicing, or both, of any of the foregoing, including all matters specified in the Assessment Law and the original engineer’s report which are applicable thereto.
SECTION 4. Maintenance. (i) The maintenance to be performed for Assessment Districts Nos. 1017, 1019, 1020 and 1023 consists of the furnishing of services and materials for the ordinary and usual maintenance, operation, and servicing of public landscape, including:
(a) Repair, removal, or replacement of all, or any part of, the improvements thereon, including incidental drainage facilities.
(b) Operation, maintenance, repair, and replacement of irrigation systems. (c) Servicing and maintenance of plantings and landscaping. (d) Repair and maintenance of incidental drainage facilities.
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Resolution No. 2023-064
Resolution No. 2023-064
May 17, 2023
(ii) The maintenance to be performed for Assessment District No. 1024 consists of the furnishing of services and materials for the ordinary and usual maintenance, operation, and servicing of landscaping and sewer lift stations, including:
(a) Repair, removal, or replacement of all, or any part of, the improvements thereon, including incidental drainage facilities.
(b) Operation, maintenance, repair, and replacement of irrigation systems. (c) Servicing and maintenance of plantings and landscaping. (d) Repair and maintenance of incidental drainage and wastewater facilities.
SECTION 5. Assessment Districts. The distinctive designation of each of the Assessment Districts is as follows: “Assessment District No. 1017 (Kendall and Pine Area) of the City of San Bernardino,” “Assessment District No. 1019 (Northpark and Mountain Area) of the City of San Bernardino,” “Assessment District No. 1020 (Mill Street and Dallas Avenue Area) of the City of San Bernardino,” “Assessment District No. 1023 (Elm Avenue and Coulston Street Area) of the City of San Bernardino” and “Assessment District No. 1024 (Inland Center Drive and Riverwalk Drive Area) of the City of San Bernardino.” The boundaries of the Assessment Districts are described and shown in the Report.
SECTION 6. Report and Assessments. The Report, which is on file with the City Clerk, and which has been presented to the City Council at the meeting in which this resolution is adopted, is approved. Reference is made to the Report for a full and detailed description of the improvements, the boundaries of the Assessment Districts, and the proposed assessments upon assessable lots and parcels of land therein for the 2023-24 fiscal year.
SECTION 7. Hearing. The time and place of the hearing required by the Assessment Law is set for 7:00 o’clock p.m. on July 19, 2023 in the Bing Wong Auditorium of the Norman F.
Feldheym Public Library at 555 W. 6th Street, San Bernardino, California, or via teleconference as directed by the City due to COVID-19 social distancing guidelines.
SECTION 8. Notice of Hearing. NOTICE IS HEREBY GIVEN that on the date and at the time and place specified in Section 7 hereof, the City Council will conduct the public hearing on the Report and the assessments to be levied on assessable lots and parcels of property in the Assessment Districts for fiscal year 2023-24. Any interested person may file a written protest with the City Clerk prior to the conclusion of the hearing, which protest must state all grounds of objection and describe the property within the Assessment Districts owned by any such person.
SECTION 9. Publication. The City Clerk shall cause a copy of this resolution to be published once in The San Bernardino Sun as required by the Assessment Law and Section 6061 of the Government Code. Upon completion of such publication, the City Clerk shall file in her office a proof of publication demonstrating compliance with the requirements of this section.
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May 17, 2023
SECTION 10. Designated Person. The City Council designates Spicer Consulting Group, LLC, telephone number (866) 504-2067, as the person to answer inquiries regarding the levying and collection of the assessments for fiscal year 2023-24.
SECTION 11. CEQA. 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 12. 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 13. Effective Date. This Resolution shall become effective immediately.
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this 17th day of May, 2023.
Helen Tran, Mayor
City of San Bernardino
Attest:
Genoveva Rocha, CMC, City Clerk
Approved as to form:
Sonia R. Carvalho, City Attorney
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Resolution No. 2023-064
Resolution No. 2023-064
May 17, 2023
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. 2023-064, adopted at a regular meeting held on the 17th day of May, 2023 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 May, 2023.
Genoveva Rocha, CMC, City Clerk
Packet Pg. 102
Resolution No. 2023-065
Resolution No. 2023-065
May 17, 2023
RESOLUTION NO. 2023-065
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
DECLARING INTENTION TO LEVY AND COLLECT
ASSESSMENTS WITHIN ASSESSMENT DISTRICTS NOS.
1025 AND 1027 FOR FISCAL YEAR 2023-24, APPROVING
THE ENGINEER’S REPORT AND PROVIDING NOTICE OF
THE TIME AND PLACE OF HEARING ON PROPOSED
ASSESSMENTS
WHEREAS, the City Council of the City of San Bernardino (the “City Council”) has established Assessment Districts Nos. 1025 and 1027 of the City of San Bernardino (collectively, the “Assessment Districts”) pursuant to the Charter of the City of San Bernardino and Section 19 of Article 16 and in compliance with Article XIII D of the Constitution of the State of California (the “Assessment Law”); and
WHEREAS, on April 19, 2023, the City Council adopted a resolution initiating proceedings to levy and collect assessments for fiscal year 2023-24 within the Assessment Districts and ordering the preparation of a report regarding assessments to be levied and collected within the Assessment Districts for fiscal year 2023-24 to pay the costs of the maintenance, servicing and operation of public landscaping and appurtenant facilities authorized by the Assessment Law; and WHEREAS, Spicer Consulting Group, LLC, the engineer designated by the City Council to prepare such report, has filed its report with the City Clerk and such report has been presented to and considered by the City Council; and
WHEREAS, it is necessary that the City Council adopt a resolution of intention pursuant to the Assessment Law and, among other things, fixing and giving notice of the time and place of a public hearing on said report and the proposed assessments for said fiscal year;
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. Findings. The City Council finds that:
(a) The above recitals are true and correct and are incorporated herein by this reference; (b) The report of Spicer Consulting Group, LLC (the “Report”) contains all matters required by the Assessment Law and may, therefore, be approved by the City Council; and (c) The assessments which are proposed to be levied on all parcels of assessable land within the Assessment Districts for fiscal year 2023-24 are determined pursuant the methodology in the engineer’s report based on special benefit conferred upon each such parcel from the payment of the cost of the maintenance, servicing and operation of public landscaping and appurtenant facilities.
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SECTION 2. Intention. The City Council declares that it intends to levy assessments on all lots and parcels of assessable land within the Assessment Districts for fiscal year 2023-24, as set forth in the Report. Those assessments will be collected at the same time and in the same manner as county taxes are collected, and all laws providing for the collection and enforcement of county taxes shall apply to the collection and enforcement of the assessments.
SECTION 3. Improvements. The improvements authorized for the Assessment Districts are:
(a) The installation or planting of public landscaping and appurtenant facilities; (b) The installation or construction of any facilities which are appurtenant to any of the foregoing or which are necessary or convenient for the maintenance, servicing and operation thereof, including water, irrigation, drainage or electrical facilities; and (c) The maintenance or servicing, or both, of any of the foregoing, including all matters specified in the Assessment Law and the original engineer’s report which are applicable thereto.
SECTION 4. Maintenance. The maintenance to be performed consists of the furnishing of services and materials for the ordinary and usual maintenance, operation, and servicing of public landscape, including:
(a) Repair, removal, or replacement of all, or any part of, the improvements thereon, including incidental drainage facilities.
(b) Operation, maintenance, repair, and replacement of irrigation systems. (c) Servicing and maintenance of plantings and landscaping. (d) Repair and maintenance of incidental drainage facilities.
SECTION 5. Assessment Districts. The distinctive designation of the Assessment Districts are “Assessment District No. 1025 (Palm Avenue and Washington Avenue Area) of the City of San Bernardino” and “Assessment District No. 1027 (Waterman Avenue and Washington Street Area) of the City of San Bernardino.” The boundaries of the Assessment Districts are described and shown in the Report.
SECTION 6. Report and Assessments. The Report, which is on file with the City Clerk, and which has been presented to the City Council at the meeting in which this resolution is adopted, is approved. Reference is made to the Report for a full and detailed description of the improvements, the boundaries of the Assessment Districts, and the proposed assessments upon assessable lots and parcels of land therein for the 2023-24 fiscal year.
SECTION 7. Hearing. The time and place of the hearing required by the Assessment Law is set for 7:00 o’clock p.m. on July 19, 2023 in the Bing Wong Auditorium of the Norman F.
Feldheym Public Library at 555 W. 6th Street, San Bernardino, California, or via teleconference as directed by the City due to COVID-19 social distancing guidelines.
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SECTION 8. Notice of Hearing. NOTICE IS HEREBY GIVEN that on the date and at the time and place specified in Section 7 hereof, the City Council will conduct the public hearing on the Report and the assessments to be levied on assessable lots and parcels of property in the Assessment Districts for fiscal year 2023-24. Any interested person may file a written protest with the City Clerk prior to the conclusion of the hearing, which protest must state all grounds of objection and describe the property within the Assessment Districts owned by any such person.
SECTION 9. Publication. The City Clerk shall cause a copy of this resolution to be published once in The San Bernardino Sun as required by the Assessment Law and Section 6061 of the Government Code. Upon completion of such publication, the City Clerk shall file in her office a proof of publication demonstrating compliance with the requirements of this section.
SECTION 10. Designated Person. The City Council designates Spicer Consulting Group, LLC, telephone number (866) 504-2067, as the person to answer inquiries regarding the levying and collection of the assessments for fiscal year 2023-24.
SECTION 11. CEQA. 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 12. 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 13. Effective Date. This Resolution shall become effective immediately.
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Resolution No. 2023-065
May 17, 2023
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this 17th day of May, 2023.
Helen Tran, Mayor
City of San Bernardino
Attest:
Genoveva Rocha, CMC, City Clerk
Approved as to form:
Sonia R. Carvalho, City Attorney
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Resolution No. 2023-065
May 17, 2023
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. 2023-065, adopted at a regular meeting held on the 17th day of May, 2023 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 May, 2023.
Genoveva Rocha, CMC, City Clerk
Packet Pg. 107
Resolution No. 2023-066
Resolution No. 2023-066
May 17, 2023
RESOLUTION NO. 2023-066
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
DECLARING INTENTION TO LEVY AND COLLECT
ASSESSMENTS WITHIN ASSESSMENT DISTRICT NO.
1022 AND ZONES 1, 2 AND 3 THEREOF FOR FISCAL
YEAR 2023-24, APPROVING THE ENGINEER’S REPORT
AND PROVIDING NOTICE OF THE TIME AND PLACE
OF HEARING ON PROPOSED ASSESSMENTS
WHEREAS, the City Council of the City of San Bernardino (the “City Council”) has established Assessment District No. 1022 and Zones 1, 2 and 3 thereof of the City of San Bernardino (the “Assessment District”) pursuant to the Charter of the City of San Bernardino and Section 19 of Article 16 and in compliance with Article XIII D of the Constitution of the State of California (the “Assessment Law”); and
WHEREAS, on April 19, 2023, the City Council adopted a resolution initiating proceedings to levy and collect assessments for fiscal year 2023-24 within the Assessment District and ordering the preparation of a report regarding assessments to be levied and collected within the Assessment District for fiscal year 2023-24 to pay the costs of the maintenance, servicing and operation of landscaping and lighting and appurtenant facilities authorized by the Assessment Law; and
WHEREAS, Spicer Consulting Group, LLC, the engineer designated by the City Council to prepare such report, has filed its report with the City Clerk and such report has been presented to and considered by the City Council; and
WHEREAS, it is necessary that the City Council adopt a resolution of intention pursuant to the Assessment Law, and, among other things, fixing and giving notice of the time and place of a public hearing on said report and the proposed assessments for said fiscal year;
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. Findings. The City Council finds that:
(a) The above recitals are true and correct and are incorporated herein by this reference;
(b) The report of Spicer Consulting Group, LLC (the “Report”) contains all matters required by the Assessment Law and may, therefore, be approved by the City Council; and (c) The assessments which are proposed to be levied on all parcels of assessable land within the Assessment District for fiscal year 2023-24 are determined pursuant the methodology in the engineer’s report based on special benefit conferred upon each such parcel from the Packet Pg. 108
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May 17, 2023
payment of the cost of the maintenance, servicing and operation of landscaping and lighting and appurtenant facilities.
SECTION 2. Intention. The City Council declares that it intends to levy assessments on all lots and parcels of assessable land within the Assessment District for fiscal year 2023-24, as set forth in the Report. Those assessments will be collected at the same time and in the same manner as county taxes are collected, and all laws providing for the collection and enforcement of county taxes shall apply to the collection and enforcement of the assessments.
SECTION 3. Improvements. The improvements authorized for the Assessment District are:
(a) The installation or planting of landscaping and lighting and appurtenant facilities; (b) The installation or construction of any facilities which are appurtenant to any of the foregoing or which are necessary or convenient for the maintenance or servicing thereof, and (c) The maintenance or servicing, or both, of any of the foregoing, including all matters specified in the Assessment Law and the original engineer’s report which are applicable thereto.
SECTION 4. Maintenance. The maintenance to be performed consists of the furnishing of services and materials for the ordinary and usual maintenance, operation, and servicing of landscaping and lighting, including:
(a) Repair, removal, or replacement of all, or any part of, the improvements thereon, including incidental drainage facilities.
(b) Operation, maintenance, repair, and replacement of irrigation systems. (c) Servicing and maintenance of plantings and landscaping. (d) Repair and maintenance of incidental drainage facilities.
SECTION 5. Assessment District. The distinctive designation of the Assessment District is “Assessment District No. 1022 (Zone 1, Zone 2 and Zone 3) (San Bernardino International Airport/Alliance-California) of the City of San Bernardino.” The boundaries of the Assessment District are described and shown in the Report.
SECTION 6. Report and Assessments. The Report, which is on file with the City Clerk, and which has been presented to the City Council at the meeting in which this resolution is adopted, is approved. Reference is made to the Report for a full and detailed description of the improvements, the boundaries of the Assessment District, the zones therein, and the proposed assessments upon assessable lots and parcels of land therein for the 2023-24 fiscal year.
SECTION 7. Hearing. The time and place of the hearing required by the Assessment Law is set for 7:00 o’clock p.m. on July 19, 2023 in the Bing Wong Auditorium of the Norman Packet Pg. 109
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May 17, 2023
F. Feldheym Public Library at 555 W. 6th Street, San Bernardino, California, or via teleconference as directed by the City due to COVID-19 social distancing guidelines .
SECTION 8. Notice of Hearing. NOTICE IS HEREBY GIVEN that on the date and at the time and place specified in Section 7 hereof, the City Council will conduct the public hearing on the Report and the assessments to be levied on assessable lots and parcels of property in the Assessment District for fiscal year 2023-24. Any interested person may file a written protest with the City Clerk prior to the conclusion of the hearing, which protest must state all grounds of objection and describe the property within the Assessment District owned by any such person.
SECTION 9. Publication. The City Clerk shall cause a copy of this resolution to be published once in The San Bernardino Sun as required by the Assessment Law and Section 6061 of the Government Code. Upon completion of such publication, the City Clerk shall file in her office a proof of publication demonstrating compliance with the requirements of this section.
SECTION 10. Designated Person. The City Council designates Spicer Consulting Group, LLC, telephone number (866) 504-2067, as the person to answer inquiries regarding the levying and collection of the assessments for fiscal year 2023-24.
SECTION 11. CEQA. 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 12. 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 13. Effective Date. This Resolution shall become effective immediately.
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Resolution No. 2023-066
May 17, 2023
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this 17th day of May, 2023.
Helen Tran, Mayor
City of San Bernardino
Attest:
Genoveva Rocha, CMC, City Clerk
Approved as to form:
Sonia R. Carvalho, City Attorney
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Resolution No. 2023-066
May 17, 2023
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. 2023-066, adopted at a regular meeting held on the 17th day of May, 2023 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 May, 2023.
Genoveva Rocha, CMC, City Clerk
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Resolution No. 2023-067
May 17, 2023
RESOLUTION NO. 2023-067
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
DECLARING INTENTION TO LEVY AND COLLECT
ASSESSMENTS WITHIN ASSESSMENT DISTRICTS NOS.
1028, 1029, 1030, 1031, 1032, 1035 (ZONE 1), 1035 (ZONE 2), 1036, 1037, 1038, 1039, 1040, 1041, 1042, 1043 (ZONE 1), 1043 (ZONE 2), 1045, 1046, 1047, 1048, 1050, 1052, 1054, 1055, 1056, 1057, 1059, 1060, 1063, 1064, AND 1068 FOR FISCAL YEAR
2023-24, APPROVING THE ENGINEER’S REPORT AND
PROVIDING NOTICE OF THE TIME AND PLACE OF
HEARING ON PROPOSED ASSESSMENTS
WHEREAS, the City Council of the City of San Bernardino (the “City Council”) has established Assessment Districts Nos. 1028, 1029, 1030, 1031, 1032, 1035 (Zone 1), 1035 (Zone 2), 1036, 1037, 1038, 1039, 1040, 1041, 1042, 1043 (Zone 1), 1043 (Zone 2), 1045, 1046, 1047, 1048, 1050, 1052, 1054, 1055, 1056, 1057, 1059, 1060, 1063, 1064 and 1068 of the City of San Bernardino (collectively, the “Assessment Districts”) pursuant to the Charter of the City of San Bernardino and Section 19 of Article 16 and in compliance with Article XIII D of the Constitution of the State of California (the “Assessment Law”); and
WHEREAS, on April 19, 2023, the City Council adopted a resolution initiating proceedings to levy and collect assessments for fiscal year 2023-24 within the Assessment Districts and ordering the preparation of a report regarding assessments to be levied and collected within the Assessment Districts for fiscal year 2023-24 to pay the costs of the maintenance, servicing and operation of public landscaping and appurtenant facilities authorized by the Assessment Law; and WHEREAS, Spicer Consulting Group, LLC, the engineer designated by the City Council to prepare such report, has filed its report with the City Clerk and such report has been presented to and considered by the City Council; and
WHEREAS, it is necessary that the City Council adopt a resolution of intention pursuant to the Assessment Law and, among other things, fixing and giving notice of the time and place of a public hearing on said report and the proposed assessments for said fiscal year;
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. Findings. The City Council finds that:
(a) The above recitals are true and correct and are incorporated herein by this reference; (b) The report of Spicer Consulting Group, LLC (the “Report”) contains all matters required by the Assessment Law and may, therefore, be approved by the City Council; and Packet Pg. 113
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May 17, 2023
(c) The assessments which are proposed to be levied on all parcels of assessable land within the Assessment Districts for fiscal year 2023-24 are determined pursuant the methodology in the engineer’s report based on special benefit conferred upon each such parcel from the payment of the cost of the maintenance, servicing and operation of public landscaping and appurtenant facilities.
SECTION 2. Intention. The City Council declares that it intends to levy assessments on all lots and parcels of assessable land within the Assessment Districts for fiscal year 2023-24, as set forth in the Report. Those assessments will be collected at the same time and in the same manner as county taxes are collected, and all laws providing for the collection and enforcement of county taxes shall apply to the collection and enforcement of the assessments.
SECTION 3. Improvements. (i) The improvements authorized for the listed Assessment Districts (except Assessment Districts Nos. 1055 and 1068) are:
(a) The installation or planting of public landscaping and appurtenant facilities; (b) The installation or construction of any facilities which are appurtenant to any of the foregoing or which are necessary or convenient for the maintenance, servicing and operation thereof, including water, irrigation, drainage or electrical facilities; and (c) The maintenance or servicing, or both, of any of the foregoing, including all matters specified in the Assessment Law and the original engineer’s report which are applicable thereto. (ii) The improvements authorized for the Assessment District No. 1055 are:
(a) The installation or planting of landscaping and sewer lift stations and appurtenant facilities;
(b) The installation or construction of any facilities which are appurtenant to any of the foregoing or which are necessary or convenient for the maintenance or servicing thereof, and
(c) The maintenance or servicing, or both, of any of the foregoing, including all matters specified in the Assessment Law and the original engineer’s report which are applicable thereto.
(iii) The improvements authorized for the Assessment District No. 1068 are:
(a) The installation or planting of landscape, detention basin and storm drains and appurtenant facilities;
(b) The installation or construction of any facilities which are appurtenant to any of the foregoing or which are necessary or convenient for the maintenance or servicing thereof, and
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May 17, 2023
(c) The maintenance or servicing, or both, of any of the foregoing, including all matters specified in the Assessment Law and the original engineer’s report which are applicable thereto.
SECTION 4. Maintenance. The maintenance to be performed consists of the furnishing of services and materials for the ordinary and usual maintenance, operation, and servicing of public landscape, including:
(a) Repair, removal, or replacement of all, or any part of, the improvements thereon, including incidental drainage facilities.
(b) Operation, maintenance, repair, and replacement of irrigation systems. (c) Servicing and maintenance of plantings and landscaping. (d) Repair and maintenance of incidental drainage facilities.
SECTION 5. Assessment Districts. The distinctive designation of each of the Assessment Districts is as follows: “Assessment District No. 1028 (Ohio Avenue and Walnut Avenue Area) of the City of San Bernardino,” “Assessment District No. 1029 (California Street and 16th Street Area) of the City of San Bernardino,” “Assessment District No. 1030 (Magnolia Avenue and Ohio Avenue Area) of the City of San Bernardino,” “Assessment District No. 1031 (Irvington Avenue and Olive Avenue Area) of the City of San Bernardino,” “Assessment District No. 1032 (Palm Avenue and Verdemont Drive) of the City of San Bernardino,” “Assessment District No. 1035 (Zone 1 and Zone 2) (Palm Avenue and Meyers Road) of the City of San Bernardino,” “Assessment District No. 1036 (Northpark Boulevard and Campus Parkway) of the City of San Bernardino,” “Assessment District No. 1037 (Belmont Avenue and Magnolia Avenue) of the City of San Bernardino,” “Assessment District No. 1038 (Orange Show Road and Arrowhead Avenue) of the City of San Bernardino,” “Assessment District No. 1039 (Irvington Avenue and Chestnut Avenue Area) of the City of San Bernardino,” “Assessment District No. 1040 (Acacia Avenue and Hill Drive Area) of the City of San Bernardino,” “Assessment District No. 1041 (Magnolia Avenue and Ohio Avenue Area) of the City of San Bernardino,” “Assessment District No. 1042 (Shandin Hills Drive and Shady Creek Drive) of the City of San Bernardino,” “Assessment District No. 1043 (Zone 1 and Zone 2) (Palm Avenue and Irvington Avenue Area) of the City of San Bernardino,” “Assessment District No. 1045 (Waterman Avenue and Orange Show Road Area) of the City of San Bernardino,” “Assessment District No. 1046 (Northpark Boulevard and Northstar Avenue Area) of the City of San Bernardino,” “Assessment District No. 1047 (Ohio Avenue and Pine Avenue Area) of the City of San Bernardino,” “Assessment District No. 1048 (Eucalyptus Avenue and Randall Avenue Area) of the City of San Bernardino,” “Assessment District No. 1050 (Pepper Avenue and Rialto Avenue Area) of the City of San Bernardino,” “Assessment District No. 1052 (Belmont Avenue and Chestnut Avenue Area) of the City of San Bernardino,” “Assessment District No. 1054 (Campus Parkway and Valles Drive Area) of the City of San Bernardino,” “Assessment District No. 1055 (Pine Avenue and Redwood Street Area) of the City of San Bernardino,” “Assessment District No. 1056 (Magnolia Avenue and Garfield Street Area) of the City of San Bernardino,” “Assessment District No. 1057 (Cajon Boulevard and University Parkway Area) of the City of San Bernardino” “Assessment District No. 1059 (Orange Show Road and Tippecanoe Avenue Area) of the City of San Bernardino,” “Assessment District No. 1060 Packet Pg. 115
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(Chiquita Lane and Date Street Area) of the City of San Bernardino,” “Assessment District No. 1063 (Central Avenue and Lena Road Area) of the City of San Bernardino,” “Assessment District No. 1064 (Cajon Boulevard and Glen Helen Parkway Area) of the City of San Bernardino” and “Assessment District No. 1068 (Tippecanoe Avenue and Central Avenue Area) of the City of San Bernardino.” The boundaries of the Assessment Districts are described and shown in the Report.
SECTION 6. Report and Assessments. The Report, which is on file with the City Clerk, and which has been presented to the City Council at the meeting in which this resolution is adopted, is approved. Reference is made to the Report for a full and detailed description of the improvements, the boundaries of the Assessment Districts, and the proposed assessments upon assessable lots and parcels of land therein for the 2023-24 fiscal year.
SECTION 7. Hearing. The time and place of the hearing required by the Assessment Law is set for 7:00 o’clock p.m. on July 19, 2023 in the Bing Wong Auditorium of the Norman F.
Feldheym Public Library at 555 W. 6th Street, San Bernardino, California, or via teleconference as directed by the City due to COVID-19 social distancing guidelines.
SECTION 8. Notice of Hearing. NOTICE IS HEREBY GIVEN that on the date and at the time and place specified in Section 7 hereof, the City Council will conduct the public hearing on the Report and the assessments to be levied on assessable lots and parcels of property in the Assessment Districts for fiscal year 2023-24. Any interested person may file a written protest with the City Clerk prior to the conclusion of the hearing, which protest must state all grounds of objection and describe the property within the Assessment Districts owned by any such person.
SECTION 9. Publication. The City Clerk shall cause a copy of this resolution to be published once in The San Bernardino Sun as required by the Assessment Law and Section 6061 of the Government Code. Upon completion of such publication, the City Clerk shall file in her office a proof of publication demonstrating compliance with the requirements of this section.
SECTION 10. Designated Person. The City Council designates Spicer Consulting Group, LLC, telephone number (866) 504-2067, as the person to answer inquiries regarding the levying and collection of the assessments for fiscal year 2023-24.
SECTION 11. CEQA. 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 12. 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 13. Effective Date. This Resolution shall become effective immediately.
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Resolution No. 2023-067
May 17, 2023
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this 17th day of May, 2023.
Helen Tran, Mayor
City of San Bernardino
Attest:
Genoveva Rocha, CMC, City Clerk
Approved as to form:
Sonia R. Carvalho, City Attorney
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Resolution No. 2023-067
May 17, 2023
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. 2023-067 adopted at a regular meeting held on the 17th day of May, 2023 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 May, 2023.
Genoveva Rocha, CMC, City Clerk
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Resolution No. 2023-068
Resolution No. 2023-068
May 17, 2023
RESOLUTION NO. 2023-068
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
DECLARING INTENTION TO LEVY AND COLLECT
ASSESSMENTS WITHIN ASSESSMENT DISTRICTS NOS.
951 (ZONE 1), 951 (ZONE 2), 952 (ZONES 1, 2 AND 2A), 952 (ZONE 3), 953, 956, 959 (ZONE 1), 962, 963, 968, 974, 975, 976, 981, 982, 986, 989, 991, 993, 997, 1001, 1002, 1005, 1007, 1012 AND 1016 FOR FISCAL YEAR 2023-24, APPROVING THE
ENGINEER’S REPORT AND PROVIDING NOTICE OF THE
TIME AND PLACE OF HEARING ON PROPOSED
ASSESSMENTS
WHEREAS, the City Council of the City of San Bernardino (the “City Council”) has established Assessment Districts Nos. 951 (Zone 1), 951 (Zone 2), 952 (Zones 1, 2 and 2A), 952 (Zone 3), 953, 956, 959 (Zone 1), 962, 963, 968, 974, 975, 976, 981, 982, 986, 989, 991, 993, 997, 1001, 1002, 1005, 1007, 1012 and 1016 of the City of San Bernardino (collectively, the “Assessment Districts”) pursuant to the Charter of the City of San Bernardino and Section 19 of Article 16 and in compliance with Article XIII D of the Constitution of the State of California (the “Assessment Law”); and
WHEREAS, on April 19, 2023, the City Council adopted a resolution initiating proceedings to levy and collect assessments for fiscal year 2023-24 within the Assessment Districts and ordering the preparation of a report regarding assessments to be levied and collected within the Assessment Districts for fiscal year 2023-24 to pay the costs of the maintenance, servicing and operation of public landscaping and appurtenant facilities authorized by the Assessment Law; and WHEREAS, Spicer Consulting Group, LLC, the engineer designated by the City Council to prepare such report, has filed its report with the City Clerk and such report has been presented to and considered by the City Council; and
WHEREAS, it is necessary that the City Council adopt a resolution of intention pursuant to the Assessment Law and, among other things, fixing and giving notice of the time and place of a public hearing on said report and the proposed assessments for said fiscal year;
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. Findings. The City Council finds that:
(a) The above recitals are true and correct and are incorporated herein by this reference; (b) The report of Spicer Consulting Group, LLC (the “Report”) contains all matters required by the Assessment Law and may, therefore, be approved by the City Council; Packet Pg. 119
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(c) The assessments which are proposed to be levied on all parcels of assessable land within the Assessment Districts for fiscal year 2023-24 are determined pursuant the methodology in the engineer’s report based on special benefit conferred upon each such parcel from the payment of the cost of the maintenance, servicing and operation of public landscaping and appurtenant facilities for those designated Assessment Districts, landscaping and lighting for those designated Assessment Districts, and sewer lift stations and appurtenant facilities for those designated Assessment Districts; and
(d) The amount of the assessment which is proposed to be assessed on each such parcel is not proposed to be increased over the amount of the assessment which was levied on the parcel for fiscal year 2022-23.
SECTION 2. Intention. The City Council declares that it intends to levy assessments on all lots and parcels of assessable land within the Assessment Districts for fiscal year 2023-24, as set forth in the Report. Those assessments will be collected at the same time and in the same manner as county taxes are collected, and all laws providing for the collection and enforcement of county taxes shall apply to the collection and enforcement of the assessments.
SECTION 3. Improvements. (i) The improvements authorized for Assessment Districts Nos. 951 (Zone 1), 951 (Zone 2), 952 (Zones 1, 2, 2A and 3), 953, 956, 959 (Zone 1), 968, 974, 975, 976, 981, 982, 986, 989, 991, 993, 997, 1001, 1002, 1005, 1007, 1012 and 1016 are:
(a) The installation or planting of public landscaping and appurtenant facilities; (b) The installation or construction of any facilities which are appurtenant to any of the foregoing or which are necessary or convenient for the maintenance, servicing and operation thereof, including water, irrigation, drainage or electrical facilities; and (c) The maintenance or servicing, or both, of any of the foregoing, including all matters specified in the Assessment Law and the original engineer’s report which are applicable thereto.
(ii) The improvements authorized for the Assessment Districts Nos. 962 and 963 are:
(a) The installation or planting of sewer lift stations and appurtenant facilities; (b) The installation or construction of any facilities which are appurtenant to any of the foregoing or which are necessary or convenient for the maintenance or servicing thereof, and
(c) The maintenance or servicing, or both, of any of the foregoing, including all matters specified in the Assessment Law and the original engineer’s report which are applicable thereto.
SECTION 4. Maintenance. (i) For Assessment Districts Nos. 951 (Zone 1), 951 (Zone 2), 952 (Zones 1, 2, 2A and 3), 953, 956, 959 (Zone 1), 968, 974, 975, 976, 981, 982, 986, 989, 991, 993, 997, 1001, 1002, 1005, 1007, 1012 and 1016, the maintenance to be performed consists Packet Pg. 120
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of the furnishing of services and materials for the ordinary and usual maintenance, operation, and servicing of public landscape, including:
(a) Repair, removal, or replacement of all, or any part of, the improvements thereon, including incidental drainage facilities.
(b) Operation, maintenance, repair, and replacement of irrigation systems. (c) Servicing and maintenance of plantings and landscaping. (d) Repair and maintenance of incidental drainage facilities. (ii) For Assessment Districts Nos. 962 and 963 the maintenance to be performed consists of the furnishing of services and materials for the ordinary and usual maintenance, operation, and servicing of sewer lift stations including:
(a) Repair, removal, or replacement of all, or any part of, the improvements thereon, including incidental drainage facilities.
(b) Repair and maintenance of incidental wastewater facilities.
SECTION 5. Assessment Districts. The distinctive designation of each of the Assessment Districts is as follows: “Assessment District No. 951 (Zones 1 and 2) (Wagonwheel Road Area) of the City of San Bernardino,” “Assessment District No. 952 (Zones 1, 2, 2A) (State College Area) of the City of San Bernardino,” “Assessment District No. 952 (Zone 3) (State College Area) of the City of San Bernardino,” “Assessment District No. 953 (16th Street) of the City of San Bernardino,” “Assessment District No. 956 (Carnegie Drive Area) of the City of San Bernardino,” “Assessment District No. 959 (Zone 1) (Shandin Hills) of the City of San Bernardino,” “Assessment District No. 962 (Pine Avenue Area) of the City of San Bernardino,” “Assessment District No. 963 (Allen Street) of the City of San Bernardino,” “Assessment District No. 968 (Airport Drive) of the City of San Bernardino,” “Assessment District No. 974 (Rialto Avenue Between Eucalyptus and Pepper) of the City of San Bernardino,” “Assessment District No. 975 (Pepper and Mill Area) of the City of San Bernardino,” “Assessment District No. 976 (Pine and Belmont) of the City of San Bernardino,” “Assessment District No. 981 (Meridian and Randall Avenue) of the City of San Bernardino,” “Assessment District No. 982 (Piedmont Drive Area) of the City of San Bernardino,” “Assessment District No. 986 (Rialto and Macy Area) of the City of San Bernardino,” “Assessment District No. 989 (Mill and Macy Area) of the City of San Bernardino,” “Assessment District No. 991 (Verdemont and Olive Area) of the City of San Bernardino,” “Assessment District No. 993 (Cajon and June Area) of the City of San Bernardino,” “Assessment District No. 997 (Chestnut Area) of the City of San Bernardino,” “Assessment District No. 1001 (Pennsylvania and Birch Area) of the City of San Bernardino,” “Assessment District No. 1002 (North “H” Street Area) of the City of San Bernardino,” “Assessment District No. 1005 (Cajon and Pepper Linden Area) of the City of San Bernardino,” “Assessment District No. 1007 (Pepper and Randall Area) of the City of San Bernardino,” “Assessment District No. 1012 (Mill/Burney Area) of the City of San Bernardino” and “Assessment District No. 1016 Packet Pg. 121
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(Coulston Area) of the City of San Bernardino.” The boundaries of each of the Assessment Districts are described and shown in the Report.
SECTION 6. Report and Assessments. The Report, which is on file with the City Clerk, and which has been presented to the City Council at the meeting in which this resolution is adopted, is approved. Reference is made to the Report for a full and detailed description of the improvements, the boundaries of the Assessment District, the zones therein, and the proposed assessments upon assessable lots and parcels of land therein for the 2023-24 fiscal year.
SECTION 7. Hearing. The time and place of the hearing required by the Assessment Law is set for 7:00 o’clock p.m. on July 19, 2023 in the Bing Wong Auditorium of the Norman F.
Feldheym Public Library at 555 W. 6th Street, San Bernardino, California, or via teleconference as directed by the City due to COVID-19 social distancing guidelines.
SECTION 8. Notice of Hearing. NOTICE IS HEREBY GIVEN that on the date and at the time and place specified in Section 7 hereof, the City Council will conduct the public hearing on the Report and the assessments to be levied on assessable lots and parcels of property in the Assessment Districts for fiscal year 2023-24. Any interested person may file a written protest with the City Clerk prior to the conclusion of the hearing, which protest must state all grounds of objection and describe the property within the Assessment Districts owned by any such person.
SECTION 9. Publication. The City Clerk shall cause a copy of this resolution to be published once in The San Bernardino Sun as required by the Assessment Law and Section 6061 of the Government Code. Upon completion of such publication, the City Clerk shall file in her office a proof of publication demonstrating compliance with the requirements of this section.
SECTION 10. Designated Person. The City Council designates Spicer Consulting Group, LLC, telephone number (866) 504-2067, as the person to answer inquiries regarding the levying and collection of the assessments for fiscal year 2023-24.
SECTION 11. CEQA. That the 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 12. 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 13. Effective Date. This Resolution shall become effective immediately.
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Resolution No. 2023-068
May 17, 2023
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this 17th day of May, 2023.
Helen Tran, Mayor
City of San Bernardino
Attest:
Genoveva Rocha, CMC, City Clerk
Approved as to form:
Sonia R. Carvalho, City Attorney
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Resolution No. 2023-068
Resolution No. 2023-068
May 17, 2023
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. 2023-068, adopted at a regular meeting held on the 17th day of May, 2023 by the following vote:
Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ _____ _____ _______ _______
IBARRA _____ _____ _______ _______
FIGUEROA _____ _____ _______ _______
SHORETT _____ _____ _______ _______
CALVIN _____ _____ _______ _______
REYNOSO _____ _____ _______ _______
ALEXANDER _____ _____ _______ _______
WITNESS my hand and official seal of the City of San Bernardino this ____ day of May, 2023.
Genoveva Rocha, CMC, City Clerk
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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: May 17, 2023
To: Honorable Mayor and City Council Members
From: Charles E. McNeely, Interim City Manager
Department: City Manager's Office
Subject: Approve the Professional Services Agreement with Kosmont Companies for Economic Development
Advisory Services (All Wards)
Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California:
1. Approve a Professional Services Agreement with Kosmont Companies for Economic Development Advisory Services; and
2. Authorize the City Manager, or designee, to execute the Professional Services Agreement with Kosmont Companies; and
3. Adopt Resolution No. 2023-069 authorizing the Agency Director of Administrative Services to amend the Adopted FY 2022/2023 General Fund Operating Budget in the amount of $75,000; and
4. Authorize the Agency Director of Administrative Services to issue a Purchase Order in an amount not to exceed $75,000 to Kosmont Companies.
Background
The City is considering various potential economic development initiatives as means to address infrastructure needs, housing production, and other community objectives and benefits. Staff is currently planning a workshop with the Mayor and City Council to discuss potential economic development opportunity areas, potential infrastructure improvements, and other projects of potential interest to the City. Kosmont Companies (“Kosmont“) is a financial advisory and economic development services firm that is scheduled to present during an in-person workshop regarding various economic development initiatives for the City of San Bernardino.
Anticipated workshop topics include the development of tax increment financing (“TIF”) Packet Pg. 125
districts, which are used to fund and finance public facilities and other improvements.
TIF captures incremental growth in tax revenues (usually property tax, although other types of revenue can also be collected) above and beyond what taxing entities currently receive within a designated geographic area (ie: in a specific “District”). TIF works by freezing the property tax revenues in the District at the “base level” in the current year, and as property values increase, the additional tax revenue above the “base level” are diverted into a separate pool of money. This is then used to fund and finance public facilities and other improvements, which can include paying back the upfront costs of a project, or the debt service for bonds that were issued to fund the improvements.
Some of the specific tools that utilize TIF are Enhanced Infrastructure Financing Districts (“EIFD”) and Climate Resilience Districts (“CRD”), which differ in their focus and financing powers. EIFDs can be used to purchase, construct, or improve any real property inside or outside the District. This includes infrastructure maintenance, housing development, economic development, and transportation infrastructure, among other uses. EIFDs do not increase property taxes and they are governed by a Public Financing Authority. CRDs are similar to EIFDs but are focused on raising and allocating funds for climate mitigation, adaptation, and resilience projects. Eligible projects include those that address sea level rise, extreme temperatures, drought, and wildfire risks. CRDs also have additional financing powers that cannot be pursued under the traditional EIFD structure such as benefit assessments, special taxes, property-related fees, and the potential to receive funding from public and private entities.
Discussion
The Professional Services Agreement (“Agreement”) will authorize Kosmont to perform a formal analysis that assess the feasibility of the various funding tools and mechanisms available to the City for the purposes of generating revenues. The revenues would be used to address the City’s infrastructure needs, housing production, climate resilience measures, and other priorities as established by the Mayor and City Council. Based on the analysis and established priorities, Kosmont will produce a roadmap that will serve as the basis for the City to formally implement the funding mechanisms. The Agreement has an estimated total cost of $75,000 and will produce the following deliverables:
• Financing District Boundary. To develop a boundary for a financing district (such as TIF districts), Kosmont will evaluate property ownership, planned future developments, infrastructure needs, potential public and private sector partnerships, and census tract designations.
• Preliminary funding and financing analysis, including a preliminary tax increment analysis. For the funding and financing analysis, Kosmont will analyze the potential value generation from future development in a TIF district, as well as the estimated funding and bonding capacity that can be supported from the revenues that are generated.
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• Fiscal impact analysis for the potential formation of a tax increment financing district. Kosmont will evaluate both revenues and expenditures, as well as the resulting net fiscal impact to the City if a TIF district is implemented. • Feasible governance and implementation summary. Both EIFDs and CRDs require the establishment of a Public Financing Authority (“PFA”), which are public entities that are established to provide financing for public capital improvements.
As a result, Kosmont will provide an evaluation for the composition of the PFA governing board, its policies and procedures, and a roadmap for its implementation.
• Outreach materials to be presented to public and private stakeholders. These materials will be used to engage entities such as the County of San Bernardino, the County Fire Protection District, and property owners, in partnering with the City on implementing funding mechanisms such as TIF districts. • Presentation to the Mayor and City Council. The final deliverable outlined in the Agreement will result in Kosmont preparing and presenting an overview of their findings, as well as a potential roadmap for implementation, at a City Council meeting or workshop.
The Agreement with Kosmont is being brought forward for the Mayor and City Council’s approval in accordance with Section 3.04.010 D.3. of the City’s Municipal Code (Attachment 2) and Section V (e) of the City’s Purchasing Policy (Attachment 3). As outlined in both the Municipal Code and Purchasing Policy, a purchase that is otherwise approved by the action of the Mayor and City Council in a public meeting is exempt from the City’s Purchasing Policy.
2021-2025 Strategic Targets and Goals
The Professional Services Agreement with Kosmont Companies relates to Key Target No 1b: Continue to seek opportunities to secure long-term revenue sources.
Fiscal Impact
This action will impact the General Fund by $75,000.
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California:
1. Approve a Professional Services Agreement with Kosmont Companies for Economic Development Advisory Services; and
2. Authorize the City Manager, or designee, to execute the Professional Services Agreement with Kosmont Companies; and
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3. Adopt Resolution No. 2023-069 authorizing the Agency Director of Administrative Services to amend the Adopted FY 2022/2023 General Fund Operating Budget in the amount of $75,000; and
4. Authorize the Agency Director of Administrative Services to issue a Purchase Order in an amount not to exceed $75,000 to Kosmont Companies Attachments
Attachment 1 – Resolution No. 2023-069
Attachment 2 – Professional Services Agreement
Attachment 3 – Municipal Code Chapter 3.04 Purchasing System Attachment 4 – Purchasing Policy
Ward:
All Wards
Synopsis of Previous Council Actions:
N/A
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Resolution No. 2023-069
Resolution 2023-069
May 17, 2023
RESOLUTION NO. 2023-069
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
AUTHORIZING THE AGENCY DIRECTOR OF
ADMINISTARTIVE SERVICES TO AMEND THE
ADOPTED FY 2022/2023 GENERAL FUND OPERATING
BUDGET IN THE AMOUNT OF $75,000 FOR ECONOMIC
DEVELOPMENT ADVISORY SERVICES
WHEREAS, the City of San Bernardino is considering various potential economic development initiatives to address infrastructure needs, housing production, climate resilience, and other community objectives and benefits; and
WHEREAS, the City requires assistance in assessing the feasibility of establishing a tax increment financing district such as an Enhanced Infrastructure Financing District or a Climate Resilience District; and
WHEREAS, to meet the statutory requirements to form a tax increment financing district, the City will require assistance with the development of a complete parcel list and map preparation, implementation roadmap, and a governance structure for a public financing authority.
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 of the City of San Bernardino approve a Professional Services Agreement with Kosmont Companies for economic development advisory services.
SECTION 3. The City Manager, or designee, is authorized to execute a Professional Services Agreement with Kosmont Companies for economic development advisory services.
SECTION 4. The Agency Director of Administrative Services is authorized to amend the Adopted FY 2022/2023 budget by $75,000 and issue a purchase order to Kosmont Companies in an amount not to exceed $75,000.
SECTION 5. The Agency Director of Administrative Services is authorized to issue a purchase order to Kosmont Companies in an amount not to exceed $75,000 for economic development advisory services.
SECTION 6. 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 Packet Pg. 129
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May 17, 2023
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 7. 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 8. Effective Date. This Resolution shall become effective immediately.
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this 17th day of May 2023.
Helen Tran, Mayor
City of San Bernardino
Attest:
Genoveva Rocha, CMC, City Clerk
Approved as to form:
Sonia Carvalho, City Attorney
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Resolution No. 2023-069
Resolution 2023-069
May 17, 2023
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. 2023-069, adopted at a regular meeting held on the 17th day of May 2023 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 17th day of May 2023.
Genoveva Rocha, CMC, City Clerk
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1 PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND KOSMONT & ASSOCIATES, INC. D/B/A KOSMONT COMPANIES
This Agreement is made and entered into as of May 17, 2023 by and between the City of San Bernardino, a charter city and municipal corporation organized and operating under the laws of the State of California with its principal place of business at Vanir Tower, 290 North D Street, San Bernardino, CA 92401 (“City” or the “Client”), and KOSMONT & ASSOCIATES, INC., a CALIFORNIA CORPORATION, DOING BUSINESS AS KOSMONT COMPANIES with its principal place of business at 2301 Rosecrans Avenue, Suite 4140, El Segundo, CA 90245 (hereinafter referred to as “Consultant”). City and Consultant are hereinafter sometimes referred to individually as “Party” and collectively as the “Parties.”
RECITALS
A. City is a public agency of the State of California and is in need of professional services for the following project:
Economic Development Advisory Services (hereinafter referred to as “the Project”).
B. Consultant is duly licensed and has the necessary qualifications to provide such services.
C. The Parties desire by this Agreement to establish the terms for City to retain Consultant to provide the services described herein.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
AGREEMENT
1. Incorporation of Recitals. The recitals above are true and correct and are hereby incorporated herein by this reference.
2. Services. Consultant shall provide the City with the services described in the Scope of Services attached hereto as Exhibit “A.”
3. Professional Practices. All professional services to be provided by Consultant pursuant to this Agreement shall be provided by personnel identified in their proposal. Consultant warrants that Consultant is familiar with all laws that may affect its performance of this Agreement and shall advise City of any changes in any laws that may affect Consultant’s performance of this Agreement. Consultant further represents that no City employee will provide any services under this Agreement.
4. Compensation.
a. Subject to paragraph 4(b) below, the City shall pay for such services in accordance with the Schedule of Charges set forth in Exhibit “A.” Packet Pg. 132
2 b. In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of $75,000. This amount is to cover all related costs, and the City will not pay any additional fees for printing expenses.
Consultant may submit invoices to City for approval. Said invoice shall be based on the total of all Consultant’s services which have been completed to City’s sole satisfaction.
City shall pay Consultant’s invoice within thirty (30) days from the date City receives said invoice. The invoice shall describe in detail the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as “Additional Services” and shall identify the number of the authorized change order, where applicable, on all invoices.
5. Additional Work. If changes in the work seem merited by Consultant or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following manner: a letter outlining the changes shall be forwarded to the City by Consultant with a statement of estimated changes in fee or time schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services, or the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement.
6. Term. This Agreement shall commence on the Effective Date and continue through May 17, 2024, unless the Agreement is previously terminated as provided for herein (“Term”).
7. Maintenance of Records; Audits.
a. Records of Consultant’s services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to City for inspection and/or audit at mutually convenient times for a period of four (4) years from the Effective Date.
b. Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Consultant and made available at all reasonable times during the contract period and for four (4) years from the date of final payment under the contract for inspection by City.
8. Time of Performance. Consultant shall perform its services in a prompt and timely manner and shall commence performance upon receipt of written notice from the City to proceed. Consultant shall complete the services required hereunder within Term.
9. Delays in Performance.
a. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an Packet Pg. 133
3 event that materially affects the Consultant’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety. b. Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Delays shall not entitle Consultant to any additional compensation regardless of the Party responsible for the delay.
c. Notwithstanding the foregoing, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
10. Compliance with Law.
a. Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Cal/OSHA requirements.
b. If required, Consultant shall assist the City, as requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies.
c. If applicable, Consultant is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement.
11. Standard of Care. Consultant’s services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions. Consultant’s performance shall conform in all material respects to the requirements of the Scope of Work.
12. Conflicts of Interest. During the term of this Agreement, Consultant shall at all times maintain a duty of loyalty and a fiduciary duty to the City and shall not accept payment from or employment with any person or entity which will constitute a conflict of interest with the City.
13. City Business Certificate. Consultant shall, prior to execution of this Agreement, obtain and maintain during the term of this Agreement a valid business Packet Pg. 134
4 registration certificate from the City pursuant to Title 5 of the City’s Municipal Code and any and all other licenses, permits, qualifications, insurance, and approvals of whatever nature that are legally required of Consultant to practice his/her profession, skill, or business.
14. Assignment and Subconsultant. Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Nothing contained herein shall prevent Consultant from employing independent associates and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder.
15. Independent Consultant. Consultant is retained as an independent contractor and is not an employee of City. No employee or agent of Consultant shall become an employee of City. The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from City as herein provided. Any personnel performing the work governed by this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers’ compensation insurance.
16. Insurance. Consultant shall not commence work for the City until it has provided evidence satisfactory to the City it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. a. Additional Insured
The City of San Bernardino, its officials, officers, employees, agents, and volunteers shall be named as additional insureds on Consultant’s and its subconsultants’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents. b. Commercial General Liability
(i) The Consultant shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City.
(ii) Coverage for Commercial General Liability insurance shall Packet Pg. 135
5 be at least as broad as the following:
Insurance Services Office Commercial General Liability
coverage (Occurrence Form CG 00 01) or exact equivalent. (iii) Commercial General Liability Insurance must include coverage for the following:
(1) Bodily Injury and Property Damage
(2) Personal Injury/Advertising Injury
(3) Premises/Operations Liability
(4) Products/Completed Operations Liability
(5) Aggregate Limits that Apply per Project
(6) Explosion, Collapse and Underground (UCX)
exclusion deleted
(7) Contractual Liability with respect to this Contract (8) Broad Form Property Damage
(9) Independent Consultants Coverage
(iv) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement.
(v) The policy shall give City, its elected and appointed officials, officers, employees, agents, and City-designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(vi) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured.
c. Automobile Liability
(i) At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City. (ii) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto).
(iii) The policy shall give City, its elected and appointed officials, officers, employees, agents and City designated volunteers additional insured status.
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6 (iv) Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention. d. Workers’ Compensation/Employer’s Liability
(i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement.
(ii) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this section. e. Professional Liability (Errors and Omissions)
At all times during the performance of the work under this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend.
f. Privacy/Network Security (Cyber)
At all times during the performance of the work under this Agreement, the Consultant shall maintain privacy/network security insurance for: (1) privacy breaches, (2) system breaches, (3) denial or loss of service, and the (4) introduction, implantation or spread of malicious software code, in a form and with insurance companies acceptable to the City.
g. Reserved.
h. Minimum Policy Limits Required
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7 (i) The following insurance limits are required for the Agreement:
Combined Single Limit
Commercial General Liability $2,000,000 per occurrence/$4,000,000 aggregate for bodily injury, personal
injury, and property damage
Automobile Liability $1,000,000 per occurrence for bodily injury and property damage
Employer’s Liability $1,000,000 per occurrence
Professional Liability $1,000,000 per claim and aggregate (errors and omissions)
Cyber Liability $500,000 per occurrence and aggregate
(ii) Defense costs shall be payable in addition to the limits. (iii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement.
i. Evidence Required
Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance.
j. Policy Provisions Required
(i) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of the premium. If any of the required coverage is Packet Pg. 138
8 cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration. (ii) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant’s policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss. (iii) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claimsmade policy with a retroactive date subsequent to the effective date of this Agreement. (iv) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to provide waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
(v) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law. k. Qualifying Insurers
(i) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements:
(1) Each such policy shall be from a company or
companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. l Additional Insurance Provisions
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9 (i) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including, but not limited to, the provisions concerning indemnification. (ii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. (iii) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (iv) Neither the City nor the City Council, nor any member of the City Council, nor any of the officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. m. Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants.
17. Indemnification.
a. To the fullest extent permitted by law, Consultant shall defend (with counsel reasonably approved by the City), indemnify and hold the City, its elected and appointed officials, officers, employees, agents, and authorized volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s services, the Project, or this Agreement, including without limitation the payment of all damages, expert witness fees, attorneys’ fees and other related costs and expenses. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall survive expiration or termination of this Agreement for a period not to exceed four (4) years.
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10 18. California Labor Code Requirements. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, Consultant agrees to fully comply with such Prevailing Wage Laws, if applicable. Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1).
If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such Services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements.
19. Verification of Employment Eligibility. By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subconsultants and sub-subconsultants to comply with the same.
20. Laws and Venue. This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of San Bernardino, State of California.
21. Termination or Abandonment
a. City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) calendar days’ written notice to Consultant. In such event, City shall be immediately given title and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed for that portion of the work completed and/or being abandoned.
City shall pay Consultant the reasonable value of services rendered for any portion of Packet Pg. 141
11 the work completed prior to termination. If said termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed during such task shall be the reasonable value of such services, based on an amount mutually agreed to by City and Consultant of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work.
b. Consultant may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days’ written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant.
22. Attorneys’ Fees. In the event that litigation is brought by any Party in connection with this Agreement, the prevailing Party shall be entitled to recover from the opposing Party all costs and expenses, including reasonable attorneys’ fees, incurred by the prevailing Party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary, and expenses of the City Attorney’s Office in enforcing this Agreement on behalf of the City shall be considered as “attorneys’ fees” for the purposes of this Agreement.
23. Responsibility for Errors. Consultant shall be responsible for its work and results under this Agreement. Consultant, when requested, shall furnish clarification and/or explanation as may be required by the City’s representative, regarding any services rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Consultant’s professional services occurs, Consultant shall, at no cost to City, provide all other services necessary to rectify and correct the matter to the sole satisfaction of the City and to participate in any meeting required with regard to the correction.
24. Prohibited Employment. Consultant shall not employ any current employee of City to perform the work under this Agreement while this Agreement is in effect.
25. Costs. Each Party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein.
26. Documents. Except as otherwise provided in “Termination or Abandonment,” above, all original field notes, written reports, Drawings and Specifications and other documents, produced or developed for the Project shall, upon payment in full for the services described in this Agreement, be furnished to and become the property of the City.
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12 27. Organization. Consultant shall assign Joseph Dieguez as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City.
28. Limitation of Agreement. This Agreement is limited to and includes only the work included in the Project described above.
29. Notice. Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to the following addresses and shall be effective upon receipt thereof:
CITY:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Manager
With Copy To:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Attorney
CONSULTANT:
Kosmont Companies
1601 N. Sepulveda Blvd., #382
Manhattan Beach, CA 90266
ATTN: Larry J. Kosmont, CRE, Chairman
& CEO
30. Third Party Rights. Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant.
31. Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such nondiscrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
32. Entire Agreement. This Agreement, including exhibits, represents the entire understanding of City and Consultant as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those matters covered hereunder. Each Party acknowledges that no representations, inducements, promises, or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This is an integrated Agreement.
33. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such Packet Pg. 143
13 determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect.
34. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each Party to this Agreement. However, Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void.
35. Non-Waiver. The delay or failure of either Party at any time to require performance or compliance by the other Party of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
36. Time of Essence. Time is of the essence for each and every provision of this Agreement.
37. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain, or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement.
38. Amendments. Only a writing executed by all of the Parties hereto or their respective successors and assigns may amend this Agreement.
39. City’s Right to Employ Other Consultants. City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects.
40. Prohibited Interests. Consultant maintains and warrants that it has neither employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
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14 41. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one single Agreement.
42. Authority. The persons executing this Agreement on behalf of the Parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said Parties and that by doing so, the Parties hereto are formally bound to the provisions of this Agreement.
43. Electronic Signature. Each Party acknowledges and agrees that this Agreement may be executed by electronic or digital signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature.
44. Disclaimer. Consultant's financial analysis activities and work product, which may include but is not limited to pro forma analysis and tax projections, are projections only. Actual results may differ materially from those expressed in the analysis performed by Consultant due to the integrity of data received, market conditions, economic events and conditions, and a variety of factors that could materially affect the data and conclusions. City's reliance on Consultant's analysis must consider the foregoing.
Consultant services outlined and described herein are advisory services only. Any decisions or actions taken or not taken by City and affiliates, are deemed to be based on City's understanding and by execution of this Agreement, acknowledgement that Consultant's services are advisory only and as such, cannot be relied on as to the results, performance and conclusions of any investment or project that City may or may not undertake as related to the services provided including any verbal or written communications by and between the City and Consultant.
City acknowledges that Consultant's use of work product is limited to the purposes contemplated within this Agreement. Consultant makes no representation of the work product's application to, or suitability for use in, circumstances not contemplated by the scope of work under this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
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15 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND KOSMONT & ASSOCIATES, INC. D/B/A KOSMONT COMPANIES
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
CITY OF SAN BERNARDINO
APPROVED BY:
Charles E. McNeely
Interim City Manager
ATTESTED BY:
Genoveva Rocha, CMC
City Clerk
APPROVED AS TO FORM:
Best Best & Krieger LLP
City Attorney
CONSULTANT
KOSMONT & ASSOCIATES, INC.
D/B/A KOSMONT COMPANIES
APPROVED BY:
Larry J. Kosmont, CRE
Chairman & CEO
ATTESTED BY:
Kelly Aguilar
Secretary
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16 EXHIBIT A
SCOPE OF SERVICES/SCHEDULE/COMPENSATION
1. SCOPE OF SERVICES
Approach to Tasks: The prospective assignment and consulting services that Kosmont will provide will be of a relatively limited scope and duration, and advisory in nature. Kosmont will be making recommendations only, which advise the Client and jurisdictions, including their elected officials, appointed officials, and staff, which they can accept or reject by. None of Kosmont's staff will act in a capacity as an elected official, nor appointed official, nor as staff, nor as serving in a "designated" position.
Task 1: Evaluation of Financing District Boundary and Strategic Considerations Based on discussion with City staff regarding preferred financing mechanisms, Kosmont will analyze key strategic implementation considerations, including:
a) Property ownership, including SLA-related properties (separate budget required based on properties included and expected activity level) b) Planned / proposed / potential future development (based on information to be provided by the City)
c) Infrastructure needs and estimated costs (to be provided by the City) d) Potential public and private sector partners (e.g., City, County of San Bernardino, County Fire, other affected taxing entities, developers / property owners) e) Disadvantaged Community (DAC) Census Tract designation and/or other measures of priority for potential state and federal grant programs f) Overlap with former Redevelopment Agency Project Area boundaries and status of redevelopment dissolution.
Task 2: Preliminary Funding and Financing Analysis
Kosmont will prepare a preliminary funding and financing analysis, including preliminary tax increment analysis, as appropriate, reflecting potential future development and potential public and private sector partners. The analysis will identify:
a) Potential assessed value generation from future development in the district b) Property tax increment funding capacity at select annual benchmarks and cumulatively over the estimated district lifetime(s)
c) Initial estimates of potential bonding capacity (to be prepared by Kosmont Financial Services, registered Municipal Advisor)
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17 d) Complementary economic development tools and funding resources, potentially including state and federal grants, leverage of SLA-related properties, community facilities district (CFD) financing, Development Opportunity Reserve (D.O.R.)® zoning incentives, and/or outstanding debt refinancing strategies
e) Comparison of potential revenue generation to types and cost of infrastructure needed to serve potential development
f) As related to potential overlap of proposed district boundaries with former redevelopment agency project areas, analysis of corresponding relevant outstanding enforceable obligations and implications on available revenues.
Task 3: Fiscal and Economic Impact Analysis
Kosmont will evaluate fiscal revenues (e.g., property tax, sales tax) and fiscal expenditures (e.g., police, fire, community service costs) and the resulting net fiscal impact to the City from district implementation over time. It should be noted that such fiscal impact analysis is required by EIFD and CRD legislation as part of district formation.
Task 4: Governance and Implementation Roadmap
Based on the preferred tool(s) identified by the City based on previous Task findings, Kosmont will evaluate and summarize feasible governance and implementation alternatives, including district governing board composition, voting / approval procedures, district formation milestones, debt issuance procedures, and estimated timing, in order to provide potential public and private sector stakeholders with an illustrative "roadmap" for implementation.
Task 5: Taxing Entity Stakeholder Outreach for Potential Partnership Kosmont will assist the City with outreach to public and private sector entity stakeholders, potentially including, but not limited to:
County Administrative Office / Auditor-Controller / Treasurer / Tax Collector / Property Tax Manager Economic Development / Public Works staff
County Board of Supervisors
County Fire Chief / Fire Marshal staff and leadership Major district area property owners, businesses, and/or registered voters Kosmont will accordingly assist with preparation and presentation of analysis materials as appropriate for such outreach. Based on stakeholder feedback, Kosmont will refine analysis and roadmap materials accordingly.
The goals of this Task include direction/confirmation on which taxing entities would partner with the City on implementation of any preferred tools, and whether entities such as the County and County Fire would support the City in approaching the state legislature regarding new policy that would aid the City (and County) in its economic recovery and implementation of preferred tools.
Task 6: City Meeting I Workshop
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18 Kosmont will coordinate a meeting with City staff, City Council, and/or other key community stakeholders, such as residents, property owners, and/or local developers. Kosmont will prepare and present an overview of analysis findings and the potential roadmap for implementation. Kosmont will make itself available for additional meetings on an hourly, timeand-materials basis.
Potential Future Services
Preparation of Infrastructure Financing Plan ("IFP") or other required documentation based on preferred tool(s)
District formation hearings
SLA disposition proceedings
Outreach to state legislative representatives
Municipal Advisory activities for potential debt issuances to be provided by Kosmont Financial Services, registered Municipal Advisor
2. SCHEDULE AND REQUIRED DATA
Consultant is prepared to commence work upon receipt of executed Agreement. A summary PowerPoint presentation characterizing findings from Tasks 1 through 4 is anticipated to be delivered within ten (10) to twelve (12) weeks from assignment authorization.
Client will provide Consultant with existing project data, including relevant planning documentation (e.g., General Plan, specific plans, previous market studies), map(s) and/or listing of potential surplus properties, current project proposals and/or site plans, and information on potential infrastructure projects with estimated range of costs, as available.
3. COMPENSATION
Compensation for Tasks 1 through 6 is estimated below for professional services (hourly) fees at Consultant's billing rates as shown on Attachment A.
Tasks Estimated Budget
1)Evaluation of Boundary and Strategic Considerations $13,500 2)Preliminary Funding and Financing Analysis $17,500
3) Fiscal and Economic Impact Analysis $13,500
4)Governance and Implementation Roadmap $4,500
5)Taxing Entity Stakeholder Outreach for Potential Partnership $17,500 6)City Meeting / Workshop $4,500
Estimated Total Professional Services (Hourly) Fees $71,000 Budget may be re-allocated between Tasks as may be needed to provide adequate services to Client. Budget may be increased by Client at any time. Budget for future phases of work through potential district formation would require future authorization by the City, time and budget for which would be outlined for City consideration in advance.
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19 Consultant anticipates a single consolidated round of Client comments and revisions on draft work product before Kosmont provides a final version of work product. If necessary, additional rounds of comments and revisions can be accommodated on an hourly basis.
Consultant's attendance or participation at any publicly noticed meeting other than the Task 6 Workshop, whether such participation is in person, digital, video and/or telephonic (e.g., City Council, Planning Commission, Public Agency Board, other), as requested by Client is in addition to compensation for Tasks 1 through 6 and will be billed at the professional services (hourly) fees as shown on Attachment A.
Services will be invoiced monthly at Consultant's standard billing rates, as shown on Attachment A. In addition to professional services (hourly) fees, invoices will include reimbursement for outof-pocket expenses such as travel and mileage (provided that there shall be no overnight travel without the Client's prior approval and that mileage shall be reimbursed at the current IRS mileage reimbursement rate), professional printing, conference calls, and delivery charges for messenger and overnight packages at actual cost. Unless otherwise agreed to in advance, outof-area travel, if any, requires advance funding of flights and hotel accommodations.
Consultant will also include in each invoice an administrative services fee to cover in-house copy, fax, telephone and postage costs equal to four percent (4.0%) of Consultant's monthly professional service fees incurred. Any unpaid invoices after 30 days shall accrue interest at the rate of 10% per annum.
Consultant will also include in each invoice an administrative services fee to cover in-house copy, fax, telephone and postage costs equal to four percent (4.0%) of Consultant's monthly professional service fees incurred. Any unpaid invoices after 30 days shall accrue interest at the rate of 10% per annum.
For the convenience of Kosmont's clients, we offer a secure credit card payment service. The credit card payment link is: httos://kosmont.paidvet.com and there are two ways to make a secure credit card payment:
1. Fill in the "Make a Payment" form when you go to the link (httqs://kosmont.paidvet.com), or
2. Call Kosmont Companies' accounting desk (Ms. Reny Sultan; (424) 297-1072) to make a credit card payment
DISCLOSURE: Compensation for possible future transaction-based services or brokerage services.
The following is being provided solely as an advance disclosure of possible real estate brokerage and finance services and potential compensation for such services. This disclosure is not intended to commit the Client.
When assignments involve real estate/property brokerage services, such transaction-based services are typically provided by Kosmont Real Estate Services, Inc. dba Kosmont Realty ("KR") is licensed by the State of California Department of Real Estate (License# 02058445).
Compensation to KR is typically paid through commissions for property sale transactions, lease Packet Pg. 150
20 transactions and success/broker fees. KR also provides Broker Opinions of Value ("BOV") services on a fixed fee basis.
When assignments involve public finance services on behalf of a public agency, such municipal advisory services are provided by Kosmont Financial Services (KFS). KFS is an independent Registered Municipal Advisor with the Securities and Exchange Commission and the Municipal Securities Rulemaking Board.
SEC registration does not constitute an endorsement of the firm by the Commission or state securities regulators.
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City of San Bernardino | Purchasing Manual
Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 1 of 99
PURCHASING GUIDELINES AND
PROCEDURES
Purchasing Division
Precious Carter: Purchasing Division Manager
Contact: [email protected]
Effective Date: April 18, 2023
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 2 of 99 Table of Contents
SECTION 1: OVERVIEW
Introduction…………………………………………………………………………………………………………………3 Role of the Purchasing Department…………………………………………………………………………….3 Purchasing Values and Principles………………………………………………………………………………..4 Purpose of the Purchasing Manual……………………………………………………………………………..4 Goal………………………………………………………………………………………………………………………….4 -5 Why Policies and Procedures Matter.………………………………………………………………………….5 Code of Ethics………………………………………………………………………………………………………….6 -7 Conflict of Interest………………………………………………………………………………………………………7 Gratuities…………………………………………………………………………………………………………………….7 Definitions and Terms………………………………………………………………………………………….7 – 16 SECTION 2: POLICIES
Policy Definition…………………………………………………………………………………………………………16 The Purpose of Policies………………………………………………………………………………………………16 What Makes a Good Policy………………………………………………………………………………………..16 Purchasing Policy………………………………………………………………………………………………..17 – 41 Purchasing Card Policy (P-Card)………………………………………………………………………….42 – 52 Travel Authority and Expense Reimbursement…………………………………………………..53 - 61 SECTION 3: PROCEDURES
Procedure Definition………………………………………………………………………………………………….62 The Purpose of Procedures…………………………………………………………………………………………62 What Makes a Good Procedure………………………………………………………………………………….62 Exceptions to the Bidding Process……………………………………………………………………….62 - 63 The Purchasing Process………………………………………………………………………………………………64 Telephone Quotes…………………………………………………………………………………..………………….65 Example & Details of a simple quote………………………………………………………………………….66 Response Time from Purchasing Agents…………………………………………………………………….67 Purchasing Dept. Led Bids………………………………………………………………………………….68 - 74 Protest Form and Content…………………………………………………………………………………………..75 Vendor Setup Instructions…………………………………………………………………………………………..76 Purchase Orders (POs)………………………………………………………………………………………………..76 PO Change Order Process……………………………………………………………………………………………77 Furniture Order Process……………………………………………………………………………………………..78 Staples Office Supplies……………………………………………………………………………………………….78 Business Registration…………………………………..…………………………………………………………….78 City of San Bernardino Contract Processing Guidelines………………………………………79 – 87 Justification of Single/Sole Source Request…………………………………………………………88 - 89 City Clerk DocuSign Process…………………………..……………………………………………………….….90 How to Calculate Cost Avoidance/Cost Savings………………………………………………….91 – 92 Certificate of Insurance (COI)………………………………………………………………………………93 - 99 Packet Pg. 161
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 3 of 99 SECTION 1: OVERVIEW
Introduction
The Purchasing Division supports the City Manager, Mayor and City Council, City Departments and Agencies of the City of San Bernardino. The Purchasing Division provides quality goods and services in a timely manner and at the best value for the City.
The Role of the Purchasing Division
A Purchasing Division, also called a procurement division, supports operations by serving as the primary buyer of goods and services in a private sector company, government agency, educational institution, or any other type of organization.
The Purchasing Division serves as a compliance division for the purchasing needs of the City.
The Purchasing Division serves the needs of internal customers by procuring goods and services in a timely manner. The purchasing staff serves the organization’s financial wellness by seeking out and purchasing goods and services at the lowest price and best value.
The Purchasing Division offers procurement services, administers contracts, ensures contract compliance, and manages vendor relationships. Purchasing involves the acquisition of equipment, furnishings, supplies, maintenance services, construction services and contractual services. Purchasing assists departments and/or leads with preparing bid specifications; initiation formal quotes, proposals, and bids, conducting public bid openings, evaluating bids, awarding, and administrating contracts until the final completion or termination of a contract.
The values of the Purchasing Division include Customer Services, Partnership, Innovation, Ethical and Fair Conduct, Professional Values and Transparency. These values assist the Division in fulfilling departments’ obligations while upholding legal requirements and fiduciary responsibilities to the residents of the City of San Bernardino.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 4 of 99 Purchasing Values and Principles
• Transparency: Being Open and Honest
• Accountability: taking responsibility of our work
• Ethics: The rules, principles, and standards of deciding what is morally right or wrong when working.
• Impartiality: Acting fairly and equitable in all our dealings These values and principles influence how suppliers, contractors and vendors interact with the City and they can affect the way in which the press, public, and other government partners view the City. The Purchasing Division acts as a neutral party in purchasing activities. The Purchasing Division doesn’t have an interest in who is awarded a bid. The City’s Purchasing Division presents the facts that are submitted within bid proposals.
Purpose of the Purchasing Manual
The purpose of the Purchasing Guideline and Procedure Manual is to streamline and detail all Purchasing procedures and guidelines. This Manual will assist all departments in following proper procurement procedures and how to have all proper approvals and signature authorities for procuring materials, services, and equipment.
Goal
All purchasing activities are to be conducted in an ethical manner. Department Directors, Division Managers, and all staff members must be aware of their ethical duty as servants of the public trust while spending public funds. The Purchasing Division will provide a purchasing process that implements and maintains the requirements of City Municipal Code 3.04.070.
A. The Purchasing Division has established a program for all Departments to conduct competitive bidding in the open market that will obtain the greatest advantage for the City of San Bernardino.
B. The Purchasing Division has established purchasing processes utilizing ethical standards.
C. The bidding processes established by the Purchasing Division attempts to obtain high quality goods and services at reasonable costs.
TRANSPARENCY ACCOUNTABILITY ETHICS IMPARTIALITY
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 5 of 99 D. In most instances purchases will be awarded to the lowest most responsible and responsive bidder based on the specifications of the sourcing effort. All services and materials that are released to the public for bidding purposes will adhere to the City of San Bernardino requirements.
E. The established bidding/purchasing processes promote and maintain good relationships with vendors. All City of San Bernardino staff shall conduct themselves in a professional manner, while promoting equal opportunity, fairness and courtesy in vendor relations.
Why Do Policies and Procedures Matter to the City?
• Together, policies and procedures guide our city and reduce risk of liability. They promote consistency across the organization, both for employees and for customers. • Consistency builds a healthy reputation for our city over time, especially regarding employee touchpoints with customers. Another term for this is branding. Consistency builds and protects the City’s brand. Policies and procedures promote Consistency across our City, which builds and protects our city’s brand over time. • Policies can only positively impact our city if they’re followed. The responsibility is twofold:
o Leadership must communicate policies effectively.
o Employees must follow them.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 6 of 99 Code of Ethics
A. Avoid Unfair Practices: By granting all competitive suppliers’ equal consideration in so far as State, Federal and City regulations require.
B. Conduct business in good faith: Demanding honesty and ethical practices from all participants in the purchasing process.
C. Decline personal gifts or gratuities: from present or potential suppliers since this can influence or appear to influence procurement decisions.
D. Avoid preferential treatment of certain vendors: Favoritism is the presence of bias or partiality for one vendor over another, or actions that may cause this perception.
E. Promote positive supplier/contractor relationships: By providing vendors with courteous, fair, and equal treatment.
F. Avoid controversy: make every reasonable effort to negotiate equitable and mutually agreeable settlements of controversies with supplier(s).
G. Avoid conflicts of interest: avoid involvement in any transaction/activities that could be considered to be a conflict between personal interest and the interests of the City.
H. Know and obey the letter and the spirit of the law: governing the purchasing function and remain alert to the legal ramifications of purchasing decisions.
I. Enhance proficiency: by acquiring and maintaining current technical knowledge and pursuing related educational opportunities and professional growth.
J. Do not engage in auctioning of bids or quotes: The disclosure of one vendor’s price to another to obtain a lower price is illegal. Prices and other information provided in the purchasing process must not be divulged until made public.
K. Do not engage in back door buying or selling: Unofficial, irregular, devious buying or selling, usually resulting from undue efforts to induce preference for a particular vendor with the intent of limiting competition. Also, evasive actions taken by the seller to circumvent the Purchasing Division and/or City rules/regulations by trying to influence or sell directly to the City’s internal user/customer department.
L. Avoid false information: Employees must take care to avoid providing inaccurate information to vendors during a solicitation process and must not conceal relationships with vendors or other inappropriate purchasing activity.
M. Do not help a bidder with a proposal: Coaching or providing solutions to prepare or improve a proposal is unethical.
N. Avoid leveling: A form of fraud in which a contract is promised to a specific vendor, even though a public solicitation is being pursued for the save of appearances by asking other vendors to submit a bid. This form of collusion is illegal and is a form of price fixing. Procurement professionals and other employees who use leveling will be subject to applicable disciplinary processes and any other investigation by law enforcement agencies.
O. Proper award of contracts and/or purchase orders: Awards should be made to the vendor who receives the highest rating meeting the solicitation requirements (best value). Formal solicitations should state the criteria upon which the evaluation will be based. Criteria may include ability to meet the City’s needs, past performance, references, warranties, services costs, or other measurable specifications that will Packet Pg. 165
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 7 of 99 eliminate the appearance of an arbitrary or capricious award. Evaluations must be conducted in accordance with criteria established in the solicitation document.
Conflict of Interest
No employee or officer shall purchase goods or services for the City if they have a financial interest in connection to the purchase. No officer or employee shall participate in procurement or make evaluations concerning the purchase of a good or service if they have a relationship or a financial interest concerning the individual or Business seeking a contract from the City. This action would violate Government Code 1090.
Gratuities
All staff and employees are prohibited from accepting gifts, money, kickbacks, rebated goods, or anything that may be construed as an unlawful consideration from individuals or businesses currently engaged in a contract or may be awarded a contract in the future. The offer of such gratuity will result in declaring the individual or business an irresponsible bidder and will prevent the individual or business from bidding.
***PLEASE NOTE*** It is important to keep in mind that, even when no unethical behavior is evident, the appearance of unethical behavior must be avoided. Such behavior erodes public trust and the reputation of the employees, their department, and the city.
Definitions and Terms:
Amendment: An agreed addition to, deletion from, correction, or modification of a document or contract
Annual Purchase Order:
• Annual purchase orders are used for repetitively purchasing from the same vendor for items that are under the $10,000 threshold.
• If an item is purchased that is $10,001 and $40,000, the annual purchase order cannot be used. Three quotes must be obtained.
• The proper procurement process must be followed while using an annual purchase order.
Best and Final Offer (BFOA): This procedure is utilized during the evaluation process after the invitation to negotiate is released and negotiations and presentations have taken place.
Vendors are asked to submit a best and final offer based off this negotiation. Best and final offers, as the name suggest, are a vendor’s final proposal submittal. Typically, best and final offers may include price adjustments, modification to a vendor’s proposed solution and contract terms that differ from standard City contractual language. “Best Value” Procurement Procedure: A procurement method that emphasizes value over price. 2. An assessment of the return that can be achieved over the useful life of the item, e.g., the best combination of quality, service, time, and price.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 8 of 99 For specialized goods, nonprofessional services, and non-public improvement work, the Purchasing Division may approve the use of the “Best Value” method.
The “Best Value” Method takes into consideration the lowest cost, qualified bidder with the quantity and scope needed. This method utilizes the request for proposal solicitation which includes specifications and evaluation criteria and allows the vendor to determine the way in which they will best meet the City’s needs. “Best Value” Procurement must be approved by the Purchasing Division prior to the solicitation of any proposals.
Quality and performance considerations will also be given, as well as price of goods, services, or non-public project implementations.
Criteria for “Best Value” Performance shall include but not be limited to the following:
a. Ability, Capacity, and skill of the vendor to provide the required goods and services of the City within the time period required.
b. Character, integrity, reputation, judgement, experience, and efficiency of the proposer. c. Quality of performance of work performed by the vendor from previous purchases. d. Ability of the proposer to provide future maintenance, repairs parts and services for the use of goods and services.
e. Performance of the vendor under past contracts with the City. f. Possession of required licenses and insurance documents, and endorsements for the City as needed to supply goods and services.
Bid: The response submitted by a bidder to an invitation for Bids (IFB).
Bid Bond: An insurance agreement, accompanied by a monetary commitment, by which a third party (the surety) accepts liability and guarantees that the bidder will not withdraw the bid. • Please Note: The purchasing agent may require a bid bond to accompany a bid. A bid bond should be no more than 10% of the total bid. The City Manager shall establish standards for determining under what circumstances a bid bond is required. City Council and the City Manager have the authority to require a performance bond if they find it necessary in order to protect the City and its interest.
Certificate of Insurance (COI): is a document from an insurer to show you have business insurance. This is also called a certificate of liability insurance or proof of insurance. With a COI, your clients can make sure you have the right insurance before they start working with you. • Please Note: Sample COI located at the end of Purchasing Guidelines and Procedures.
Change Order: A written modification or amendment to a contract. You can also look at phrases such as: Amendment, Modification, Authorized Deviation, Change Order Authority, Contract Modification.
Change Order Authority: The power of right of a public entity to unilaterally modify a contract without the express consent of the contractor.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 9 of 99 Commodity: Something useful that can be turned into a commercial advantage; anything that can be purchased, processed, or resold. Examples – paper, furniture, fasteners.
Completion or Performance Bond: An instrument executed, subsequent to award, by successful bidder that protects that public entity from loss due to the bidder’s inability to complete the contract as agreed. A risk mechanism that secures the fulfillment of all contract requirements. May be referred to as a completion bond.
Consultant: A person or company that possesses unique qualifications that allow them to perform specialized advisory services usually for a fee.
Consultant Services Agreement (CSA) or Vendor Service Agreement (VSA): A written contract between the City and a vendor, stating all terms and conditions of a proposed transaction or service.
Contract: 1. An obligation, such as an accepted offer, between competent parties upon a legal consideration, to do or abstain from doing some act. The essential elements of a contract are an offer and an acceptance of that offer; the capacity of the parties to contract; consideration to support the contract; a mutual identity of consent; legality of purpose; and definiteness. 2. A legally binding promise, enforceable by law. 3. An agreement between parties with binding legal and moral force, usually exchanging goods or services for money or other considerations.
Cost Avoidance: Action that avoids incurring costs in the future, also known as “soft savings” and, therefore, not reflected in financial statements.
Cost Savings: A realized and measurable reduction in material, resource, or labor expense(s) associated with the production and delivery of an item or service. Primarily associated in the manufacturing of an item; interchangeably used to indicate a lower price paid by the buyer form what was previously paid.
Cooperative Procurement (Purchasing): 1. The action taken when two or more entities combine their requirements to obtain the advantages of volume purchases, including administrative savings and other benefits. 2. A variety of arrangements, whereby two or more public procurement entities purchase from the same supplier or multiple suppliers using a single Invitation for Bids (IFB) or Request for Proposals (RFP). Cooperative procurement efforts may result in contracts that other entities may “piggyback.” Department of Industrial Relations (DIR): A department of the State of California, which is a regulatory agency for various functions, including enforceability of SB854, which now requires public works contractors subject to prevailing wage requirements to register annually with the Department of Industrial Relations and pay and annual fee. Beginning effective September 1, 2021, the City of San Bernardino will accept public works bids from only those contractors and subcontractors who have complied with this requirement. Please refer to the DIR website:
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 10 of 99 https://www.dir.ca.gov/Public-Works/Contractor-Registration.html Disadvantage Business Enterprise (DBE): For profit small business concerns where socially and economically disadvantaged individuals own at least a 51% interest and also control management and daily business operations. Usually is certified as a DBE entity in the United States by the government of the State in which it is located.
Emergency: A sudden, unexpected occurrence that poses a clear and imminent danger, requiring immediate action to prevent or mitigate the loss or impairment of life, health, property, or essential public services as defined by California Public Contract Code Section 1102.
Emergency Purchase: A purchase made as the result of an unexpected and urgent request in which health and safety, or the conservation of public resources is at risk. Usually, formal competitive bidding procedures are waived, modified, or simplified. The City’s Municipal Code allows for Emergency Purchases under §3.04.070.
Encumbrance: The appropriation of funds to purchase an item or service. To encumber funds means to set aside or commit funds for specified future expenditure. “Environmentally Preferable” (Per Calrecycle): the Procurement of goods and services that have a reduced impact on human health and the environment compared to competing products serving the same purpose. It is an essential part of the search for high quality products and services at competitive prices.
Formal Bid: A bid that must be submitted in a sealed format and in conformance with a prescribed format to be opened in public at a specified date and time. • This type of format is generally used in the Public Sector for Public Works bid projects, usually called a Request for Bid (RFB)
General Services: furnishing of labor, time, or effort by a contractor for non-professional services as the city may, from time to time, find necessary and proper for the functioning of the City. Examples include, but are not limited to, janitorial, uniform cleaning, maintenance and other services which do not require any unique skill, special background, or training.
Goods: any and all supplies, materials, articles, equipment, apparatus, vehicles, things, or property, other than real property, furnished to be used by the City.
Informal Bid/Proposal: A competitive bid, price quotation, or proposal for supplies or services that is conveyed by a letter, fax, e-mail, or other manner that does not require a formal sealed bid or proposal, public opening, or other formalities. Generally relegated to requirements that may be considered low value or fall under a stipulated price/cost threshold.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 11 of 99 • Please Note: For the City, most bids conducted in this manner would be considered “Formal” as long as the actual proposal(s) are not viewed until the bid deadline date and time.
Key Performance Indicators (KPIs): Refer to a set of quantifiable measurements used to gauge a company’s overall long-term performance. KPIs specifically help determine a company’s strategic, financial, and operational achievements, especially compared to those of other businesses within the same sector.
Local Vendor: According to the City’s Municipal Code §3.04.100 Local Bidders, “local” is defined as having “(1) fixed facilities with employees within the City of San Bernardino’s jurisdiction (a PO Box or residential address is insufficient unless it is a home-based business, in which case the residential address may be used) and (2) an appropriate City of San Bernardino Business License.”
Lowest Responsive and Responsible Bidder: The Bidder who fully complied with all of the bid requirements and whose past performance, reputation, and financial capability is deemed acceptable, and who has offered the most advantageous pricing or cost benefit, based on the criteria stipulated in the bid documents.
Local Vendor Preference: Any formal or informal bid submitted by a local bidder for goods or materials, shall receive a five percent (5%) credit for comparison purposes with other bidders. A five percent (5%) credit for comparison purposes shall be used for bidders of services.
Municipal Code §3.04.100
Maintenance Services: The furnishing of labor, time, or effort by a contractor, including but not limited to:
• Routine, recurring, and usual work for the preservation or protection of a publicly owned, or publicly operated facility for intended purposes.
• Minor repainting.
• Resurfacing streets and highways at less than one inch. • Landscape maintenance, including mowing, watering, trimming, pruning, planting, replacement of plants, and servicing of irrigation and sprinkler systems; and • Other similar services that are generally classified as maintenance and not public projects.
Penalty Charge: A clause in a contract specifying the sum of money to be paid if the contractor defaults on the terms of the contract, particularly with respect to time.
Penalty Clause: Punitive language inserted in a competitive solicitation that details what action will be taken if the contractor does not perform in a satisfactory manner. (ISM, 2000) Packet Pg. 170
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 12 of 99 Pre-Bid/Pre-Proposal Conference (Meeting): A meeting held by the buyer with potential bidders/proposers prior to the opening of the solicitation for the purpose of answering questions, clarifying any ambiguities, and responding to general issues to establish a common basis for understanding all of the requirements of the solicitation. May result in the issuance of an addendum to all potential providers. In certain situations, a mandatory conference may be advisable.
Pre-Solicitation Conference (Bidders or Suppliers Conference): An informal, typically nonmandatory, meeting inviting comments and suggestions from a representative group of suppliers on the draft of a proposed solicitation; this conference provides useful market analysis information to the buyer; usually used for solicitation involving high technology or complex services.
Prevailing Wage: the average wage paid to similarly employed workers in a specific occupation in the area of intended employment.
o Per www.dir.ca.gov. When the Director of the California Department of Industrial Relations determines that the general prevailing rate of per diem wages for a particular craft, classification, or type of work is uniform throughout an area, the director issues a determination enumerated county by county, but covering the entire area. General determinations are issued twice a year, February 22 and August 22nd.
Price: 1. A value placed on an object or service provided by a seller to a buyer. 2. The money value of a unit of a good, service, or resource. 3. The total amount, in money or other consideration, to be paid or charged for a commodity normally includes all costs (direct labor, overhead, materials) a profit or fee.
Piggy-back (Piggyback Cooperatives Contracts or Government Contracts): A form of intergovernmental cooperative purchasing in which an entity will be extended the pricing and terms of a contract entered into by a larger entity. Generally, a larger entity will competitively award a contract that will include language allowing for other entities to utilize the contract which may be to their advantage in terms of pricing, thereby gaining economies of scale that they normally would not receive if they competed on their own.
Professional Service: A service rendered by member(s) of a recognized profession or possessing a special skill. Such a service is generally acquired to obtain information, advice, training, or direct assistance. See also: Nonprofessional Service.
Public Works (PW): According to Labor Code 1720, construction, alteration, demolition, installation, or repair work done under contract and paid for the whole or in part out of public funds, except work done directly by any public utility company pursuant to order of the Public Utilities Commission or other public authority. For purposes of this paragraph, “construction” Packet Pg. 171
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 13 of 99 includes work performed during the design and preconstruction phases of construction, including, but not limited to, inspection and land surveying work, and work performed during the post construction phases of construction, including, but not limited to, all cleanup work at the jobsite. “Installation” includes, but is not limited to, the assembly and disassembly of modular and/or affixed modular office systems.
Protest: A written objection by an interested party to a solicitation or award of a contract with the intention of receiving a remedial result.
Purchasing Agent: Individual who acts on behalf of any entity, such as a corporation, partnership, or any level of government as that entity conducts business. See also: Law of Agency, Principal, Buyer, General Agent, Special Agent.
Purchase Order: A purchaser’s written document to a supplier formalizing all terms and conditions of a proposed transaction (e.g., description of the requested items, cost of items being purchased, delivery schedule, terms of payment, transportation).
A purchaser’s written document to a supplier formalizing all the terms and conditions of a proposed “single” transaction, such as a description of the requested items, cost of items being purchased, delivery, schedule, terms of payment, and transportation. Purchase orders are only to be made by the Purchasing Division, except in the case of small purchases or in the case of an emergency. No employee is to request the delivery of goods or services without the issuance of a purchase order.
o Please note that a small purchase is a purchase that is less than or equal to $10,000.
Purchase Order (Stand Alone): This type of transaction is not connected to a contract in any way. Stand Alone POs are created for one-time purchases, usually for equipment and materials.
Stand Alone POs have their own terms and conditions. Once signed by the recipient it is a legally binding contract.
Purchase Order (Assigned to a Contract): This type of transaction is connected to a contract.
The terms and conditions along with the expiration date of the contract extend to the Purchase Order. Purchase Orders that are contract specific/related should not be drafted beyond the expiration date of the contract that it is attached to. If the contract is extended, then the PO can be extended. If the contract expires, the PO cannot be extended beyond the expiration date of the contract.
Purchase Requisition (PR): A document created by a requestor authorizing the commencement of purchasing transaction. This typically will include a description of the need and other information that is relative to the transaction. A requisition may be submitted in hard copy or via eProcurement software.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 14 of 99 Quote: An informal purchasing process which solicits pricing information from several sources.
A price quote in general delivers a fixed price for a product or service. It is given to a customer by a supplier and can be either written or verbal. The quoted price is only valid for a certain period of time and can’t be changed once the client accepts it. • What isn’t a price quote:
• A screen print from a vendor’s website.
• A price taken from a newspaper or magazine advertisement. • A price paid from a previous product. Pricing changes over time. It mustn’t be assumed that the price of the product is the same as previously quoted. • A verbal price given without written confirmation and/or follow-up.
Requisition: An internal document by which a using agency sends details of supplies, services, or materials required to the Purchasing Division.
Request for Comments (RFC): A document generated prior to an authorized procurement in order to request feedback from the contracting community or potential Proposers/Bidders, to seek information about a product or service in order to assist in the finalization of technical specifications, design specifications, or a statement of work.
Request for Information (RFI): A non-binding method whereby a jurisdiction publishes via newspaper, internet, or direct mail its need for input from interested parties for an upcoming solicitation. A procurement practice used to obtain comments, feedback, or reactions from potential responders (suppliers, contracts) prior to the issuing of a solicitation. Generally, price or cost is not required. Feedback may include best practices, industry standards, technology issues, etc.
Request for Proposal (RFP): The document used to solicit proposals from potential providers (Proposers) for goods and services. Price is usually not a primary evaluation factor. Provides for the negotiation of all terms, including price, prior to contract award. May include a provision for the negotiation of best of final offers. May be a single or multi-step process. This format of bidding was introduced in the Armed Services Procurement Act of 1962 as wells as by the Competition in Contracting Act of 1984.
Request for Qualification (RFQual): A document that is issued by a procurement entity to obtain statements of the qualifications of potential responders (development teams or consultants) to gauge potential competition in the marketplace, prior to issuing the solicitation.
Request for Quotation (RFQ): Purchasing method generally used for small orders under a certain dollar threshold. A request is sent to suppliers along with a description of the commodity or services needed and the supplier is asked to respond with price and other Packet Pg. 173
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 15 of 99 information by predetermined date. Evaluation and recommendation for award should be based on the quotation that best meets price, quality, delivery, service, past performance, and reliability.
Single Source: A Single Source is a procurement decision whereby purchases are directed to one source because of standardization, warranty, or other factors, even though other competitive sources may be available. A department must demonstrate in writing, to the Purchasing Agent that the purchase can only be obtained from a single source. The Purchasing Agent is satisfied with the price and the terms and conditions negotiated, for single source goods and services greater than $10,000 and less than or equal to $100,000; this will require approval by the Purchasing Agent. Approval for a single source procurement in excess of $100,000 requires approval by the City Council.
Sole Source: Sole Source is used only when there is only one qualified company that has developed a patented or copyright product or service; when the product or service is required immediately due to a pressing emergency; or it is not in the public’s interest to hold a competition. Examples would be (rights to data, copyrights, or patents, proprietary interest, or secret processes) to the manufacturing of the good or service. The word “sole” means only one.
A sole source must meet certain requirements:
a) Is the commodity or good or service the only of its kind? b) The commodity is available from one, and only one source.
Specifications: A precise description of the physical characteristics, quality, or desired outcomes of a commodity to be procured, which a supplier must be able to produce or deliver to be considered for award of a contract.
Splitting Purchases: To divide a purchase into two or more parts in order to avoid the requirements of the Purchasing Policy in Municipal Code 3.04. This action is strictly prohibited by the Code. Municipal Code § 3.04.090: It shall be unlawful to split or separate into smaller purchases, a purchase so as to bring the purchase within the provisions of any exemption or less stringent procedure provided herein.
For example, procurement cards may be used to make single purchases without quotes for up to $10,000. An employee makes three purchases of $9,000 on their p-card for materials for an event, rather than getting bids. Their total spend is $27,000. When the Finance Department later audits p-card charges, they identify these charges as a split purchase that not only violated City Policy and Municipal Code but is illegal.
Surplus: 1. An overstock situation that occurs when the quantity of goods on hand exceeds the quantity of goods needed. The overstocked goods may be returned to the supplier, sold at Packet Pg. 174
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SECTION 2: POLICIES
Policy
A set of general guidelines that are outlined by the City for talking about certain situations/issues.
The Purpose of Policies
To communicate city values, philosophy, and culture. Effective policies also lay the foundation for a healthy work culture. Maybe you’ve seen firsthand how policies influence culture, communicate expectations to employees, and guide day-to-day operations. Also, maybe you’ve seen the adverse effect of neglected policies.
What makes a good policy?
• Clear, concise, and simple language
• Policy explains the rule, not how to implement the rule (That is what Procedures are for and that is what the purchasing manual does.)
• Policies easily accessible by staff at all times.
• Represents a consistent, logical framework.
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Administrative Policy
Purchasing Policy and Procedures Guide
Subject: Purchasing Policy and Procedures Guide
Purpose:
To set forth the policies governing procurement and contracting and to establish certain procedures concerning authorization, documentation, and expenditure for Agencies, Departments, and the City Manager of the City of San Bernardino. The City of San Bernardino has a goal of ethical and fair procurement, and open competition. This Purchasing Policy and Procedures Guide outlines procedures in compliance with Chapter 3.04 of the San Bernardino Municipal Code.
Authority: Resolution No. 2023-020
Scope:
Unless otherwise stipulated herein, this policy applies to all City Employees and Elected Officials making purchases on behalf of the City of San Bernardino. All such employees and officials shall comply with the provisions outlined in this policy. The purpose of any required documentation is to ensure transparency and provide sufficient evidence to anyone who reviews bids, proposals, and/or other purchasing materials that public funds were expended in compliance with this Purchasing Policy and Procedures Guide, San Bernardino Municipal Code, and applicable State and Federal law.
Exemption from Scope
None
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TABLE OF CONTENTS
Section Page
I. Introduction 3
II. Purchasing Expenditure and Approval Thresholds 6
III. Informal Procurement 7
IV. Competitive Procurement 7
V. Exemptions 8
VI. Protest Procedures 9
VII. Federal Emergency and Grant Procurement Procedures 10 VIII. Contracting 19
IX. Surplus Supplies and Equipment 20
X. Ethical Standards and Fair Processes 21
Exhibit A – Expenditure and Authorization Threshold Reference 24 Exhibit B – Contracting Guide 25
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 19 of 99 I. INTRODUCTION
(a) Purpose
Chapter 3.04 of the San Bernardino Municipal Code provides for the administration of the City’s procurement processes, including the establishment of Purchasing Policy and Procedures Guide (“Policy”). The purposes and objectives of this Policy are:
1. To ensure compliance with all current laws and regulations
2. To promote transparency of the City’s procurement activities
3. To establish standardized, cost-effective, and efficient purchasing methods
4. To ensure continuity of City operations
5. To promote fair competitive processes
6. To maintain integrity and fairness
7. To support the City’s mission and serve the best interest of the public This Policy shall not apply to the procurement of Public Works Projects. Procurement procedures for Public Works Projects are defined in Chapters 12.20, 12.21 and 12.24 of the San Bernadino Municipal Code.
(b) Definitions
In construing the provisions of this Policy, the following definitions shall apply:
Cooperative Purchasing – Cooperative purchasing is an arrangement in which multiple entities combine their buying requirements onto a single contract and aggregate volume to enhance their purchasing power.
Emergency – A sudden, unexpected occurrence that poses a clear and imminent danger, requiring immediate action to prevent or mitigate the loss or impairment of life, health, property, or essential public services as defined by California Public Contract Code Section 1102.
Emergency Purchase – A purchase or procurement of supplies, equipment or services made during an emergency as defined under Section VI(A) and MC 3.04.070.
General Services - furnishing of labor, time, or effort by a contractor for non-professional services as the City may, from time to time, find necessary and proper for the functioning of the City. Examples include, but are not limited to, janitorial, uniform cleaning, maintenance and other services which do not require any unique skill, special background or training.
Goods - any and all supplies, materials, articles, equipment, apparatus, vehicles, things, or property, other than real property, furnished to be used by the City.
Local Business – The vendor (i) has fixed facilities with employees located at a business address within the City of San Bernardino city limits (a PO box or residence is insufficient); and (ii) has an appropriate City business license/permit, pursuant to MC 3.04.100.
Lowest Responsive, Responsible Bid – A bid from a responsible bidder, defined as a bidder qualified to do the solicited work, that conforms in all materials respects to the solicitation, and is the lowest price among qualified, responsive bids.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 20 of 99 Maintenance Services - the furnishing of labor, time or effort by a contractor, including but not limited to:
• Routine, recurring, and usual work for the preservation or protection of a publicly owned, or publicly operated facility for intended purposes; • Minor repainting;
• Resurfacing streets and highways at less than one inch; • Landscape maintenance, including mowing, watering, trimming, pruning, planting, replacement of plants, and servicing of irrigation and sprinkler systems; and
• Other similar services that are generally classified as maintenance and not public projects.
Piggyback – (See Cooperative Purchasing).
Professional Services - services provided by a person, company, corporation, or firm engaged in a profession based on a generally recognized special knowledge, skill, license, and/or certification to perform the work including, but not limited to, the professions of accountant, attorney, artist, architect, landscape architect, construction manager, engineer, environmental consultant, dentist, physician, training or educational consultant, or land surveyor, and whose services are considered distinct and unique.
Protest – A protest is a challenge to the award or proposed award of a contract for the procurement of goods and/or services, or a challenge to the terms of a solicitation for such a contract.
Purchase Order (PO) – A purchase order, or PO, is an official document issued by the City committing to pay a vendor for the sale of specific products or services to be delivered in the future.
Purchasing Agent – An employee who purchases materials and supplies and solicits bids on behalf of the City.
Request for proposal (RFP) – A request for proposal (RFP) is a document that solicits firms to submit a proposal to perform the scope of work associated with a proposed project. Cost is not the sole basis for selection in an RFP; other qualifications including experience, turnaround time and approach to work are important factors when evaluating proposals. RFPs are project specific, and preparation requires general knowledge of the project. It is expected that interested parties would do a limited amount of work to develop a quality proposal.
Request for Qualification (RFQual) – A request for qualifications (RFQual) is a document that solicits firms to submit information about their qualification and capabilities to perform the type of work associated with a proposed project. The preparation of an RFQual generally does not require specific project knowledge or scope. An RFQual may be used as a pre-qualification step to engaging a service provider. If an RFQual is required, only those candidates who successfully respond to it and meet the qualification criteria will be included in the subsequent RFP process.
An RFQual will contain specific reference to selection criteria.
Request for Quote (RFQ) – A formal or informal solicitation of price quotes.
Services - either general services, maintenance services, or professional services.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 21 of 99 Sole Source – A sole source purchase means that only one supplier, to the best of the requester's knowledge and belief, based upon thorough research, can provide the required product or service.
Surplus Supplies and/or Equipment – City owned materials, supplies and/or equipment deemed to be no longer useful or otherwise obsolete. See MC Section 3.04.080. (c) Organization
The Purchasing Division is part of the Finance Department, which is responsible for carrying out written administrative procedures adopted by the City Council related to procurement (M.C. § 3.04.020). (i) Purchasing Division.
The Purchasing Division is responsible for the oversight and internal control related to procurement and purchasing including, but not limited to:
i. Ensuring compliance with Chapter 3.04 of the San Bernardino Municipal Code and this Policy.
ii. Developing technical review matrices for proposals
iii. Carrying out the initial review of Bids/Proposals
iv. Verifying that all legal and other required internal reviews are completed
v. Ensuring that departments are using the correct contract templates vi. Opening sealed bids
vii. Certification of Sole Source Procurements
viii. Managing the City’s Disadvantaged Business Enterprise (DBE) and Small Business Enterprise (SBE) Program and reporting results to City Management and the Mayor and City Council.
(ii) Purchasing Division Manager (“Purchasing Manager”).
The Purchasing Manager is a critical internal control position. While not empowered to make purchases directly, the Purchasing Manager ensures that the City complies with applicable procurement law, grant funding requirements, the San Bernardino Municipal Code and this Policy. The Purchasing Manager is responsible for internal control and compliance related items including, but not limited to:
i. Reviewing selection of vendors for compliance with open and fair competition
ii. Responding to any bid protests
iii. Reviewing the DBE and SBE program including verifying affirmative steps and auditing results
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 22 of 99 v. Periodic audits for compliance with applicable law, the San Bernardino Municipal Code and the Policy
II. PURCHASING EXPENDITURE AND APPROVAL THRESHOLDS
(a) Purchasing Requirements by Expenditure Threshold
(i) Purchases up to $10,000 (Micro-Purchases):
1. Purchases up to $10,000 may be purchased using a Procurement -Card (“P-Card”) or through a check request.
2. No formal bids or quotes are required.
3. Purchases of $10,001 and over shall not be divided into multiple smaller purchases or invoices to circumvent required procedures. This is “split purchasing” and is unlawful and a violation of the Policy and the San Bernardino Municipal Code. (M.C. § 3.04.090).
(ii) Purchases Between $10,001 and $40,000 (Small Purchases):
1. Purchases in this category are processed informally through the simplified process outlined in Section III of this Policy and may be processed directly by the department making the purchase.
2. Competitive Bidding may be used for purchases under $40,000 at the discretion of the Agency or Department Director.
(iii) Purchases Above $40,000:
1. Purchases in this category are subject to competitive bidding or competitive selection outlined in Section IV of this Policy, depending on the type of purchase (formal procurement procedures).
2. Reporting. All contracts in this category signed by the City Manager, Agency Directors, Directors and/or their designees shall be reported (in list form) to the Mayor and City Council at each Regular City Council meeting during the City Manager Update.
(b) Purchasing Authority by Expenditure Threshold
(i) Purchases up to $50,000:
1. Purchases in this category may be authorized and signed by Agency/Department Directors and/or the City Manager or their designee.
(ii) Purchases between $50,001 and $100,000:
1. Purchases in this category may only be authorized and signed by the City Manager or the Assistant City Manager with prior written authorization from the City Manager in the City Manager’s absence. (iii) Purchases over $100,000:
1. Purchases in this category may only be authorized by the Mayor and Packet Pg. 181
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 23 of 99 City Council.
III. INFORMAL (SIMPLIFIED) PROCUREMENT PROCESS
Purchases for goods, services, and materials that are subject to the informal procurement process may be processed through vendor quotations as follows:
(a) Three (3) written quotes should be obtained.
(b) Departments shall strive to obtain written price quotes from three or more potential contractors or suppliers and accept the quote which is determined to be in the best interests of the City. Written price quotes shall be retained and provided as backup for the purchase requisition. If unable to obtain a minimum of three (3) price quotes, staff shall document that reasonable efforts were made to obtain price quotes or proposals including, that there were no other vendors to solicit price quotes or proposals from or that they solicited to other vendors and one or more declined to provide a quote or proposal.
(c) Award shall be made to the best qualified vendor presenting a quote or proposal that is in the City’s best interests. For purchases subject to the informal procurement process, criteria other than price may be used. For example, delivery time, quality, and vendor experience may impact the selection of quotes. If using criteria other than price, the criteria should be stated somewhere on the quote documentation for audit purposes. (d) Contracts for the purchase of professional services shall be awarded to the best qualified vendor on the basis of demonstrated competence and professional qualifications. While a reasonable price is always a consideration in selecting a vendor, it cannot be the sole factor in selecting a vendor for professional services.
IV. FORMAL PROCUREMENT PROCESS
(a) Purchases for goods, services, and materials that are subject to the formal procurement process shall be processed utilizing an RFP, RFQual or RFQ process as described in this Section. The RFP, RFQual or RFQ process shall be utilized to engage services on the basis of demonstrated competence and qualifications for the types of services to be performed and at fair and reasonable prices to the City. The following minimum guidelines and procedures shall be implemented.
(i) Notice Inviting RFQs or RFPs. At a minimum, the notice inviting RFQs, RFQuals or RFPs shall: (1) describe the project; (2) state how to obtain more detailed information about the project; (3) state the date, time and place for the submission of qualifications or proposals; (4) describe general parameters for evaluation and selection; and (5) include any other information required by state or local law.
(ii) Published Notice. City staff shall solicit RFQs, RFQuals or RFPs via published notice in a newspaper of general circulation and/or the City’s website at least ten Packet Pg. 182
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 24 of 99 (10) calendar days before the date for receiving qualifications or proposals, unless exigent circumstances call for a shorter time.
(iii) Review of Qualifications or Proposals. The City will receive qualifications or proposals at the date, time and place of submission on the notice inviting RFQs/RFQuals/RFPs. Any proposals received after the proposal opening time will be time/date stamped and returned unopened to the proposer. The City will review and evaluate qualifications or proposals based on the evaluation and selection criteria in the RFQs/RFQuals/RFPs and rank proposals based on factors listed in the RFQ/RFQual/RFP.
(iv) Negotiation. Once proposals are ranked, the City may negotiate a contract with the highest ranked proposer only, may negotiate with multiple proposers, or may attempt to reach an agreement with the highest ranked proposer before negotiating with other proposers in order of ranking. The City may also dispense with negotiations and recommend an award based on the proposals. (v) Award. Award for professional services contracts shall be to the best qualified vendor who will best serve the City’s interests taking into account the demonstrated competence, professional qualifications and suitability for the project. Award for other contracts shall to the vendor offering the best value to the City, in the City’s sole and absolute discretion.
(vi) Rejection of Bids. The City Council may, in its sole and absolute discretion, reject all proposals presented and re-advertise.
V. EXEMPTIONS
Exemptions from the procurement process may be requested under the following circumstances:
(a) Emergency Purchases. An exemption may be granted in case of an emergency, which is so urgent as to preclude advance action by the Mayor and Common Council and which requires purchase of supplies, materials, equipment, and contractual service. (i) In such a case, the City Manager shall have the authority to authorize the Purchasing Division to secure in the open market such supplies, materials, equipment, or contractual services as deemed necessary. (ii) This emergency authority shall extend to all purchases; irrespective of the fact that amount might exceed the City Manager’s authorization threshold. In such instances a full explanation of the emergency circumstances shall be filed with the Mayor and City Council (MC § 3.04.070).
(iii) If emergency work is performed, the Purchasing Division should be notified by the next business day, or as soon as practical. This will allow the Purchasing Division to properly ratify purchase orders.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 25 of 99 (iv) An emergency includes the following: (1) a public calamity; (2) an immediate need to prepare for national or local defense; (3) the breakdown of machinery or equipment causing a service impediment requiring immediate resolution; (4) a hazard to public health or welfare; and (5) situation in which the City will be unable to perform services for the public.
(b) Cooperative Purchases. The City may engage in cooperative purchasing for goods or services as a third-party agency "piggybacking" on another agency's competitively bid agreement. Cooperative purchasing reduces administrative expenses and secure prices and other benefits of a large volume purchase. Caution must be exercised to ensure that the City is in compliance with all applicable federal, state, and local laws as well as the Policy. The Purchasing Division must be consulted prior to any department engaging in cooperative purchasing.
(c) Sole Source. When a department determines that the goods, services or public project can only be obtained from a sole source. For example, only one manufactured makes an item that meets the required specifications or only one item is compatible with existing equipment. Price cannot be used in a determination of sole source. This is an indication of competition in the marketplace.
A sole source purchase is a method of acquisition; it shall not be used to avoid competition. A sole source justification memo is required for any sole source purchase over $10,000. The sole source justification memo must be approved by the Purchasing Manager before the purchase is completed.
(d) Public Works Projects. This Policy shall not apply to the procurement of Public Works Projects. Procurement procedures for Public Works Projects are defined in Chapters
12.20, 12.21 and 12.24 of the San Bernadino Municipal Code. (e) Purchases Approved by Mayor and City Council. A purchase that is otherwise approved by the action of the Mayor and City Council in a public meeting is exempt from this Policy.
(f) Federal/Grant-Funded Procurement. Federal/grant-funded procurements shall be exempt from this Policy if such funding requires compliance with an alternative set of procurement rules not in compliance with this Policy. This is more particularly described in Section VII(c) of this Policy.
(g) Exemptions Authorized by San Bernardino Municipal Code Section 3.04.010(D)(1).
Items listed in San Bernardino Municipal Code section 3.04.010(D)(1) shall be exempt from this Policy. This includes, but is not limited to, purchases/sales from other governmental agencies.
(h) Inadequate Competition. Inadequate competitive is defined as when, after solicitation from a number of sources (which must be documented for audit purposes), competition is determined to be inadequate. Inadequate competition includes the lack of receipt of responsive bids.
VI. PROTEST PROCEDURES
(a) Right to Protest. Prior to making the award, any responsible bidder in connection with Packet Pg. 184
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 26 of 99 the award of a contract may protest the award. A subcontractor of a bidder or proposer may not submit a protest. This Section shall apply to all contracts awarded by the City Council through a formal competitive process, including but not limited to a formal bid or formal request for proposal process. The protest procedure does not apply to contracts that are awarded at the staff level or through a non-competitive process (e.g., by sole source). The protest procedure is solely to serve the public interest and obtain finality of City contract awards.
(b) Procedure. The protest must:
(i) Be filed in writing within five (5) calendar days after the bid opening date relating to any Bid. Any protest relating to a City determination or recommendation regarding the bidder’s bid must be submitted within five (5) calendar days after the City makes the determination or recommendation (ii) Clearly identify the specific irregularity or accusation; (iii) Clearly identify the specific City staff determination or recommendation being protested, if applicable;
(iv) Specify in detail the legal grounds for protest and the facts supporting the protest; and
(v) Include all relevant, supporting documentation with the protest at time of filing. (c) City Response. Any grounds not raised in the written protest are deemed waived by the protesting bidder. If the protest does not comply with each of these requirements, the City may reject the protest without further review. If the protest is timely and complies with the above requirements, the City shall review the protest, any response from the challenged bidder(s), and all other relevant information. The City will provide a written decision to the protestor in a reasonable amount of time. (d) Effect of Failure to Comply with Protest Procedures. The procedure and time limits set forth are mandatory and are the sole and exclusive remedy in the event of a bid protest.
Failure to comply with these procedures shall constitute a failure to exhaust administrative remedies and a waiver of any right to further pursue the bid protest, including filing a Government Code Claim or legal proceeding. (e) Conflicts. The protest procedure contained in this Section shall not apply if a particular procurement solicitation contains a different protest procedure.
VII. FEDERAL EMERGENCY AND GRANT PROCUREMENT PROCEDURES (a) Purpose. The purpose of these Federal Emergency and Grant Procurement Procedures is to define the practices and policies governing the procurement of services, and goods (i) in preparation of, during, and after an emergency that may be subject to federal funding or reimbursement; (ii) when using federal grant funds subject to the regulations set forth in the following sentence. These Federal Emergency and Grant Procurement Procedures are compliant with Title 2 of the Code of Federal Regulations Part 200, Packet Pg. 185
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 27 of 99 Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (“Uniform Guidance”).
(b) Federally Declared Emergencies and Federal Grants; Procurement and Contracting Requirements
(i) In the event of an emergency declared by the President of the United States, the City must comply with Federal procurement standards as a condition of receiving public assistance funding from the Federal Emergency Management Agency (FEMA) for contract costs for eligible work. FEMA funding is governed by the Uniform Guidance.
(ii) In addition, most federal grant funding is also subject to the Uniform Guidance.
Federal grant compliance requires the grantee to conduct procurements in accordance with written procurement policies and procedures that comply with the requirements set forth in the Uniform Guidance. These procurement procedures shall be complied with in connection with utilization of federal grant funding by the City, in addition to any other specific grant requirements. (iii) These procedures are in addition to and are not intended to replace or supersede the City’s other procurement requirements in this Policy or state law.
In the case of a conflict between these procedures, the more stringent requirement shall govern, provided that the more stringent requirement would not violate a federal procurement requirement. In such case, for federally funded contracts, the federal requirement shall govern. (c) Conflicts of Interest
(i) Standards of Conduct for Conflicts of Interest. No employee, officer or agent of the City shall participate in selection, or in the award or administration of a contract supported by federal funds if a conflict of interest, real or apparent, would be involved. Such a conflict would arise when: The employee, officer or agent; any member of his immediate family; his or her partner; or an organization which employs, or is about to employ, any of the above, has a financial or other interest in the firm selected for award. The City’s officers, employees or agents will neither solicit nor accept gratuities, favors or anything of monetary value from contractors, potential contractors, or parties to subagreements. Such a conflict will not arise where the financial interest is not substantial, or the gift is an unsolicited item of nominal intrinsic value.
Employees must follow applicable laws, rules, and regulations in regard to conflicts of interest including, but not limited to, the Political Reform Act, the prohibition against contractual conflicts of interest, and guidelines in the California Code of Regulations regarding acceptance of gifts. (ii) Violations. Disciplinary actions to be applied for violations of the above standards are as follows.
(1) The violation of these Standards of Conduct by City employees will subject the violator to any disciplinary proceedings or action deemed Packet Pg. 186
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 28 of 99 appropriate by the City Manager. Employees may correct a violation in any manner provided for under the Political Reform Act, and its implementing regulations.
(2) The violation of any of these Standards of Conduct by City officers will require correction of the violation in any manner provided for under the Political Reform Act, and its implementing regulations. (3) Contractors or subcontractors that violate these Standards of Conduct as relates to an active federally funded procurement may be prohibited from bidding on the procurement, or may be subject to other action as deemed appropriate by the City Manager.
(4) Agents of the City that violate these Standards of Conduct as relates to federally funded procurements may be prohibited from participation on behalf of the City on federally funded projects, or subject to other action as deemed appropriate by the City Manager.
(d) Procurement Standards
(i) Oversight. The City shall maintain administrative oversight of contractors to ensure that contractors perform in accordance with the terms, conditions and specifications of their contracts or purchase orders.
(ii) Economical Approach. The City must avoid acquisition of unnecessary or duplicative items. Consideration should be given to consolidating or breaking out procurements to obtain a more economical purchase. Where appropriate, an analysis will be made of lease versus purchase alternatives, and any other appropriate analysis to determine the most economical approach. The City will enter into state and local intergovernmental agreements or inter-entity agreements where appropriate for procurement or use of common or shared goods and services. If feasible and it reduces project costs, the City will explore using federal excess and surplus property in lieu of purchasing new equipment and property. When appropriate, the City will investigate using value engineering clauses in contracts for construction projects of sufficient size to offer reasonable opportunities for cost reductions.
(iii) Detailed Records. The City shall maintain records sufficient to detail the history of each procurement. These records will include but are not necessarily limited to the following: rationale for the method of procurement, selection of contract type, contractor selection or rejection, and the basis for the contract price. (iv) Procurement Issues. The City alone shall be responsible, in accordance with good administrative practice and sound business judgment, for the settlement of all contractual and administrative issues arising out of procurements. These issues include, but are not limited to, source evaluation, protests, disputes and claims.
Protest procedures or information on obtaining the procedures shall be included in the procurement documents.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 29 of 99 (e) Competition
(i) Full and Open Competition. In order to ensure objective contractor performance and eliminate unfair competitive advantage, contractors that develop or draft specifications, requirements, statements of work, or invitations for bids or requests for proposals must be excluded from competing for such procurements.
Some of the situations considered to be restrictive of competition include but are not limited to:
(1) Placing unreasonable requirements on firms in order for them to qualify to do business;
(2) Requiring unnecessary experience and excessive bonding; (3) Noncompetitive pricing practices between firms or between affiliated companies;
(4) Noncompetitive contracts to consultants that are on retainer contracts; (5) Organizational conflicts of interest, as further detailed herein; (6) Specifying only a “brand name” product instead of allowing “an equal” product to be offered and describing the performance or other relevant requirements of the procurement; and
(7) Any arbitrary action in the procurement process.
(ii) Organizational Conflicts of Interest. An unfair competitive advantage could result if a contractor were allowed to submit a bid or proposal for work described in a specification or statement of work that the contractor itself developed. For the purpose of eliminating a potential unfair competitive advantage, and in compliance with applicable state and federal laws and regulations, a contractor that develops or assists in developing specifications, requirements, statements of work, invitation for bids, and/or request for proposals for City procurement is excluded from competing for the resultant procurement, unless an appropriate waiver is issued by the City. All waivers will be assessed by the City on a case-bycase basis. (iii) Geographical Preference. The City shall conduct procurements in a manner that prohibits the use of statutorily or administratively imposed in-state or local geographical preferences in the evaluation of bids or proposals, except in those cases where applicable federal statutes expressly mandate or encourage geographic preference. When contracting for architectural and engineering (A/E) services, geographic location may be a selection criterion provided its application leaves an appropriate number of qualified firms, given the nature and size of the project, to compete for the contract.
(iv) Procurement Transactions. The City shall require the following information for procurement transactions:
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 30 of 99 (1) A clear and accurate description of the technical requirements for the material, product, or service to be procured. Such description shall not, in competitive procurements, contain features which unduly restrict competition. The description may include a statement of the qualitative nature of the material, product or service to be procured, and when necessary, shall set forth those minimum essential characteristics and standards to which it must conform if it is to satisfy its intended use.
Detailed product specifications should be avoided if at all possible. When it is impractical or uneconomical to make a clear and accurate description of the technical requirements, a brand name or equal description may be used as a means to define the performance or other salient requirements of procurement. The specific features of the named brand which must be met by offerors shall be clearly stated; and
(2) All requirements which the offerors must fulfill and all other factors to be used in evaluating bids or proposals.
(v) Prequalification Lists. The City shall ensure that all prequalified lists, if used, of persons, firms or products which are used in acquiring goods and services are current and include enough qualified sources to ensure maximum open and free competition. The City shall not preclude potential bidders from qualifying during the solicitation period.
(f) Procurement Procedures
The thresholds below are federal thresholds. If City thresholds are lower, the more restrictive requirement shall govern, notwithstanding the provisions herein. (i) Micro-Purchases. Purchases within the micro-purchase threshold (e.g., currently set at purchases of $10,000 or less but periodically adjusted for inflation) may be awarded without soliciting competitive quotations if the City considers the price to be reasonable. To the extent practicable, the City must distribute micropurchases equitably among qualified suppliers. (ii) Small Purchases. Purchases within the simplified acquisition threshold (e.g., currently set at purchases of $40,000 or less) shall not be required to be formally bid. Price quotations must be received from no less than three (3) sources. (iii) Formal, Sealed Bidding.
(1) Bids are publicly solicited and a firm-fixed-price contract (lump sum or unit price) is awarded to the responsible bidder whose bid, conforming to all the material terms and conditions of the invitation for bids, is the lowest in price. Formal, sealed bidding is required for purchases greater than the simplified acquisition threshold, which is currently set at $40,000, or as may be adjusted by the Federal Acquisition Regulation, pursuant to 48 CFR § 2.101.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 31 of 99 (2) This is the preferred method for procuring construction, if a complete, adequate, and realistic specification or purchase description is available; two or more responsible bidders are willing and able to compete effectively and for the business; and the procurement lends itself to a firm-fixed-price contract and the selection of the successful bidder can be made principally on the basis of price.
(3) The City must publicly advertise the Invitation for Bids and publicly open all bids at the time and place prescribed in the invitation. (4) Any contracts awarded pursuant to this procedure shall be to the lowest responsible bidder submitting a responsive bid and shall be for a firm fixed price. Any or all bids may be rejected if there is a sound documented reason.
(iv) Competitive Proposals.
(1) When the nature of a procurement does not lend itself to formal, sealed bidding, the City may solicit competitive proposals. The technique of competitive proposals is normally conducted with more than one source submitting an offer, and either a fixed-price or cost-reimbursement type contract is awarded.
(2) A request for proposals (RFP) must be publicly advertised, and the City must solicit proposals from an adequate number of sources. The RFP must identify all evaluation factors and their relative importance; however, the numerical or percentage ratings or weights need not be disclosed.
(3) Evaluation factors that will be considered in evaluating proposals shall be tailored to each procurement and shall include only those factors that will have an impact on the selection decision.
a. The City’s procurement officer shall establish a formal evaluation committee, of at least two persons. The size of an evaluation committee should be based on the size and complexity of the goods or services being procured and well balanced and
represented by individuals involved with the procurement and/or affected by the goods or services being procured. b. The evaluation committee will be charged with responsibility for evaluating proposals in accordance with the evaluation criteria in the solicitation, short listing firms, establishing a competitive range, and/or recommending a firm or firms for contract award. (4) Any contract awarded based on the competitive proposal procurement process cannot be based exclusively on price or price-related factors.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 32 of 99 (5) If a contract is awarded, it shall be to the responsible firm whose proposal is most advantageous to the City (“best value”), with price and other factors considered.
(v) Competitive Proposals for A&E Services. The competitive proposal procedures above may be used for procurement of architect and engineering (A&E) services, provided that proposers must be evaluated based on competence and qualifications, without regard to price. For A&E procurements, price will not be used as a selection factor. The City will rank proposers based on qualifications only, and attempt to negotiate fair and reasonable compensation with the highest ranked proposer. If negotiations with the highest ranked proposer are unsuccessful, such negotiations will be terminated and the City will commence negotiations with the next highest ranked proposer. This process shall be continued with successive qualified proposers until agreement is reached that is determined to be fair and reasonable.
(vi) Noncompetitive Procurements.
(1) Contracts may be procured through a noncompetitive proposal only when:
a. The item is only available from a single source;
b. The public exigency or emergency for the requirement will not permit a delay resulting from competitive solicitation; c. The Federal awarding agency or pass-through entity expressly authorizes noncompetitive proposals in response to a written request from the City; or
d. Competition is deemed inadequate after the solicitation of a number of sources.
(vii) Public Projects. Public projects shall be procured by the City’s formal contract bid procedures, if any, and the formal, sealed bidding in this section. If there is conflict between the foregoing, the more restrictive requirements shall apply. (viii) Award.
(1) Responsible Contractor. The City shall award contracts only to responsible contractors possessing the ability to perform successfully under the terms and conditions of a proposed procurement.
Consideration will be given to such matters as contractor integrity, compliance with public policy, record of past performance, and financial and technical resources.
(2) Debarment and Suspension. In accordance with 2 CFR 200.213, in connection with the responsibility determination, a check of debarment and suspension using the System for Award Management (SAM), Packet Pg. 191
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 33 of 99 www.sam.gov, must be performed and documented in the procurement records prior to award.
(g) Contracting with Small and Minority Firms, Women’s Business Enterprises, and Labor Area Surplus Firms
(i) The City must take all necessary affirmative steps to ensure the use of minority businesses, women’s business enterprises, and labor surplus area firms when possible, as set forth at 2 CFR § 200.321 and detailed below. The City shall:
(1) Place qualified small and minority businesses and women's business enterprises on solicitation lists;
(2) Assure that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources; (3) Divide total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses, and women's business enterprises;
(4) Establish delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women's business enterprises;
(5) Use the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Minority Business Development Agency of the Department of Commerce; and
(6) Require the prime contractor, if subcontracts are to be let, to take the affirmative steps listed in paragraphs (1) through (5) of this section. (ii) The City shall document the steps above, and any relevant findings applicable to any of the steps above in its procurement file.
(h) Cost and Price
(i) Cost or Price Analysis. The City shall perform a cost or price analysis in connection with every procurement action, including contract modifications, in excess of the simplified acquisition threshold. While the method and degree of analysis depend on the facts surrounding the particular procurement situation, the City must, at a minimum, make independent estimates before receiving bids or proposals.
(ii) Profit. The City shall negotiate profit as a separate element of the price for each contract in which there is no price competition and in all cases where a cost analysis is performed as required by 2 CFR § 200.323(b).
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 34 of 99 (iii) Estimated Costs. Costs or prices based on estimated costs for contracts are allowable only to the extent that costs incurred or cost estimates included in negotiated prices would be allowable for the City under 2 CFR 200.400 et seq. (i) Payment Procedures
(i) Method of Contracting. Contracts entered into pursuant to these procedures shall utilize only fixed-price, cost-reimbursement, or, to a limited extent, time and materials payment methods.
(ii) Prohibited Methods of Contracting. The City shall not use the cost plus a percentage of cost or percentage of construction cost methods of contracting for any work for which federal reimbursement will be sought. (iii) Time and Materials (“T&M”) Contracts
(1) T&M contracts should be used rarely, and the use of T&M contracts should be limited to a reasonable time period (e.g., no more than 70 hours) based on circumstances during which the City cannot define a clear scope of work.
(2) The City shall only enter into a time and materials contract if all of the following apply:
a. The City has determined and documented in the project file that no other contract is suitable;
b. The contract has a guaranteed maximum price that the contractor exceeds at its own risk; and
c. The City provides a high degree of oversight to obtain reasonable assurance that the contractor is using efficient methods and effective cost controls.
(3) The City must define the scope of work as soon as possible to enable procurement of a more acceptable type of contract (i.e., non-T&M). (iv) Separate Invoicing. All purchases made during a proclaimed emergency shall require separate invoicing from routine (i.e., non-emergency related) purchases.
All invoices shall state the goods, services, or equipment provided and shall specify where the goods or services were delivered. All invoices shall specify the location(s) where the goods or services were used, if possible. Any invoice which fails to properly identify the emergency nature of the purchase and provide details as to the date(s) and location(s), as appropriate, shall not be paid until such errors are corrected by the vendor and re-submitted in correct form. (v) Auditing of Invoices for Debris Removal. All invoices for debris clearance and removal shall be audited prior to payment to the contractor. Contractors shall be notified of this requirement prior to the award of any contract for debris Packet Pg. 193
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 35 of 99 clearance and/or removal. Audits shall be in accordance with procedures for debris removal monitoring specified in FEMA’s Publication 325, Debris Management Guide.
(j) Bonding Requirements
(i) Bonding. For construction or facility improvement contracts or subcontracts exceeding the simplified acquisition threshold (See 2 CFR 200.88), the City shall require at a minimum:
(1) A bid guarantee from each bidder equivalent to five percent of the bid price.
(2) A performance bond on the part of the contractor for 100 percent of the contract price.
(3) A payment bond on the part of the contractor for 100 percent of the contract price.
(k) Procurement of Recovered Materials
(i) For procurements covered under these procedures, the City and its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. In accordance with these requirements, the City shall only procure items designated in the guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.
(ii) This requirement applies to purchases of items when the purchase price of the item exceeds $10,000, or the value of the quantity acquired during the preceding fiscal year exceeded $10,000.
(l) Contract Provisions. The City’s contracts shall contain the applicable provisions described in Appendix II to Part 200 – Contract Provisions for Non-Federal Entity Contracts Under Federal Awards.
VIII. CONTRACTING
(a) Standard Contract Templates. The City utilizes written contracts to document each party's obligation and to minimize the City's risks during the performance of services or supply of goods. Contracts include standard terms and conditions that serve as the framework and a statement of work that serves as the substance, of the contract.
During the course of the relationship between the parties, the contract serves as a point of reference which may quickly resolve any misunderstanding.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 36 of 99 (i) The contract templates include forms for: professional and consulting services, maintenance services, software licensing, and the purchase of goods. The type of contract used for a particular procurement is determined by the nature of the transaction. The City has a set of contract templates that can be found on the City’s Intranet.
(ii) The Purchasing Division can aid departments in determining which type of contract is needed. Exhibit B provides a brief explanation when certain contract templates should be used.
(iii) Questions regarding contract terms should be directed to the City Attorney’s Office. Under no circumstances should contract terms and conditions be adjusted, changed, or deleted by anyone other than a representative of the City Attorney’s Office.
(b) Non-Standard Contracts. In some cases, vendor services or products are specialized, and a department may wish to use the vendor contract. However, doing so requires specialized legal review. It is important to note that this can add anywhere from two (2) to four (4) weeks to the contracting process. This additional time must be allowed for to ensure that the City’s interests are protected.
(c) Contracts NOT Required. Neither a contract, nor a purchase order is required for the following: payroll-related expenses such as insurance or retirement payments as approved by City Council through the budget, other insurance premiums, petty cash, travel advances or reimbursements, utility payments, membership dues, subscriptions, debt service, various “pass-through” payments, or other mandated expenditures. Claim forms should be used to pay these items.
IX. SURPLUS SUPPLIES AND EQUIPMENT
(a) Submitting Reports. The applicable Department Head or their designee(s) will notify the Purchasing Division in writing of surplus supplies and/or equipment and request disposal. This notification shall list each item, acquisition date or estimated age, acquisition price (if known), condition, and any known defect not readily apparent through visual inspection.
(b) Review. The Purchasing Division shall review the surplus items and determine if any other City department has a use for the property.
(c) Disposing of Surplus. If the Purchasing Division determines that the surplus items are not functionally or economically suitable for further City use, they shall dispose of the items by using a public auction, sealed bids or through negotiated sale for items valued at more than $10,000. For recyclable items equal to or less than $10,000, Purchasing may dispose of those items through a scrap metal or a recycling vendor if the cost to do so does not outweigh the value received in return.
(d) Donation. Surplus items valued less than $10,000, for which the City no longer has an identified use, may be donated to 501(c)3 organizations operating within the city limits of the City of San Bernardino.
(e) Prohibitions. City employees and/or elected official of the City and their immediate Packet Pg. 195
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 37 of 99 families shall not be eligible to purchase such surplus materials, supplies, and equipment.
X. ETHICAL STANDARDS AND FAIR PROCESSES
(a) Ethical Standards for Purchasing. When placing City business with the business community, it is every employee’s responsibility to follow good business and ethical practices and to adhere to the City’s applicable law, policies, and procedures. This is a responsibility that should not be taken lightly as it is a duty under the law. All vendors shall be treated equally and fairly at all times by City personnel, with equal information given to each vendor who participates in a competitive situation. City employees must discharge their duties under this Policy in an impartial manner to foster the integrity of the City’s purchasing function and to assure fair and open competition for City business and the selection of competent, responsible vendors.
(b) Conflicts of Interest.
(i) No employee, officer, or agent of the City may participate in the selection, award, or administration of a contract pursuant to this Policy he or she has a real or apparent conflict of interest. A conflict of interest would arise when the City employee, officer, or agent, any member of his or her immediate family, his or her partner, or an organization which employs or is about to employ any of the parties indicated herein, has a financial or other interest in or a material benefit from a vendor considered for a contract. The officers, employees, and agents of the City may neither solicit nor accept gratuities, favors, or anything of monetary value from contractors or parties to subcontracts, subject to any applicable standards for determining whether a financial interest is not substantial, or a gift is an unsolicited item of nominal value. (ii) California Government Code § 1090 prohibits City officers and employees from having a financial interest in any contract "made" by them or by any board or body of which they are members. Virtually all City Council members, officers, employees, and consultants of a public entity are considered public officials under Government Code §1090. In a case where a consultant is developing a scope of work for a future project, creation of that scope of work is considered part of the “making” of the contract and defined by Section 1090. As such the consultant would be prohibited from submitting a proposal and/or being awarded a contract for the work.
(c) Communications Related to Solicitations.
(i) Bidders, proposers, and other potential vendors shall not contact City officials outside of the solicitation process and shall not make any efforts to unduly influence City decision-making or otherwise gain an unfair advantage outside of the solicitation process. Improper contacts or attempts to influence the selection process shall be grounds for automatic rejection. (ii) To the maximum extent feasible, City representatives shall provide each vendor with the same information related to the solicitation. For formal bids, RFP’s and Packet Pg. 196
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 38 of 99 RFQ’s, such information shall be provided in the form of an addendum to the solicitation.
(d) Confidentiality and Transparency.
(i) Negotiations related to any solicitation shall be maintained with strict confidentiality. No City official or employee with knowledge of the City’s bargaining position, or of the non-public position of other bidders or proposers, shall disclose such information for purposes of aiding a particular vendor, giving an advantage to a particular vendor over other bidders or proposers, or otherwise corrupting or frustrating the City’s procurement efforts. This Section does not prevent the City’s designated representative from engaging in negotiating tactics to obtain the best value to the City. (ii) All bids, proposals, quotes, and any related documents, including communications such as e-mails related to solicitations, are public records and shall be made available to the public upon request. However, public records may be withheld from disclosure while negotiations are pending, in accordance with applicable law.
(iii) To the extent a solicitation involves proprietary information or trade secrets, vendors should mark the proprietary information as confidential. Information that is not proprietary or a trade secret shall not be marked confidential. Unless a law specifically and expressly allows price information to be confidential, all price proposals and other financial terms shall be public. (iv) City Council decisions on all contract awards shall strictly comply with the Ralph M. Brown Act (Government Code sections 54950, et seq.). City Council members and staff should not engage in any series of communications that result in a majority of the City Council deliberating on a proposed contract award outside of a properly noticed City Council meeting.
(e) Disclosures.
(i) Solicitations should require that bidders, proposers and other potential vendors disclose: (1) any ex parte contacts made by the vendors or made by City officials to the vendors outside of the official procurement process, (2) any gifts, loans or other benefits (other than campaign contributions) made to City officials within the 12 months preceding the solicitations, (3) whether the vendor has knowledge that a City official will be financially interested in the contract.
Vendors shall promptly notify the City if any City official requests any payment, contribution or any other quid pro quo in exchange for award of a contract. (ii) Vendors may be required by the Political Reform Act, and/or the Fair Political Practices Commission to disclose financial interests on the Form 700. Such vendors shall comply with all disclosure requirements.
(f) Discipline/Censure. Violations of the ethical and fair process requirements contained in this Section may be grounds for discipline (if by an employee) or censure (if by an elected official). Criminal violations, such as willful violations of Government Code section 1090, may be reported to the San Bernardino County District Attorney.
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EXHIBIT A
EXPENDITURE AND AUTHORIZATION THRESHOLDS REFERENCE
Purchasing Requirements by Expenditure Threshold
Purchases up to $10,000 (Micro-Purchases):
• Purchases up to $10,000 may be purchased using a Procurement Card (“P Card”) or through a check request.
• No formal bids or quotes are required.
• Purchases of $10,001 and over shall not be divided into multiple smaller purchases or invoices to circumvent required procedures. This is “split purchasing” and is unlawful and a violation of the Policy and the San Bernardino Municipal Code. (M.C. § 3.04.090).
Purchases Between $10,001 and $40,000 (Small Purchases):
• Purchases in this category are processed informally through the simplified process outlined in Section III of this Policy and may be processed directly by the department making the purchase.
• Competitive Bidding may be used for purchases under $40,000 at the discretion of the Agency or Department Director.
Purchases Above $40,000:
• Purchases in this category are subject to competitive bidding or competitive selection outlined in Section IV of this Policy, depending on the type of purchase (formal procurement procedures).
Purchasing Authority
Purchases up to $50,000:
• Purchases in this category may be authorized and signed by Agency/Department Directors and/or the City Manager and/or their designee.
Purchases between $50,001 and $100,000:
• Purchases in this category may only be authorized by the City Manager or their designee.
Purchases over $100,000:
• Purchases in this category may only be authorized by the Mayor and City Council.
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EXHIBIT B
CONTRACTING GUIDE
Under this Policy, certain contract types are likely to arise for the purchase of goods and services. Here is a brief description of an appropriate situation to use each template.
Goods Purchase Agreement – To be used when the City desires to purchase goods totaling above $5,000.
Maintenance Services Agreement- To be used for routine maintenance/repair work of a non-professional nature, such as: landscape, traffic signals, electrical, street sweeping, HVAC, and plumbing.
Nuisance Abatement Services Agreement – To be used when the City desires to engage a third party to take action to remove a public nuisance.
On-Call Professional Services Agreement - To be used when the City desires to engage a professional to engage in certain services on an as-needed basis.
Professional Services Agreement – To be used for professional consultant work, such as non–design engineering, economic, accounting, legal, financial, and administrative work.
Professional Services Agreement (Federal) – To be used for professional consultant work that also involves the use of Federal funds.
Professional Software Services Agreement – To be used for the purchase of software services.
Request for Proposals – To be used when the City desires to solicit services or purchase goods which either require bidding or for which bidding is appropriate. Please note that requests for proposals that relate to state or federal funded projects may require additional terms in accordance with grant agreements.
Request for Qualification (RFQual) – To be used when the City desires to solicits firms to submit information about their qualification and capabilities to perform the type of work associated with a proposed project. An RFQual may be used as a pre-qualification step to engaging a service provider. If an Packet Pg. 199
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 41 of 99 RFQual is required, only those candidates who successfully respond to it and meet the qualification criteria will be included in the subsequent procurement process. An RFQual will contain specific reference to selection criteria.
Request for Quote (RFQ) – To be used when the City desires to solicit firms to submit pricing for products or services where the requirements are standardized or produced in repetitive quantities.
Short Form Services Agreement – To be used for low risk or uncomplicated services that do not require formal bidding. Should not be used for public works projects.
Vendor Services Agreement – To be used when the City desires to solicit services other than Professional, Design, or Construction Services.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 42 of 99 City of San Bernardino Procurement Card (P-Card) Policy (Approved Resolution 2021-213)
Purpose:
To establish a methodology for and to define the appropriate use of the City of San Bernardino’s Procurement Cards provided to authorized personnel to purchase non-restricted goods and/or services for official use by the City of San Bernardino Scope:
This Policy is applicable to all employees and elected officials who are issued a Procurement Card.
Exemption from Scope
This policy shall not apply to employees or elected officials to whom P-Cards are not issued and does not apply to the use of an employee or elected official’s personal credit card(s). The use of personal funds to make purchases on behalf of the City is covered under the City of San Bernardino Expense Reimbursement Policy.
Policy:
3.1 Abbreviations
3.1.1 P-Card: A Procurement Card.
3.1.2 City: City of San Bernardino.
3.1.3 Bank: Financial Institution that manages the City’s P-Card Program.
3.1.4 GL: General Ledger, the official record of all financial transactions made by and on behalf of the City.
3.1.5 MCC: Merchant Category Code
3.2 Definitions
3.2.1 P-Card: A credit card to be utilized in the procurement of authorized nonrestricted goods and/or services for official use by the City.
3.2.2 Vendor: A Company from which the City is purchasing goods and/or services under the provision of this policy.
3.2.3 Merchant Category Code (MCC): Codes by which individual P-Cards can be restricted in their purchasing authority to merchants (vendors) in specific categories.
3.2.4 Cardholder: City personnel who has been issued a P-Card and who is authorized to make purchases in accordance with this policy and in accordance with the City’s Procurement, Purchasing and Contracting Policy.
3.2.5 Reconciler: Departmental Coordinator who collects receipts for P-Card purchases from the Cardholder, codes transactions to the appropriate GL account(s), and releases transactions for approval.
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3.2.6 Approver: Cardholder’s manager or designee who reviews and approves Cardholder’s transactions.
3.2.7 Transaction: A single purchase made with a P-Card
3.2.8 Purchase Limits: Dollar limits assigned to each P-Card consisting of a Single Transaction Limit, a Daily Purchase Limit, and a Monthly Credit Limit.
3.2.9 P-Card Administrator: An individual authorized by the City to manage the P-Card program to include communicating with the Bank, adding and deleting P-Cards, and changing permanent and temporary purchase limits.
4.0 Responsibilities
4.1 The Finance Department, under the direction of the Finance Director, shall be responsible for the implementation and enforcement of this policy.
4.2 All City personnel and elected officials issued a P-Card shall be responsible for the card and its use in accordance with this policy.
1.0 Overview of P-Card Program
1.1 The goal if this program is to provide a more rapid turnaround of requisitions for low dollar goods (less than $5,000) with no credit card fees and to reduce paperwork and handling costs while maintaining good internal control of the disbursement of City funds.
1.2 City personnel and elected officials who have been issued P-Cards may initiate transactions in-person, by telephone, or over the internet within the limits of this policy and in accordance with the City’s Procurement, Purchasing and Contracting Policy.
1.3 The Finance Department with make settlements for P-Card purchases with the Bank.
1.4 Department Directors may request that City personnel be issued a P-Card if it is deemed necessary for their role. The request should recommend purchase limits as well as the default GL account code to which transactions will be charged. Requests should be forwarded to the P-Card Administrator for Finance Department approval.
1.5 Depending on the employee or official receiving the P-Card, the P-Card may be restricted to specific Merchant Category Codes.
1.6 Non-City personnel, temporary/seasonal employees, and interns are not eligible for a P-Card.
1.7 Upon review and approval by the Finance Department, the P-Card Administrator will notify the Bank to issue the P-Card.
1.8 All approved Cardholders must attend a training class on Policy and proper use of the P-Card prior to receiving their card.
1.8.1 The approved Cardholder will be issued a copy of this P-Card Program Policy and the P-Card Procedures Manual and be required to sign an agreement to indicate that the Cardholder understands these policies and procedures.
1.8.2 The Finance Department shall maintain records of all Procurement Card Request Forms.
1.9 Changes to P-Card Information
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1.9.1 Once a P-Card is issued, it is the Cardholder’s responsibility to notify the PCard Administrator of any change in the Cardholder’s information.
1.9.2 It is the department’s responsibility to notify the P-Card Administrator of any changes to a Cardholder’s assigned Reconciler or Approver.
1.9.3 Purchase Limits may be temporarily changed for a limited amount and duration with the approval of the Department Director and Finance Director or their designee. Permanent changes may only be approved after review by the Finance Director.
1.10 Cardholder Termination/Transfer
1.10.1 If a Cardholder is no longer employed by the City or if a Department Director decides a Cardholder no longer needs a P-Card, it is the department’s responsibility to collect the Cardholder’s P-Card and complete the appropriate documentation. The P-Card will be immediately cut in half, and both the destroyed P-Card and documentation will be forwarded to the P-Card Administrator, who will notify the Bank to delete the P-Card.
1.10.2 Prior to transferring to another department of the City, the Cardholder is to return their P-Card to the issuing department. The P-Card will be cut in half and the appropriate documentation completed by the department. Both the destroyed P-Card and documentation will be forwarded to the P-Card Administrator, who will notify the Bank to delete the P-Card. The Cardholder’s new department may request a new P-Card be issued if necessary for the employee’s role.
1.11 Authorized P-Card Use
1.11.1 Each P-Card issued will be embossed with the Cardholder’s name and should ONLY be used by the Cardholder. NO OTHER PERSON IS AUTHORIZED to use the card. The Cardholder may make transactions on behalf of others in their department/division. However, the Cardholder is responsible for ALL purchases charged to their card.
1.11.2 The total value of a transaction will not exceed a Cardholder’s single purchase limit. Payment for a purchase SHALL NOT be split into multiple transaction to stay within the single purchase limit. Limits may be permanently or temporarily changed with proper approval. (See 5.9.3)
1.11.3 The Cardholder must obtain ITEMIZED vendor receipts, documentation of telephone orders, and/or copies of mail orders.
1.12 Prohibited P-Card Use
1.12.1 The P-Card MAY NOT BE USED for the following:
a. Personal purchases or for personal identification.
b. A single purchase that exceeds the Cardholder’s single purchase limit. c. Automotive Fuel unless authorized (see the City’s Travel Policy). d. Meals with limited exceptions (See Section 7.0)
e. Gift Cards.
f. Cash Advances.
g. Any City Fines or Fees.
h. Alcoholic Beverages.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 45 of 99 i. Flowers, unless authorized by the City Manager and Finance Director.
Catering, unless the food is being dropped off for an approved City event. j. Payments under a City contract; these payments must be made through the regular Accounts Payable process, or the contract and Purchase Order will not be properly charged.
1.12.2 Accidental Use of P-Card. Any cardholder who accidentally charges a personal item to a City P-Card instead of their personal credit card must immediately notify their supervisor and the P-Card administrator. They must submit the receipt and repayment to the City via the Purchasing Division within ten (10) business days. A second accidental charge will result in a review by the Department Director and the Finance Director. Following review, the Finance Director may take action up to and including suspension or revocation of the Cardholder’s City P-Card privileges.
1.12.3 Unauthorized Purchases and Careless Use. Cardholders who make unauthorized purchases or carelessly use their P-Card will be liable to the City for the total dollar amount of such purchases. Misuse of a City P-Card will result in the Cardholder’s City P-Card privileges being revoked and may be subject to disciplinary action up to and including dismissal.
1.12.4 Intentional Misuse. The intentional use of a City P-Card to acquire or purchase goods and/or services for other than official use of the City is fraudulent. An employee guilty of fraudulent use of a City P-Card may be dismissed and may be subject to legal action.
1.13 Card Security
1.13.1 It is the Cardholder’s responsibility to safeguard their P-Card to the same degree that the Cardholder safeguards their personal credit information.
1.13.2 The Cardholder must not allow anyone to use their card. A violation of this trust will result in the Cardholder’s P-Card privileges being revoked as well as potential disciplinary action.
1.14 Lost or Stolen Cards and Fraud
1.14.1 Cardholders MUST immediately report a lost or stolen P-Card directly to the Bank and the P-Card Administrator. The Bank will inactivate the existing card and issue a new card that will be mailed to the P-Card Administrator.
1.14.2 If the original card is later found or recovered by the Cardholder after being reported lost or stolen, the card will be cut in half and given to the P-Card Administrator.
1.14.3 If a cardholder suspects fraud and has not already been contacted by the bank via telephone or email, the cardholder and/or reconciler MUST immediately contact the bank by calling the 1-800 number on the back of the cardholder’s card to report the suspected fraud. The cardholder and/or reconciler must then inform the P-Card Administrator of the fraud and what actions were executed by the bank to safeguard the card.
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1.15 Recordkeeping/Reconciliation
1.15.1 Itemized Receipts. It is the Cardholder’s responsibility to obtain an ITEMIZED receipt whenever a P-Card purchase is made – either in-person by telephone, or over the internet and check the receipt for accuracy. A summary receipt is not acceptable.
1.15.2 Sales Tax. If sales tax has not been charged on taxable tangible goods, the Cardholder should notify the Finance Department and make a note on the receipt so that the Finance Department can pay the appropriate tax.
1.15.3 Providing Receipts to Reconciler. If a Reconciler is used to reconcile a Cardholder’s transaction, the Cardholder will provide receipts for transactions to the Reconciler on a timely on-going basis, not to exceed five (5) business days after the charge is made, or after the Cardholder returns from travel on City Business in order to give the Reconciler time to reconcile receipts and meet required deadlines.
1.15.4 No Itemized Receipt. If the Cardholder does not have an ITEMIZED receipt for a transaction, he/she will provide a memo stating that they were unable to obtain or that they lost the original itemized receipt. The memo shall include details of the transaction including the vendor’s name, date of purchase, description of the item(s) purchased, and the purpose of the purchase. The Cardholder must also include the reason for the missing receipt. The Cardholder must obtain the Department Director’s signature on the memo and submit the signed memo in lieu of the actual receipt to their reconciler or attach to the transaction in the financial system. Also, the words “No Itemized Receipt” need to be a part of the transaction’s charge description.
1.15.5 Missing Receipt. If a Cardholder does not provide an itemized receipt OR a missing receipt memo for a transaction, the Cardholder may be financially responsible for the purchase amount of the transaction.
1.15.6 General Ledger Import and Reconciliation. P-Card transaction will be imported into the GL each month. It is the Cardholder and/or Reconciler’s responsibility to review these transactions on a timely basis, code the purchase to the appropriate GL account, make any necessary adjustment, and scan and attach the supporting receipts and documentation into the banking system for backup. The transaction will then be released for approval. If no adjustment is made, the entire transaction will be charged to be default GL code established upon issue of the card (see Section 5.4). All transactions must be reviewed, reconciled and released for approval within the first five (5) calendar days of the month (see Section 5.16.3).
1.15.7 Approval. Once a monthly statement has been released for approval by the Cardholder or Reconciler, it will be approved by the Approver. By approving the statement, the Approver is attesting to the appropriate purchase of the goods and/or services for official use by the City. If the transaction is not in compliance with the P-Card Policy, the matter will be brought to the Packet Pg. 205
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1.15.8 Returns. If a Cardholder returns an item, it is their responsibility to ensure that a credit is issued back to their P-Card. If a Reconciler reconciles the Cardholder’s transaction, the Reconciler should be made aware of the credit and follow up if the credit is not received.
1.15.9 Unauthorized Charges. If a Cardholder does not recognize a transaction, they must first contact the vendor to find out what was purchased and attempt to resolve the charge with the vendor before disputing it with the bank. If the transaction needs to be disputed after contacting the vendor, it is the Cardholder’s and/or Reconciler’s responsibility to complete appropriate documentation and submit to the P-Card Administrator. It is also the Cardholder’s and/or Reconciler’s responsibility to track the progress of the dispute until it is resolved. The P-Card Administrator will keep the Cardholder or Reconciler, if applicable, informed of any information received from the bank regarding the dispute.
5.16 Deadlines
5.16.1 P-Card transactions will post to the Bank 1-3 business days following the transaction.
5.16.2 It is the Cardholder and/or Reconciler’s responsibility to review and reconcile the P-Card transaction on a timely on-going basis.
5.16.3 Receipts should be reconciled no less frequently than every two weeks.
Finance staff will send reminder emails to Cardholders and Reconcilers with outstanding transactions.
5.16.4 Monthly Statements are to be reviewed, reconciled, and released for approval within the first five (5) calendar days of the following month.
5.16.5 Once released, P-Card transaction must be approved by the Approver within the first seven (7) calendar days of the Cardholder review.
5.16.6 All P-Card transactions for the previous month must be approved and posted by Finance before the 15th of the following month.
6.0 Compliance
6.1 Finance staff will conduct audits of P-Card transactions both randomly and selectively to ensure purchases are made in accordance with the Policy.
6.2 Failure to comply with this Policy may result in the Cardholder’s P-Card privileges being revoked and/or disciplinary action up to and including dismissal.
7.0 Meal Exceptions
7.1 Business Purpose Meals. Business purpose meals are meals purchased by a City employee or elected official for official city business.
7.1.1 Documentation. Documentation is required for a business purpose meal:
a. An ITEMIZED receipt.
b. A description of the business purpose of the meal. The description should be thorough enough to pass audit scrutiny. For example: “Development Packet Pg. 206
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c. A list of all attendees of the meeting, first and last name. The list should either be written on the receipt (legibly) or attached.
7.2 Meals with Traveling. Meals while traveling on City business are paid based on perdiem rates as indicated in the City’s Travel Policy. Meals while traveling charged to a PCard in excess of the per diem amount must be reimbursed to the City within ten (10) business days of the completed reconciliation.
7.3 Tipping. Tips added to meals on a P-Card should not be more than 20% Any amount more than 20% must be reimbursed to the City by the Cardholder within ten (10) business days of the charge posting to the City’s financial system.
7.4 Prohibited Meals.
7.4.1 Meals for Personal Consumption. It is expressly prohibited for employees or elected officials to purchase any meal: breakfast, lunch, dinner, or any other food for personal consumption on their City P-Card unless they are traveling overnight on City Business.
The IRS deems meals that are paid for by an employer while not “traveling away from home” to taxable wages. IRS Publication 5137 (Rev. 2-2020)
8.0 Exceptions
These general policies are not expected to address every issue, exception, or contingency that may arise in the use of the City P-Card. Accordingly, the basic standard that should always prevail in dealing with exceptions is the exercise of good judgement in the use and stewardship of the City’s resources. Unless otherwise specified herein, exceptions for employees will require the approval of the City Manager, the Assistant City Manager, or the Finance Director; exceptions for elected officials will require approval of City Council at a regular meeting of the Mayor and City Council.
Responsibilities:
The Department Director shall be responsible for determining which staff members can be issued a P-Card. The business need for obtaining a card should be carefully considered to limit the number of cards issued.
Card limits should be as low as possible while still accomplishing business needs. Pursuant to the Cardholder Agreement, each individual cardholder is ultimately responsible for their purchases.
The following is a chart showing the City's standard card dollar limits for a single transaction and monthly dollar limits; however, consideration may be given for other card limits if required for special circumstances:
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 49 of 99 Standard Card Limits
Single Purchase
Transaction Monthly Dollar Limit
$500 $2,500
$1,000 $5,000
$1,500 $5,000
$2,500 $10,000
Card Limits for emergency and disaster purchasing by the Finance Department and/or Emergency Management Operations personnel will be determined on an individual basis, based on FEMA best practices and guidelines.
To avoid confusing a P-Card with personal credit cards, each Cardholder will be provided a PCard embossed with both the Cardholder's name and the "City of San Bernardino," along with the City's logo.
ANY USE OF THE P-CARD IS RESTRICTED TO THE CARDHOLDER. THE USE OF THE P-CARD FOR
ANY PURPOSE OTHER THAN OFFICIAL CITY BUSINESS EXPENSES IS PROHIBITED AND IS GROUNDS FOR DISCIPLINE UP TO AND INCLUDING TERMINATION. IN ADDITION TO
DISCIPLINE, AND POTENTIAL CRIMINAL CHARGES, THE CARDHOLDER MUST REIMBURSE THE CITY FOR UNAUTHORIZED CHARGES. THIS CARD MAY NOT BE USED FOR PERSONAL PURCHASES - NO EXCEPTIONS.
The Cardholder must attend training and carefully review the training documents provided with the P-Card. Cardholders must sign and abide by the City of San Bernardino Cardholder Agreement and comply with the guidelines of this Policy.
Each P-Card will be assigned specific categories of purchases, as well as single transaction and monthly dollar limits. Each Department's overall P-Card exposure will also be verified against its annual approved Operating Budget.
P-Card Procedures:
To apply for a P-Card, departments must complete the following forms:
1. Cardholder Agreement
2. Cardholder Account Set-up
3. Approving Official Account Set-up form
a. If the P-Card Agreement is a new approving official, which indicates the maximum dollar amount for each single transaction and a total monthly dollar amount.
All P-Card forms are available on InsideSB, the employee intranet site under the section "Forms and Publications" of the Finance Department. The PSM will review the Cardholder application documents and will approve or reject, the applicant based on Policy guidelines.
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The Policy is a supplement to the procurement process. As with other procurement methods, the following conditions must be met when using the P-Card:
The P-Card should be used whenever possible in-lieu of petty cash, emergency purchase orders, or purchase requisitions when the item or group of items is under the transaction limit. Items should always be purchased at the lowest cost that meets the Departments basic needs.
Normal purchasing procedures must be followed if a purchase will exceed a limit established.
Each transaction may be comprised of multiple items, but the total, including tax and shipping, cannot exceed the single transaction dollar limit on the P-Card; nor exceed the monthly dollar limit. If either of these limits is exceeded, the transaction will be declined by the card issuing bank.
All charges must be supported by receipts or some written documentation. A Purchasing Card Receipt Detail form must be used to document all Meals, Travel, Meetings, and Event transactions made using a P-Card. All of the following information must be provided before Finance will approve a business expense.
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CITY OF SAN BERNARDINO ALLOWABLE PURCHASES
Please use the following list as a guideline for allowable P-Card purchases.
PURCHASE TYPE DESCRIPTION CATEGORY
ASSOCIATION DUES,
PROFESSIONAL OR
INDUSTRY
MEMBERSHIPS
Dues may be charged if related to City business and with approval from Supervisor/Manager or Director.
ALLOWABLE
CITY BUSINESS MEALS Purchase of food for business requirements.
Receipts including the names and affiliations for all members of the party whose meals are paid for using the purchasing card, and then state the business purpose for the expense. You must include an itemized receipt showing food and beverage items purchased, rather than the receipt showing only the total.
The use of the P-Card for catering services is generally prohibited, as it is considered a service, unless the food is only dropped off.
ALLOWABLE
CITY BUSINESS TRAVEL City travel related purchases including airline tickets, hotel accommodations, car rentals, business meals, etc. Employee shall use their own credit card for any personal expenses, such as personal phone calls, video rentals, upgrades, etc.
ALLOWABLE
COMPUTER AND
TELEPHONE
ACCESSORIES
Information technology and telephone consumable items for City Business: flash drives, toner cartridges, diskettes, zip disks, COs, DVDs, tape cartridges, mouse, keyboards, USB peripherals, telephone headsets and paper DO NOT require Information Technology Department (IT) preapproval.
ALLOWABLE
CITY SPONSORED
EVENTS
Items necessary to conduct a City sponsored event. ALLOWABLE GENERAL SUPPLIES Items for City business not prohibited or in conflict with negotiated discounts such as Staples. Use Staples card or on-line ordering system.
ALLOWABLE
ON-LINE AUCTION
PURCHASES
On-line auction purchases for City business needs for items not on a City prohibited list may be purchased with approval from
Supervisor/Manager or Director.
ALLOWABLE
PROFESSIONAL
DEVELOPMENT
Allowable with approval from Supervisor/Manager or Director. ALLOWABLE
SEMINARS, CONFERENCES
WEBINARS, TRAINING
Seminars, training, books, etc., that have been preapproved by the Director or City Manager and budgeted for by the Department.
ALLOWABLE
SUPPLIES FOR CITY
MAINTENANCE AND
REPAIRS
Maintenance and repair supplies, including maintenance tools and equipment; janitorial supplies and other maintenance-related expenses.
ALLOWABLE
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 52 of 99 The City at its sole discretion may apply other restrictions and the Purchasing Card Policy shall be updated as needed by the Finance Department.
Acknowledgement
Before being issued a City of San Bernardino purchasing card or online management account authority under this policy, all authorized users shall sign and accept below indicating that such user will use such cards only in accordance with the policies of the city and with the requirements of state law.
Name Printed Signature
Date Role
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 53 of 99 City of San Bernardino Travel Authority and Expense Reimbursement Policy (Approved Resolution 2021-164)
Scope: This Policy applies to all employees and Elected Officials requesting reimbursement for expenses incurred on behalf of the City.
Exemption from Scope
None.
Policy:
1.0 DEFINITIONS
1.1 Appropriate Expense
An Expense that is suitable or fitting for a particular valid business purpose
1.2 Allowable Expense
A necessary, reasonable, and appropriate expense incurred for the primary benefit of City business and therefore permitted to be reimbursed or directly charged based on the permission of the City.
1.3 Available Budget
The total amount of funds available in the General Ledger expense line to be charged for the expense incurred by the employee or Elected Official
1.4 Necessary
Minimum purchase or service required to achieve a particular business objective.
1.5 Original Receipt
The original merchant receipt or invoice issued by the supplier or service provider to document and substantiate the business transaction. A digital image of the original receipt is allowable if it is legible, and the paper receipt is destroyed.
1.6 Reasonable
An expense that is ordinary and reflects and prudent decision to incur the expense on behalf of City business. Not extreme or excessive.
1.7 Request
Reimbursement Request or Request for Reimbursement.
1.8 Substantiation
Documentation to support an incurred business expense that includes the original receipt, documentation of business purpose, names of persons in attendance, and appropriate report of the expense for the incurred cost.
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2.0 CRITERIA FOR DETERMINING AN ALLOWABLE EXPENSE
2.1 Considerations. To be reimbursed to an individual, a business expense must be:
2.1.1 Necessary to perform a valid business purpose fulfilling the mission of the City.
An expense is necessary if there is a valid business purpose required to fulfill the mission of the City. The primary benefit of a necessary business expense is the City, not the individual. A necessary expense is a minimum of purchase or service required to achieve a valid business objective.
2.1.2 Reasonable in that the expense is not extreme or excessive, and reflects a prudent decision to incur the expense. Reasonable means the amount that normally would be spent in a specific situation. An expense is considered reasonable if it is not extreme or excessive and reflects a prudent decision and action to incur the expense. This Policy does not define precise dollar amounts for what constitutes reasonable, because the reasonableness of an expense depends upon many relevant factors including the business purpose, the context, the source of funds, and the circumstances surrounding the expenditure.
2.1.3 Appropriate in that the expense is suitable and fitting in the context of the valid business purpose. Costs are appropriate if they are suitable or fitting for a particular business purpose. For a cost to be appropriate it is also presumed that there is a valid business purpose, which is normally the responsibility of the department to determine.
The following questions should be considered when determining the appropriateness of costs:
a. Could the cost be comfortably defended under public scrutiny? b. Would you be confident if the cost were selected for audit? c. Would you be comfortable reading about it in the newspaper? d. Has it been adequately documented?
2.1.4 Allowable according to the terms of any City policy. If a business expense is necessary, reasonable, and appropriate, the City will generally consider it an allowable expense, subject to approval.
2.1.4 (1) Allowable Food and Meals. Meals that meet all the above criteria must also meet IRS rules to be reimbursable and non-taxable to the employee or Elected Official. See Section 4.0 FOOD AND MEALS.
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3.0 SUBSTANTIATION OF EXPENSE
For a business expense to be approved and reimbursed, it must be properly substantiated.
3.1 Clear, Complete and Accurate. All City-related business expenses require clear, complete, and accurate supporting documentation. The collective documentation associated with your expenses should answer who, what, where, when, and why of each transaction (as applicable). In your documentation, include:
a. Who attended (first and last names);
b. What purpose the expenditure served;
c. Why the expense was necessary, or how if furthered the City’s goals; and d. When and where the expense took place.
All documentation should be written in a way that will be understood by anyone who reviews it, whether today or many years from now. This includes a person outside of the City who is unfamiliar with a department’s work or jargon.
3.2 Business Purpose Examples.
3.2.1 The following would be considered incomplete business purpose descriptions for substantiation:
a. Dinner with Marcus G., economic development-PPP; Miyagi Sushi b. Lunch with Echo Group
c. Printing-sidewalk vending
3.2.2 The following are examples of clear, concise, and complete business purpose descriptions for substantiation:
a. Dinner with Marcus Grimm, economic development – Public-Private Partnership; Miyagi Sushi.
b. Lunch with Echo Group – Anh Nguyen, Felix Baca, and Ron Watson, re:
development in canyon; Jose’s Mexican Food.
c. Extra copies of sidewalk vending brochures printed for event at Orange Show.
3.2.3 Clear examples are important so that auditors and the public, even years from now, can understand why a purchase was made. For instance, in the examples above, printing services are usually purchased through the normal course of City business. It is only through the normal course of City business. It is only through the business description that clearly states “extra copies” printed for “event” that someone reading the backup material would understand the business need for printing outside a normal business process.
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4.0 FOOD AND MEALS
Food and meal purchases are covered under this policy, the City’s Procurement Card (“P-Card”) Policy and the City’s Travel Policy. Because of IRS rules, any City purchase or reimbursement of meals require additional documentation.
4.1 General Eligibility. Purchases of food and meals are eligible for reimbursement if they are part of overnight travel (See Travel Policy), business meetings (Business Meals, Section 4.3) as allowed for Elected Officials or as approved by the City Manager, or to provide meals in the case of all-day meetings or scheduling that requires meetings to be held over a mealtime (Meals Provided During Work, Section
4.4). Any meal reimbursement will be in accordance with IRS rules.
4.2 Meals During Travel. For details about meals during travel for City business, see the City’s Travel Policy.
4.3 Business Meals. Meals that are purchased as part of business meeting are allowed for Elected Officials or as approved by the City Manager. These meals are governed under IRS rules (see IRS Pub. 5137) and require specific documentation
4.3.1 IRS Requirements
a. Business Connections. A description of the business purpose of the meal. The description should be through enough to pass audit scrutiny. See Section 5.2 for examples
b. Adequate Accounting within a “Reasonable” Period of Time. While the IRS does not specify a length of time for submitting receipts for reimbursement; this policy requires that any request for reimbursement be submitted no later than 60 days after the date of purchase.
c. Excess Reimbursements are Returned within a “Reasonable” Period of Time.
If an employee or Elected Official finds that they have been reimbursed more than amount owed; the excess should be remitted to the City with ten (10) business days of discovering the error.
4.3.2 Audit and Transparency Requirements
a. Itemized Receipt. The meal receipt MUST be itemized. Reimbursement will not be provided for summary receipts.
b. Names of Attendees. A list of all attendees of the meeting, first and last name.
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4.3.3 Tipping. A maximum of 20% will be reimbursed.
4.4 Meals Provided During Work. The purchase/reimbursement of meals/food for staff during work hours is allowed under the following circumstances:
4.4.1 Working Meals. Working meals must be occasional and require preapproval by the Department Director. In the case of an employee meeting held during mealtime, a good faith attempt should be made by the meeting organizer to schedule the meeting at a time that does not overlap mealtime.
The following criteria must be met for a working meal to be reimbursable:
4.4.1 (1) City Business Purpose. There must be a clearly stated City business purpose for the meeting/working meal.
4.4.1 (2) List of Attendees. A list of all attendees (first and last name), and department, must be included.
4.4.1 (3) Reasonable Cost. As stewards of taxpayer dollars, it is incumbent upon all City employees and Elected Officials to use City funds wisely.
Food brought in for working lunches should be reasonably priced. “Reasonable cost” while not defined in this Policy in actual dollar terms, is defined as what would be paid by a prudent person under the same circumstances. Consider the Appropriate Cost questions from Section 2.1.3 when determining reasonable cost:
• Could the cost be comfortably defended under public scrutiny? • Would you be confident if the cost were selected for audit? • Would you be comfortable reading about it in the newspaper?
4.4.1 (4) Tipping. No more than a 20% tip will be reimbursed
4.5 Prohibited Meals and Food.
4.5.1 Alcohol. The purchase of alcohol is not eligible for reimbursement.
4.5.2 Taxable Fringe Benefits. Because IRS rules require that they be included in taxable wages as fringe benefits, reimbursements will not be provided for the following categories of meals (See IRS Pub. 5137 for details):
4.5.2 (1) Individual Meals. Meals purchased for or by an individual employee or Elected Official will not be reimbursed (Except for during overnight travel, which is covered under the Travel Policy. NOTE: if an individual meal is purchased, whether by p-card or erroneously reimbursed, and the funds are not returned to the City, the cost of the meal will be Packet Pg. 216
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4.5.2 (2) Meals while on Day Trips. Meals purchased during day trips for work (not overnight) are not reimbursable, even if the trip extends beyond the regular workday.
5.0 AVAILABLE BUDGET AND PRE-APPROVALS
5.1 Verify Available Budget. It is the responsibility of the employee or the Elected Official to verify that there is adequate available budget for the planned expense before making any purchase on behalf of the City.
5.2 Pre-Approval. Employees purchasing food or tangible goods for a City purpose should have the approval of their immediate supervisor or Department Director before expending personal funds whenever possible.
5.2.1 Establishes City Purpose. By obtaining pre-approval, the City purpose of the expense is already established.
5.2.2 Forms of Pre-Approval. Pre-approval is for the protection of the employee making the purchase. By obtaining pre-approval, the employee can be reasonably assured that the personal funds expended for a City business purpose will be reimbursed. As such, it is the interest of the employee to ensure that the pre-approval:
5.2.2 (1) Includes the name of the person making the approval.
5.2.2 (2) Clearly identifies the specific expense that is pre-approved (may not be a “blanket” approval of multiple expenses).
5.2.2 (3) Can be printed or electronically attached to the request for reimbursement.
5.2.3 Verification of allowable Expense. If an employee, supervisor, or Department Director is uncertain regarding the allowability of the expense for reimbursement, they should contract Finance for verification.
5.2.4 Exemption of Pre-Approval Requirement for Elected Officials. Elected Officials are not required to obtain pre-approval for City business-related expenses except in the case of travel (See Travel Policy). However, it is incumbent upon the Elected Official to ensure that there is adequate budget available to cover any expenses before they are incurred.
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6.0 APPROVAL AND REIMBURSEMENT
Requests for reimbursements should be submitted with original receipts attached and all appropriate documentation as discussed above to meet IRS, audit, and City transparency standards. Once this is complete, the request may be submitted for approval reimbursement.
6.1 Review and Approval – Employee Request for Reimbursement
6.1.1 Approval. Employees requests for reimbursement will go through approvals in the Department as follows – the employee’s immediate supervisor, and Department Director review and approval. After the Departmental approvals are complete, the Request will be moved to Finance for final approval and reimbursement. If Finance staff questions any expenses, they will escalate the Request to the Finance Director for review and a decision as to the allowability of the expense under the Policy. Once any questions are resolved, the Request will be moved to Accounts Payable for reimbursement.
6.1.1. (1) Finance Director Decision. The Finance Director’s decision as to the allowability of an expense will be final.
a. Rejected Reimbursement Memo. If the Finance Director determines that an expense is not reimbursable, they will draft a memo to the employee and the Department Director explaining the reason.
b. Option to Appeal. An employee may appeal the decision of the Finance Director to the City Manager.
6.1.1 (2) Appeal to City Manager. If an employee disagrees with the Finance Director’s decision, they may appeal the decision to the City Manager within ten (10) business days of the employee receiving the Rejected Reimbursement Memo.
a. Appeal Process. The employees making the appeal must submit a memo to the City Manager detailing why they disagree with the Finance Director’s decision. The memo should include specific references to this policy
b. Language and Accessibility. If the employee believes that they require help to write the memo, help will be provided by Human Resources personnel unconnected to this process. The deadline to submit the memo will be extended to accommodate for any scheduling issue delays. The deadline of ten (10) days will be Packet Pg. 218
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c. City Manager Decision. The City Manager’s decision will be final
6.1.1 (3) Taxability. If the City Manager allows reimbursement of an expense that the Finance Director has identified and rejected for reimbursement as a fringe benefit under IRS Pub. 5137 the amount will be reimbursed, and Finance will add the amount of the reimbursement to the employee’s taxable wages, as required by IRS rules regarding fringe benefits.
6.1.2 Payment. Accounts Payable will cut a check for reimbursement if there is adequate budget available. If there is not adequate budget, the Request will be rejected and returned to the Department.
6.2 Review and Approval – Elected Official Request for Reimbursement
6.2.1 Approval. Elected Official Requests for Reimbursement will go through approvals as follows – the Council Supervisor/Mayor’s Executive Assistant will review the Request, verify available budget, and escalate any questioned expenses to the Finance Director for review and a decision as to the allowability of the expense under this Policy. If there are not questioned expenses, the Council Supervisor/Mayor’s Executive Assistant will approve the Request and move it to Finance for final approval and reimbursement. If Finance staff questions any expenses, they may escalate the Request to the Finance Director for further review as to the allowability of the expense under this policy.
6.2.2 Questioned Costs. If the Finance Director finds that an expense submitted for reimbursement is not reimbursable under this Policy, and the Elected Official disagrees, the Elected Official may bring the expense before the Mayor and City Council during a regular meeting for a final determination of allowability (see Section 6.3.1).
6.2.2 (1) Taxability. If the Mayor and Council vote to allow reimbursement of an expense that the Finance Director has identified and rejected for reimbursement as a fringe benefit under IRS Pub. 5137, the amount will be reimbursed, and Finance will ad the amount of the reimbursement to the Elected Official’s taxable wages, as required by IRS rules regarding fringe benefits.
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6.2.3 Payment. Accounts Payable will cut a check for reimbursement if there is adequate budget available. If there is not adequate budget, the Request will be rejected and returned to the Elected Official.
6.2.3 (1) Insufficient Budget. If there is insufficient budget in the appropriate line item to cover the expense, the Elected Official has two options:
a. Request that budget be transferred from another line item within the Elected Official’s department budget in an amount sufficient to cover the expense, or
b. Withdraw the Request or Reimbursement.
6.3 Rejected Reimbursement Requests to City Council – Elected Officials Only
6.3.1 Bringing a Rejected Reimbursement Request Before City Council
6.3.1 (1) Documentation. For a Rejected Reimbursement Request to be considered by City Council, the Elected Official must provide in advance of the meeting:
a. Substantiation of the Expense, see Section 3.0
b. All written communication (email, etc.) from City staff documenting the reason for rejecting the Request.
6.3.1 (2) Decision. The decision of City Council will be final. a. Abstain. The Elected Official requesting the reimbursement shall abstain from the vote.
b. Tie Vote. If the vote results in a tie, the Mayor will cast the deciding vote unless it is the Mayor requesting the reimbursement. If the vote results in a tie, the rejection will stand.
c. Council Decline. Council may decline to hear the Reimbursement Request by a majority vote. If Council declines to hear the Request, the rejection will stand.
d. Taxability. See Section 6.2.2 (1)
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 62 of 99 SECTION 3: PROCEDURES
Procedures:
Explain the “how” of decision making. They provide step-by-step instructions for specific routine tasks. They may include a checklist or process steps to follow. Procedures help guide policies. Procedures give instructions on how to utilize policies.
The Purpose of Procedures:
At the very least, procedures should outline the following information:
• Who is responsible for each task.
• What steps need to be taken.
• Who the responsible party reports to.
What makes a good procedure?
• Clear, concise, and simple language.
• Addresses how to implement policies.
• Takes user insight into account.
• Providing options when feasible, not unnecessarily restrictive.
Exceptions to the Bidding Process
Current Emergency Purchases: 3.04.075
In case of an emergency, which is so urgent as to preclude advance action by the Mayor and Common Council and which requires purchase of supplies, materials, equipment and contractual service, The City Administrator shall have the authority to authorize the Purchasing Agent to secure the open market at the lowest obtainable price and such supplies, materials equipment or contractual services. This emergency authority shall extend to all purchases; irrespective of the fact that amount might exceed the authorized limitation for open market purchases. In all instances a full explanation of the emergency circumstances shall be filed with the Mayor and Common Council.
If emergency work is performed, the Purchasing Division should be notified by the next business day. This will allow the Purchasing Division to properly ratify purchase orders.
What Constitutes as an Emergency:
• A public calamity
• An immediate need to prepare for national or local defense.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 63 of 99 • The breakdown of machinery or equipment on service impediment which will require immediate resolution.
• A hazard or peril to public health or welfare
• A situation where the city is unable to perform services for the public.
Steps to take:
• If the emergency occurs during business hours, The Purchasing Division shall be notified the same day.
• If an emergency occurs during non-working hours, purchasing shall be notified during the next business day.
• Purchasing contracts vendor or delegates to department to secure rough order magnitude (ROM) written estimate. Purchasing or delegate notifies vendor to proceed. • Only licensed and insured vendors can be contracted with, as appropriate. • A purchasing order with a Not to Exceed Amount (NTE) shall be issued within 5 – 10 days.
• If feasible, a Vendor service Agreement to follow.
• If ROM exceed $100,000, council approval is required even if after the fact. • After the emergency is mitigated, if additional work is required, the normal competitive procurement procedure is to be followed.
• Contractors must be registered with DIR prior to the bid opening, to qualify to win the bid.
Municipal Code §3.04.070 Emergency Purchases
In case of an emergency, which is so urgent as to preclude advance action by the Mayor and City Council and which requires purchase of supplies, materials, equipment or contractual services, the City Manager shall have the authority to authorize securing in the open market any such supplies, materials, equipment or contractual services. This emergency authority shall extend to all purchases, irrespective of the fact that the amount might exceed the authorized thresholds outlined in Section 3.05.020 of the Municipal Code. An explanation of the emergency circumstances shall be filed with the Mayor and City Council within forty-eight (48) hours of the emergency purchase.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 64 of 99 The Purchasing Process
Department Led Bids for Purchases between $10,001 and $40,000:
Please see Section 2: Polices, for Purchasing Expenditure and Approval Thresholds.
1. Department must contact all vendors/contractors/consultants via telephone, teleconference, or email for a quote request.
a. Please note if verbal requests for quotes are made, a written confirmation and/or follow-up must be sent to the vendors/contractors/consultants.
2. Department must provide all vendors/contractors/consultants with same SOW and specifications for the services/products/equipment that is needed. a. This for transparency and audit purposes
3. Department must provide all vendors/contractors/consultants with a due date/deadline to return their bid/quote. Please see the definition and detailed example of a valid quote.
a. Quote can be electronic in Excel, Word and PDF format. b. The date should be noted on the quote.
4. Departments must evaluate the bids submitted, showing documentation of the cost comparison.
5. Once bid is awarded, Department may process a purchase order for purchases between $10,001 up to $40,000. All bid documents must be attached to the PO in New World along with the certificate of insurance (Endorsements and Waivers of Subrogation), and current W9 with date and signature, if services are being provided to the City. a. It is the discretion of the Agency or Department Director to process an agreement for purchases between $10,001 and $40,000.
i. Agreement templates are available from the Purchasing Division. ii. If an agreement is required, please contact the Purchasing Division for review of the agreement before it is uploaded to DocuSign for signature.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 65 of 99 Telephone Quotes
If quotes are requested verbally, they should always be followed up by email, fax, or text, if email is not an option. The only time that a follow-up is not required is under the following unusual conditions:
• Wi-fi servers are inoperable for both parties; therefore, emails can’t be received and sent.
• Fax is not available.
• The post office and other delivery courier services are not available. • Text messages are not an option.
When requesting a phone quote from a vendor, please follow the following instructions:
• Pre-write verbiage or a script in order to be transparent and ask each vendor for the same information.
• Make sure to document the time and date the vendor was contacted. • Make sure to advise the vendor of the date and time the quotes need to be submitted.. • All vendors need to be contacted within the ten (10) business days to ensure pricing is comparable. Prices obtained months apart are not comparable. • Make sure to obtain the vendors contact information in order to send a confirmation email.
If you send a follow-up email, you are much more likely to receive the written back-up for the quote that is required for audit purposes. While verbal quotes are quick and easy, sending a follow-up email takes only a few seconds and saves a lot of headaches later during an audit! Packet Pg. 224
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 66 of 99 Example of an ideal simple quote:
Quotation
Quote Number: Date: May 7, 2021
Company Name: Contact Person and Contact Info.:
Project Title/Number: Total Cost:
Item Description Unit Price Quantity Price
Office Phone System
Instruction Book
Instruction Manual for the
NEC Office Phone System
$XX.XX 40 $XXX.XXX
Total Price $XXX.XX
Thank You very much for giving us the opportunity to quote. We hope to serve your order soon. If you have any questions, feel free to contact us at_______________.
Sincerely,
Contact Title
Contact Name
• A valid quote should contain the following information:
Supplier’s business details
Client details
Quote number
Date of issue
A list of services to be provided
What services won’t be provided
Breakdown of costs
Total cost of the project
Variations of (extra costs)
Timelines and completion dates
Factors which may affect the completion date
A place for customers to sign their acceptance
• Please Note: City staff should not sign acceptance of a quote. If terms and conditions are attached, the signer may be accepting terms and conditions and obligating the City to terms and conditions that are contrary to the City’s usual terms and conditions. Staff members that have been assigned purchasing and signing authority Packet Pg. 225
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 67 of 99 should be the only individuals signing on behalf of the City. Individuals that have been designated purchasing and signature authority will contact the City’s legal Counsel if necessary to obtain legal advice as to signing pricing, quotes and proposals. Payment methods, is asking for a deposit
Response Time From Purchasing Agents
1. Please allow at least 72 hours for the Purchasing Division to respond to your requests.
Same day inquiries will be reviewed by urgency and/or priority but responses are not guaranteed the same day.
2. This is to respect and prioritize all duties/tasks for the purchasing staff and most importantly to be able to address all City departments fairly and timely.
3. For projects, please contact purchasing no less than 6 months, but preferably a year or more before your project has to be finalized and ready to go. i. Allowing long lead times assists purchasing with identifying the needs for your department, and it assists with the needs for the City overall. Purchasing may be able to assist with your SOW, identifying suppliers/vendors in the marketplace, and with formulating your department’s purchasing strategy which will reduce potential risks.
4. Please include the purchasing process/plan and timeline in your project presentation to the City Council.
i. This shows the City Council that the departments are collaborating with the Purchasing Division and that citywide staff is accountable for the project. This also gives the City Council more realistic estimated dates and times of when your project can be fully executed.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 68 of 99 Purchasing Division Led Bids for all purchases:
1. Quick Quote via Planet Bids: Did you know that a quick quote can be utilized via Planet Bids for small purchases up to $10,000? Quick Quotes can be released with a bid close date within 48 to 72 hours.
a. The department must provide specifications to the Purchasing Division two (2) business days in advance for review and revisions before they would like the Quick Quote bid to be released. b. Departments should always send a detailed request to City Purchasing - - A detailed description of what you want to purchase, should include:
1. Color
2. Size
3. Amount/Quantity
4. Manufacturer Number
5. Name of Manufacturer, etc.
c. Quick Quotes have a turnaround time of 48 to 72 hours.
Quick Quote Process Chart
YES
NO
Department Identifies
Goods/Services to be
purchased
Purchasing will review the
request.
Did Dept. Provide all
relevant information for
Quick Bid to be Processed?
Request to be
returned to dept
for revisions.
Requesting Dept. Revises
request and resends to
purchasing.
Purchasing Dept. will move forward
with Quick Bid Release.
Purchasing Dept. Releases quick
quote with an assigned bid No. Bid
Turnaround is 48 to 72 hours
Bid Closes – Purchasing Reviews Bid
& Advises Dept. of winning
Company, Dept. Creates PO
(Purchasing May draft contract if
required) - Process is not Complete.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 69 of 99
2. Request for Quotation (RFQ): RFQ’s can be processed for purchases greater than $10,000. a. Requesting Department must provide RFQ documents to the Purchasing Division seven (7) business days before the requested bid release date, for review and revisions before bid is RFQ is released.
b. Departments should always send a detailed request to the Purchasing Division.
1. A detailed Scope Of Services (SOS)/Scope Of Work (SOW) is to be provided to purchasing. A good, drafted SOS/SOW should answer the questions: What, When, Where, Who, Why & How.
2. A detailed pricing sheet for the vendor to fill out and submit for the RFQ
1. Please Note: If the RFQ request is sent back to the department due to insufficient information, when the request is returned to purchasing, there will be up to five (5) additional business days for review before the RFQ is released. c. RFQs have a minimum turnaround time of 14 business days (from release to closing).
This does not include the evaluation of the bids, bid protest and award protests.
RFQ Process Chart
YES
NO
Did Dept. Provide all
relevant information for
RFQ Bid to be Processed?
Request to be
returned to dept
for revisions.
Requesting Dept. Revises
request and resends to
purchasing.
Purchasing Dept. will move forward
with RFQ Bid Release.
Purchasing Dept. Releases RFQ Bid
with an assigned bid No. Bid
Turnaround is 2 to 4 weeks
Bid Closes – Purchasing Reviews Bid
& Advises Dept. of winning
Company, Dept. Creates PO
(Purchasing will draft contract and
Process for signature Execution
Department Identifies
Goods/Services to be
purchased.
Purchasing will review the
request.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 70 of 99
3. Request for Proposal (RFP): The document used to solicit proposals from potential providers (proposers) for contractual goods and services. Price is usually not a primary factor. RFPs provide for the negotiation of all terms, including price, prior to contract award.
An RFP may include a provision for the negotiation of best of final offers, and may be a single or multi-step process. For the City of San Bernardino, RFPs can be processed for purchases above $40,000. RFPs are usually solicited for High Value/High Risk projects and services.
1. The Department should be preparing for an RFP month in advance and contacting the Purchasing Division for advanced notification. RFP documents must be provided to the Purchasing Division no less than fourteen (14) business days in advance, before the requested RFP release date. This is for review and revisions before RFP is released.
2. The Department should always send a detailed request to the City Purchasing Division.
1. A detailed SOS/SOW is to be provided to purchasing. A good, drafted SOS/SOW should answer the questions: What, When, Where, Who, Why & How.
2. A detailed pricing sheet for the vendor to fill out and submit for the RFP.
Please Note: If an RFP request is sent back to the department due to insufficient information, when the RFP request is returned to purchasing, there will be up to five (5) additional business days for review before the RFP is released.
b. Department can require a Bidders Conference (Bid Meeting) to discuss and clarify inquiries from the participating proposers.
c. RFPs have a minimum turnaround time of 30 calendar days (from release to closing).
This does not include the evaluation of the RFPs, any protest and award protests.
See RFP Process Flow Chart on Next Page
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 71 of 99 RFP Process Chart
Yes
No
Department Identifies
Goods/Services to be
purchased.
Purchasing will review the
request.
Did Dept. Provide all
relevant information for
RFP to be Processed?
Request to be
returned to dept
for revisions.
Requesting Dept. Revises
request and resends to
purchasing.
Purchasing Dept. will move forward
with RFP Bid Release.
Purchasing Dept. Releases RFP Bid
with an assigned bid No. Bid
Turnaround is 4 to 6 weeks
Bid Closes –
Purchasing Reviews: Bid Pricing,
References, Exceptions, Deviations,
Purchasing Draft complete evaluation
Matrix.
Department Reviews: responses and
qualifications of bids submitted.
Evaluation Matrix is reviewed by
Purchasing and Evaluation team, if a Best
and Final Offer (BAFO) is necessary,
Purchasing will contact vendors for
revised bid and deadline to submit BAFO’s
BAFO Closes:
Purchasing Reviews Revised Bid Pricing,
Exceptions, Deviations. Purchasing draft
complete evaluation Matrix
Department Reviews Revised responses
and qualifications of BAFOs submitted.
Purchasing Sends Tentative award to most
responsive/responsible bidder, (Dept. cc’d)
once award accepted.
Purchasing sends finalized matrix to Dept.
so staff report can be drafted. and
qualifications of BAFOs submitted.
Once Agreement has been approved by City
Attorney (If Exceptions were taken) contract
is uploaded to DocuSign for signature
processing.
Once contract has been signed by all parties,
including vendor/consultant/contract, the bid
and contract process is complete.
DONE!!
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 72 of 99 Request for Information (RFI) or Request for Qualification (RFQual): A nonbinding method whereby a jurisdiction publishes its need for input from interested parties for an upcoming solicitation. A procurement practice used to obtain comments, feedback, or reactions from potential responders (suppliers, contracts) prior to the issuing of a solicitation.
Generally, price or cost is not required. Feedback may include best practices, industry standards, technology issues, etc.
b. The Department requesting an RFI or RFQual should be preparing for the process months in advance and should contact the Purchasing Division for assistance. The Department must provide RFI/RFQual documents to the Purchasing Division fourteen (14) business days in advance of the requested release date, for review and revisions before the RFI or RFQual is released.
c. Departments should always send a detailed request to the City Purchasing Division. d. A detailed SOS/SOW is to be provided to purchasing.
1. A good, drafted SOS/SOW should answer the questions: What, When, Where, Who, Why & How. A detailed pricing sheet is not required for RFIs/RFQuals e. Departments can require a Bidders Conference to discuss and clarify inquiries from the participating respondents.
f. RFI’s/RFQual’s have a minimum turnaround time of 30 calendar days (from release to closing)
Please Note: If an RFI/RFQual request is sent back to a department due to insufficient information, when it is returned to purchasing, there will be up to five (5) additional business days for review before the bid is released. This does not include the evaluation of the RFI/RFQual, any protest and award protests.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 73 of 99 RFI/RFQual Process Chart
Yes
NO
PROTEST PROCEDURE
1. Vendors not awarded for a contract have ten (10) business days to formally protest the award. The award should include precise fact and circumstances, and reason for the intent to award to be overturned.
a. The protest must be filed before the awarded contract or purchase order has been issued. The Purchasing Division may not act on a bid protest if it hasn’t been received in a timely manner. If the protest deadline has expired, the vendor will be notified, and the award process will move forward.
2. If the vendor bid protest is appropriately filed, the Purchasing Division may delay the award of a contract or purchase order until the matter is resolved. a. Please note that situations may occur where the delay of an award may not be in the best interest of the City due to emergency and/or time constraints such as the end of the City’s fiscal year or grant funding requirements. In these situations, the City has no obligation to delay or otherwise postpone an award of a purchase order or contract based on a vendor protest. In all cases, the Cities Purchasing Manager reserves the right to make an award when it is determined to be in the best interest of the City of San Bernardino. b. The Purchasing Manager will review the protest and will considered all information submitted with the protest. The purchasing manager will make the final decision in writing by email and will be followed up with a hard copy, or Department
Identifies
Goods/Services to be
purchased.
Purchasing will
review the request.
Did Dept. Provide all
relevant information for
RFP to be Processed?
Request to be
returned to dept
for revisions.
Requesting Dept. Revises
request and resends to
purchasing.
Bid Closes –Purchasing Reviews: Bid
& Advice Dept. of Results. A short
list is created from Results and a
RFP/RFQ is processed for the next
step., (See RFQ/RFP Flow Charts)
Purchasing Dept. will move
forward with RFI Bid Release
Purchasing Dept. Releases RFI
Bid Request with an assigned
bid number. Bid Turnaround
time 30 Calendar Days.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 74 of 99 mail the notice to the protesting bidder within thirty (30) business days of confirmed receipt.
3. The Purchasing Manager may refer a protest of a technical nature to the requesting City Department for further clarification, and will prepare a response to the protesting vendor, advising them of the pending action(s), and when a formal response can be expected.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 75 of 99
PROTEST FORM AND CONTENT
All protests shall be in writing and state that the vendor is submitting a formal protest, and the protesting vendor is responsible for ensuring that the protest is received within the protest deadlines. If the City does not receive the protest within the specified deadline, the protest may be rejected. The mailing address for all protests is:
City of San Bernardino
Purchasing Division
Attention: Purchasing Manager
290 North “D” Street
San Bernardino, CA. 92401
Include the following information shall be placed in the protest letter. Failure to provide the following information could result in rejection of vendor’s protest:
1. Company name, mailing address, phone number, and name of company individual responsible for submission of the protest
2. Please provide an email address for communication, clarification, and disposition of the pending protest
3. Specify the City Bid Number, bid title, closing date, and proposed award date of the solicitation
4. State the specific action or decision being protested
5. Indicate the basis for the protest
6. Indicate what relief or corrective action vendor believes the City should make
7. Demonstrate that every reasonable effort was made within the schedule provided, for vendor to resolve the basis of the protest during the process, including asking questions, seeking clarification, requesting addenda, and otherwise alerting the City to any perceived problems.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 76 of 99 Vendor Setup
Instruction on how to request a New Vendor set-up and/or make changes to an existing vendor:
Go to New World (ERP System)
Financial Management
Purchasing
Vendor Change Request
• All vendors need documentation verifying their mailing address:
• W9
• City refund form
• Driver's License
• Asset forfeiture, Memo from PD
Purchase Orders (POs)
1. POs will be reviewed 2 days per week (Mondays and Fridays)
2. POs will be returned if proper documentation is not attached. a. Description must match the GL Account used and scope of work
3. Please be mindful that a PO is necessary “before” services are rendered. a. Example: POs are not rushed due to services being provided outside of an approved PO and/or agreement.
4. If using a Grants Account, please make sure to use a Grants PO.
5. Please make sure to obtain written permission the Grants Division.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 77 of 99 PO Change Order Process:
Changes are made via the New World Database. A Detailed comment needs to be entered stating what is being updated.
1. Remove the check mark in the change process only
2. Enter either the PO number or Vendor to find the departments PO
3. Hit Search
4. Click on the PO number that needs to be changed
5. Make the changes as needed
6. Click Save, if enough funds aren’t available the PO will not validate
7. If you get a GIANT red X do not move it forward, you will need to adjust the budget
8. If a GREEN check mark appears , the PO is validated, then approve to move forward in the approval process
9. Once change order request goes through the approval process and is fully approved, purchasing will post, print and forward a copy of your to your department so you will know the change order is complete.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 78 of 99 Furniture Order Process
There are a few things to be considered when you order furniture for new or existing staff.
1. There may be existing furniture that will meet your needs. Before ordering new furniture and/or cubicles, reach out to the Facilities Team. There are desks, credenzas, bookshelves, and cubicles available that are in excellent condition that may suit your needs. a. You are not required to use existing office furniture or cubicles. Sometimes the existing furnishings are too large for smaller offices, or the cubes are not suitable for the space. b. Chairs should always be ordered new. Using old chairs to save money can cost the City in the long term with potential ergonomic problems that they can cause or exacerbate for health employees.
2. If there is not existing furniture that suits the needs of your department, follow the RFQ Process to initiate the purchase of furniture that meets the needs of your department.
3. It is important to note that if City Facilities staff is unable to install your furniture and/or cubicles, a Public Works bid must be released for the installation of the furniture system according to State Law.
a. The bid will be released to certified/qualified vendors that have the proper licensing and certifications for the installation and comply with Prevailing Wage. b. Prevailing Wage applies to assembly, disassembly, installation, reconfiguring or securing furniture to walls.
c. Prevailing wage does not apply to delivery of furniture, or rearranging/moving chairs, bookcases, filing cabinets, desks, etc. within a space.
Staples Office Supplies
Staples is the city’s designated office supplies vendor.
1. To obtain a log-in
• Send an email to your assigned City Representative with your employee’s name, email address, phone, department and shipping address.
It is okay to ask for price matches for large, priced items. Please advise City Representative when an employee separates from the city so that their account is removed. Please note Furniture orders can be placed with Staples if a department has the approved specifications and measurements.
Business Registration
According to Municipal Code 5.04.005, a business registration certificate needs to be obtained before any person or business conducts business in the City. Please contact the Business Registration Department for all business certificate, licensing, and fee requirement information.
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 79 of 99 City of San Bernardino Contract Processing Guidelines
The Purchasing Division wants to ensure to meet the purchasing needs of the city as much as possible.
To safeguard that appropriate contract procedures a being properly followed; the following process is being implemented immediately:
1. Drafting a Contract.
a. If an individual department processes a bid, the Department can draft the service agreement using the city approved template.
2. All Contracts require purchasing review & approval prior to sending to the vendor/consultant for signature.
a. This is to ensure that everything is documented correctly within the agreement. b. The Department shall forward drafted agreement to the Purchasing Division for review and approval.
c. Purchasing may have some approved language and/or options to add to the agreement before sending to the vendor/consultant for review.
3. Contracts Requiring Purchasing/City Attorney review & approval prior to and after the vendor/consultant has been requested to sign the contract. a. Drafted templates that will not require City Attorney approval prior to sending to the vendor/consultant for signature are:
i. The contract is drafted on the City approved template and no exceptions or deviations have been taken on the terms and conditions. b. Drafted templates that will require Purchasing/City Attorney approval prior to sending to the vendor/consultant for review/revisions are:
i. The contract is above $40,000.
ii. The contract drafted on the City approved template and exceptions/deviations are being requested on the terms and conditions
iii. The contract is drafted on the vendor/consultants’ contract template. c. Drafted templates that will require City Attorney approval after sending to the vendor/consultant for review/revisions are:
i. The vendor has taken exceptions to the Terms and Conditions within the City approved agreement template.
ii. The vendor is counter-responding to the exceptions the City has taken on the vendor/consultants drafted contract template.
d. City Attorney is to be given a minimum of 7 to 10 business days to review contracts or to complete other legal review requests.
4. If wet signature is required. All contracts should be signed by the vendor/consultant prior to sending the contract to the Purchasing Manager and/or City Manager for final signature and approval.
a. This is a best practice for the business issuing the contract not to sign a contract until it is accepted by the other party and signed. Once it is accepted and signed by the other Packet Pg. 238
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Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 80 of 99 party, the issuer should review the contract again to make sure no terms were changed and then sign it.
i. This best practice is also used when a vendor gives the City their contract template to review and sign. The city will not sign the contract until the vendor signs the negotiated terms and conditions first.
b. The City Purchasing Division is to be given a minimum of five (5) business days to review contracts or to complete other purchasing requests.
c. Sometimes vendors/consultants may change terms and sign contracts without advising that changes have been made on their end.
i. We must review and make sure that the same contract that was sent to them is being signed and returned to us.
d. Purchasing will forward the contract to the City Clerk for the City Attorney’s Signature and City Manager’s signature, via DocuSign, unless a wet signature is required. e. Once signed by the City Manager and finalized, everyone should receive a copy of the sign.
5. Agreement Amendments are generally Processed for the following reasons:
a. Rate Adjustments
i. Processed when a vendor has requested a rate increase. If rates are increased in a contract, an amendment needs to be processed. The amendment should contain the new rates along with indicating the new percentage of the rate increase.
b. Expiration Date Extensions
i. If an agreement is needed for a longer period of time, then an amendment needs to be processed. This will include contracts that have options to extend. If the City is going to use the option to extend, an amendment needs to be generated and stated that the City is using the option to extend the agreement. c. Scope of Work Changes
i. If the scope of services is being altered or information is being added to the SOW, then an amendment should be processed. Vendors are already obligated to provide the services/materials that are in their executed agreements, they are not obligated to provide more than what is stated in their SOW, this is why an amendment is needed.
d. Services/Delivery Schedule Changes
i. If a vendor has a set schedule of days and time that are in their contract and they want to make changes to that schedule, then the department needs to agree to that change and process an amendment.
e. Typos and Errors
i. When there is an error in an agreement it needs to be corrected and an amendment may need to be processed; an error may change the meaning of terms and conditions in a contract. Contact Legal Services for review to determine if the error has a material impact on the agreement or contract.
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City of San Bernardino | Purchasing Manual
Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 81 of 99 All completed copies of executed amendments shall be attached to the PO in the Financial System.
6. When purchasing conducts, a bid, purchasing is responsible for drafting the contract. Please provide the Buyer with the Following information:
a. Annual Cost for the contract
b. Whether or not it is a multiple year contract
c. If Council approval is required, please provide the date of the meeting, item number, and annotated page showing approval.
Please do not upload contracts to DocuSign that have been processed by the Purchasing Division, that is Purchasing’s responsibility.
7. When using DocuSign, Contract will be uploaded into DocuSign and the contract will go through the internal process for signatures and the vendor’s email is added in order to obtain their electronic signature.
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City of San Bernardino | Purchasing Manual
Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 82 of 99 City Approved Agreements
Template Title Purposes Insurance Requirements Bonds
Contract Amendment To amend Terms and Conditions in an
executed agreement
Insurance requirements are based on
original Agreement
N/A
Contract Extensions To extend the terms and conditions of an agreement
Insurance requirements are based on
original Agreement
N/A
Design Build Agreement For single projects with turnkey design and construction
Commercial General Liability (CGL)
Contract Price Amt of Liability Ins (occ.)
$0 - $2mil $2 mil
$2mil - $5mil $3 mil
$5mil - $10mil $5 mil
$10mil - $20 mil $10 mil
Automobile $5 mil per accident
Workers Comp. $1 mil
Professional Liability $2 mil
Performance
Bond
Payment Bond
Design Services Agreement For Professional Design Services Only CGL $2mil per occ/$4 mil aggregate Automobile $1 mil per occ
Employers Liability $1 mil per occ
Professional Liability $2 mil per
claim/Aggregate
Performance
Bond
Payment Bond
Encroachment Agreement To document City’s authorization of the Permittee’s encroachment onto City’s
Property
Insurance Requirements is dependent on
Scope of Work contained in the
agreement and Permit shall not take
effect or become binding on City until
Permittee has complied with the
insurance requirements.
N/A
Goods Purchase Agreement Is to purchase all machinery,
equipment, supplies, items, parts,
materials, labor or other services,
including design, engineering and
installation services. Delivery Date(s)
upon which the goods are to be
delivered to the City, ready for
approval, testing and/or use.
CGL $2mil per occ/$4 mil aggregate
Automobile $1 mil per occ
Workers Comp $1 mil per occ
Professional Liability $2 mil per
claim/Aggregate
N/A
Lease Agreement – City as
Lessee
For City the pay Lessor rent for a
property for a premises, for an
extended period of time
Insurance requirements are based on the
intended use of the rental property
N/A
Lease Agreement – City as
Lessor
For city to rent out city owned property
to a Lessee for an extended period of
time.
CGL $2mil per occ/$4 mil aggregate
Automobile $1 mil per occ
Workers Comp $1 mil per occ
N/A
License Agreement City owned real property in which a
Licensee desires to obtain CITY’S
permission to enter onto the Property
for a specified period of time.
CGL $2mil per occ/$4 mil aggregate
Automobile $1 mil per occ
Workers Comp $1 mil per occ
N/A
Long Form Construction
Specifications
Complex/High Risk/High Value
Construction Projects
CGL $5mil per occ/$10 mil aggregate
Automobile $5 mil per occ
Workers Comp $1 mil per occ
Professional Liability $2 mil per
claim/Aggregate
Performance
Bond
Payment Bond
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City of San Bernardino | Purchasing Manual
Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 83 of 99 Template Title Purposes Insurance Requirements Bonds
Builder’s Risk
Contractor’s Pollution Liability $1 mil per
occ/ $2 mil aggregate
Maintenance Services
Agreement
1. Routine, recurring, and usual work for
the preservation or protection of any
publicly owned or publicly operated
facility for its intended purposes.
2. Minor repainting
3. Resurfacing of streets and highways
at less than one inch.
4. Landscape maintenance, including
mowing, watering, trimming, pruning,
planting, replacement of plants, and
servicing of irrigation and sprinkler
systems.
5. Work performed to keep, operate,
and maintain publicly owned water,
power, or waste disposal system,
including, but not limited to, dams,
reservoirs, powerplants, and electrical
transmission lines of 230,000 volts and
higher.
CGL:
$2 mil per occ/$4 mill aggregate.
Limits may be increased if work involved
Construction $5mil per occ/$10 mil
aggregate.
Automobile $1 mil per occ
Workers Comp $1 mil per occ
Professional Liability $2 mil per
claim/Aggregate
Builder’s Risk
Contractor’s Pollution Liability $1 mil per
occ/ $2 mil aggregate
Performance
Bond
Payment Bond
Nuisance Abatement
Services Agreement
Nuisance abatement is a legal
procedure for correcting a situation that
is considered a nuisance. Nuisances can
take the form of health and safety
threats in addition to circumstances
that impact quality of life. Thus, issues
like poor sanitation, abandoned
property, havens for criminal activity,
and loud music are all nuisances and
can be subjected to nuisance
abatement.
CGL $2mil per occ/$4 mil aggregate
Automobile $1 mil per occ
Workers Comp $1 mil per occ
Performance
Bond
Payment Bond
On-Call Professional
Services Agreement
For Professional Services for Specialized
Services such as Financial, Economic,
Accounting, Legal Engineering or
Administrative Services
CGL $2mil per occ/$4 mil aggregate
Automobile $1 mil per occ
Employers Liability $1 mil per occ
Professional Liability $2 mil per
claim/Aggregate
N/A
Professional Services
Agreement
A professional services agreement is
essentially a form that collects all the
relevant information in a professional
endeavor between two parties. Its
purpose is to aid in preparing a
functional contract for said services
between the parties. It is typically
divided into two sections – the
agreement, and the exhibit.
CGL $2mil per occ/$4 mil aggregate
Automobile $1 mil per occ
Employers Liability $1 mil per occ
Professional Liability $2 mil per
claim/Aggregate
N/A
Professional Software
Services Agreement
A professional services agreement is
essentially a form that collects all the
relevant information in a professional
software services endeavor between
CGL $2mil per occ/$4 mil aggregate
Automobile $1 mil per occ
Employers Liability $1 mil per occ
N/A
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City of San Bernardino | Purchasing Manual
Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 84 of 99 Template Title Purposes Insurance Requirements Bonds
two parties. Its purpose is to aid in
preparing a functional contract for said
services between the parties. It is
typically divided into two sections – the
agreement, and the exhibit.
Professional Liability $2 mil per
claim/Aggregate
Cyber Liability $1 mil per
claim/Aggregate
Professional Services
Agreement Caltrans –
FHWA
A professional services agreement is
essentially a form that collects all the
relevant information in a professional
endeavor between two parties. Its
purpose is to aid in preparing a
functional contract for said services
between the parties. It is typically
divided into two sections – the
agreement, and the exhibit. Agreement
is full funded by Caltrans on behalf of
FHWA
CGL $2mil per occ/$4 mil aggregate
Automobile $1 mil per occ
Employers Liability $1 mil per occ
Professional Liability $2 mil per
claim/Aggregate
N/A
Real Estate Purchase
Agreement
Transactional agreement between a
Buyer and Seller of Real Estate Property
Buyer maintains and will continue to
maintain adequate public liability
insurance coverage throughout the term
of this Agreement. Buyer’s indemnity
obligations as set forth herein will survive
termination of this Agreement.
N/A
Real Estate Sale Agreement Transactional agreement between a Buyer and Seller of Real Estate Property
At Close of Escrow (as defined below),
Seller will convey good and marketable
title to the Property to Buyer as
evidenced by an ALTA Non-Extended
Form Owners Policy of Title Insurance
(“Title Policy”), issued by the Title
Company in an amount equal to the
Purchase Price, and with endorsements
requested and paid for by Buyer, and
subject only to the Permitted Exceptions.
Seller will assign to Buyer all insurance
proceeds and the Purchase Price will be
reduced by the amount of any
deductible.
N/A
Reimbursement &
Indemnification Agreement
Reimbursement: to Reduce or avoid tax.
The benefit under a reimbursement
agreement can be the payment of
money, the transfer to property or an
estate, interest, right or power in or
over property or the provision of
services.
An Indemnity Agreement allows the
injured party to claim compensation or
reimbursement for the losses that are
suffered from the party that is liable to
make up for these damages
N/A N/A
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City of San Bernardino | Purchasing Manual
Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 85 of 99 Template Title Purposes Insurance Requirements Bonds
Reverse License Agreement the License Agreement to be entered into by Buyer and Seller at the Closing in
the form attached hereto as Exhibit B.
CITY, shall be lawfully self-insured with
minimum coverage limits as required by
LICENSOR as described in Exhibit “C”.
Prior to (i) entering the Licensed Property
or (ii) performing any work or
maintenance on the Facility, CITY shall
furnish LICENSOR with the insurance
endorsements and certificates in the
form and amounts specified in Exhibit
“C”, evidencing the existence, amounts
and coverage of the insurance required
to be maintained hereunder. LICENSOR
shall not be liable for the payment of any
premiums or assessments for insurance
required to be maintained by CITY under
this Agreement.
N/A
Reverse Right of Entry
Agreement
GRANTOR hereby grants to GRANTEE
and its agents, employees and
contractors the temporary nonexclusive right to enter onto the Property for the Project; provided,
however, that GRANTEE’s use of the
Property permitted hereunder shall not
interfere with the reasonable use and
enjoyment thereof by GRANTOR or any
tenants, occupants or persons claiming
through or under GRANTOR; and
provided further that all persons who
enter upon the Property pursuant to
this Right of Entry do so at their own
risk and shall comply with any and all
instructions and directions of GRANTOR.
N/A Bond
Right of Entry Agreement Employees and contractors the
temporary non-exclusive right to enter
onto Property solely for a project.
provided, however, that GRANTEE’s use
of the Property permitted hereunder
shall not interfere with the reasonable
use and enjoyment thereof by
GRANTOR or any tenants, occupants or
persons claiming through or under
GRANTOR; and provided further that all
persons who enter upon the Property
pursuant to this Right of Entry do so at
their own risk and shall comply with any
and all instructions and directions of
GRANTOR.
CGL $2mil per occ/$4 mil aggregate
Automobile $1 mil per occ
Workers Compensation $1 mil per occ
N/A
Short Form Construction
Contract
A short form agreement is legal
document that is used to procure small
renovation or construction services
from a contractor or construction
CGL $2mil per occ/$4 mil aggregate
Automobile $1 mil per occ
Workers Compensation $1 mil per occ
Builders’/All Risk
N/A
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City of San Bernardino | Purchasing Manual
Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 86 of 99 Template Title Purposes Insurance Requirements Bonds
company. The contract states who the
parties are, what work is to be
completed, and by what date the
project should be done.
Professional Liability Ins. $2 mill per occ.
Short Form Services
Agreement
It is intended for use in business-tobusiness transactions and is not suitable for use in consumer transactions.
CGL $2mil per occ/$4 mil aggregate
Automobile $1 mil per occ
Workers Compensation $1 mil per occ
Builders’/All Risk
Professional Liability Ins. $2 mill per occ.
N/A
Vendor Services Agreement A vendor service agreement is used whenever a business owner or an
individual hires a person or company to
provide services or products. Vendor
agreements are used in all sorts of
industries, including professional
services, technology, marketing, event
planning, and much more. A quality
vendor service agreement clearly states
the product or service the vendor will
provide and the expectations of the
deal from the beginning. It also lowers
the risk of dispute or confusion for
everyone involved.
A vendor service agreement should be
used for all types of events, including
farmer's markets, festivals, or fairs, to
ensure everyone benefits from the
experience. In a vendor agreement, the
conditions and expectations of the
service or product are clearly laid out.
CGL $2mil per occ/$4 mil aggregate
Automobile $1 mil per occ
Workers Compensation $1 mil per occ
Builders’/All Risk
Professional Liability Ins. $2 mill per occ.
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City of San Bernardino | Purchasing Manual
Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 87 of 99 Non-City Approved Agreements
Type of Agreement Definitions
Cooperative Agreements These are agreements between a government entity and a business, created in order to lower the cost of procuring goods and services that multiple entities commonly need.
1. Cal Procure: State Leveraged Procurement Agreements
2. OMNIA Partners
3. Sourcewell
4. NASPO
5. BuyBoard Purchasing Cooperative
Piggybacking When you use an existing contract to acquire the same commodities or services at the same or lower price from another public entity contract. Subject Matter Comparisons: The product or service acquired through piggybacking must be comparable to what your original acquisition needs, function, and goals are.
Single Source A procurement decision whereby purchases are directed to one source because of standardization, warranty, or other factors, even though other competitive sources may be available.
A department must demonstrate in detailed writing, to the Purchasing Agent that the purchase can only be obtained from a single source.
Note: This is a LEGAL requirement, not just an ordinance. This is to protect against any discrimination for ALL bidders, contractors.
We are ran by the public for the public.
Sole Source Is used only when there is only one qualified company that has developed a patent or copyright product or services; when the product or service is required immediately due to a pressing emergency; or it is not in the public’s interest to hold a competition.
Please contact purchasing to use the Single/Sole Source Justification Form when requesting to utilize a Single/Sole Source Procurement. See example below
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City of San Bernardino | Purchasing Manual
Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 88 of 99 City of San Bernardino
Finance Department, Purchasing Division
JUSTIFICATION OF SINGLE/SOLE SOURCE REQUEST
ITEM Description ________________________________ DATE__________ Select Source:
____Sole Source: Item is manufactured and/or only distributed by one vendor. ____Single Source: Item is available from several vendors, but item is the only one that will work Please answer all questions in detail, in order to prevent delays in the evaluation.
Please do not provide one sentence answers. If any additional pages are needed to answer all questions, please attach all pages to this document.
1. Why is the acquisition restricted to this good/service/supplier? (Explain why the acquisition cannot be competitively bid). Please enter answer below
2. Describe the uniqueness of the purchase (why was the good/service/supplier chosen?) Please enter the answer below
3. What are the consequences of not purchasing the goods/service or contracting with the proposed supplier?
4. What market research was conducted to substantiate the single source, including evaluation of other items considered?
a. (Please provide a narrative of your efforts to identify other similar or appropriate goods/services, including a summary of how the department concluded that such alternatives are either inappropriate or unavailable. The names, addresses and phone numbers of suppliers contacted and the reasons for not considering them must be included or an explanation of why the survey or effort to identify other goods/services was not performed.)
5. How was the price offered determined to be fair and reasonable? Explain what the basis was for comparison and include cost analyses as applicable. (I.e., Compared to vendor’s previous or current offer to the city or to another agency/company – or any other method of comparison that will substantiate fair and reasonable pricing in the absence of competition) Packet Pg. 247
City of San Bernardino | Purchasing Manual
Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 89 of 99
6. Describe any cost savings realized or costs avoided by acquiring the goods/services from this supplier.
Signature Block Below
____________________ ___________
Department Head Date
____________________ _____________
Approved Not Approved Date
(Up to $100,000)
Purchasing Manager
SSJ Justification: _______________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ Over $100,000 – must be submitted for City Council Approval with the Purchasing Manager in concurrence.
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City of San Bernardino | Purchasing Manual
Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 90 of 99 Please contact the City Clerk’s office if you have questions regarding the DocuSign Process for Agreement Signatures:
City Clerk requires: That only Finalized Agreement be uploaded to DocuSign. Before uploading an agreement to DocuSign, please forward the following Documents to your designated Buyer for review via email:
1. Drafted Agreement
2. Quote(s)
3. COI with waivers of Subrogation and Endorsements
4. W9 with wet signature and current date
5. City Business License
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City of San Bernardino | Purchasing Manual
Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 91 of 99 How to Calculate Cost Avoidances and Cost Savings for Procurement Projects Cost Savings vs. Cost Avoidance
- Cost-savings measures any actions that lower current spending, investment, or debt levels. They result in a tangible financial benefit for the organization. The amount of money saved as a result of these measures should always be reflected in the financial statements and next year’s budget. Actual cost savings should be visible in the financial statements compared to prior period; planned cost savings should be reflected in the budget. Examples of cost saving measures are:
o Reduction of overtime hours
o Elimination of temporary labor employees
o Negotiation of price decreases for products and services o Negotiation of a lower rental fee for facilities and equipment - Cost avoidance measures are any actions that avoid having to incur costs in the future.
They represent potential increases in costs that are averted through specific preemptive actions. These measures will never be reflected in the budget or the financial statements. Some examples of cost avoidance measures are:
o A reduction of a proposed price increase from a vendor o The elimination of the need for additional headcount through process improvements, or a change in maintenance schedules for critical equipment to avoid work stoppages.
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City of San Bernardino | Purchasing Manual
Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 92 of 99 How to Calculate a Cost Avoidance Example
Average Cost of Bids Submitted $ 1,000,000.00
Winning Bid $ 350,000.00
Average Cost of Bids - Subtracted from winning bid = Cost Avoidance $ 650,000.00 Divide Cost Avoidance/ Average cost of bids = Percentage of savings/avoidance for project 65%
How to Calculate a Basic Cost Savings Example
Cost used in previous project/services $ 55,000.00
Cost of new winning bid $ 46,000.00
Subtract previous cost from - new bid cost = New cost savings $ 9,000.00 Divide Cost Savings/ previous project cost = Percentage of new cost savings 16% Packet Pg. 251
City of San Bernardino | Purchasing Manual
Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 93 of 99 Certificate of Insurance (COI):
All vendors are required to provide a COI for the services, materials and equipment that they are providing to the city. Insurance limits vary dependent upon the type of work and services that are being provided. The Current Insurance Limits for 2023 are the following:
Professional Services Agreements, Lessee Agreements & Vendor Agreements • General Services will usually require a minimum amount such as CGL $2,000,000 per occ./$4,000,000 aggregate.
• Professional Liability will usually require No less than $2,000,000 per occurrence or Claim, $2,000,000 aggregate.
• Automobile Liability will usually require No less than $1,000,000 per accident for bodily injury and property damage.
• Worker’s Compensation will usually require No less than $1,000,000 per accident for bodily injury or disease. Not required if consultant provides written verification, it has no employees.
Environmental Contractors and/or Consultants Agreements • Commercial General Liability (CGL). No less than $2,000,000 per occ./$4,000,000 aggregate
• Contractors’ Pollution Legal Liability and/or Asbestos Legal Liability and/or Errors and Omissions (if project involves environmental hazards) with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate. • Automobile Liability will usually require No less than $1,000,000 per accident for bodily injury and property damage.
• Worker’s Compensation will usually require No less than $1,000,000 per accident for bodily injury or disease. Not required if consultant provides written verification, it has no employees.
Construction Services Agreements
• Commercial General Liability (CGL). No less than $5,000,000 per occ./ $10,000,000 aggregate.
o The higher limit is appropriate for general contractors on any new construction or major remodel projects. Subcontractors in areas of higher risk, such as electric, roofing, or plumbing work, should have limits above the standard minimum of $2 million.
• Automobile Liability. No less than $5,000,000 per accident for bodily injury and property damage.
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City of San Bernardino | Purchasing Manual
Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 94 of 99 • Worker’s Compensation will usually require No less than $1,000,000 per accident for bodily injury or disease. Not required if consultant provides written verification, it has no employees.
• Builder’s Risk. (Course of Construction) insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions.
• Professional Liability. No less than $2,000,000 per occurrence or Claim, $2,000,000 aggregate.
• Contractors’ Pollution Legal Liability. And/or Asbestos Legal Liability and/or Errors and Omissions (if project involves environmental hazards) with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate. • Aviation and Cyber Liability Insurance (May be required):
o Unmanned Aerial Systems (UAS) – aka “Drones”, has determined that drones are “currently the most dynamic growth sector in Aviation.
o Amount of Insurance Needed:
Typically, liability limits may be purchased on a combined single limit basis at $500,000, $1,000,000 and $2,000,000 and higher depending on insurance company and/or requirement.
• Design/Build Contracts (Professional Liability). For contracts with construction risk, there is added coverage requirements for professional liability. It is necessary for “design/build” contracts where the contractor is expected to provide engineering and architectural services.
Please note that Bonds may be required such as: Surety Bonds, Bid Bonds, Performance Bonds, Payment Bonds, Subdivision or Completion Bonds. Please review the contract template and/or contact the City Attorney to verify if there is a requirement for Bonds.
Professional Software Services Agreements and may be required for other types of agreements.
• General Services will usually require a minimum amount such as CGL $2,000,000 per occ./$4,000,000 aggregate.
• Professional Liability will usually require No less than $2,000,000 per occurrence or Claim, $2,000,000 aggregate.
• Automobile Liability will usually require No less than $1,000,000 per accident for bodily injury and property damage.
• Worker’s Compensation will usually require No less than $1,000,000 per accident for bodily injury or disease. Not required if consultant provides written verification, it has no employees.
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City of San Bernardino | Purchasing Manual
Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 95 of 99 • Cyber Liability with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate
o Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Vendor/Contractor/Operator in this agreement and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction electronic information, release of private information, alteration of electronic information, extortion and network security.
This policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit expenses with limit sufficient to respond to these obligations.
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City of San Bernardino | Purchasing Manual
Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 96 of 99 Packet Pg. 255
City of San Bernardino | Purchasing Manual
Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 97 of 99 Packet Pg. 256
City of San Bernardino | Purchasing Manual
Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 98 of 99 Packet Pg. 257
City of San Bernardino | Purchasing Manual
Form# PURCH-100 Purchasing Guidelines and Procedures Rev. April 18, 2023 Page 99 of 99 Packet Pg. 258
CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: May 17, 2023
To: Honorable Mayor and City Council Members
From: Charles McNeely, Interim City Manager
Barbara Whitehorn, Agency Director of Administrative Services Department: 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 2023.
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:
https://sbcity.org/city_hall/finance/warrant_register
Discussion
Gross Payroll
Bi-Weekly for April 27, 2023 $2,864,761.21
Total Payroll Demands: $2,864,761.21
The following check registers are being presented for approval:
April 19, 2023 2022/23 (Register #49) $1,753,954.61
April 24, 2023 2022/23 (Register #50) $37,500.00
April 27, 2023 2022/23 (Register #51) $1,462,796.63
Total commercial check demands: $3,254,248.24
The following Electronic Funds Transfer (EFT) registers presented for approval:
March 22 to March 28, 2023 2022/23 (Register #1451-1454) $672,413.44 Total commercial EFT demands: $672,413.44
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2021-2025 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.
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 2023.
Attachments
Attachment 1 Payroll Summary Report for April 2023
Attachment 2 Commercial checks & Payroll Register #49
Attachment 3 Commercial checks & Payroll Register #50
Attachment 4 Commercial checks & Payroll Register #51
Attachment 5 Commercial EFT Registers #1451-1454
Ward:
All Wards
Synopsis of Previous Council Actions: n/a
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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: May 17, 2023
To: Honorable Mayor and City Council Members
From: Charles E. McNeely, Interim City Manager
By: Suzie Soren, Director of Human Resources
Department: Human Resources
Subject: Adoption of Resolution No. 2023-070 Appointing an Interim Agency Director of Community, Housing, and
Economic Development (All Wards)
Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California:
1. Adopt Resolution No. 2023-070 appointing Mary E. Lanier as Agency Director of Community, Housing, and Economic Development on an interim basis
2. Approve a Retired Annuitant Employment Agreement.
Background
On April 26, 2023, Assistant City Manager Edelia Eveland accepted the resignation of Nathan R. Freeman, Agency Director of Community, Housing, and Economic Development for the City of San Bernardino. The City Manager reached out to Ms.
Lanier due to her high level of knowledge, skills, and abilities to perform the job duties until the recruitment for the Agency Director of Community, Housing, and Economic Development concludes, and a regular appointment is made.
Prior to her retirement, Ms. Lanier held the position of Community Development Director for the City of Murrieta. Ms. Lanier has over 27 years of public and private sector experience in urban planning, environmental document preparation, local government operations, property entitlements, housing, grants, relocation plans, and real estate acquisitions. Ms. Lanier Lanier’s employment terms will comply with all applicable statutes and regulations regarding hiring a retired annuitant. As such, the interim City Manager is recommending approval of the attached resolution.
Discussion
To ensure the continuity of operations in the Community, Housing, and Economic Development Department while the recruitment for an Agency Director is underway, it is recommended that the City retains the services of Ms. Mary E. Lanier, a California Packet Pg. 303
Public Employees Retirement System (CalPERS) retiree, to serve as Agency Director on an interim basis. State and federal laws provide specific employment restrictions for retirees who return to work with an employer in the same public retirement system from which they receive a benefit. CalPERS refers to these restrictions as retired annuitant rules and provides for two types of retired annuitant employment, “extra help” and interim (or acting) “vacant position” employment options.
Ms. Lanier’s appointment is eligible for the “vacant position” employment option under the CalPERS retired annuitant rules, which provides for an appointment to an interim position by the governing body as authorized by Government Code section 21221(h).
The Mayor and City Council must make the appointment and approve the employment agreement by resolution. In addition, an appointment under Section 21221(h) requires the City to be actively pursuing a permanent replacement. The City is presently in the process of selecting a recruitment firm to assist with the recruitment of a permanent Agency Director of Community, Housing, and Economic Development. The City will continue to abide by Section 21221(h) and will take further steps to actively recruit a permanent Agency Director of Community, Housing, and Economic Development. The interim appointment will end when the regular replacement for the vacant position commences their employment or, if earlier, the date that the City or the selected candidate terminates this appointment.
In accordance with applicable law, the proposed contract limits the number of hours which may be worked in any fiscal year to 960 hours. Further, the compensation paid to retirees cannot be less than the minimum nor exceed the maximum monthly base salary paid to other employees performing comparable duties, divided by 173.333 to equal the hourly rate. For the position of Interim Agency Director of Community, Housing, and Economic Development, that rate is $103.56 (i.e., $17,951.49, which is both the top step for the Agency Director of Community, Housing, and Economic Development position on the approved salary schedule, divided by 173.333).
Lastly, in accordance with the applicable law, the employment agreement does not provide for any other benefit, incentive compensation in lieu of benefits, or any other form of compensation in addition to this hourly pay.
2021-2025 Strategic Targets and Goals
Approving an employment agreement with an Interim Agency Director of Community, Housing, and Economic Development aligns with Strategic Target and Goal 2b:
Focused, Aligned Leadership and Unified Community by building a culture that attracts, retains, and motivates the highest quality talent.
Fiscal Impact
Sufficient funding is included in the FY 2022/23 Operating Budget to support this agreement.
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Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California:
1. Adopt Resolution No. 2023-070 appointing Mary E. Lanier as Agency Director of Community, Housing, and Economic Development on an interim basis
2. Approve a Retired Annuitant Employment Agreement.
Attachments
Attachment 1 Resolution 2023-070
Attachment 2 Exhibit A – Retired Annuitant Employment Agreement Ward:
All Wards
Synopsis of Previous Council Actions:
N/A
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RESOLUTION NO. 2023-070
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
APPOINTING MARY E. LANIER AS INTERIM DIRECTOR
OF COMMUNITY DEVELOPMENT AND APPROVING
EMPLOYMENT AGREEMENT
WHEREAS, Government Code Section 21221(h) permits the Mayor and City Council to appoint a California Public Employees’ Retirement System (“CalPERS”) retiree to a vacant position requiring specialized skills during recruitment for a permanent appointment, and provides that such appointment will not subject the retired person to reinstatement from retirement or loss of benefits so long as it is a single appointment that does not exceed 960 hours in a fiscal year; and
WHEREAS, the position of Agency Director of Community, Housing, and Economic Development became vacant on May 24, 2023,
WHEREAS, in order to ensure the continuity in the operation and management of the Community, Housing, and Economic Development Department, the Mayor and City Council desire to retain the services of Mary E. Lanier, a retired member of CalPERS, to serve as Interim Agency Director of Community, Housing, and Economic Development, effective May 30, 2023; and
WHEREAS, Mary E. Lanier has over 27 years of experience in Community, Housing, and Economic Development; and
WHEREAS, pending the recruitment, selection and employment of an Agency Director of Community, Housing, and Economic Development, the City desires to appoint Mary E.
Lanier as Interim Agency Director of Community, Housing, and Economic Development, pursuant to the authority provided under Government Code Section 21221(h), to provide the leadership, managerial and organization skills necessary to manage the Community, Housing, and Economic Development effectively and efficiently; and WHEREAS, it is understood by Mary E. Lanier and the City that the combined total hours to be served in any fiscal year for all CalPERS employers shall not exceed the 960 hour limitation set forth in California Government Code Section 21221(h); and WHEREAS, the Mayor and City Council has reviewed a proposed employment agreement by and between Mary E. Lanier and the City of San Bernardino
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.
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Resolution No. 2023-070
SECTION 2. As required by Government Code Section 21221(h), the Mayor and City Council make the following findings:
(A) All facts set forth in the Recitals to this Resolution are true and correct (B) Mary E. Lanier has the specialized skills needed to perform the work required of the Interim Agency Director of Community, Housing, and Economic Development until a permanent Agency Director of Community, Housing, and Economic Development is appointed and thereafter begins his or her service.
(C) It is in the best interests of the City of San Bernardino to enter into an employment agreement with and to appoint Mary E. Lanier as Interim Agency Director of Community, Housing, and Economic Development for the City of San Bernardino pursuant to the authority provided under Government Code Section 21221(h).
SECTION 3. Mary E. Lanier is hereby appointed as Interim Agency Director of Community, Housing, and Economic Development of the City of San Bernardino in accordance with Government Code Section 21221(h) and with the provisions of the employment agreement on file with the City Clerk.
SECTION 4. The employment agreement with Mary E. Lanier, a copy of which is a copy which is incorporated herein as Exhibit “A”, is hereby approved by the Mayor and City Council of the City of San Bernardino, and effective May 30, 2023. The City Manager is authorized to execute said agreement on behalf of the City of San Bernardino, with such nonsubstantive, technical amendments as may be deemed appropriate by the City Attorney.
SECTION 5. That 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 6. 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 7. Effective Date. This Resolution shall become effective immediately.
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this ___ day of __________ 2023.
Helen Tran, Mayor
City of San Bernardino
Attest:
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Resolution No. 2023-070
Genoveva Rocha, CMC, City Clerk
Approved as to form:
Sonia Carvalho, City Attorney
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Resolution No. 2023-070
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. 2023-070, adopted at a regular meeting held on the ___ day of _______ 2023 by the following vote:
Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ _____ _____ _______ _______
IBARRA _____ _____ _______ _______
FIGUEROA _____ _____ _______ _______
SHORETT _____ _____ _______ _______
REYNOSO _____ _____ _______ _______
CALVIN _____ _____ _______ _______
ALEXANDER _____ _____ _______ _______
MAYOR : AYES NAYS ABSTAIN ABSENT
TRAN _____ _____ _______ _______
WITNESS my hand and official seal of the City of San Bernardino this ___ day of ____________ 2023.
Genoveva Rocha, CMC, City Clerk
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AGREEMENT FOR
INTERIM AGENCY DIRECTOR OF COMMUNITY, HOUSING, AND ECONOMIC
DEVELOPMENT
THIS AGREEMENT (“Agreement”), is made and entered into this ____ day of May, 2023 by and between the City of San Bernardino (“CITY”) and Mary E. Lanier (“RETIREE”) (collectively, the “Parties”). In consideration of the mutual covenants and agreements set forth herein, the Parties agree as follows:
RECITALS
This Agreement is made and entered into with respect to the following facts:
A. CITY seeks to engage RETIREE on an interim basis in the position of Interim Agency Director of Community, Housing, and Economic Development, in accordance with the terms set forth Agreement; and
B. RETIREE desires to accept employment as Interim Agency Director of Community, Housing, and Economic Development on an interim basis in consideration of and subject to the terms, conditions and benefits set forth in this Agreement; and C. RETIREE represents that she is a retired annuitant of CalPERS within the meaning of Government Code §§7522.56 and 21221(h) (“Statutes”) and acknowledges that her compensation is statutorily limited as provided in Government Code §21221(h). RETIREE represents that, as of the effective date of this Agreement, she has not worked for another CalPERS state or contracting agency as a retired annuitant during the 2022-2023 fiscal year, and that she therefore acknowledges that she can work up to 960 hours for the CITY, a state agency or other CalPERS contracting agencies (collectively “CalPERS Agencies”) during the 2022-2023 fiscal year. With the execution of this Agreement, RETIREE affirms that she has not received unemployment compensation arising from work pursuant to Government Code Section 7522.56 during the 12-month period preceding the effective date of this Agreement. RETIREE further affirms that her CalPERS retirement date became effective prior to the 180-day period preceding the Commencement Date, as that term is defined in Section 3 of this Agreement; and D. CITY has determined that it is necessary to hire RETIREE, a retired annuitant, because her extensive knowledge and skills relating to operation, management, and supervisory skills relating thereof are necessary for the successful operation of the Community, Housing, and Economic Development Department.
NOW, THEREFORE, CITY and RETIREE, in consideration of the mutual covenants and agreements herein contained, agree as follows:
1. APPOINTMENT. In accordance with Resolution No. _________, RETIREE is appointed Interim Agency Director of Community, Housing, and Economic Development of the CITY on an interim basis under the terms of this Agreement.
2. POSITION AND DUTIES. RETIREE has been appointed by the Mayor and City Council as Interim Agency Director of Community, Housing, and Economic Development of the CITY on an interim basis to perform, on a basis set forth in Paragraph 4 below, the duties and functions pertaining to the Interim Agency Director of Community, Housing, and Economic Packet Pg. 310
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Development position, and to perform other legally permissible duties and such functions as the City Manager shall from time-to-time assign. The City Manager shall have the authority to determine the specific duties and functions which RETIREE shall perform under this Agreement and the means and manner by which RETIREE shall perform those duties and functions. RETIREE agrees to devote all of her business time, skill, attention, and best efforts to the discharge of the duties and functions of the Interim Agency Director of Community, Housing, and Economic Development position and any other duties assigned to her by the City Manager.
3. TERM, TERMINATION AND AT-WILL STATUS. This Agreement shall become effective upon the date executed both by RETIREE and the City Manager, which date shall be the date first referenced above. RETIREE shall commence the performance of her duties under this Agreement on May 30, 2023, or at such later date as the parties hereto shall agree in writing (“Commencement Date”). This Agreement shall expire as of the first of the following to occur: (i) upon the employment commencement date of a permanent Agency Director of Community, Housing, and Economic Development; (ii) upon RETIREE working 960 hours combined for any CalPERS Agencies during fiscal year 2022-2023 or 960 hours in any subsequent fiscal year; or (iii) upon termination of the Agreement by either RETIREE or CITY as provided below.
RETIREE acknowledges that she is an at-will, temporary employee of the CITY who shall serve at the pleasure of the City Manager at all times during the period of her service hereunder and shall be subject to termination by the City Manager at any time without advance notice and without cause. The terms of CITY’s personnel rules, policies, regulations, procedures, ordinances, and resolutions regarding City administrative personnel (collectively “Personnel Policies”), as they may be amended or supplemented from time to time, shall not apply to RETIREE, and nothing in this Agreement is intended to, or does, confer upon RETIREE any right to any property interest in continued employment, or any due process right to a hearing before or after a decision by the City Manager to terminate her employment. Nothing contained in this Agreement shall in any way prevent, limit or otherwise interfere with the right of CITY to terminate the services of RETIREE and nothing in this Agreement shall prevent, limit or otherwise interfere with the right of RETIREE to resign at any time from her position with CITY.
4. COMPENSATION. The CITY agrees to provide the following compensation to RETIREE for the services of Interim Agency Director of Community, Housing, and Economic Development:
Beginning as of the Commencement Date, CITY agrees to pay to RETIREE for services rendered under this Agreement, $103.56 per hour consistent with the payrate established for the Agency Director of Community, Housing, and Economic Development position as listed in the CITY’s publicly available pay schedule. The RETIREE shall not be entitled to any additional compensation. The City shall not pay for vacation or holidays, nor shall RETIREE be entitled to any fringe benefits.
5. SUPPORT SERVICES AND EQUIPMENT. RETIREE shall be provided office space and the equipment needed to perform her duties and sufficient to fulfill obligations under this Agreement, as determined by the City Manager, at no cost to RETIREE. In accordance with Government Code Section 21221(h), personal use of such equipment is not permitted.
6. EXPENSES. CITY shall reimburse RETIREE for authorized, reasonable and necessary travel expenses incurred by RETIREE in the performance of her duties pursuant to this Agreement. RETIREE shall document and claim said reimbursement for such travel in the manner and forms required by the CITY. All reimbursements shall be for actual expenses and shall be Packet Pg. 311
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subject to and in accordance with California and federal law and CITY’s adopted reimbursement policies. Other than as specifically provided herein, RETIREE shall receive no other compensation or reimbursements for expenses incurred by her in performance of this Agreement.
7. PROPRIETARY INFORMATION. “Proprietary Information” is all information and any idea pertaining in any manner to the business of CITY (or any CITY affiliate), its employees, clients, consultants, or business associates, which was produced by any employee of CITY in the course of his or her employment or otherwise produced or acquired by or on behalf of City. Proprietary Information shall include, without limitation, trade secrets, product ideas, inventions, processes, formulae, data, know-how, software and other computer programs, copyrightable material, marketing plans, strategies, sales, financial reports, forecasts, and customer lists. All Proprietary Information not generally known outside of CITY’S organization, and all Proprietary Information so known only through improper means, shall be deemed “Confidential Information.” During her employment by CITY, RETIREE shall use Proprietary Information, and shall disclose Confidential Information, only for the benefit of CITY and as is, or may be, necessary to perform her job responsibilities under this Agreement. Following termination, RETIREE shall not use any Proprietary Information and shall not disclose any Confidential Information, except with the express written consent of CITY. RETIREE’S obligations under this Section shall survive the termination of her employment and the expiration of this Agreement.
8. NON-ASSIGNMENT OF AGREEMENT. This Agreement is intended to secure the individual services of the RETIREE and is not assignable or transferable by RETIREE to any third party.
9. GOVERNING LAW/VENUE. This Agreement shall be interpreted according to the laws of the State of California. Venue for any action or proceeding regarding this contract shall be in San Bernardino County.
10. ENFORCEABILITY. If any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby.
11. CONFLICT OF INTEREST. RETIREE agrees that during the term of this Agreement, she will not maintain any financial interest or engage in any other contract employment, occupation, work, endeavor or association, whether compensated or not, that would in any way conflict with, or impair RETIREE’S ability to perform the duties described in this Agreement. Any work performed for the CITY outside the terms of this Agreement must be approved in advance in writing by the City Manager. RETIREE agrees to disclose whether she is performing work for any other CalPERS public agency employer during the term of this Agreement.
12. NOTICE. Notices required pursuant to this Agreement shall be given by personal service upon the party to be notified or by delivery of same to the custody of the United States Postal Service, or its lawful successor, postage prepared and addressed as follows:
CITY
City of San Bernardino
290 North D Street
San Bernardino, CA 92401
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Attention: City Manager
RETIREE
ADDRESS ON FILE
13. HOURS OF WORK. RETIREE shall devote the time necessary to adequately perform her duties as Interim Agency Director of Community, Housing, and Economic Development on an interim basis. The parties anticipate that RETIREE will work a sufficient number of hours per week allocated between regular business hours and hours outside of regular business hours as the City Manager may direct. However, in no event shall RETIREE be required to work in excess of 960 hours in fiscal year 2022-2023 and 960 hours per each subsequent fiscal year for CITY, including hours worked for other CalPERS Agencies during such fiscal years.
It is the intent of the parties to compensate RETIREE only to the extent permitted under the Statutes and corresponding CalPERS regulations and policy statements. The Rate of Pay set forth above is based on the salary limitations established by CalPERS in accordance with Section 21221(h) which provides that the Rate of Pay shall be no less than the minimum or greater than the maximum hourly rate for the Agency Director of Community, Housing, and Economic Development position as listed on the CITY’s publicly available pay schedule.
RETIREE will comply with all applicable CalPERS regulations governing employment after retirement, including the recordation and reporting of all hours worked for CITY to CalPERS as may be required. CITY shall assist in any such reporting obligations to CalPERS.
Additionally, RETIREE shall keep CITY continually apprised of any hours worked by RETIREE for other CalPERS Agencies during the term of this Agreement.
14. WAIVER. No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other provision whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. No waiver shall be binding, unless executed in writing by the party making the waiver.
15. INDEMNIFICATION. In accordance with and subject to the limitations of the California Government Claims Act and California Labor Code, the CITY shall defend, save harmless and indemnify RETIREE against any tort, professional liability, claim or demand or other legal action, arising out of an alleged act or omission occurring in the performance of RETIREE’s services as Interim Agency Director of Community, Housing, and Economic Development on an interim basis, except that this provision shall not apply with respect to any intentional tort or crime committee by RETIREE, or any actions outside the course and scope of her employment as Interim Agency Director of Community, Housing, and Economic Development on an interim basis.
16. NO PRESUMPTION OF DRAFTER. The Parties acknowledge and agree that the terms and provisions of this Agreement have been negotiated and discussed between the Parties, and this Agreement reflects their mutual agreement regarding the subject matter of this Agreement.
Because of the nature of such negotiations and discussions, it would be inappropriate to deem any Party to be the drafter of this Agreement and, therefore, no presumption for or against validity or as to any interpretation hereof, based upon the identity of the drafter shall be applicable in interpreting or enforcing this Agreement.
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17. ASSISTANCE OF COUNSEL. Each party to this Agreement warrants to the other party that the party has either had the assistance of counsel in negotiation for, and preparation of, this Agreement or could have had such assistance and voluntarily declined to obtain such assistance.
18. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement of the parties considering the subject matter hereof and all prior agreements or understanding, oral or written, are hereby merged herein. This Agreement shall not be amended in any way except by a writing expressly purporting to be such an amendment, signed, and acknowledged by both of the parties thereto. If any portion or provision hereof is held to be unconstitutional, invalid, or unenforceable, the remainder of this Agreement or portion thereof shall be deemed severable and shall be effective and shall remain in full force and effect.
CITY OF SAN BERNARDINO
By: _______________________________ Date: _______________________________ Charles E. McNeely, City Manager
RETIREE
By: _______________________________ Date: _______________________________ Mary E. Lanier
Approved as to Form:
By: _______________________________ Date: _______________________________ City Attorney
City of San Bernardino
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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: May 17, 2023
To: Honorable Mayor and City Council Members
From: Charles McNeely, Interim City Manager;
Daniel Hernandez, Agency Director of Public Works,
Operations and Maintenance
Department: Public Works
Subject: Approve Final Tract Map No. 20494 for the
Warmington Residential Project (Ward 6)
Recommendation:
It is recommended that the Mayor and the City Council of the City of San Bernardino, California:
1. Adopt Resolution No. 2023-071 of the Mayor and City Council of the City of San Bernardino, California, approving Final Tract Map No. 20494 (Subdivision 21- 12) involving the subdivision of one parcel (APN 0143-191-59) containing approximately 9.9 acres into ninety-five (95) single-family residential lots and nine (9) lettered lots for common facility improvements, located on the south side of W.
Highland Avenue, approximately 600 feet west of N. Medical Center Drive; and
2. Accepting the public dedications as set forth on said map; and
3. Authorizing execution of the standard form of agreement for the subdivision improvements.
Background
On July 20, 2022, the Mayor and City Council adopted Resolution 2022-160 certifying General Plan Amendment 21-01, Development Code Amendment (Zoning Map Amendment) 21-06, Subdivision 21-12 (Tentative Tract Map 20494), and Development Permit Type-P 21-06 for the Warmington Residential project. The approved project allowed for the subdivision of one (1) parcel containing approximately 9.9 acres into ninety-five (95) single-family residential lots and nine (9) lettered lots for common facility improvements; and the development and establishment of a Planned Unit Development comprised of ninety-five (95) detached single-family residences.
Discussion
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The proposed project consists of subdividing one parcel containing a total of approximately 9.9 acres into ninety-five (95) detached single-family lots. The proposed detached lots are part of a planned residential development, which was also approved on October 11, 2021, by the Mayor and City Council as Development Permit Type-P 21-06 per the same Resolution No. 2021-160.
Pursuant to the requirements of Chapter 19.48 (Final and Parcel Maps) of the City of San Bernardino Development Code and the Subdivision Map Act, the applicant has submitted a Final Map for Mayor and City Council action and final acceptance. The City Engineer has reviewed the proposed Final Map for Tract No. 20494 and determined that the Final Map is in compliance with the Subdivision Map Act, the City’s ordinances regarding subdivisions, and all conditions of approval. 2021-2025 Strategic Targets and Goals
The adoption of a Resolution approving the Final Map for Tract No. 20494 aligns with Key Target No. 1: Improved Operational & Financial Capacity. Specifically, the transformation of existing vacant underutilized properties into productive single-family residential lots for the purpose of developing single-family residential homes meets the City’s economic development goals.
Fiscal Impact
There will be no fiscal impact. All public infrastructure improvements required for this subdivision will be constructed by the developer at its sole cost. City services will be provided to this project similar to other residential projects in the City.
Conclusion
It is recommended that the Mayor and the City Council of the City of San Bernardino, California:
1. Adopt Resolution No. 2023-071 of the Mayor and City Council of the City of San Bernardino, California, approving Final Tract Map No. 20494 (Subdivision 21-12) involving the subdivision of one parcel (APN 0143-191-59) containing approximately 9.9 acres into ninety-five (95) single-family residential lots and nine (9) lettered lots for common facility improvements, located on the south side of W.
Highland Avenue, approximately 600 feet west of N. Medical Center Drive; and
2. Accepting the public dedications as set forth on said map; and
3. Authorizing execution of the standard form of agreement for the subdivision improvements.
Attachments
Attachment 1 Resolution No. 2023-071
Attachment 2 Project Bonds
Attachment 3 Final Tract Map No. 20494
Attachment 4 Subdivision Improvement Agreement
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Attachment 5 Resolution 2022-160
Ward:
Sixth Ward
Synopsis of Previous Council Actions:
July 20, 2022 The Mayor and City Council adopted Resolution 2022-160 thereby certifying General Plan Amendment 21-06, Development Code Amendment 21-06, Subdivision 21-12 (Tentative Tract Map 20494), and Development Permit Type 21-06 for the Warmington Residential Project.
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Resolution No. 2023-071
Resolution 2023-071
May 17, 2023