TWENTYNINE PALMS CITY COUNCIL
REGULAR MEETING AGENDA
6136 Adobe Road
Twentynine Palms, CA 92277
www.29palms.org
Tuesday, March 26, 2024
NOTICE IS HEREBY GIVEN, that the City Council will hold a Regular Meeting on Tuesday, March 26, 2024, at City Hall, 6136 Adobe Road, Twentynine Palms, CA 92277 to consider the following:
REGULAR SESSION AGENDA
6:00 P.M.
CALL TO ORDER
Pledge of Allegiance.
Invocation - Pastor Michelle Ronia - Oasis Community Church.
Roll Call.
Closed Session Announcements.
Changes to the Agenda.
ANNOUNCEMENTS
These proceedings may be viewed on demand on the City of Twentynine Palms website at www.29palms.org.
You may also Live Stream this meeting by going on our website and clicking on the "Meeting Agendas" link.
AWARDS, PRESENTATIONS, APPOINTMENTS AND PROCLAMATIONS – NONE
COUNCIL COMMENTS AND REPORTS OF MEETINGS ATTENDED
CONSENT CALENDAR
All matters listed under the Consent Calendar are to be considered routine by the City Council and will be enacted by one motion in the form listed. Any item may be removed from the Consent Calendar and considered separately by the City Council. The public will be given an opportunity to comment on Consent Calendar items prior to the City Council action.
1. Waive the Reading of Ordinance and Approve the Reading by Title Only.
2. Approval of Minutes of the City Council Meeting Held on February 22, 2024, February 27, 2024, and March 12, 2024.
City Council - Regular Meeting with Closed Session - 27 Feb 2024 - Minutes - Pdf City Council - Special Meeting with Closed Session - 22 Feb 2024 - Minutes - Pdf City Council - Regular Meeting with Closed Session - 12 Mar 2024 - Minutes - Pdf 5 - 17
3. Request To Vacate a Portion of Foothill Drive on Parcel Map 20360.
RECOMMENDATION: Adopt Resolution 24-____, “A Resolution of the City Council of the City of Twentynine Palms, California, giving notice of the City Council's intention to vacate Foothill Drive from the easterly boundary of Bullion Avenue to the westerly boundary of Split Rock Avenue shown on Parcel Map 20360, a length of 813.36’, and fixing the time and place for Public Hearing thereon."
Request To Vacate a Portion of Foothill Drive on Parcel Map 20360. - Pdf 19 - 27
4. Investment Policy.
RECOMMENDATION: The City Council review and approve the City's Investment Policy for Fiscal Year 2023-24.
Investment Policy. - Pdf
29 - 33
5. Aha Projects!
RECOMMENDATION: The City Council approve the deal points for the lease agreement with Aha Projects! for the property located on 73637 Sullivan Road for a term of 5 years for $1 / year and authorize the Interim City Manager to negotiate and sign the agreements.
Mojaveland Lease - Pdf
35 - 53
ITEMS REMOVED FROM CONSENT CALENDAR FOR DISCUSSION
PUBLIC HEARING – NONE
DISCUSSION AND POTENTIAL ACTION ITEMS
6. Project Phoenix – Treatment System Improvements.
RECOMMENDATION: That the City Council:
1. Adopt the design of the project represented by the Plans and Specifications for the Project Phoenix – Treatment System Improvements;
2. Award a contract for the “Project Phoenix – Treatment System Improvements” to 316 Engineering & Construction, Inc. in the amount of $1,999,934 and authorize a Ten Percent (10%) Contingency in the amount of $199,993, for a total contract amount of $2,199,927;
3. Authorize the Interim City Manager to execute all documents necessary to enter into the contract, including any necessary amendments thereto.
Project Phoenix – Treatment System Improvements. - Pdf
55 - 67
7. Sanctuary Church Event-Direct Staffing Costs.
RECOMMENDATION: The City Council approve the billable direct staffing fees associated with the Sanctuary Church event that will be held at the Community Center.
Sanctuary Church Event-Direct Staffing Costs. - Pdf
69 - 72
8. Business Loan Improvement Program Status.
RECOMMENDATION: The City Council receive and file the report and provide direction as deemed appropriate.
Business Loan Improvement Program Status. - Pdf
73 - 75
9. Membership Dues Joint Powers Authority (JPA)
RECOMMENDATION: The City Council approve the $8,865.00 Increase in Membership dues with San Bernardino Council of Governments (SCBOG).
Membership Dues Joint Powers Authority (JPA) - Pdf
77 - 80
10. Appointment of City Manager.
RECOMMENDATION: The City Council approve an agreement between the City and H. Stone James to serve as City Manager for the City of Twentynine Palms.
Appointment of City Manager. - Pdf
81 - 93
FUTURE COUNCIL INITIATED ITEMS
1. Seasonal banners throughout the City.
2. Discussion of moving the 29! sign.
3. General Plan review.
4. Discussion on an Environmental and Climate Justice Community Change grant that is available.
5. Review of the Fee Waiver Policy.
6. Revisit funds that were allocated for the portable showers and the Navigation Center.
PUBLIC COMMENTS
This is the time for the public to address the City Council on issues within the jurisdiction of the City Council that are NOT on this agenda. All comments are to be directed to the City Council and shall not consist of any personal attacks. Members of the public are expected to maintain a professional, courteous decorum during their comments. There is a time limitation of three minutes per person. If you haven’t already done so, please fill out name, address slips, and give them to the City Clerk. The City Council is prohibited by State law from taking action or discussing items not included on the printed agenda. Public comments on specific agenda items will be deferred until consideration of the item on the agenda.
CITY MANAGER UPDATE
ADJOURNMENT
It is the intention of the City of Twentynine Palms to comply with the Americans with Disabilities Act in all respects. If you are a person with a disability who requires a disability-related modification or accommodation in order to participate in a meeting, including auxiliary aids or services, please request such modification or accommodation from the City Clerk at (760) 367- 4890 (facsimile). Notification at least 48 hours prior to the meeting will enable the City to make reasonable arrangements to assure accessibility to the meeting. Please advise us at the time whether you will require accommodations to participate in meetings on a regular basis. Any person affected by any application on this agenda may submit their concerns in writing prior to the meeting or appear in person and be heard in support or opposition to the proposal at the time the matter is considered on the agenda. The staff reports, applications and environmental documents may be viewed at either the office of Community Development or the office of the City Clerk, 6136 Adobe Road, from 7:00 a.m. until 6:00 p.m. Monday through Thursday, except legal holidays. The Invocation is given per Policy 10-01, and does not reflect the views of the City but rather is an expression of speech by a private citizen making the presentation. Telephone inquiries may be made at (760) 367-6799. If you challenge any agenda issue in court, you may be limited to raising only those issues that you or someone else raised at the public meeting described in this notice, or in written correspondence delivered to the City of Twentynine Palms at, or prior to, the public meeting.
This notice of agenda is hereby certified to have been posted on or before 6:00 p.m., March 21, 2024.
Cindy Villescas CMC, City Clerk Time/Date
TWENTYNINE PALMS CITY COUNCIL
City Council - Regular Meeting with Closed Session MINUTES City Hall, 6136 Adobe Road, Twentynine Palms, CA 92277
www.29palms.org
February 27, 2024
REGULAR SESSION AGENDA
6:00 p.m.
CALL TO ORDER - Mayor Bilderain called the meeting to order at 6:00 p.m.
Pledge of Allegiance - Ms. Karmolette O'Gilvie led the Pledge of Allegiance.
Invocation - Rev. Casey Orndorf gave the Invocation.
Roll Call - The following Councilmembers were present: Klink, Mintz, Scott, Wright, Bilderain.
Closed Session Announcements - None.
Changes to the Agenda - None.
ANNOUNCEMENTS
Mayor Bilderain announced that these proceedings may be viewed on demand on the City of Twentynine Palms website at www.29palms.org. You may also Live Stream this meeting by going on the City website and clicking on the "Meeting Agendas" link.
AWARDS, PRESENTATIONS, APPOINTMENTS AND PROCLAMATIONS
1. Presentation to Feathers n Fur for their Participation in the Cash for Trash and Recycling Program.
Mayor Bilderain presented checks in the amount of $300 each from Burrtec Waste and Recycling Services and the City of Twentynine Palms to Ms. Connie Chaffin with Feathers n Fur for their participation in the Cash for Trash and Recycling Program.
2. Presentation to Reach Out Morongo Basin.
Mayor Bilderain presented a plaque to Ms. Robin Schlosser with Reach Out Morongo Basin for all the outstanding contributions to the community.
3. Presentation by Reach Out.
Ms. Karmolette O'Gilvie and members of her Staff gave a presentation on what Reach Out is about.
COUNCIL COMMENTS AND REPORTS OF MEETINGS ATTENDED
Councilmember Scott mentioned that he attended the Black History Month event that was put on by "Women of Color" and "Black Cactus Coworking".
Councilmember Wright commented that he attended the Mayor's Prayer Breakfast. He wished his mother, his oldest son, and his granddaughter a Happy Birthday.
City Council - Regular Meeting with Closed Session
February 27, 2024
Councilmember Mintz mentioned that he attended a few City meetings and wanted to let everyone know that the girls' high school softball season is in full swing, as is boys' baseball, tennis, swim team and track and field.
Mayor Pro Tem Klink commented that he attended the Measure I Desert Mountain Division meeting, he announced the closure of Historic Route 66 at Amboy due to the bridges needing to be repaired.
Mayor Bilderain mentioned that he attended the Mayor's Prayer Breakfast, City meetings, meetings with constituents and the Mayor's Social at Fans which was a great success.
CONSENT CALENDAR
4. Waive the Reading of Ordinance and Approve the Reading by Title Only.
5. Approval of Minutes of the City Council Meeting Held on February 7, 2024, February 9, 2024, and February 13, 2024.
6. DCA -Article 3, Administration, Permits, and Procedures- Second Reading.
RECOMMENDATION: The City Council finds the project exempt from CEQA and adopt the Ordinance, approving the Development Code Amendment for Article 3, Administration, Permits, and Procedures.
ACTION: A motion was made by Councilmember Wright, seconded by Councilmember Klink to approve the Consent Calendar as submitted.
The above motion was carried by the following:
ROLL CALL VOTE:
AYES: KLINK, MINTZ, SCOTT, WRIGHT, BILDERAIN
NOES: NONE
ABSTAIN: NONE
ABSENT: NONE
ITEMS REMOVED FROM CONSENT CALENDAR FOR DISCUSSION - None.
PUBLIC HEARING – None.
DISCUSSION AND POTENTIAL ACTION ITEMS
7. Single Audit Report on Federal Awards for Fiscal Year (FY) 2023-24.
RECOMMENDATION: The City Council receive and file.
Finance Director Hernandez-Conde (Director Hernandez-Conde) presented the Staff Report.
8. Financial Report - Fiscal Year 2023-24 Mid-Year Budget Update - General Fund.
RECOMMENDATION: Staff is recommending the following actions:
1. City Council review and approve the proposed General Fund Budget amendments for FY 2023-24.
2. City Council approve the interfund transfer of $8,000 from the General Fund to the Traffic Safety Fund to close the fund.
Director Hernandez-Conde presented the Staff Report.
April Ramirez, Twentynine Palms, sent an email for Public Comment to be read into the record.
City Council - Regular Meeting with Closed Session
February 27, 2024
ACTION: After a brief discussion, a motion was made by Councilmember Mintz, seconded by Councilmember Wright to approve the proposed General Fund Budget amendments for FY 2023-24 and approve the interfund transfer of $8,000 from the General Fund to the Traffic Safety Fund to close the fund.
The above motion was carried by the following:
ROLL CALL VOTE:
AYES: KLINK, MINTZ, SCOTT, WRIGHT, BILDERAIN
NOES: NONE
ABSTAIN: NONE
ABSENT: NONE
9. Financial Report - Fiscal Year 2023-24 Mid-Year Budget Update - Capital Projects Funds and Special Funds.
RECOMMENDATION: Staff is recommending the following actions:
1. City Council review and approve the proposed Capital Projects Fund and Special Funds budget amendments for FY 2023-24.
2. City Council reallocate the funding left from closed projects to projects with unfunded balances, including IT equipment for the Luckie Park Pool, Luckie Park ballfield light poles, and project management costs for the Hatch/Sullivan bike path.
Director Hernandez-Conde presented the Staff Report.
Cindy Bernard, Twentynine Palms, sent an email to be read for the record.
Director Hernandez-Conde mentioned that this comment should be discussed during the Project Phoenix Budget discussion due to Councilmember Mintz needing to recuse himself due to a conflict of interest.
ACTION: After a brief discussion, a motion was made by Councilmember Mintz, seconded by Councilmember Wright to approve the proposed Capital Projects Fund and Special Funds budget amendments for FY 2023-24 and reallocate the funding left from closed projects to projects with unfunded balances, including IT equipment for the Luckie Park Pool, Luckie Park ballfield light poles, and project management costs for the Hatch/Sullivan bike path which would include the transfer of $125,000 from the General Fund to the Capital Projects Fund.
The above motion was carried by the following:
ROLL CALL VOTE:
AYES: KLINK, MINTZ, SCOTT, WRIGHT, BILDERAIN
NOES: NONE
ABSTAIN: NONE
ABSENT: NONE
10. Financial Report - Fiscal Year 2023-24 Mid-Year Budget Update - Project Phoenix Funds and Enterprise Fund.
Councilmember Mintz recused himself from this item and left the Council Chambers at 7:12 p.m. due to a possible conflict of interest.
RECOMMENDATION: Staff is recommending the following actions:
1. The City Council review and approve the proposed Project Phoenix Funds and Enterprise Fund budget amendments for FY 2023-24.
2. The City Council provide policy direction on the remaining funds from the overall Project Phoenix Project.
City Council - Regular Meeting with Closed Session
February 27, 2024
Director Hernandez-Conde presented the Staff Report.
Veno Nathraj, Twentynine Palms, asked how long will it take for Project Phoenix to complete the Water Treatment Plant and he asked when the proposed hotel is going to break ground.
Mary Jane Binge, Twentynine Palms, suggested adding more tables and some shade to Freedom Plaza.
Councilmember Scott mentioned that he has done some research through social media for ideas at Project Phoenix and he feels that we should look into that.
Mayor Bilderain reread Ms. Bernard's email into the record.
ACTION: A motion was made by Councilmember Wright, seconded by Councilmember Klink to approve the proposed Project Phoenix Funds and Enterprise Fund budget amendments for FY 2023-24 and approve the reallocation of $156,000 that was previously committed to the City-wide project to match the package treatment plant and the contingency for the package treatment plant.
The above motion was carried by the following:
ROLL CALL VOTE:
AYES: KLINK, MINTZ, SCOTT, WRIGHT, BILDERAIN
NOES: NONE
ABSTAIN: NONE
ABSENT: NONE
Councilmember Mintz returned to the Council Chambers at 7:25 p.m.
11. Community Events Grants.
RECOMMENDATION: The Events Ad Hoc Committee is recommending the following events to be funded; $15,000 in total:
1. 29 Palms Art Gallery Gala Dinner - $10,000
2. Sky's the Limit Observatory & Nature Center Ongoing Programs - $5,000 Events Coordinator Clinkscales presented the Staff Report.
Mary Jane Binge, Twentynine Palms, asked why is $10,000 being requested for the Art Gallery gala dinner? Councilmember Mintz replied that it is also being used for the repair of the building for their events. Ms. Kathy Miller, President of the Art Gallery, provided more input.
ACTION: A motion was made by Mayor Pro Tem Klink, seconded by Councilmember Wright to approve funding to the Twentynine Palms Art Gallery of $10,000 and $5,000 to Sky's the Limit Observatory and Nature Center Ongoing Programs.
The above motion was carried by the following:
ROLL CALL VOTE:
AYES: KLINK, MINTZ, SCOTT, WRIGHT, BILDERAIN
NOES: NONE
ABSTAIN: NONE
ABSENT: NONE
City Council - Regular Meeting with Closed Session
February 27, 2024
FUTURE COUNCIL INITIATED ITEMS
1. Seasonal/Military Banners throughout the City.
2. Discussion with the Homeless Committee on the possibility of hotels housing the homeless for short periods of time.
3. General Plan Review.
4. Discussion on the possibility of moving the 29! sign from Donnell Hill to Freedom Plaza.
Councilmember Scott requested a discussion about an environmental and climate justice community change grant that is available. Councilmember Wright seconded the item.
Councilmember Scott asked for a discussion about programming for high school students through Park and Recreation.
Mayor Bilderain seconded the item.
PUBLIC COMMENTS
Mayor Bilderain read an email regarding the Ofland Project from John Talley-Jones into the record.
Melissa Grisi, Twentynine Palms, spoke in opposition to the Ofland Project.
Travis Poston, Twentynine Palms, spoke in opposition of the Ofland Project.
CITY MANAGER UPDATE
Interim City Manager Bowden provided the following updates: in regards to the Luckie Park ballfield lights replacement project, that will begin soon which will result in the closure of the ballfields from the first of June until the end of August, Pacific Clinics offers counseling services for Veterans and active duty and retired military and their families every Tuesday afternoon at the Luckie Park Activity Center (LPAC), the Spring Community Cleanup Day will be held on Saturday, March 30th, the basketball court resurfacing project begins the second week in March and should be done before June.
ADJOURN TO CLOSED SESSION - Mayor Bilderain adjourned to Closed Session at 7:45 p.m.
CLOSED SESSION
1. CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION 54957 (B) (1) PUBLIC EMPLOYMENT - CITY MANAGER.
The City Council returned to the Council Chambers at 8:39 p.m.
ADJOURNMENT - Mayor Bilderain adjourned the meeting at 8:40 p.m.
Respectfully submitted,
Cindy Villescas, CMC
City Clerk/Public Information Officer
TWENTYNINE PALMS CITY COUNCIL
City Council -Special Meeting with Closed Session MINUTES City Hall, 6136 Adobe Road, Twentynine Palms, CA 92277
www.29palms.org
February 22, 2024
CLOSED SESSION AGENDA
8:00 A.M.
CALL TO ORDER - Mayor Bilderain called the meeting to order at 8:01 a.m.
Roll Call - The following Councilmembers were present: Klink, Mintz, Scott, Wright, Bilderain.
PUBLIC COMMENTS - None.
ADJOURN TO CLOSED SESSION - Mayor Bilderain adjourned to Closed Session at 8:02 a.m.
CLOSED SESSION
1. CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION 54957 (B) (1) PUBLIC EMPLOYMENT - CITY MANAGER.
The City Council returned to open session at 11:40 a.m. with no reportable action.
ADJOURNMENT - Mayor Bilderain adjourned the meeting at 11:45 a.m.
Respectfully submitted,
Cindy Villescas, CMC
City Clerk/Public Information Officer
TWENTYNINE PALMS CITY COUNCIL
City Council - Regular Meeting with Closed Session MINUTES City Hall, 6136 Adobe Road, Twentynine Palms, CA 92277
www.29palms.org
March 12, 2024
REGULAR SESSION AGENDA
6:00 p.m.
CALL TO ORDER - Mayor Bilderain called the meeting to order at 6:01 p.m.
Pledge of Allegiance - Mr. Thomas Johnson led the Pledge of Allegiance.
Invocation - Pastor LeeAnn Clarke, 29 Palms Ministerial Association gave the Invocation.
Roll Call - The following Councilmembers were present: Klink, Mintz, Scott, Wright, Bilderain.
Closed Session Announcements - None.
Changes to the Agenda - None.
ANNOUNCEMENTS
Mayor Bilderain announced that these proceedings may be viewed on demand on the City of Twentynine Palms website at www.29palms.org. You may also Live Stream this meeting by going on the City website and clicking on the "Meeting Agendas" link.
AWARDS, PRESENTATIONS, APPOINTMENTS AND PROCLAMATIONS
1. Presentation to the Twentynine Palms High School Softball Team for their Participation in the Cash for Trash and Recycling Program.
Mayor Pro Tem Klink presented checks in the amount of $300 each from Burrtec Waste and Recycling and the City of Twentynine Palms to the Twentynine Palms High School Softball Team.
2. Introduction of the new San Bernardino County Fire District's Assistant Chief of Operations, Chief Bill Villarino.
Assistant Fire Chief Scott Tuttle introduced the new Assistant Fire Chief Bill Villarino.
3. Presentation by Southern California Association of Governments (SCAG) Joint Powers Authority.
Correction: Southern California Council of Governments (SBCOG) Joint Powers Authority. Ms.
Monique Reza-Arellano, Chief of Council of Governments and Equity Programs, gave a Power Point Presentation.
4. Presentation by Twentynine Palms Park and Recreation on Upcoming Sports Events.
Haywood Adams, Recreation Supervisor, provided the City Council with an update on upcoming sports events.
City Council - Regular Meeting with Closed Session
March 12, 2024
5. Proclamation Recognizing March 2024 as Women's History Month.
Mayor Bilderain read the Proclamation in its entirety and presented the Proclamation to Ms. Kim Ortamond.
COUNCIL COMMENTS AND REPORTS OF MEETINGS ATTENDED
Councilmember Scott mentioned that he attended a community meeting for the Indian Cove residents, he met with some members of the community to discuss a plan to help feed the unhoused, and he attended the Pelican Club Dinner.
Councilmember Wright commented that he attended the Pelican Club Dinner.
Councilmember Mintz mentioned that he attended several City meetings and he reminded everyone of the Rotary carnival the weekend of March 21st and Community Cleanup Day is Saturday, March 30th from 7:00 a.m. to Noon.
Mayor Pro Tem Klink wished everyone celebrating a birthday in March a Happy Birthday. He wished Chief Scott Tuttle good luck on his retirement and welcomed Assistant Chief Villarino.
Mayor Bilderain commented that he attended Leadership Luncheon aboard the Base, the Pelican Club Dinner and he was the guest speaker at the quarterly Basinwide Foundation Luncheon.
CONSENT CALENDAR
6. Waive the Reading of Ordinance and Approve the Reading by Title Only.
7. Approval of Warrant Register Totaling $714,087.92.
ACTION: A motion was made by Councilmember Mintz, seconded by Councilmember Wright to approve the Consent Calendar as submitted.
The above motion was carried by the following:
ROLL CALL VOTE:
AYES: KLINK, MINTZ, SCOTT, WRIGHT, BILDERAIN
NOES: NONE
ABSTAIN: NONE
ABSENT: NONE
ITEMS REMOVED FROM CONSENT CALENDAR FOR DISCUSSION - None.
PUBLIC HEARING – None.
City Council - Regular Meeting with Closed Session
March 12, 2024
DISCUSSION AND POTENTIAL ACTION ITEMS
8. The Sanctuary Church Fee Waiver Request for the Use of the Community Center Gymnasium.
RECOMMENDATION: The City Council discuss and make a determination on waiving the rental fees for the use of the Community Center Gymnasium and Kitchen for the Sanctuary Church’s 20th Anniversary Celebration.
Recreation Division Manager Minatrea presented the Staff Report. She then passed the floor to Pastor Jauron James, who provided additional information about the Anniversary Celebration.
Ms. LeeAnn Clarke, spoke in favor of the Sanctuary Church.
Mr. Sylvester Cullum spoke in favor of the Sanctuary Church.
Ms. Karen Harper asked about the non-profit organizations and if they can get fees waived as well? After a brief discussion, the City Council asked Division Manager Minatrea to provide a revised fee, after discussing a waiver of certain items that were being charged. This item was tabled to the next meeting to give the revised amounts per City Council.
9. Housing Element Annual Report.
The City Council accept the report and direct Staff to send to the State Department of Housing and Community Development Department.
Interim City Manager Bowden presented the Staff Report.
ACTION: A motion was made by Councilmember Klink, seconded by Councilmember Scott to accept the report and direct Staff to send it to the State Department of Housing and Community Development Department.
The above motion was carried by the following:
ROLL CALL VOTE:
AYES: KLINK, MINTZ, SCOTT, WRIGHT, BILDERAIN
NOES: NONE
ABSTAIN: NONE
ABSENT: NONE
10. Project Phoenix Wastewater System Service Contract Amendment.
Councilmember Mintz recused himself due to a possible conflict of interest and left the Council Chambers at 7:08 p.m.
RECOMMENDATION: The City Council:
1. Approve Amendment No. 2 to the contract for the Project Phoenix Wastewater System Operations and Maintenance with the County of San Bernardino Special Districts Department
City Council - Regular Meeting with Closed Session
March 12, 2024
County Service Area 70 (CSA 70) in the amount of $146,793.58 for a total not-to-exceed amount of $346,482.59.
2. Authorize the Interim City Manager to execute all documents necessary to execute the Amendment, including any necessary amendments thereto.
Interim City Manager Bowden presented the Staff Report.
ACTION: A motion was made by Councilmember Wright, seconded by Mayor Pro Tem Klink to approve Amendment No. 2 to the contract for the Project Phoenix Wastewater System Operations and Maintenance with the County of San Bernardino Special Districts Department County Service Area 70 (CSA 70) in the amount of $146,793.58 for a total not-to-exceed amount of $346,482.59 and authorize the Interim City Manager to execute all documents necessary to execute the Amendment, including any necessary amendments thereto.
The above motion was carried by the following:
ROLL CALL VOTE:
AYES: KLINK, SCOTT, WRIGHT, BILDERAIN
NOES: NONE
ABSTAIN: MINTZ
ABSENT: NONE
Councilmember Mintz returned to the Council Chambers at 7:11 p.m.
11. Update on Self-Build Housing Program.
Interim City Manager Bowden presented the Staff Report.
FUTURE COUNCIL INITIATED ITEMS
1. Seasonal Banners throughout the City.
2. Discussion with the Homeless Committee on the possibility of hotel housing the homeless for short periods of time.
3. Discussion of moving the 29! sign.
4. General Plan review.
5. Discussion on an Environmental and Climate Justice Community Change grant that is available.
Councilmember Mintz requested that the Fee Waiver Policy be reviewed and updated. Councilmember Wright seconded the item. He also asked for a discussion on the SBCOG Membership Dues Increase.
Councilmember Wright seconded the item.
Councilmember Scott requested that the City Council revisit the funds that were allocated for the portable showers and Navigation Center. Councilmember Wright seconded the item.
PUBLIC COMMENTS
LeeAnn Clarke, Twentynine Palms, thanked Mayor Bilderain for serving as the keynote speaker for the Mayor's Prayer Breakfast that was held on February 20th, a Community Good Friday Tenebrae Service will be held Friday, March 29th from Noon to 1:00 p.m. at Little Church of the Desert in the Sanctuary, a Community Easter Sunrise Service will be held on Sunday March 31st at Freedom Plaza and she thanked Gary Daigneault and
City Council - Regular Meeting with Closed Session
March 12, 2024
Z107.7 for showcasing Anna Stump, Chairperson for the Public Arts Advisory Committee on the "Up Close" Show on March 8th, who represented the City with excellence and professionalism.
Geoffrey Preston, Twentynine Palms, thanked Councilmember Scott for facilitating the community meeting held the night before to help provide hot meals for the unhoused.
Ms. Holmes, Twentynine Palms, commented that it was great to hear that the Park and Recreation Department is creating programs for high school students. She mentioned that she had the opportunity to work at the High School last summer and many of these students do not have somewhere to go after their classes. Could we create something like a Boys and Girls Club for these students.
CITY MANAGER UPDATE
Interim City Manager Bowden provided the following updates: the City has received the new radar signs and they will be installed soon, Public Works is looking to purchase new flashing flood signs with California Intergovernmental Risk Authority (CIRA) funds, Congressman Jay Obernolte took the FY 2022-23 grant funds totaling 1.95 million dollars back onto the floor and was able to get these funds reappropriated to us for the USGS Study, and we also got approved for another one million dollars for FY2023-2024.
Councilmember Wright asked how a road classifies for a traffic study. Interim City Manager Bowden informed him that we have many traffic studies on our roads, and they could discuss one on one.
ADJOURN TO CLOSED SESSION - Mayor Bilderain and the City Council adjourned to Closed Session at 7:30 p.m.
CLOSED SESSION
1. CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION 54957 (B) (1) PUBLIC EMPLOYMENT - CITY MANAGER.
The City Council returned to open session at 8:15 with nothing to report.
ADJOURNMENT - Mayor Bilderain adjourned the meeting at 8:16 p.m.
Respectfully submitted,
Cindy Villescas, CMC
City Clerk/Public Information Officer
STAFF REPORT
TO: City Council
FROM: City Engineer
FOR MEETING: Mar 26 2024
SUBJECT: Request To Vacate a Portion of Foothill Drive on Parcel Map 20360.
RECOMMENDATION:
Adopt Resolution 24-____, “A Resolution of the City Council of the City of Twentynine Palms, California, giving notice of the City Council's intention to vacate Foothill Drive from the easterly boundary of Bullion Avenue to the westerly boundary of Split Rock Avenue shown on Parcel Map 20360, a length of 813.36’, and fixing the time and place for Public Hearing thereon."
ORDER OF PROCEDURE:
Request Staff Report (City Manager Presenting)
Council Questions of Staff
Request Public Comment
Council Discussion
Motion/Second
Discussion of Motion
Call the Question
ATTACHMENTS:
• RESOLUTION NO___
• Location Map
• Exhibits Vacation of Foothill
Drive and Between Bullion and
Split Rock - Pdf
BACKGROUND:
The City received a request from NV5 to vacate a portion of Foothill Drive between Bullion Avenue and Split Rock Avenue. Diagrams of this vacation on the subject property are attached for reference.
This action is an ancillary application to the Reset Hotel project, which is currently under construction as of the time of this Staff Report. This action would vacate a segment of Foothill Drive, a public road easement, that is located between two parcels owned by the proprietors of the Reset Hotel.
Foothill Drive was dedicated as public a half-width local road originally on Tract Map 2810, and recently on Parcel Map 20360, a map that merged most of the lots created by Tract Map 2810. Foothill Drive as shown on these maps, is on the same alignment as other dedicated segments of Foothill Drive easterly and westerly of the subject property. Foothill Drive is not specifically identified on the General Plan's Circulation Element as a regional facility.
Currently, there is an unmaintained graded dirt road located within the dedicated road right-of-way.
The City's Development Code Section 19.04.040 indicates: "Pursuant to California Government Code Section 65402, no real property shall be disposed of, no street shall be vacated or abandoned, and no public building or structure shall be constructed or authorized, until such project has been submitted to, and reported upon, as to Page 19 of 93 conformity with the General Plan by the Director." On February 6, 2024, the Planning Commission reviewed the application to vacate a portion of Foothill Drive and determined that the vacation conforms with the General Plan.
On May 5, 2023, a traffic count was conducted by National Data & Surveying Services (NDS) at the section of the proposed vacation. Two vehicles were counted in a 24-hour period using this segment of Foothill Drive. Because it is being utilized a notice of the proposed street vacation is required to be published and posted and a Public Hearing is conducted. Per the State Code, "The date of the Public Hearing shall not be less than 15 days after the initiation of proceedings." It is recommended that the Public Hearing be set for the City Council meeting on April 23, 2024.
The notice requirements for the Public Hearing are as follows:
The City Clerk must publish notice of the Public Hearing in the newspaper for at least two successive weeks prior to the Public Hearing, as required by the California Street and Highways Code, Section 8322. The Director of Public Works or his designee must post notices of the Public Hearing on the street proposed to be vacated at least two weeks before the date set for the hearing, in conformity with and in the manner provided by California Streets and Highways Code, Section 8323.
ENVIRONMENTAL:
N/A
ALTERNATIVES:
The City Council could choose not to approve the requested vacation.
FISCAL IMPACT:
The applicant has paid the required fees for processing this vacation. There is no financial impact to the City.
RESOLUTION NO. 2024-___
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TWENTYNINE PALMS, CALIFORNIA, GIVING NOTICE OF THE CITY COUNCIL’S
INTENT TO VACATE FOOTHILL DRIVE FROM THE EASTERLY
BOUNDARY OF BULLION AVENUE TO THE WESTERLY BOUNDARY
OF SPLIT ROCK AVENUE SHOWN ON PARCEL MAP 20360,
A LENGTH OF 813.36’, AND FIXING THE TIME AND PLACE FOR
PUBLIC HEARING THEREON.
WHEREAS, the City Council of the City of Twentynine Palms does hereby declare its intention to vacate a portion of a public street, in accordance with the procedures contained in Streets and Highways Code Section 8320, et seq., and WHEREAS, the public street and right-of-way to be vacated, which excludes existing public utility easements, is Foothill Drive from the easterly boundary of Bullion Avenue to the westerly boundary of Split Rock Avenue shown on Parcel Map 20360 and more particularly described herein, and
WHEREAS, the Streets and Highways Code Section 8320 provides a procedure for the vacation of roads under a local jurisdiction’s authority.
WHEREAS, all legal prerequisites to the adoption of this Resolution have occurred.
NOW THEREFORE, the City Council hereby finds and resolves as follows:
Section 1. The City Council hereby initiates proceedings pursuant to California Streets and Highways Code Section 8320, et seq., to vacate Foothill Avenue, excluding existing public utility easements, from the easterly boundary of Bullion Avenue to the westerly boundary of Split Rock Avenue, as described by attached hereto Exhibit “A”, and, shown attached hereto as Exhibit “B”, both of which are incorporated by reference herein.
Section 2. Pursuant to California Streets and Highways Code Section 8320(a)(1), the City Council hereby directs the City Clerk to administratively set a public hearing regarding the proposed vacation of that portion of Foothill Avenue, described herein, for 6:00 p.m. on the 23rd day of April 2024, in the Council Chambers at the Civic Center, 6136 Adobe Road, Twentynine Palms, California.
At the hearing, all persons or entities interested in or objecting to the proposed vacation may express their position on the matter. After the close of the public hearing, the City Council will consider the adoption of a resolution that declares the portion of Foothill Drive, including right-of-way and easements, described in this Resolution to be unnecessary for present or prospective public purposes. Said Resolution may provide that the vacation is subject to conditions or reservations.
Section 3. The City Clerk is hereby directed to publish this resolution, providing notice of said hearing to the public, for at least two successive weeks prior to said hearing, as required by California Streets and Highways Code Section 8322.
Section 4. The Public Works Superintendent for the City of Twentynine Palms or his designee is hereby directed to conspicuously post notices of the public hearing along the street proposed to be vacated at least two weeks before the date set for the hearing, in conformity with and in the manner provided by California Streets and Highways Code Section 8323.
Section 5. Severability If any section subsection sentence clause or phrase of this resolution is for any reason held to be invalid or unconstitutional by decision of any court of competent jurisdiction the City shall be deemed to have adopted this resolution without such section.
APPROVED and ADOPTED this 26th day of March 2024.
_____________________________________
MAYOR
ATTEST: (SEAL)
___________________________________
CITY CLERK
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
____________________________ ________________________________
CITY ATTORNEY CITY MANAGER
Foothill Drive Vacation
Ownership / Operations Exhibit
Portion to be vacated Reset Hotel owned property
City owned / Animal control City owned / Public Works
STAFF REPORT
TO: City Council
FROM: Finance Director
FOR MEETING: Mar 26 2024
SUBJECT: Investment Policy.
RECOMMENDATION:
The City Council review and approve the City's Investment Policy for Fiscal Year 2023-24.
ORDER OF PROCEDURE:
Request Staff Report (Finance Director Presenting)
Council Questions of Staff
Council Discussion
Motion/Second
Discussion of Motion
Call the Question
ATTACHMENTS:
• Investment Policy
BACKGROUND:
Although it is no longer required by State law, it is generally recommended that each City approve its Investment Policy each year. Normally, the City has done this near the close of each Fiscal Year.
No changes were made to the current investment policy.
In order to protect the City, the policy presented is minimal and restrictive in the type of investments permitted.
As of February 29, 2024, the City has investments in the following investment types:
Investment Type Amount % of Total
LAIF* $8,860,351 54%
Certificates of Deposit $5,418,000 33%
U.S. Treasury Bills $1,530,000 9%
Funds Held in Trust $648,417 4%
TOTAL $16,456,768 100%
*Local Agency Investment Fund
All of the above investments are in compliance with the City's Investment Policy.
ENVIRONMENTAL:
Not applicable.
ALTERNATIVES:
The City Council could choose not to approve this policy.
FISCAL IMPACT:
The policy is conservative relating to investments.
1 CITY OF TWENTYNINE PALMS
STATEMENT OF INVESTMENT POLICY
Purpose This policy is intended to provide guidelines for the prudent investment of the City’s temporary idle cash, and outline policies to maximize the efficiency of the City’s cash management system. The ultimate goal is to enhance the economic status of the City while protecting its idle cash.
Objective The City’s cash management system is designed to accurately monitor and forecast expenditures and revenues; thus, enabling the City to invest funds to the fullest extent possible. The City will attempt to obtain the highest yield available as long as such investments meet the criteria established for safety and liquidity.
Policy The City of Twentynine Palms operates its temporary pooled idle cash investments under the prudent person rule. (California Civil Code Section 2261 which states, in essence, that “in investing… property for the benefit of another, a trustee shall exercise the judgment and care, under the circumstances then prevailing, which persons of prudence, discretion and intelligence exercise in the management of their own affairs ...”) This affords the City a broad spectrum of investment opportunities as long as the investment is deemed prudent and is allowable under current legislation of the State of California (Government Code Section 56300 et seq.)
Investments may be made in the following media:
*Checking accounts or passbook savings account demand deposits with commercial banks
*Local Agency Investment Fund (LAIF) Demand Deposits
*Certificates of Deposit (or Time Deposits) placed with commercial banks *Treasury Bonds or Securities of the U.S. Government or its agencies *Negotiable Certificate of Deposit - as authorized in Government Code Section 53601(i), no more than 30 percent of the City Agencies Money may be invested in negotiable certificates of deposit issued by a nationally or state-chartered bank, a savings association or a federal association (as defined by Section 5102 of the Financial Code), a state or federal credit union, or by a state-licensed branch of a foreign bank. All purchases must be fully insured by the FDIC or fully collateralized.
2 Requirements Any Commercial Banks utilized must be fully insured by the Federal Deposit Insurance Corporation (FDIC) for at least $250,000. Any deposits in excess of the insured amount must be fully collateralized. When there is a significant doubt about the solvency of a governmental insurance agency, the financial institutions utilizing such an agency will also be required to collateralize all City deposits up to the insured amount in addition to such insurance. This requirement will continue until the insurance agency regains a financially healthy status. In utilizing any banks, a review will occur to ensure that the institution is in a sound financial condition.
LAIF Demand Deposits are limited to $75,000,000 per agency.
A minimum of three quotes will be required on all investments if quotes are the established standard of seeking the best rates, i.e. CDs. Efforts will be made to fully consider local institutions.
A competitive bid process, when practical, will be used to place all investment purchases, other than those that are classified as “new issue” securities.
Financial institutions that the City utilizes must annually submit audited financial statements. Interest must be paid at least semi-annually, quarterly, preferably monthly, and at maturity. Interest must be calculated based on a 360-day year.
Criteria
Criteria for selecting investments and order of priority are as follows:
Safety – The safety and risk associated with an investment refers to the potential for loss of principal, interest or a combination of these amounts. The City only operates in those investments that are considered very safe.
Liquidity – This refers to the ability to “cash in” at any moment in time with a minimal chance of losing some portion of principal or interest. Liquidity is an important investment quality especially when the need for unexpected funds occurs occasionally.
3. Yield – Yield is the potential dollar earnings an investment can provide, and is sometimes described as the rate of return.
Safekeeping Securities purchased from brokers/dealers shall be held in third party safekeeping by the trust department of the City’s bank or other designated third party trust, in the City’s name and control, whenever possible.
City Constraints The basic premise underlying the City’s investment philosophy is, and will continue to be, to insure that money is always safe and available when needed.
Investments will not be made in the following media;
3 Amounts over $250,000 which is not collateralized. Negotiable and Non-negotiable Certificates of Deposits over $250,000 which are not collateralized.
Deposit requirement of periods exceeding 365 days. Deposit or Maturity requirement exceeding 5 years.
The City will generally not invest in an institution, which has not been in business for at least three (3) years or with assets less than $50 million. As an alternative the City may invest a maximum of $99,000 in such an institution.
STAFF REPORT
TO: City Council
FROM: Community Development Director
FOR MEETING: Mar 26 2024
SUBJECT: Aha Projects!
RECOMMENDATION:
The City Council approve the deal points for the lease agreement with Aha Projects! for the property located on 73637 Sullivan Road for a term of 5 years for $1 / year and authorize the Interim City Manager to negotiate and sign the agreements.
ORDER OF PROCEDURE:
Request Staff Report (Community Development Director
Presenting)
Council Questions of Staff
Request Public Comment
Council Discussion
Motion/Second
Discussion of Motion
Call the Question
ATTACHMENTS:
• Aha Projects! Affordable
Housing for Artists - Draft Lease
Agreement
• Mojaveland 2.0 - 1-16-24
BACKGROUND:
Aha Projects! is a non-profit organization that is the financial receiver for Mojaveland, which has been periodically operating a miniature golf facility and arts studio at 5157 Adobe Road for several years now. It was originally permitted as a Temporary Use Permit, with limitations as to its frequency and capacity. As its popularity has grown, it has become more and more evident that its current location is not suited for this type of activity. There is no readily available public access, there is no paved parking, no permanent public restrooms, and no electricity.
After some discussions with City Staff, it was suggested that Mojaveland be located on the same property as Theater 29. The benefits of this move would include: public access to Mojaveland activities, access to paved parking, access to electricity, and potential access for permanent restroom facilities. Additionally, it is entirely possible that there would be some crossover of participants of the miniature golf who would then see a show at Theater 29. The proprietor of Mojaveland, Anna Stump, has presented this concept to the Board of Theater 29 and has received approval for the concept.
ENVIRONMENTAL:
N/A
ALTERNATIVES:
The City Council could choose not to approve the lease or to modify the terms of the lease. Page 35 of 93 FISCAL IMPACT:
None. Mojaveland would be responsible for the maintenance of their facilities, as well as any impacts to the property.
Aha Projects! (Affordable Housing for Artists) Lease Agreement This Lease Agreement (this “Agreement”) is made effective as of August 8, 2023, by and between the CITY OF TWENTYNINE PALMS, a California municipal corporation /LESSOR and AHA PROJECTS! (AFFORDABLE HOUSING FOR ARTISTS), a California nonprofit public benefit corporation /LESSEE described and defined below:
1. BASIC PROVISIONS
1.1 LESSOR: City of Twentynine Palms, a California
municipal corporation (“CITY”)
1.2 LESSEE: Aha Projects! (Affordable Housing for
Artists) (“LESSEE”), a California nonprofit public
benefit corporation a miniature golf course and
art gallery
1.3 LEASE LOCATION: 73637 Sullivan Road,
Twentynine Palms, CA 92277
1.4 LEASED PREMISES: The Parties agree that
LESSEE shall have exclusive use of the outdoor
space as shown on Exhibit “A” for primary use
by LESSEE in providing outdoor recreation.
LESSEE will be able to use the facilities 24 hours
a day 7 days per week.
1.5 TERM: Commencement Date: August 8, 2023
Termination Date: June 30, 2028
1.6 PAYMENT: Beginning August 8, 2023, LESSEE
shall pay to CITY/LESSOR $1.00 per year as rent.
The LESSOR shall be responsible for payment
for all utilities related to the LEASED PREMISES.
1.7 NOTICE: Notice for all communications
pursuant to this agreement shall be given in
writing to the respective Parties at the following
addresses, e-mails or facsimile:
LESSOR’S ADDRESS: City of Twentynine
Palms
6136 Adobe Road
Twentynine Palms, CA 92277
Email:
[email protected]
Phone: 760 367 6799
LESSEE’S ADDRESS: Aha Projects!
(Affordable Housing for Artists)
2501 12th Avenue
Los Angeles, CA 90018
Email:ahaprojects1@g
mail.com
Phone: 619-869-0513
1.8 SCOPE OF SERVICES: Services shall be provided
as outlined in the MOU dated August 8, 2023.
LESSEE will conduct its business as a non-profit,
charity. In general, Aha Projects! (Affordable
Housing for Artists)/LESSEE agrees to operate a
miniature golf course and related art gallery.
CITY/LESSOR agrees that ultimate hours of
operation will be determined by the Aha
Projects! (Affordable Housing for
Artists)/LESSEE based upon demand for
programming as defined in Section 2. LEASE
DEFINITION. Aha Projects! (Affordable Housing
for Artists)/LESSEE may add or change services
with CITY/LESSOR approval. CITY/LESSOR
reserves the right to refuse additions or
changes to services if the proposed additions or
changes negatively impact community access to
the LEASED PREMISES.
2. LEASE DEFINITION
2.1 GRANT OF LEASE: CITY/LESSOR hereby grants
to Aha Projects! (Affordable Housing for
Artists)/LESSEE, an exclusive Lease to utilize the
LEASED PREMISES for the purpose described in
the SCOPE OF SERVICES for the TERM of this
Agreement. The LEASED PREMISES shall be
delivered and made available to Aha Projects!
(Affordable Housing for Artists)/LESSEE on the
Commencement Date of the original contract
(August 8, 2023) through the end of the current
contract (June 30, 2028).
2.2 CITY UTILIZATION: The Aha Projects! (Affordable
Housing for Artists)/LESSEE agrees to grant
access to the CITY/LESSOR for the leased area
at no cost each year, on dates and at times
determined by the CITY/LESSOR, and Aha
Projects! (Affordable Housing for
Artists)/LESSEE. CITY/LESSOR and Theatre29
shall endeavor to provide at least 30 days’ prior
written notice to Aha Projects! (Affordable
Housing for Artists)/LESSEE of the dates and
time for CITY’s/LESSOR’s use of the facility.
2.3 At a minimum, Aha Projects! (Affordable
Housing for Artists)/LESSEE agrees to offer the
following programs:
miniature golf course and related art
gallery/studio.
2.4 Aha Projects! (Affordable Housing for
Artists)/LESSEE agrees to designate a staff
member to become a City Liaison for rentals
and other community groups.
3. TERM & TERMINATION
3.1 Term. The Term of this Agreement is sixty (60)
months. The Agreement will commence on the
Commencement Date and expire on the
Termination Date, as set forth in paragraph 1.5.
3.2 Option to Terminate. Either party shall have the
option to terminate the Agreement at any time
with 6 months advance written notice
(“Termination Notice”), which Termination
Notice shall be effective upon the date the
party receives the Termination Notice. The
Termination Notice shall include the
termination date (“Termination Date”). Upon
the Termination Date, Aha Projects! (Affordable
Housing for Artists)/LESSEE shall surrender all of
its right, title and interest in and to the LEASED
PREMISES to CITY/LESSOR as though said
Termination Date was the date set forth in the
Agreement as the expiration of the term of the
Agreement and will remove any personal
property not then granted to the CITY/LESSOR.
4. EXTENSION OF AGREEMENT
This Agreement may be renewed or extended with
mutual consideration and agreement of the
CITY/LESSOR and Aha Projects! (Affordable Housing for
Artists)/LESSEE for an additional one (1) year term
pursuant to the following process.
4.1 Aha Projects! (Affordable Housing for
Artists)/LESSEE may seek an extension of this
Agreement by submitting on or before
September 1, of the year before the lease is
otherwise set for termination (2028), a letter of
intent requesting extension.
4.2 Within 30 days of receipt of the request,
CITY/LESSOR shall respond in writing to Aha
Projects! (Affordable Housing for
Artists)/LESSEE setting forth its decision.
4.3 In the event Aha Projects! (Affordable Housing
for Artists)/LESSEE holds over beyond the Term
herein provided with the express consent of the
CITY/LESSOR, such holding over shall be from
month-to-month. Such holding over shall not be
construed as a renewal of this Lease.
5. OPERATING RESPONSIBILITIES
5.1 COMPLIANCE WITH LAWS: During the Term,
Aha Projects! (Affordable Housing for
Artists)/LESSEE shall comply, at its own cost and
expense, with all applicable laws, ordinances,
codes, rules, regulations, orders, and other
lawful requirements of the governmental
bodies having jurisdiction, which are applicable
to, or by reason of, Aha Projects! (Affordable
Housing for Artists)/LESSEE’s particular use of
the FACILITIES.
5.2 SIGNS: Aha Projects! (Affordable Housing for
Artists)/LESSEE shall not install permanent signs
in the LEASED PREMISES or improvements
thereon, unless prior written approval is
obtained from CITY/LESSOR and only in
compliance with all local regulations.
5.3 Non-Profit status must be active at all times
during the term of the lease.
5.4 MAINTENANCE:
5.4.1 Aha Projects! (Affordable Housing for
Artists)/LESSEE shall keep LEASED PREMISES
free and clear of trash, litter, graffiti or other
matter which is unsafe or unsightly.
5.4.2 Aha Projects! (Affordable Housing for
Artists)/LESSEE shall provide CITY/LESSOR with
a Maintenance Report monthly, detailing the
maintenance work performed on the facility
and dollar amount associated with the work
performed. Aha Projects! (Affordable Housing
for Artists)/LESSEE shall also provide
CITY/LESSOR with maintenance plans/records
for LEASED PREMISES as requested.
5.4.3 Aha Projects! (Affordable Housing for
Artists)/LESSEE shall be the sole party
responsible for all maintenance of the LEASED
PREMISES, described in Paragraph 1.4, to
include but not be limited to, daily and
operational cleaning and maintenance.
5.4.4 CITY/LESSOR is responsible for the
repair or replacement of capital items and
improvements, but not items related to
maintenance or operations or equipment
owned by Aha Projects! (Affordable Housing for
Artists)/LESSEE.
5.4.5 Aha Projects! (Affordable Housing for
Artists)/LESSEE shall submit a request in writing
to CITY/LESSOR for any improvements or
repairs needed.
5.4.6 Aha Projects! (Affordable Housing for
Artists)/LESSEE agrees that any permanent
improvement, repair or replacement done
within the LEASED PREMISES by Aha Projects!
(Affordable Housing for Artists)/LESSEE upon
termination of the Lease will be owned by the
CITY/LESSOR.
5.4.7 CITY/LESSOR will be able to access
and/or close the facilities for any needed
repairs on any date mutually agreed to by the
Aha Projects! (Affordable Housing for
Artists)/LESSEE and CITY/LESSOR.
5.5 SAFETY: Aha Projects! (Affordable Housing for
Artists)/LESSEE shall immediately notify
CITY/LESSOR of any unsafe condition of the
FACILITY, as well as any unsafe practices
occurring thereon, whether under Aha Projects!
(Affordable Housing for Artists)/LESSEE’s or a
sub-lessee’s operation. Aha Projects!
(Affordable Housing for Artists)/LESSEE shall
cooperate fully with CITY/LESSOR in the
investigation of any crime, injury or death
occurring on the LEASED PREMISES, including a
prompt report thereof to the City Manager or
designee.
5.6 NUISANCES AND ANNOYANCES: Aha Projects!
(Affordable Housing for Artists)/LESSEE shall not
use or permit the use of the FACILITY for any
purpose which would constitute a nuisance or
unreasonable annoyance to adjacent
properties, including, without limitation, live,
recorded or broadcast entertainment or the use
of loudspeakers or sound or light apparatus
other than as may be required by law or
necessary or advisable for safety purposes.
5.7 ADVERTISING AND PROMOTIONAL MATERIALS:
Aha Projects! (Affordable Housing for
Artists)/LESSEE may distribute or cause to be
distributed any advertising, or promotional
materials regarding its use of or operation on
the FACILITY; copies of all advertising or
promotional materials must be provided to the
CITY/LESSOR prior to distribution.
6. LEASE PAYMENTS, TAXES AND FEES
Aha Projects! (Affordable Housing for Artists)/LESSEE
agrees to pay to CITY/LESSOR, without demand,
deduction or setoff, the rent as set forth in Paragraph
1.6,.
7. LESSOR RESPONSIBLE FOR UTILITIES
CITY/LESSOR shall pay utility bills for
telecommunications, cable television, water, gas,
electric service and any other utilities that are related to the operation of the facility.
8. INSURANCE
During the term of this Agreement, Aha Projects!
(Affordable Housing for Artists)/LESSEE shall, at its sole cost and expense, maintain the following insurance
through companies rated no less than A: IX under Best's most recent rating guide:
8.1 LIABILITY INSURANCE: Commercial General
Liability Insurance covering Aha Projects!
(Affordable Housing for Artists)/LESSEE's
operations, including the use of the FACILITIES,
as set forth in this Agreement in an amount not
less than $2 million per occurrence/$4 million
general aggregate. CITY/LESSOR shall be named
as an additional insured. In addition, Aha
Projects! (Affordable Housing for
Artists)/LESSEE shall provide CITY/LESSOR with
an “Additional Insured Endorsement” signed by
the company issuing the policy or an authorized
representative who has the authority to bind
the insurance company.
8.2 WORKERS COMPENSATION: Workers
Compensation Insurance covering all employees
of Aha Projects! (Affordable Housing for
Artists)/LESSEE. Prior to the Commencement
Date, Aha Projects! (Affordable Housing for
Artists)/LESSEE shall provide CITY/LESSOR with
a valid enforceable certificate of insurance
confirming the purchase of said insurance. Aha
Projects! (Affordable Housing for
Artists)/LESSEE shall submit to CITY/LESSOR,
along with the certificate of insurance, a Waiver
of Subrogation endorsement in favor of
CITY/LESSOR, its officers, agents, employees,
and volunteers.
8.3 AUTOMOBILE LIABILITY INSURANCE:
Aha Projects! (Affordable Housing for
Artists)/LESSEE shall maintain automobile
insurance at least as broad as Insurance
Services Office form CA 00 01 covering bodily
injury and property damage for all activities of
the Aha Projects! (Affordable Housing for
Artists)/LESSEE arising out of or in connection
with Work to be performed under this
Agreement, including coverage for any owned,
hired, non-owned or rented vehicles, in an
amount not less than $1,000,000 combined
single limit for each accident.
8.4 PROPERTY INSURANCE: CITY/LESSOR
shall provide Aha Projects! (Affordable Housing
for Artists)/LESSEE with a valid, enforceable
Certificate of Insurance confirming property
coverage of LEASED PREMISES.
8.5 DURATION OF COVERAGE: Aha
Projects! (Affordable Housing for
Artists)/LESSEE shall procure and maintain for
the duration of the contract, insurance against
claims for injuries to persons or damages to
property, which may arise from in connection
with the performance of the Work hereunder
by Aha Projects! (Affordable Housing for
Artists)/LESSEE, its agents, representatives,
employees or subconsultants.
8.6 PRIMARY/NONCONTRIBUTING:
Coverage provided by Aha Projects! (Affordable
Housing for Artists)/LESSEE shall be primary and
any insurance or self-insurance procured or
maintained by CITY/LESSOR shall not be
required to contribute with it. The limits of
insurance required herein may be satisfied by a
combination of primary and umbrella or excess
insurance. Any umbrella or excess insurance
shall contain or be endorsed to contain a
provision that such coverage shall also apply on
a primary and non-contributory basis for the
benefit of CITY/LESSOR before the
CITY’S/LESSOR’S own insurance or selfinsurance shall be called upon to protect it as a named insured.
8.7 ACCEPTABLE INSURERS: All
insurance policies shall be issued by an
insurance company currently authorized by the
Insurance Commissioner to transact business of
insurance or is on the List of Approved Surplus
Line Insurers in the State of California, with an
assigned policyholder’s Rating of A- (or higher)
and Financial Size Category Class VII (or larger)
in accordance with the latest edition of Best’s
Key Rating Guide, unless otherwise approved by
the CITY/Lessor’s Risk Manager.
8.8 WAIVER OF SUBROGATION: All
insurance coverage maintained or procured
pursuant to this agreement shall be endorsed to
waive subrogation against CITY/LESSOR, its
elected or appointed officers, agents, officials,
employees and volunteers or shall specifically
allow Aha Projects! (Affordable Housing for
Artists)/LESSEE or others providing insurance
evidence in compliance with these
specifications to waive their right of recovery
prior to a loss. Aha Projects! (Affordable
Housing for Artists)/LESSEE hereby waives its
own right of recovery against CITY/LESSOR, and
shall require similar written express waivers and
insurance clauses from each of its
subconsultants.
8.9 REQUIREMENTS NOT LIMITING:
Requirements of specific coverage features or
limits contained in this Section are not intended
as a limitation on coverage, limits, or other
requirements, or a waiver of any coverage
normally provided by any insurance. Specific
reference to a given coverage feature is for
purposes of clarification only as it pertains to a
given issue and is not intended by any party or
insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the
Aha Projects! (Affordable Housing for
Artists)/LESSEE maintains higher limits than the
minimums shown above, CITY/LESSOR requires
and shall be entitled to coverage for the higher
limits maintained by Aha Projects! (Affordable
Housing for Artists)/LESSEE. Any available
insurance proceeds in excess of the specified
minimum limits of insurance and coverage shall
be available to CITY/LESSOR.
8.10 NOTICE OF CANCELLATION: Aha
Projects! (Affordable Housing for
Artists)/LESSEE shall provide immediate
written notice if (1) any of the required
insurance policies is terminated; (2) the
limits of any of the required polices are
reduced; (3) or the deductible or selfinsured retention is increased. In the event of any cancellation or reduction in coverage
or limits of any insurance, Company shall
forthwith obtain and submit proof of
substitute insurance.
8.11 LESSOR’S RIGHT TO REVISE
SPECIFICATIONS: CITY/LESSOR reserves the right
at any time during the term of the contract to
change the amounts and types of insurance
required by giving the Aha Projects! (Affordable
Housing for Artists)/LESSEE ninety (90) days
advance written notice of such change. If such
change results in substantial additional cost to
Aha Projects! (Affordable Housing for
Artists)/LESSEE, CITY/LESSOR and Aha Projects!
(Affordable Housing for Artists)/LESSEE may
renegotiate LESSEE’s compensation.
8.12 TIMELY NOTICE OF CLAIMS: Aha
Projects! (Affordable Housing for
Artists)/LESSEE shall give CITY/LESSOR prompt
and timely notice of claims made or suits
instituted that arise out of or result from Aha
Projects! (Affordable Housing for
Artists)/LESSEE’s performance under this
Agreement, and that involve or may involve
coverage under any of the required liability
policies.
9. INDEMNITY
Aha Projects! (Affordable Housing for Artists)/LESSEE
hereby agrees to defend, indemnify and hold harmless
CITY/LESSOR, its City Council, officers, agents,
volunteers and employees from any liability for
property damage or for personal injury, including death, which may arise from Aha Projects! (Affordable Housing
for Artists)/LESSEE’s use or any sublessee’s use of
LEASED PREMISES, except to the extent arising from
CITY’s/LESSOR’s or its employees’ or agents’ sole
negligence or willful misconduct. The parties agree that CITY/LESSOR, its officers, agents, employees and
volunteers should, to the fullest extent permitted by
law, be protected from any and all loss, injury, damage, claim, lawsuit, cost, expense, attorney’s fees, litigation costs, or any other cost arising out of or in any way
related to the performance of this Agreement.
Accordingly, the provisions of this indemnity provision are intended by the parties to be interpreted and
construed to provide the CITY/LESSOR with the fullest
protection possible under the law. Aha Projects!
(Affordable Housing for Artists)/LESSEE acknowledges
that CITY/LESSOR would not enter into this Agreement
in the absence of Aha Projects! (Affordable Housing for
Artists)/LESSEE’s commitment to indemnify and protect
CITY/LESSOR as set forth herein. Aha Projects!
(Affordable Housing for Artists)/LESSEE fully assumes
the risk of any and all loss, damage or theft of Aha
Projects! (Affordable Housing for Artists)/LESSEE’s
property located at the LEASED PREMISES that arise out
of its own neglect, or misconduct. This Section shall
survive the termination of or withdrawal from this
Agreement.
10. DEFAULT AND REMEDIES
10.1 DEFAULT: The occurrence of any one or more
of the following shall be deemed a “Default” by
Aha Projects! (Affordable Housing for
Artists)/LESSEE or CITY/LESSOR and a material
breach of this Agreement:
(a) Nonpayment of Rent: Aha Projects!
(Affordable Housing for
Artists)/LESSEE’s failure to pay when
due any Rent or to timely make any
other monetary payment (including, but
not limited to utilities) imposed under
the terms of this Agreement.
(b) Other Obligations: Either Party’s failure
to perform any other obligation under
this Agreement for five (5) days after
written notice from the non-defaulting
party; however, if more than five (5)
days are reasonably required for cure,
the defaulting Party shall not be in
default hereunder if they shall promptly
(and in any event within five (5) days
after receipt of notice except in case of
emergency) commence the cure of the
default and diligently prosecute the
same to completion, so long as cure is
substantially completed within thirty
(30) days after receipt of CITY/LESSOR
notice.
10.2 NO DEFAULT: Closure of the LEASED PREMISES
due to a federal, state, or local emergency
order will not constitute a default under this
Agreement. Aha Projects! (Affordable Housing
for Artists)/LESSEE shall not be responsible for
any payments for the duration of such closure.
10.3 REMEDIES: In the event of a Default,
CITY/LESSOR and Aha Projects! (Affordable
Housing for Artists)/LESSEE shall have the right
to terminate this Agreement, and/or exercise
any other remedies that CITY/LESSOR or Aha
Projects! (Affordable Housing for
Artists)/LESSEE may have under this Agreement,
or at law or in equity, by reason of the Default.
11. SUBLEASES
Aha Projects! (Affordable Housing for Artists)/LESSEE
shall not voluntarily or by operation of law assign,
transfer, sublet, or otherwise transfer or encumber all or any part of Aha Projects! (Affordable Housing for
Artists)/LESSEE's interest in the Agreement, except as
expressly permitted by the CITY/LESSOR in writing.
12. NOTICES
All notices, demands, request, payments or other
communications made in connection with this
Agreement (including any service of process) shall be in writing and delivered, via personal delivery, certified mail, postage prepaid, or nationally recognized
overnight courier such as Federal Express, or by e-mail and/or facsimile to the addresses and contact
information set forth in Paragraph 1.7. A notice so
delivered shall be deemed given on the first date
indicated on the receipt of the carrier that delivery has been made or delivered (or was attempted to be made
or delivered) to the address of the intended recipient.
It is Aha Projects! (Affordable Housing for
Artists)/LESSEE’s responsibility to notify CITY/LESSOR of any address changes. The foregoing method of service
shall be exclusive, and Aha Projects! (Affordable
Housing for Artists)/LESSEE waives, to the fullest extent permitted under law, the right to any other method of
service required by any statute or law now or hereafter in force.
14. NO WARRANTY ON CONDITION OF LEASED PREMISES
Prior to signing this Agreement, Aha Projects!
(Affordable Housing for Artists)/LESSEE shall fully
inspect the LEASED PREMISES and ask any questions
regarding its condition and use. By signing this
Agreement, Aha Projects! (Affordable Housing for
Artists)/LESSEE shall be deemed to have inspected the
LEASED PREMISES and accepted the LEASED PREMISES
“as is” with no representation or warranty by
CITY/LESSOR as to the condition of the LEASED
PREMISES or the suitability of the LEASED PREMISES for
Aha Projects! (Affordable Housing for Artists)/LESSEE’s proposed use. As of the date of signature on this
Agreement CITY/LESSOR is not aware of nor been
informed of any dangerous conditions, defects or
attractive nuisances in the LEASED PREMISES.
15. WAIVER OF RESPONSIBILITY
CITY/LESSOR shall not be liable for, and Aha Projects!
(Affordable Housing for Artists)/LESSEE waives, all
claims for loss or damage to Aha Projects! (Affordable
Housing for Artists)/LESSEE’s business or damage or
injury to person or property sustained by Aha Projects! (Affordable Housing for Artists)/LESSEE or any person
claiming by, through or under Aha Projects! (Affordable Housing for Artists)/LESSEE, resulting from any accident or occurrence in, on or about the Lease Area or any
other part of the LEASED PREMISES except for those
claims that arise out of CITY’s/LESSOR’s sole negligence, gross negligence or willful misconduct. To the
maximum extent permitted by law, Aha Projects!
(Affordable Housing for Artists)/LESSEE agrees to use
the LEASED PREMISES and to use such other portions of
the Project as Aha Projects! (Affordable Housing for
Artists)/LESSEE is herein given the right to use, at Aha Projects! (Affordable Housing for Artists)/LESSEE’s
discretion. Aha Projects! (Affordable Housing for
Artists)/ LESSEE fully assumes the risk of any and all loss, damage or theft of Aha Projects! (Affordable Housing
for Artists)/LESSEE’s property located at the Project that arise out of its own neglect, or misconduct.
16. CASUALTY
In the event any portion of the LEASED PREMISES is
damaged by fire or other casualty, this Agreement shall terminate at the option of CITY or LESSEE. All insurance proceeds shall be the exclusive property of CITY/
LESSOR.
17. SEVERABILITY
If any term or provision of this Agreement or the
application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, then such
term or provision shall be amended to, and solely to,
the extent necessary to cure such invalidity or
unenforceability, and in its amended form shall be
enforceable. In such event, the remainder of this
Agreement, or the application of such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this
Agreement shall be valid and be enforced to the fullest extent permitted by law.
18. MISCELLANEOUS PROVISIONS
This Agreement shall be governed and construed in
accordance with the laws of the State of California. This Agreement may be modified only in writing by
CITY/LESSOR and Aha Projects! (Affordable Housing for
Artists)/LESSEE. This Agreement is the only Agreement
between the parties hereto. All prior negotiations,
representations and agreements between the parties
are merged herein. This Agreement shall be governed
by the laws of the State of California. The substantially prevailing party in any action arising out of this
agreement in any action, at law or in equity, to enforce the terms of this agreement shall be entitled to the
reimbursement of its costs, litigation expenses and
reasonable attorneys’ fees from the losing party. If any provision in this Agreement is held by any court to be
invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect.
Waiver by CITY/ LESSOR of any breach of any term,
covenant or condition herein contained shall not be
deemed a waiver of any subsequent breach of the same
or any other term, covenant or condition herein
contained. Time is of the essence with this Agreement
and with every term, covenant and condition hereof.
This Agreement may be executed in counterparts.
CITY: City of Twentynine Palms
______________________
Larry Bowden
Interim City Manager
Date: ________________
LESSEE: Aha Projects! (Affordable Housing for Artists)
Cheyanne Suter
Board President, Aha Projects! (Affordable Housing for Artists) Date:
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STAFF REPORT
TO: City Council
FROM: City Engineer
FOR MEETING: Mar 26 2024
SUBJECT: Project Phoenix – Treatment System Improvements.
RECOMMENDATION:
That the City Council:
1. Adopt the design of the project represented by the Plans and Specifications for the Project Phoenix – Treatment System Improvements;
2. Award a contract for the “Project Phoenix – Treatment System Improvements” to 316 Engineering & Construction, Inc. in the amount of $1,999,934 and authorize a Ten Percent (10%) Contingency in the amount of $199,993, for a total contract amount of $2,199,927;
3. Authorize the Interim City Manager to execute all documents necessary to enter into the contract, including any necessary amendments thereto.
ORDER OF PROCEDURE:
Request Staff Report (Interim City Manager Presenting)
Council Questions of Staff
Request Public Comment
Council Discussion
Motion/Second
Discussion of Motion
Call the Question
ATTACHMENTS:
• Project Phoenix Contract for
Construction
BACKGROUND:
Project Phoenix encompasses about 10.4 acres in Downtown Twentynine Palms in an area bounded by SR 62 (Twentynine Palms Highway) to the north, Cactus Drive to the south, Tamarisk Avenue to the west, and Cholla Avenue to the east. The overall project has been completed in various phases. The first phase of improvements involved the installation of a new sewer system that replaced the individual septic tank systems and conveyed the wastewater to a new central treatment facility consisting of a large septic tank and seepage pits. This phase of work also consisted of the installation of new water pipelines and appurtenances which resulted in an increase in fire flow protection for the new community center, visitor center, and existing businesses. The first phase of work was completed in late 2020.
The second phase of work involved the undergrounding of the existing overhead electric, telephone and internet lines and new service conversions to existing businesses from the overhead system to the underground system.
This phase of work was completed in mid-2021.
The third phase of work involved all site improvements including the new community center and visitor center, street improvements including curb and gutter, pavement and sidewalks, parking lots, drainage improvements and underground retention basins, streetlights and landscape lighting, landscape and irrigation improvements,
signing and striping, and other miscellaneous improvements. A ribbon cutting celebrating the completion of all three phases was held on March 12, 2022.
The final phase of work involves the installation of an advanced treatment system to treat the wastewater from the existing businesses, community center, visitor center, and future hotel. The system involves the construction of a packaged wastewater treatment plant and will utilize the existing septic tank as a holding tank to increase capacity of the system.
The project was advertised for construction bids beginning on August 17, 2023 and bids were received, opened and publicly read on November 9, 2023. The bid results are as follows:
The Van Dyke Corporation $1,571,265
316 Engineering & Construction Co. inc. $1,999,934
Garney Pacific, inc. $3,687,440
Engineer’s Estimate $1,681,250
The technical specifications that were included in the bid documents specified that the package treatment system “shall be an integrated Orenco treatment unit or approved equal.” Paragraph 1.6(B) of Section 01630 “Product Options and Substitutions states “Proposed substitutions must be provided by the Contractor with their submitted Project bid. No substitutions will be considered after the receipt of Project bids.” In the “Information Required of Bidders”, Item 10 requested “Package Treatment Plant System”. The apparent low bidder, The Van Dyke Corporation, listed “Biological Double Efficiency Process manufactured by BDP EnviroTech.” As this system was submitted as “an approved equal”, Staff reviewed the conditions included in the bidding documents that were required for “approved equal” at the time of the bid.
One of the conditions identifies the experience in the design and construction of package treatment plant units similar to the system specified for Project Phoenix. The bidding documents state:
“The equipment furnished shall be manufactured and supplied by a company experienced in the design and manufacture of wastewater treatment systems. The manufacturer shall have a minimum of ten (10) years of experience in the design and manufacture of wastewater treatment systems of similar size and equipment specified. Manufacturer shall have a minimum of ten (10) successful installations of wastewater treatment systems, five (5) of which shall be located within the state of California and at least the size of the system being bid. In lieu of this experience, the system Manufacturer is required to submit a 3-year performance bond for 150% of the cost of the equipment, to guarantee replacement of equipment in case of failure." The Project Reference List provided by The Van Dyke Corporation for BDP EnviroTech identified nine (9) completed Municipal Package Treatment Plants. Of these, seven are located in China, one is located in France, and one is located in California (the other two completed California projects are not Municipal Package Treatment Plants). The proposed system does not meet the experience requirements as stated in the bidding documents.
However, as stated in the bid documents, in lieu of meeting the experience requirement, a 3-year performance bond for 150% of the cost of the equipment is required. According to a letter dated February 13, 2024, for The Van Dyke Corporation, their bonding company is unable to meet this enhanced bonding requirement.
Based on this, Staff recommends that the bid from The Van Dyke Corporation be deemed non-responsive as it does not meet the requirements as stipulated in the bidding documents.
Staff reached out to the second apparent low bidder, 316 Engineering and Construction Company, and inquired if their bid was still active since the bid withdrawal deadline ended on January 9, 2024. The Company provided a letter stating that “316 Engineering and Construction will hold our submitted bid price on Project Phoenix – Treatment Systems Improvements until April 30, 2024.” 316 Engineering and Construction Company listed Orenco as the manufacturer of the package treatment system. Upon review of the submitted bids and bid documents, it is the Staff’s recommendation that 316 Engineering and Construction Company, Inc. is the lowest responsive/responsible bidder.
Staff has provided the bid information to the Economic Development Administration’s Civil Engineer Project Manager who reviewed Staff’s recommendation and authorized the award to 316 Engineering Construction Company.
ENVIRONMENTAL:
The City approved a Mitigative Negative Declaration for the entire Project Phoenix project on February 12, 2019.
ALTERNATIVES:
The City Council could reject the bids and re-advertise the project.
FISCAL IMPACT:
Funding for the project has been appropriated in the City Council adopted Fiscal Year 2023/2024 budget and includes Federal funds from the United States Department of Commerce, Economic Development Administration.
Page L - 1
CONTRACT AGREEMENT
CITY OF TWENTYNINE PALMS
This Contract Agreement is made and entered into for the above-stated project this 26 th day of
March 2024, BY AND BETWEEN the City of Twentynine Palms, as AGENCY, and 316 Engineering and Construction Co., Inc. as CONTRACTOR.
WITNESSETH that AGENCY and CONTRACTOR have mutually agreed as follows:
ARTICLE I
The Contract Documents for the aforesaid project shall consist of the Notice Inviting Sealed Bids, Instructions to Bidders, Proposal, General Specifications, Special Provisions, Contract Plans, and all referenced specifications, details, standard drawings, and appendices; together with this Contract Agreement and all required bonds, insurance certificates, permits, notices, and affidavits; and also including any and all addenda or supplemental agreements clarifying, or extending the work contemplated as may be required to ensure its completion in an acceptable manner. All of the provisions of said contract documents are made a part hereof as though fully set forth herein.
ARTICLE II
For and in consideration of the payments and agreements to be made and performed by AGENCY, CONTRACTOR agrees to furnish all materials and perform all work required for the above-stated project, and to fulfill all other obligations as set forth in the aforesaid Contract Documents.
ARTICLE III
CONTRACTOR agrees to receive and accept the prices set forth in the Proposal as full compensation for furnishing all materials, performing all work, and fulfilling all obligations hereunder. Said compensation shall cover all expenses, losses, damages, and consequences arising out of the nature of the work during its progress or prior to its acceptance including those for well and faithfully completing the work and the whole thereof in the manner and time specified in the aforesaid contract documents; and also including those arising from actions of the elements, unforeseen difficulties or obstructions encountered in the prosecution of the work, suspension or discontinuance of the work, and all other unknowns or risks of any description connected with the work.
Said compensation shall not exceed one million nine hundred ninety-nine thousand nine hundred thirtyfour dollars ($1,999,934), provided that the City Manager or his designee may approve additional payment notto-exceed the City Council authorized amount for change orders and for contingencies.
ARTICLE IV
AGENCY hereby promises and agrees to employ, and does hereby employ, CONTRACTOR to provide the materials, do the work and fulfill the obligations according to the terms and conditions herein contained and referred to, for the prices aforesaid, and hereby contracts to pay the same at the time, in the manner, and upon the conditions set forth in the Contract Documents.
The CONTRACTOR shall keep itself informed of State and Federal laws and regulations which in any manner affect those employed by it or in any way affect the performance of itsservice pursuant to this Contract. The
Page L - 2
CONTRACTOR shall at all times observe and comply with allsuch laws and regulations. The AGENCY, and its officers, employees, and agents shall not be liable at-law or in-equity occasioned by failure of the CONTRACTOR to comply with this Section.
The CONTRACTOR assures AGENCY that it complies with the Americans with Disabilities Act (ADA) of 1990, which prohibits discrimination on the basis of disability, as well as all applicable regulations and guidelines issued pursuant to the ADA. (42 U.S.C. §§ 12101 et seq.)
ARTICLE V
CONTRACTOR acknowledges the provisions of the State Labor Code requiring every employer to be insured against liability for worker's compensation, or to undertake self-insurance in accordance with the provisions of that code and certifies compliance with such provisions.
CONTRACTORS and any Subcontractor are required to meet the provisions of the California Senate Bill 584 for the payment of Department of Industrial Relations (DIR) established prevailing wages. This applies to all public projects as defined in California Code 22002 for contracts exceeding $1,000.00. CONTRACTORS shall register with the DIR in accordance with California Labor Code Section 1771.1(a) and 1725.5, and will be subject to compliance monitoring and enforcement by the DIR, subject to Section 1771.4. CONTRACTORS must submit certified payrolls electronically to DIR. By signing this Contract, CONTRACTOR is indicating that he/she/it have registered with DIR and have submitted the required PWC-100 Information Form online at www.dir.ca.gov.
ARTICLE VI
CONTRACTOR hereby agrees to comply with the State Labor Code and acknowledges that, in accordance with Labor Code Section 3700, he/she/it will be required to secure the payment of compensation to his/her/its employees.
ARTICLE VII
CONTRACTOR acknowledges that, in accordance with Labor Code Section 1777.5, he/she/it will be held responsible for compliance with the provisions of this Section for all apprenticeable occupations.
ARTICLE VIII
CONTRACTOR hereby waives for himself/herself/itself and for CONTRACTOR’s Subcontractors any right CONTRACTOR may now or in the future possess in relation to this Contract and these Contract Documents and the work thereunder, to utilize the provisions of Civil Code Section 47(b) in any action, proceeding, or prosecution pursuant to California False Claims Act, Government Code Section 12650 et seq.
ARTICLE IX
CONTRACTOR acknowledges and agrees that CONTRACTOR must have all appropriate CONTRACTOR’s licenses. CONTRACTOR further warrants and represents that he/she/they has/have the appropriate CONTRACTOR’s license to pursue the work hereunder. CONTRACTOR’s failure to have or maintain all appropriate licenses during the entire term of this Contract, or any period thereof, shall be cause for the immediate and summary termination of this Contract by AGENCY. CONTRACTOR shall be liable for all AGENCY’S costs to complete the work and this Contract.
ARTICLE X
Page L - 3
Hazardous Waste or Other Unusual Conditions. If the Contract involves digging trenches or other excavations that extend deeper than four feet (4’) below the surface, CONTRACTOR shall promptly, and before the following conditions are distributed, notify AGENCY, in writing, of any:
A. Hazardous Waste. Material that CONTRACTOR believes may be material that is hazardous waste, as defined in Health and Safety Code Section 25117, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law.
B. Differing Conditions. Subsurface or latent physical conditions at the site differing from those indicated.
C. Unknown Physical Conditions. Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided in the Contract.
AGENCY shall promptly investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in CONTRACTOR’s costs of, or the time required for, performance of any part of the work may issue a change order under the procedures described in this Contract.
In the event that a dispute arises between AGENCY and CONTRACTOR whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in the CONTRACTOR’s cost of, or time required for, performance of any part of the work, CONTRACTOR shall not be excused from any scheduled completion date provided for by the Contract, but shall proceed with all work to be performed under the Contract. CONTRACTOR shall retain any and all rights provided either by Contract or by law which pertain to the resolution of disputes and protests between the contracting parties.
ARTICLE XI
Any notices which either party may desire to give to the other party under this Contract must be in writing and may be given either by (i) personal service, (ii) delivery by a reputable document delivery service, such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may latter designate by notice:
To CITY: CITY OF TWENTYNINE PALMS
Attention: City Clerk 6136 Adobe Road
Twentynine Palms. CA 92277
To CONTRACTOR: 316 ENGINEERING AND CONSTRUCTION CO., INC Attention: John Massie, President
7434 Garvalia Ave.
Rosemead, CA 91770
ARTICLE XII
The AGENCY and CONTRACTOR understand and agree that the laws of the State of California shall govern
Page L - 4
the rights, obligations, duties, and liabilities of the parties to this Contract and also govern the interpretation of this Contract. Any litigation concerning this Contract shall take place in the municipal, superior, or federal district court with jurisdiction over the AGENCY.
ARTICLE XIII
Nothing contained in this Contract shall create any contractual relationship between any Subcontractor and the AGENCY. CONTRACTOR covenants and agrees that he/she has made himself/herself aware of Public Contract Code Sections 4100 et seq. pertaining to the identification and use of Subcontractors in the bid submitted and CONTRACTOR is fully aware and knowledgeable of the liability to the CONTRACTOR for violations of said Sections of the Public Contract Code.
ARTICLE XIV
CONTRACTOR is and shall at all times remain asto the AGENCY a wholly independent CONTRACTOR.
The personnel performing the services under this Contract on behalf of CONTRACTOR shall at all times be under CONTRACTOR’s exclusive direction and control. Neither AGENCY nor any of its officers, employees, or agents shall have control over the conduct of CONTRACTOR or any of CONTRACTOR’s officers, employees, or agents, except as set forth in this Contract. CONTRACTOR shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the AGENCY. CONTRACTOR shall not incur or have the power to incur any debt, obligation, or liability whatever against AGENCY, or bind AGENCY in any manner.
No employee benefits shall be available to CONTRACTOR in connection with the performance of this Contract. Except for the fees and other payments paid to CONTRACTOR as provided in the Contact, AGENCY shall not pay salaries, wages, or other compensation or indemnification to CONTRACTOR for injury or sickness arising out of performing services hereunder.
ARTICLE XV
CONTRACTOR agrees to protect, indemnify, defend and hold harmless AGENCY and all of its officers, agents and employees from any claims, demand or causes of action, including related expenses, attorney's fees, and costs, based on, arising out of, or in any way related to the work undertaken by CONTRACTOR hereunder.
ARTICLE XVI
INDEMNIFICATION
(a) Indemnification
To the fullest extent permitted by law, CONTRACTOR shall protect, indemnify, defend and hold harmless AGENCY and any and all of its officials, employees, volunteers and agents from and against any and all losses, liabilities, damages, and costs and expenses (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including attorney’s fees and costs, court costs, interest, defense costs, and expert witness fees) where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the actions or failure to act of CONTRACTOR, its officers, agents, employees or subcontractors, or any entity or individual that CONTRACTOR shall bear the legal liability thereof.
Page L - 5
(b) Indemnification Provisions Pertaining to Subcontractors and Others Performing Work. CONTRACTOR agrees to obtain executed indemnity agreements with provisions identical to those set forth in this section from each and every subcontractor or any other person or entity involved by, for, with or on behalf of CONTRACTOR in the performance of this Agreement. In the event CONTRACTOR fails to obtain such indemnity obligations from others as required herein, CONTRACTOR agrees to be fully responsible according to the terms of this section. Failure of AGENCY to monitor compliance with these requirements imposes no additional obligations on AGENCY and will in no way act as a waiver of any rights hereunder.
This obligation to indemnify and defend AGENCY as set forth herein is binding on successors, assigns or heirs of CONTRACTOR and shall survive the termination of this Agreement or thissection. (c) Indemnity Provisions for Contracts Related to Construction. Without affecting the rights of AGENCY under any provision of this Agreement, CONTRACTOR shall not be required to indemnify, defend or hold harmless AGENCY from such liability, claims. losses, damages or expenses arising from AGENCY’s sole negligence or willful acts.
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of the Work, CONTRACTOR shall maintain insurance in conformance with the requirements set forth below. CONTRACTOR shall use existing coverage to comply with these requirements.If that existing coverage does not meet the requirementsset forth here, CONTRACTOR agrees to amend, supplement or endorse the existing coverage to do so.
CONTRACTOR acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. Any insurance proceeds available to AGENCY in excess of the limits and coverage required in this agreement and which is applicable to a given loss, will be available to AGENCY.
CONTRACTOR shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the CONTRACTOR, its agents, representatives, or employees. All Sections of this Agreement and any provision in AGENCY's Request for Proposal and CONTRACTOR'ssubmitted proposal are subordinate to and superseded by the requirements contained in this Section to the extent that any provision or portion thereof conflicts with or impairs these requirements or any obligation to or right under or pursuant to these insurance requirements. These insurance requirements are intended to be separate and distinct from any other provision in this Agreement and are intended by the parties to be interpreted as such.
CONTRACTOR shall procure and maintain for the duration of the contract, and for 2 years thereafter, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the CONTRACTOR, his agents, representatives, employees, or subcontractors.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $5,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form CA 0001 covering Code 1 (any auto), with limits no less than $1,000,000 per accident for bodily injury and property damage.
Page L - 6
3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employers’ Liability insurance with a limit of no less than $1,000,000 per accident for bodily injury or disease.
4. 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.
5. Surety Bonds. CONTRACTOR shall provide the following Surety Bonds:
1. Bid bond
2. Performance bond
3. Payment bond
4. Maintenance bond
The Payment Bond and the Performance Bond shall be in a sum equal to the contract price. If the Performance Bond provides for a one-year warranty a separate Maintenance Bond is not necessary. If the warranty period specified in the contract is for longer than one year a Maintenance Bond equal to 10% of the contract price is required. Bonds shall be duly executed by a responsible corporate surety, authorized to issue such bonds in the State of California and secured through an authorized agent with an office in California.
6. Professional Liability with limits no less than $2,000,000 per occurrence or claim, and $2,000,000 policy aggregate. The retroactive date must be shown, and this date must be before the execution date of the contract or the beginning of contract work. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of contract work. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the contract effective, or start of work date, the CONTRACTOR must purchase extended reporting period coverage for a minimum of five (5) years after completion of contract work. A copy of the claims reporting requirements must be submitted to the AGENCY for review.
7. CONTRACTOR’s 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. If the services involve lead-based paint or asbestos identification/remediation, the CONTRACTORs Pollution Liability policy shall not contain lead-based paint or asbestos exclusions. If the services involve mold identification/remediation, the CONTRACTORs Pollution Liability policy shall not contain a mold exclusion, and the definition of Pollution shall include microbial matter, including mold.
If the contractor maintains broader coverage and/or higher limits than the minimums shown above for all policies, the AGENCY requires and shall be entitled to the broader coverage and/or higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the AGENCY.
Self-Insured Retentions
Self-insured retentions must be declared to and approved by the AGENCY. At the option of the AGENCY, either: the contractor shall cause the insurer shall to reduce or eliminate such self-insured retentions as respects the AGENCY, its officers, officials, employees, and volunteers; or the CONTRACTOR shall provide a financial guarantee satisfactory to the AGENCY guaranteeing payment of losses and related investigations, claim administration, and defense expenses. The policy language shall provide, or be
Page L - 7
endorsed to provide, that the self-insured retention may be satisfied by either the named insured or AGENCY.
OTHER INSURANCE PROVISIONS:
Additional Insured
The AGENCY, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CONTRACTOR including materials, parts, or equipment furnished in connection with such work or operations and automobiles owned, leased, hired, or borrowed by or on behalf of the CONTRACTOR.
General liability coverage can be provided in the form of an endorsement to the CONTRACTOR’s insurance at least as broad as one of the following ISO ongoing operations Forms: CG 20 10 or CG 20 26 or CG 20 33 (not allowed from subcontractors), or CG 20 38; and one of the following ISO completed operations Forms: CG 20 37, 2039 (not allowed from subcontractors), or CG 20 40.
Primary Insurance
For any claims related to this project, the CONTRACTOR’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the AGENCY, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the AGENCY, its officers, officials, employees, or volunteers shall be excess of the CONTRACTOR’s insurance and shall not contribute with it.
Notice of Cancellation
CONTRACTOR shall provide immediate written notice if (1) any of the required insurance policies is terminated; (2) the limits of any of the required polices are reduced; (3) or the deductible or self-insured retention is increased. In the event of any cancellation or reduction in coverage or limits of any insurance, CONTRACTOR shall forthwith obtain and submit proof of substitute insurance.
Builder’s Risk (Course of Construction) Insurance
CONTRACTOR may submit evidence of Builder’s Risk insurance in the form of Course of Construction coverage. Such coverage shall name the AGENCY as a loss payee as their interest may appear.
If the project does not involve new or major reconstruction, at the option of the AGENCY, an Installation Floater may be acceptable. For such projects, a Property Installation Floater shall be obtained that provides for the improvement, remodel, modification, alteration, conversion or adjustment to existing buildings, structures, processes, machinery and equipment. The Property Installation Floater shall provide property damage coverage for any building, structure, machinery or equipment damaged, impaired, broken, or destroyed during the performance of the Work, including during transit, installation, and testing at the AGENCY’s site.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best rating of no less than A: VII, unless otherwise acceptable to the AGENCY.
Waiver of Subrogation
CONTRACTOR hereby agrees to waive rights of subrogation which any insurer of CONTRACTOR may acquire from CONTRACTOR by virtue of the payment of any loss. CONTRACTOR agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies
Page L - 8
regardless of whether or not the AGENCY has received a waiver of subrogation endorsement from the insurer. However, the Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the AGENCY for all work performed by the CONTRACTOR, its employees, agents and subcontractors.
Verification of Coverage
CONTRACTOR shall furnish the AGENCY with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to AGENCY before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the CONTRACTOR’s obligation to provide them. The AGENCY reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time.
Subcontractors
CONTRACTOR shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and CONTRACTOR shall ensure that AGENCY is an additional insured on insurance required from subcontractors. For CGL coverage subcontractors shall provide coverage with a form at least as broad as CG 20 38 04 13.
Special Risks or Circumstances
AGENCY reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other circumstances.
ARTICLE XVII
This Contract is entered into for the sole benefit of AGENCY and CONTRACTOR, and their successors, transferees, and assigns. No other person shall have any right of action based upon any provision of this Contract and no third party beneficiaries shall be created thereby.
ARTICLE XVIII
If any term, provision, condition, or covenant of this Contract, or the application thereof to any party or circumstances, shall to any extent be held invalid or unenforceable, the remainder of the instrument, or the application ofsuch term, provision, condition, or covenant to persons or circumstances other than those asto whom or which it is held invalid or unenforceable,shall not be affected thereby, and each term and provision of the Contract as amended shall be valid and enforceable to the fullest extent permitted by law.
ARTICLE XIX
This Contract may be executed in multiple counterparts, each of which so fully executed counterpart shall be deemed an original. No counterpartshall be deemed an original or deemed or presumed delivered unless and until the counterpart executed by the other party to this Contract is in the physical possession of the party seeking enforcement thereof.
Page L - 9
ARTICLE XX
This Contract containsthe complete, final, entire, and exclusive agreement between the parties with respect to the subject matter hereof, and no waiver, alteration, or modification of any of the modification, amendment, or alteration in violation hereof shall be void.
ARTICLE XXI
CONTRACTOR affirms that the signatures, titles and seals set forth hereinafter in execution of this Contract Agreement represent all individuals, firm members, partners, joint venturers, and/or corporate officers having principal interest herein.
Page L - 10
IN WITNESS WHEREOF the parties hereto for themselves, their heirs, executors, administrators,successors, and assigns do hereby agree to the full performance of the covenants herein contained and have caused this Contract Agreement to be executed in duplicate by setting hereunto their names, titles, hands, and seals this 27th day of February, 2023.
CONTRACTOR:
(Print Name and Title)
CONTRACTOR's License No. Class
Federal Tax Identification No.
CONTRACTOR’S SIGNATURE MUST BE NOTARIZED. SEE FOLLOWING PAGE FOR NOTARY ACKNOWLEDGEMENT.
AGENCY OF TWENTYNINE PALMS
By:
Larry Bowden, Interim City Manager
ATTEST:
By:
Cindy Villescas, City Clerk
APPROVED AS TO FORM:
By:
Patrick Munoz, City Attorney
STAFF REPORT
TO: City Council
FROM: Recreation Division Manager
FOR MEETING: Mar 26 2024
SUBJECT: Sanctuary Church Event-Direct Staffing Costs.
RECOMMENDATION:
The City Council approve the billable direct staffing fees associated with the Sanctuary Church event that will be held at the Community Center.
ORDER OF PROCEDURE:
Request Staff Report (Finance Director Presenting)
Council Questions of Staff
Council Discussion
Motion/Second
Discussion of Motion
Call the Question
ATTACHMENTS:
• Sanctuary Church Rental Fee
Breakdown-2
• TSC Facility Waiver - Park &
Rec
BACKGROUND:
During the City Council meeting that was held on Tuesday, March 12th, The Sanctuary Church requested a fee waiver for the rental of the Community Center. The decision by the City Council was to waive the rental fee for the costliest day (Sunday), and asked Staff to determine direct staffing costs associated with the rental for the remaining two days, which are Thursday, April 25th and Friday, April 26th.
The Community Event Coordinator will be onsite for all three days to open the facility, set out carpet tiles, deliver and set up the tables and chairs and close the facility. Over the course of the two billable days, he will be scheduled to work a total of 7 hours, which are directly related to this event.
Fully burdened hourly rate $35.11 X 7 hours= $245.77
Billable hours= 5 hours for Thursday and 2 hours for Friday.
ENVIRONMENTAL:
None.
FISCAL IMPACT:
The City will not collect the full rental fees for the event equaling $3,855.00. The direct staffing costs relating to set up, opening and closing the facility will be billed to the applicant equaling $245.77.
CITY OFFICES: COUNCILMEMBERS
6136 ADOBE ROAD Steven Bilderain, Mayor
TWENTYNINE PALMS, CA 92277 Joel Klink, Mayor Pro Tem
(760) 367-6799 Daniel L. Mintz, Sr.
Fax: (760) 367-4890 Octavious Scott
www.29palms.org McArthur Wright
INTERIM CITY MANAGER
Larry Bowden
Sanctuary Church 20th Anniversary Celebration
April 25-28, 2024 • Twentynine Palms Community Center
Below is the breakdown of the fees for the Sanctuary Church’s 20th Anniversary Celebration being held at the Twentynine Palms Community Center from April 25-28, 2024.
Base Fees
2-Hour Minimum: $366.00
Each Additional Hour: $95.00
Refundable Cleaning Deposit: $131.00
Thursday, April 25, 2024
Rental Hours: 10AM – 8PM
TPCC Rental Cost: $1,126.00
Friday, April 26, 2024
Rental Hours: 1PM – 11PM
TPCC Rental Cost: $1,126.00
Kitchen Rental Cost: $75.00
Total Rental Cost: $1,201.00
Saturday, April 27, 2024
N/A
Sunday, April 28, 2024
Rental Hours: 8AM – 10AM, 1PM – 10PM
TPCC Rental Cost: $366.00 + $1,031.00
Total Rental Cost: $1,397.00
Cleaning Deposit
Full Weekend: $131.00
Total Rental Cost: $3,855.00
THE SANCTUARY@STWCC
4751 ADOBE RD PO BOX 147 TWENTYNINE PALMS CA 92277 * 760.361.2450 * WWW.STWCCONLINE.ORG * [email protected] From: Jauron James, Assistant Pastor, Sanctuary Church
To: Kary Minatrea, Recreation Division Manager
Subj: Non-Profit Facility Fee Waiver for Community Center Gymnasium Dear [City of Twentynine Palms Community Services Department], I hope this letter finds you well. I am writing on behalf of the Sanctuary Church (formerly known as Spirit & Truth Worship Center Church), a non-profit organization dedicated to serving the community of Twentynine Palms. We are excited to celebrate our 20th anniversary and are planning a special weekend celebration from April 25 to April 28, 2024, at the Community Center Gymnasium.
Our organization has been an integral part of the Twentynine Palms community, and we would like to mark this significant milestone by hosting a series of events that will be open to the public. The Community Center Gymnasium is an ideal venue for our celebration, providing ample space and facilities to accommodate the various activities we have planned.
In light of our non-profit status and the community-oriented nature of our event, we kindly request a waiver of the facility fees associated with the use of the Community Center Gymnasium during the specified dates. The funds saved through this fee waiver will be directly reinvested into the 20th-anniversary celebration, allowing us to enhance the overall experience for the community. In addition, we believe this will be a great opportunity for the city to display some of the overall capabilities that the facility has to offer.
Our anniversary celebration aims to bring together residents, volunteers, and supporters to reflect on the positive impact the Sanctuary Church has had on the community over the past two decades.
By hosting this event at the Community Center Gymnasium, we hope to provide a central and accessible location for all residents to participate in the festivities.
We understand that there are costs associated with maintaining and operating the Community Center Gymnasium, and we genuinely appreciate the city's commitment to supporting local organizations. We assure you that we will adhere to all rules and regulations governing the use of the facility and will take full responsibility for any additional costs related to security, cleanup, or damages.
THE SANCTUARY@STWCC
4751 ADOBE RD PO BOX 147 TWENTYNINE PALMS CA 92277 * 760.361.2450 * WWW.STWCCONLINE.ORG * [email protected] We believe that our event aligns with the city's goal of fostering community engagement and strengthening local organizations. The waiver of the facility fees would significantly contribute to the success of our 20th-anniversary celebration and, by extension, benefit the entire Twentynine Palms community.
Thank you for considering our request. We look forward to the opportunity to collaborate with the City of Twentynine Palms and create a memorable celebration for the community. If you require any additional information or have questions, please do not hesitate to contact me at 704-224-3879 or [email protected].
Sincerely,
Jauron E. James
Assistant Pastor & Chief Operations Director
The Sanctuary Church
STAFF REPORT
TO: City Council
FROM: Community Development Director
FOR MEETING: Mar 26 2024
SUBJECT: Business Loan Improvement Program Status.
RECOMMENDATION:
The City Council receive and file the report and provide direction as deemed appropriate.
ORDER OF PROCEDURE:
Request Staff Report (Community Development Director
Presenting)
Council Questions of Staff
Receive Public Comment
Council Discussion
Motion/Second
Discussion on Motion
Call The Question
ATTACHMENTS:
• 2024-03-20 Tracking Sheet for
staff report
BACKGROUND:
Originally titled the Downtown Business Loan Improvement Program, this program was intended to be a financial incentive for local businesses to update and beautify their establishments in the downtown area. These improvements would include anything on the exterior of the businesses and/or structures. Such improvements could include, but not limited to: parking lot repair, landscape installation, painting, installation of outdoor dining, etc.
The City Council subsequently expanded the geographic area eligible to receive loans from not just the downtown area, but all commercial areas within the City. Each applicant is limited to a maximum of $40,000 loan per property, and each loan is a 50/50 match.
A total of $350,000 was authorized by the City Council for this program. Staff has received a total of 12 applications. As of the writing of this report, $172,730.74 has been disbursed to seven applicants. Two applications have been withdrawn or abandoned, three have seen no activity since application submittal, three applications have been fully dispersed, and four applications are under construction and are being dispersed funds. Staff suggests that the Council give direction to bring closure to the current program to enable the City Council to evaluate if it met the desired goals and was otherwise successful, and potentially reallocate any funds committed to the program that are not timely expended. This will enable the City Council to evaluate if a subsequent program should occur using any remaining funds and/or additional funds; with modifications, if any, or if the remaining funds should be released for other City programs or uses, as deemed appropriate by the City Council.
To bring the current program to a closure, Staff recommends that a) no new applications be accepted, b) all pending construction work must begin within 30 days, and c) any work for which reimbursements are desired from current applicants be completed and reimbursement requests be submitted within 60 days.
At the conclusion of the next 60 days, Staff will provide a follow up status report and make further recommendations.
ENVIRONMENTAL:
Not applicable.
ALTERNATIVES:
None. This is a receive and file report.
FISCAL IMPACT:
Provided the loans are paid back, there are no fiscal impacts to the City.
Business Improvement Loan Program
# Project Cost Status Maximum Loan AmountDisbursed to Date 1st payment due 1 $ 82,272.00 Fully Dispersed $ 40,000.00 $ 40,000.00 7/1/2024 2 $ 45,712.00 Fully Dispersed $ 20,000.00 $ 20,000.00 7/1/2024 3 $ 45,827.00 Fully Dispersed $ 20,000.00 $ 19,241.00 7/1/2024 4 $ 83,500.00 Approved / in process $ 40,000.00 $ 20,291.16 5 $ 100,500.00 Approved / in process $ 40,000.00 $ 31,175.08 6 $ 158,900.00 Approved / in process $ 40,000.00 $ 10,552.00 7 $ 100,746.00 Approved / in process $ 40,000.00 $ 31,471.50 8 Approved / Not Dispersed $ 40,000.00 $ -
9 Approved / Not Dispersed $ 40,000.00 $ -
10 Abandoned $ -
11 Withdrawn $ -
12 Approved / Not Dispersed $ 40,000.00 $ -
$ 617,457.00 $ 360,000.00
Dispersed Amount $ 172,730.74
Set up costs $ 4,320.00
TOTAL OUTLAYS $ 177,050.74
Program Fund $ 350,000.00
Remaining Funds (applications) $ (10,000.00)
Remaining funds (after expenses) $ 172,949.26
STAFF REPORT
TO: City Council
FROM: Interim City Manager
FOR MEETING: Mar 26 2024
SUBJECT: Membership Dues Joint Powers Authority (JPA)
RECOMMENDATION:
The City Council approve the $8,865.00 Increase in Membership dues with San Bernardino Council of Governments (SCBOG).
ORDER OF PROCEDURE:
Request Staff Report (City Manager Presenting)
Council Questions of Staff
Public Comments
Council Discussion
Motion/Second
Call the Question
ATTACHMENTS:
• SBCOG FS_Twentynine
Palms
BACKGROUND:
The San Bernardino Council of Governments (SBCOG) speaks with a collective voice on important issues that affect its member agencies. Representatives from cities and towns, including the City of Twentynine Palms and the San Bernardino County Board of Supervisors, have a seat on the SBCOG Board of Directors. Recognizing that many issues and concerns are not constrained by political boundaries, the goal of the SBCOG is to ensure a collaborative approach is taken on regional issues.
In January 2024, Staff was informed that the San Bernardino Council of Governments, acting as the San Bernardino Associated Governments, accepted the SBCOG Ad Hoc Committee recommendation to increase work capacity, including adding Staff and increasing the budget of the SBCOG, and approved Amendment No. 4 to the Agreement for the Joint Exercise of Powers relative to the San Bernardino Associated Governments to amend language by which member agency dues are assessed.
SBCOG identified these changes as necessary to be able to continue their current projects and programs, such as the Emergency Communication System, the Inland Regional Energy Network and the SMART County Master Plan, as well as fund the creation of new programs. Additionally, the increase in dues received will enable SBCOG to allocate additional resources toward identifying and pursuing more grant funding for the region and its member cities.
In total, the baseline budget for the SBCOG will increase from $470,941 to $1.5 million, a shortfall of $1,029,059, and will be based upon increasing the cost to each SBCOG member agency by the 50% Population/50% General Fund Tax formula accepted and approved by the SBCOG Board in January 2024. The new assessment of $8,865 when combined with previous assessments, the City's annual budget commitment to the SBCOG budget going forward would be $23,341.
ENVIRONMENTAL:
None.
ALTERNATIVES:
The City Council could choose to no longer be a member of SBCOG.
FISCAL IMPACT:
$8,865.00
Who Is SBCOG?
SBCOG is a voluntary association guided by a joint powers agreement (JPA) and the same elected representatives from the 24 cities and towns and five county supervisorial districts as the San Bernardino County Transportation Authority (SBCTA) that serve San Bernardino residents. The distinction, however, is that while SBCTA is focused on transportation issues, SBCOG works within these jurisdictions to address more broad, long-term policy matters like greenhouse gas emissions, housing, promoting healthy communities, public safety, and more.
Why Is SBCOG Important?
While SBCOG’s mission may be broad, collaboration is at the forefront of all that SBCOG does, and its strength lies in the ability to respond to issues that don’t always fit neatly into another agency’s operations. SBCOG plays a vital role in filling in the gaps for its member jurisdictions and enhancing San Bernardino communities by providing a forum for local leaders and regional officials to collaborate and take a comprehensive and holistic approach to community advocacy and establish priorities that will benefit the region for generations to come.
Current Programs
Filling in local and regional gaps through:
• Housing Element Updates
• City/County Conference
• Emergency Communications Nurse System
• Inland Regional Energy Network
• Smart County Master Plan
• Greenhouse Gas Reduction Plan and Environmental Impact Report • Electric Vehicle Master Plan
• Grant Assistance
MEMBERSHIP
DUES AND
JOINT POWERS
AGREEMENT
UPDATES
COG Funding:
SBCOG is funded through membership
dues as well as a mix of supplemental
program funding. The current SBCOG
annual budget is $658,000.
Jan 2024
Plan. Build. Move.
@goSBCTA
Stay Connected
877-55-SBCTA
[email protected]
goSBCTA.com
Schedule
JANUARY 3, 2024
SBCOG Board of Directors Presentation/Approval
JANUARY-APRIL 2024
City Council and County Board of Supervisors Presentations/Approval JULY 1, 2024
New Dues Begin
MEMBERSHIP
DUES AND
JOINT POWERS
AGREEMENT
UPDATES
Jan 2024 @goSBCTA
Stay Connected
877-55-SBCTA
[email protected]
goSBCTA.com
Frequently Asked Questions
WHEN?
SBCOG is seeking approval by the SBCOG Board of Directors and member jurisdictions by April 2024. If approved, the new membership dues will begin at the start of Fiscal Year 2024 (July 1).
HOW?
From January to April 2024 SBCOG will present the proposed changes to the SBCOG Board of Directors, all member City Councils, and the San Bernardino County Board of Supervisors. That way, if approved, the member jurisdictions have adequate time to allocate for the changes in their Fiscal Year 2024 budgets.
WHAT CAN I EXPECT?
If approved, the changes would increase SBCOG’s annual budget from $658,000 to $1.5 million. With the increase, SBCOG’s will be able to expand their projects and programs give back to its member jurisdictions more than they already do.
Proposed Changes
Existing member dues per jurisdiction are based on 50 percent population/50 percent assessed valuation, with a flat rate increase to all jurisdictions since 2016.
SBCOG is proposing to modify the JPA to make the dues calculation policy-driven to improve flexibility. The new proposed dues formula will be calculated per each member agency at 50 percent population/50 percent general fund base sales and property tax revenues and will include an annual cost increase according to the consumer price index or 2 percent, whichever is less. Additionally, if the new formula is approved, SBCOG would offer optional subscription services in addition to their baseline services.
Why Are We Proposing These Changes?
As a result of limited funding resources, in July 2023, the SBCOG Board of Directors directed SBCOG staff to create an Ad Hoc to assess how to expand funding capacity moving forward. The Ad Hoc researched neighboring COG budgets and responsibilities, which showed the average neighboring COG annual budgets to be just over $3 million compared to SBCOG’s budget of $658,000. After conducting the research, it became clear that SBCOG is notably underfunded in comparison to neighboring COGs. Therefore, the Ad Hoc made the recommendation for the new dues formula in an effort to raise SBCOG’s funding and capacity to provide more programs and resources for its member jurisdictions.
Why Are These Changes Important?
The changes will allow SBCOG to continue its current projects and programs as well as create new ones. Additionally, it will enable SBCOG to allocate added resources towards identifying and pursuing more grant funding for the region, county, and the member jurisdictions. Lastly, more funding and resources means SBCOG can continue to fill in and identify resource gaps for the member jurisdictions, as well as continue to increase its voice for regional and crossjurisdictional collaboration in San Bernardino County.
City of Twentynine Palms
Current Assessment Dues
• $14,476
Proposed Assessment Dues
• $23,341
Existing Grants and Programs with SBCOG
• Multi-Modal Complete Streets Program:
$512,513
• NOFA - Funding for Lasting Affordability/
Programs to Accelerate Transformative
Housing: $1,300,000
• Morongo Basin Active Transportation Plan
(2016 Southern California Association
of Governments Sustainability Planning
Grant): $200,000
• Sub-Regional Greenhouse Gas Reduction
Plan Update (2017 California Energy
Commission Local Challenge Grant)
$250,635
• Regional Early Action Planning 1.0
• Inland Regional Energy Network
• Emergency Communications Nurse
System
• Smart County Master Plan
Plan. Build. Move. Page 80 of 93
STAFF REPORT
TO: City Council
FROM: Interim City Manager
FOR MEETING: Mar 26 2024
SUBJECT: Appointment of City Manager.
RECOMMENDATION:
The City Council approve an agreement between the City and H. Stone James to serve as City Manager for the City of Twentynine Palms.
ORDER OF PROCEDURE:
Request Staff Report (Interim City Manager Presenting)
Council Questions of Staff
Council Discussion
Motion / Second
Discussion of Motion
Call the Question
ATTACHMENTS:
• 2024.03.14 City Manager
Agreement - Stone James
BACKGROUND:
The City conducted a recruitment for a new City Manager. As a result of that recruitment, the Council has selected H. Stone James to serve as the next City of Twentynine Palms City Manager.
As a result of that selection, an employment agreement has been negotiated and is presented at this time for City Council approval. Mr. James has a Doctorate in Policy, Planning and Development, and considerable experience in local government and the public sector.
ENVIRONMENTAL:
N/A
ALTERNATIVES:
The City Council could choose not to enter into an agreement with Mr. James and recruit again.
FISCAL IMPACT:
The agreement includes basic compensation and terms of employment for the new City Manager. The agreement calls for a base salary of $176,425.60 annually with other terms consistent with or less than the prior City Manager's contract.
CITY MANAGER EMPLOYMENT AGREEMENT
This AGREEMENT (“Agreement”) is entered into so as to be effective as of March __, 2024 (the “Effective Date”), by and between the CITY OF TWENTYNINE PALMS, a California municipal corporation (“City”) and H. STONE JAMES (“Manager”).
RECITALS
A. The City requires the services of a City Manager and has determined that Manager has the necessary education, experience, skills and expertise to serve as the City’s City Manager; and
B. The City Council of the City (the “City Council”) desires to employ Manager to serve as the City Manager of the City; and
C. Manager desires to be employed by and serve as the City Manager of the City; and D. The Parties mutually desire to enter into this Agreement setting forth the terms and conditions of Manager’s appointment and employment as the City Manager of the City.
NOW THEREFORE, in consideration of the facts recited above, and the covenants, conditions and provisions below, the Parties agree as follows:
COVENANTS
SECTION 1. DUTIES.
1.1 The City hereby appoints and employs Manager as the City Manager of the City, to perform the functions and duties specified in the ordinances and resolutions of the City, and to perform the legally permissible and proper duties and functions as the City Council may from time to time assign.
1.2 Manager shall be the chief executive officer of the City and shall be responsible to the City Council for the proper administration of all affairs of the City.
1.3 The Parties acknowledge that the City Council may also designate Manager as the chief executive officer of other City-related governmental entities, including but not limited to the Successor Agency to the Dissolved Twentynine Palms Redevelopment Agency, or any financing authority, nonprofit corporation or joint powers authority created by the City or to which the City is a party, but Manager will receive no additional compensation or benefits other than those provided in this Agreement.
1.4 Manager shall perform his duties to the best of his ability and in accordance with the highest professional and ethical standards of the profession. Manager shall comply with all rules and regulations established by the City Council or State law and shall not engage in any activity which is or may become a conflict of interest, prohibited by contract, or which may create an incompatibility of office as defined under California law.
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1.5 Manager shall remain in the exclusive employ of the City during the term of this Agreement. However, Manager may engage in occasional teaching, writing or consulting performed outside of the City’s normal business hours, so long as such activities do not interfere with Manager’s performance of his duties under this Agreement, or conflict with Manager’s obligations to the City.
1.6 The Parties acknowledge that Manager is an exempt employee who is expected to engage in those hours of work that are necessary to fulfill the obligations of the City Manager position. Manager does not have set hours of work as the City Manager position is expected to be available at all times. However, it is also recognized that Manager shall devote a great deal of time outside the normal business hours to the business of the City and, to that end, Manager’s schedule of work each day and week shall vary in accordance with the work required to be performed.
1.7 The City shall bear the full cost of any fidelity or other bonds required of Manager.
SECTION 2. COMPENSATION AND BENEFITS.
2.1 The City shall provide the following compensation to Manager during the term of this Agreement:
2.1.1 Salary. The City shall pay Manager’s salary in the amount of One Hundred Seventy-Six Four Hundred Twenty-Five Dollars and Sixty Cents ($176,425.60) per annum for his services, payable in installments at the same time and in the same manner as the City pays other employees of the City. Manager’s salary shall be subject to customary withholding for taxes and other required deductions.
2.1.2 Subject to performance evaluations in accordance with Section 3, the City may increase, but not decrease, Manager’s salary by minute action without the need to amend this Agreement.
2.2 Benefits.
2.2.1 Manager shall be entitled to all of the benefits, rights and privileges accorded across the board to all executive management employees (department heads) including but not limited to paid holidays, vacation, sick leave, retirement benefits and payments, health insurance, vision insurance, dental insurance, long term disability, and life insurance, except as otherwise provided in this Agreement. In the event of any conflict between this Agreement and any resolution fixing compensation and benefits for executive management employees of the City, this Agreement shall control.
2.2.2 Upon the Effective Date of this Agreement, Manager shall be granted eight (8) vacation days and four (4) sick days. Thereafter, Manager shall be entitled to accrue vacation and sick leave in accordance with the policies and procedures applicable to executive management employees (department heads).
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2.2.3 Manager shall be allocated a maximum of eighty (80) hours of administrative/personal leave each calendar year. Accrued but unused administrative/personal leave may not be rolled over to the next year and may not be sold back to the City.
2.2.4 Acknowledging that Manager’s duties require that he have the use of an automobile at all times during his employment with the City, and in lieu of providing a vehicle or paying mileage, the City shall reimburse Manager Seven Hundred Dollars ($700.00) per month for the expenses of owning, maintaining, and insuring a personal automobile. The amount of the reimbursement shall be evaluated each fiscal year and, if appropriate, adjusted to reflect increased costs.
2.2.5 The City shall provide Manager with a City-owned/City-issued cellular phone to be used for conducting City-related business.
2.2.6 Manager shall pay Manager’s share of the contribution, currently
7.75%, under the City’s defined contribution retirement plan for non-public safety employees under the Public Employees Retirement System (“PERS”), or such other retirement program in which the City may be participating.
2.2.7 The City shall pay up to Two Thousand Five Hundred Dollars ($2,500.00) annually for the cost of Manager’s membership in relevant professional organizations and/or the cost of relevant training, career development or educational programs. Manager shall annually provide to the City Council an accounting of the expenditures as set forth in this Section.
2.2.8 All the provisions of this Section 2 are subject to the provisions and limitations of the Internal Revenue Code and its related regulations as amended from time to time.
No requirement of any provision of this Section 2 shall be effective if it would violate any provision of the Internal Revenue Code or its related regulations, and the inability of the City to effectuate such requirement shall not constitute a breach of this Agreement.
SECTION 3. PERFORMANCE EVALUATIONS.
3.1 The Parties mutually acknowledge that periodic performance evaluations are an important means by which the City Council and Manager may ensure effective communications regarding expectations and performance. In this regard, the City Council recognizes that, for Manager to respond to its needs and to grow in the performance of Manager’s position, Manager requires evaluation from the City Council regarding his performance.
3.2 The City Council shall evaluate Manager’s performance annually each year during the term of this Agreement. In addition, the City Council may periodically review Manager’s performance, and Manager may periodically request feedback from the City Council regarding his performance.
3.3 In conjunction with each performance review during the term of this Agreement, the City Council shall develop goals or other performance objectives as it determines necessary for the proper operation of the City and for the attainment of the City Council’s policy goals and objectives; and the City Council shall establish a relative priority among these goals and performance objectives. In addition, the City Council shall develop specific criteria for the
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conduct of Manager’s performance evaluation. These established goals, performance objectives and criteria shall serve as the basis for Manager’s performance evaluations.
3.4 In connection with each performance review, Manager shall prepare and distribute to the City Council a written description outlining the previous period’s accomplishments relative to the goals and performance objectives established for that period. The City Council shall consider Manager’s written description in conducting its performance evaluation. Upon the conclusion of the performance evaluation, the City Council shall meet with Manager to discuss the results of the evaluation, and the City Council shall take any action as may be necessary as a result of the performance evaluation. As part of the performance evaluation, the City Council shall establish goals and performance objectives for the following period based upon the results of the just-completed performance evaluation.
SECTION 4. SEPARATION.
4.1 Resignation. Manager may resign at any time but shall endeavor to give the City at least thirty (30) days advance notice of the effective date of his resignation. Manager is not entitled to Severance pay as set forth herein upon his voluntary resignation.
4.2 Termination Without Cause. Manager is an at-will employee serving at the pleasure of the City Council as provided in Government Code § 36506 and Section 2.01.010 of the Twentynine Palms Municipal Code.
4.2.1 By majority vote, the City Council may terminate Manager’s appointment and remove Manager at any time. As used in this Section, “termination” shall include actual termination, a request that Manager resign, or the elimination of Manager’s position. Notice of termination shall be provided to Manager in writing.
4.2.2 Manager shall not be removed without cause during the 120-day period immediately following any City election for membership on the City Council.
4.2.3 In the event that the City Council terminates Manager’s appointment without cause pursuant to this paragraph 4.2 while Manager is willing and able to perform the duties of the City Manager position, the City shall pay to Manager a cash payment equal to three months’ salary compensation then in effect as provided in paragraph 2.1.1 above (hereinafter, “Severance”). In exchange for and as a condition to receipt of the Severance, Manager shall execute a general release agreement, in the form attached hereto as Exhibit A, releasing the City from any and all claims associated with Manager’s termination.
4.2.4 Notwithstanding the foregoing, the City and Manager mutually acknowledge and agree that as of the Effective Date of this Agreement, the City is a member of the California Intergovernmental Risk Authority (“CIRA”) and that CIRA currently maintains a program for compensation to chief executives of its members who are involuntarily terminated (the “Chief Executives’ Separation Payment” or “CESP”). The City does not covenant in this Agreement to remain a member of CIRA or to ensure that CIRA continues to maintain the CESP during any term of this Agreement, but if the CESP or similar program is in effect upon the date Manager is terminated without cause, nothing in this Agreement is intended to limit or restrict Manager’s entitlement to an additional separation payment pursuant to the CESP, provided that
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Manager satisfies all of the terms and conditions of such program. The Severance provided for herein shall be in addition to, and not offset by, any payment to which Manager may otherwise be entitled to, or qualify for, through the CESP.
4.2.5 In addition to the Severance, the City shall extend to Manager the right to continue health insurance as may be required by and pursuant to the terms and conditions of the Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA”).
4.2.6 In addition to the Severance and COBRA benefits, Manager shall be entitled upon termination without cause to all compensation accrued up to the date of termination, such as payment of unused vacation, and such other termination benefits in accordance with City’s Personnel Rules and Regulations, or as may be required by law.
4.2.7 Notwithstanding any other provision or the term of this Agreement, the Severance that Manager may receive under this Agreement as a result of termination shall not exceed the limitations provided in Government Code Section 53260-53264. In addition, in the event Manager is convicted of a crime involving an abuse of office or position, Manager shall reimburse the City for any paid leave or cash settlement (including separation benefits or severance, if applicable), to the extent as provided by Government Code Sections 53243-53243.4.
4.3 Termination for Cause.
4.3.1 By majority vote, the City Council may terminate Manager at any time, for cause. As used in this Agreement, “cause” shall mean only one or more of the following:
(a) Conviction of a felony or a misdemeanor that either involves moral turpitude or that adversely affects the City’s or Manager’s reputation;
(b) Malfeasance, which shall mean and refer to wrongful or unlawful acts committed by Manager, which Manager has no legal right or authority to perform, and which interrupts, interferes with or is contrary to the performance of his official duties; (c) Continued abuse of non-prescription drugs or alcohol that materially affects the performance of Manager’s duties; or (d) Repeated and protracted unexcused absences from
Manager’s office and duties.
4.3.2 Notice of Termination for cause shall be provided to Manager in writing.
4.3.3 If the City terminates Manager for cause, Manager shall be entitled only to the compensation accrued up to the date of termination, payments of all unused accrued vacation, and such other termination benefits and payments as may be in accordance with City’s Personnel Rules and Regulations, or as may be required by law. Manager shall not be entitled to any Severance benefits provided by paragraphs 4.2.3 in the event of a termination for cause.
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SECTION 5. MISCELLANEOUS.
5.1 Business Expenses. The City shall reimburse Manager for all reasonable City-related business expenses incurred by Manager in accordance with City policy, such as travel expenses for City-related and approved business trips and costs associated with approved conferences that are relevant to the City Manager’s role.
5.2 Other Conditions of Employment. After consultation with Manager, the City Council, by resolution, may fix any other terms and conditions of Manager’s employment as the City Council may from time to time determine, provided such terms and conditions are not inconsistent with the provisions of this Agreement or law.
5.3 Indemnification. The City shall defend, hold harmless and indemnify Manager against any claim, demand or other legal action, whether groundless or otherwise, arising out of any alleged act or omission occurring in the performance of Manager’s duties as the City Manager. The City shall pay the amount of any settlement or judgment thereon, provided that Manager cooperates in the defense of the claim, demand or action; in this regard, the City shall have the discretion to compromise or settle any such claim, demand or action and pay the amount of any settlement or judgment rendered thereon. Notwithstanding the foregoing, the City shall have no duty to indemnify, defend, or hold Manager harmless from any criminal proceeding, or with regard to any civil, criminal or administrative proceeding initiated by Manager.
5.4 Conflict of Interest. Manager shall not engage in any business or transaction, or have a financial or other personal interest or association, direct or indirect, which conflicts with the proper discharge of his official duties, or which would tend to impair the independence of his judgment or action in the performance of his official duties. Manager shall also be subject to the conflict-of-interest provisions of the California Government Code and any conflict-of-interest codes applicable to Manager’s employment with the City.
5.5 Notices. Any notice required by this Agreement shall be in writing and shall be either given in person or by first class mail with the postage prepaid, addressed as follows:
To City: Twentynine Palms City Council
c/o Mayor
City of Twentynine Palms
6136 Adobe Road
Twentynine Palms, CA 92277
To Manager: H. Stone James
City Manager
City of Twentynine Palms
6136 Adobe Road
Twentynine Palms, CA 92277
5.6 Construction and Interpretation. This Agreement shall be construed in accordance with the laws of the State of California and as if drafted jointly by both parties. In this regard, the City and Manager each represent to the other that it has had the opportunity to consult with legal counsel regarding the terms and conditions in this Agreement prior to its execution.
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5.7 Integration and Amendment. This Agreement represents the entire understanding of the City and Manager as to those matters contained herein, and no prior oral or written understanding shall be of any force or effect with respect to those matters covered by this Agreement. Except as specifically authorized by this Agreement, this Agreement may not be modified, altered or amended, except in writing approved by the City Council and Manager, and signed by Manager and the Mayor of the City.
5.8 Assignment; Personal Contract. This Agreement is not assignable by either the City or Manager. The Parties acknowledge that this Agreement is the personal services agreement, for the personal services of Manager.
5.9 Severability. In the event that any provision of this Agreement is held or determined to be illegal, invalid or void by reason of any final, non-appealable judgment, order or decision of a court having jurisdiction over the parties, the remainder of the Agreement shall remain in full force and effect unless the parts found to be illegal, invalid or void are wholly inseparable from the remaining portion of the Agreement. [SIGNATURES ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first written above.
CITY OF TWENTYNINE PALMS
By:______________________________
Steven Bilderain
Mayor
ATTEST:
_____________________________
Cindy Villescas
City Clerk
APPROVED AS TO FORM:
____________________________
A. Patrick Muñoz
City Attorney
MANAGER
By:______________________________
H. Stone James
EXHIBIT A - CITY MANAGER EMPLOYMENT AGREEMENT
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release ("Separation Agreement") is entered into by H. Stone James ("Employee") and City of Twentynine Palms ("City") effective on _____________, 20___.
Employee and City may be referred to collectively as “parties.”
RECITALS
A. Employee's employment by City, and the contract under which Employee was employed, terminated effective ________________, 20___.
B. Employee is informed that Employee has 21 days from receipt of this Agreement to consider it (“21-Day Consideration Period”). City advises Employee to consult with an attorney before signing this Agreement. Employee may sign this Agreement before the end of the 21-Day Consideration Period, but is under no obligation to do so. Signing the Agreement prior to the expiration of the 21- Day Consideration Period will constitute a waiver of the remainder of the 21-Day Consideration Period.
C. Employee acknowledges that for a period of seven days following the signing of this Separation Agreement ("Revocation Period"), Employee may revoke this Separation Agreement. If not revoked during the Revocation Period, this Separation Agreement shall become enforceable immediately upon expiration of the Revocation Period.
D. Employee acknowledges that the Salary Payment referenced in paragraph 1 below represents all compensation, including salary and accrued leave and benefits, due and payable to Employee through the date of termination. Employee also acknowledges that City has made this Salary Payment without regard to whether Employee signs this Separation Agreement. The Salary Payment does not constitute consideration for this Separation Agreement.
E. Employee acknowledges that the Separation Pay referenced in paragraph 2 below is in addition to all amounts that are due and owing to Employee as a result of Employee’s employment by City.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and other good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:
1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a check for all salary, benefits, and accrued leave owing ("Salary Payment") from City.
2. Separation Pay. Following return to City of this Separation Agreement signed by Employee, and upon expiration of the Revocation Period without revocation by Employee, City shall pay in addition to the Salary Payment the following amount as Separation Pay: $________________.
3. General Release. In consideration of the Separation Pay to be given to Employee, and other good and valuable consideration, Employee hereby releases and discharges City and its past and present elected and appointed officials and officers, employees, representatives, agents and attorneys, from all rights, claims, causes of action, and damages, both known and unknown, in law or in equity, concerning
EXHIBIT A - CITY MANAGER EMPLOYMENT AGREEMENT
and/or arising out of Employee’s employment with City which Employee now has, or ever had, including but not limited to any rights, claims, causes of action, or damages arising under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Fair Labor Standards Act of 1938, the Americans with Disabilities Act, the Meyers-Milias Brown Act, the Vocational Rehabilitation Act of 1973, the Family and Medical Leave Act of 1993, the California Moore-Brown-Roberti Family Rights Act, the California Unruh Civil Rights Act, the California Fair Employment and Housing Act, the California Labor Code, under any other federal, state, or local employment practice legislation, or under federal or state common law, including wrongful discharge, breach of express or implied contract, breach of public policy, and/or violation of due process rights.
Employee specifically waives and relinquishes all rights and benefits afforded by Section 1542 of the Civil Code of California. Employee understands and acknowledges the significance and consequences of this specific waiver of Section 1542. Section 1542 of the Civil Code of California states as follows:
"A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
Notwithstanding the protections of Section 1542, and for the purpose of implementing a full and complete release and discharge of City and its past and present elected and appointed officials and officers, employees, representatives, agents and attorneys, Employee expressly acknowledges that this General Release is intended to apply to all claims which Employee has including any claims that Employee does not know about or suspect to exist.
Employee further acknowledges that Employee has read this General Release, understands that this is a general release, and intends to be legally bound by the same.
4. Specific Waiver of Claims Under ADEA and OWBPA. Employee acknowledges that Employee is knowingly and voluntarily waiving and releasing any rights or claims Employee may have under the Age Discrimination in Employment Act of 1967, as amended by the Older Workers Benefits Protection Act.
Employee further acknowledges that:
(a) This waiver/release is written in a manner understood by Employee; (b) Employee is aware of, and/or has been advised of, Employee’s rights under the ADEA and OWBPA, and of the legal significance of Employee’s waiver of any possible claims Employee may have under the ADEA, OWBPA and/or similar age discrimination laws; (c) Employee is entitled to a reasonable time of at least 21 days within which to review and consider this Agreement and the waiver and release of any rights Employee may have under the ADEA, the OWBPA and similar age discrimination laws; but has the discretion to sign or reject this Agreement at any time before the expiration of the 21 days; (d) Employee has been advised by this writing that Employee should consult with an attorney prior to executing this Agreement;
(f) Employee has discussed this waiver and release with Employee’s counsel of choice or at least had the opportunity to do so, and Employee represents by signing this Agreement that
EXHIBIT A - CITY MANAGER EMPLOYMENT AGREEMENT
Employee does not need any additional time within which to review and consider this Agreement;
(g) Employee has seven days following Employee’s execution of this Agreement to revoke the Agreement;
(h) Any notice of revocation must be provided in writing to City within the seven day revocation period; and
(i) This Agreement shall not be effective until all parties have signed the Agreement and seven days have passed since Employee’s execution of same.
5. No Admission. This Agreement shall not be construed as an admission of liability by either party.
6. Partial Invalidity. In the event that any provision of this Agreement is found to be illegal, invalid, or unenforceable, such provision, if possible, shall be construed so as to render the provision legal, valid, and enforceable. If a provision cannot be construed so as to render it legal, valid, and enforceable, the invalidity of such provision shall in no way affect any other term, covenant, condition, or provision and the remainder of this Agreement shall still be effective.
7. No Assignment. Employee represents that Employee has not assigned, transferred, or purported to assign or transfer any claim Employee may have against the City.
8. Counterparts. This Agreement may be executed in one or more originals, each of which shall, for all purposes, be deemed a legally enforceable original representative of the full and complete agreement of the parties.
9. Taxes. Employee understands and agrees that Employee shall be exclusively liable for the payment of any and all taxes for which Employee may be responsible as a result of Employee’s receipt of the consideration referred to in Paragraph 2 above. In addition, Employee agrees fully to indemnify and hold City harmless for payment of tax obligations as may be required by any federal, state or local taxing authority, at any time, as a result of the payment of the consideration set forth in Paragraph 2 above.
10. Prevailing Party’s Right to Fees and Costs. Employee and City agree that in the event of litigation relating to this Separation Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs.
11. Notice. Any notice required under this Agreement shall be by certified or registered United States mail, or by personal delivery, at the noticing party’s discretion, and addressed to the parties as set forth in this paragraph. Notices shall be deemed, for all purposes, to have been given and/or received on the date of personal service or three consecutive calendar days following deposit of the same in the United States mail. Notice to the City shall be delivered to _______________ and notice to Employee shall be delivered to the Employee’s home address on file with the City.
12. Complete Agreement. This is the entire agreement between Employee and City with respect to the subject matter hereof and this Separation Agreement supersedes all prior and contemporaneous oral and written agreements and discussions. It may only be amended in writing.
EXHIBIT A - CITY MANAGER EMPLOYMENT AGREEMENT
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first written above.
CITY OF TWENTYNINE PALMS
By:______________________________
Its:______________________________
ATTEST:
_____________________________
City Clerk
APPROVED AS TO FORM:
____________________________
City Attorney
EMPLOYEE
By:______________________________
H. Stone James