U P L A N D C I T Y C O U N C I L
A G E N D A
J u n e 2 7 , 2 0 2 2
C ity C ou n ci l C h a mbe r
B I L L V E L T O, M A Y O R
S H A N N A N M A U S T, M A Y O R P R O T E M
J A N I C E E L L I O T T, C O U N C I L M E M B E R
C A R L O S A . G A R C I A , C O U N C I L M E M B E R
R U D Y Z U N I G A , C O U N C I L M E M B E R
M I C H A E L B L A Y , C I T Y M A N A G E R
S T E P H E N P . D E I T S C H , C I T Y A T T O R N E Y
D I S R U P T I O N O F M E E T I N G S
I n d ivid uals wh o d em onstrate d isru p tive cond uct d urin g C ity C ou ncil m eetin g s th at p revent th e C ity C oun cil from cond ucting its m eeting in an ord erly m ann er are g u ilty of a m isd em ean or as stated in P C 40 3, d isru p tin g a p ub lic m eeting , and are sub ject to rem oval from th e ch am b er or arrest.
1.C A L L T O O R D E R A N D R O L L C A L L
2.A D D I T I O N S -D E L E T I O N S T O A G E N D A
3.O R A L C O M M U N I C A T I O N S
T his is a tim e for an y citizen to c om m en t on it em l is ted on th e cl osed session ag end a on ly. A n yon e wish in g to ad d ress t he leg is lat ive b od y is req u est ed to sub m it a sp eaker card t o th e C ity C l erk at or p rior to sp eaking . T h e sp eakers are req u ested to keep th eir com m en ts to n o m ore t h an th ree (3 ) m inu tes. Th e use of visu al aid s w ill b e in clud ed in the tim e lim it.
4.C L O S E D S E S S I O N N o ne
* * * * * * * * * * * *
7:00 P M
5.I N V O C A T I O N
Wom en 's M inistry Pastor S u m m er B rown , L ife B ib le Fellowship C hu rch
6.P L E D G E O F A L L E G I A N C E
7.P R E S E N T A T I O N S
P resentation of C ertificates of Recog n ition t o L ion 's H eart U p land G i rl s B lu e G roup
Recog n ition of th e L ig ht Up th e N ig ht S p onsors P roclam ation d eclaring J u ly as Parks M ake Life B etter M on th
8.C I T Y A T T O R N E Y
9.O R A L C O M M U N I C A T I O N S
T his i s a t im e for an y ci ti zen t o com m ent on an y it em li st ed or n ot li st ed on th e ag end a. A nyon e wi sh in g to ad d res s the leg islat ive b od y i s req u es ted t o su b m it a sp eaker card t o th e C i ty C lerk at or p rior to s p eaki n g . T h e sp eakers are req u ested t o keep th eir com m en ts to no m ore t h an three (3) m in u t es. S p eakers will b e g iven fi ve (5 ) m inu tes d u ri n g p ub lic h eari ng s. T h e use of visu al ai d s will b e i n c lu d ed in th e t im e li m i t. P ub li c com m ents an d q u est ion s for t h e p urp ose of h earing curren t m at ters of con cern in ou r com m u n i ty an d to p rovid e c it izen s a m eth od for th e p ub li c to h ear th ose con cerns in an op en ven u e is encourag ed .
H owever, u n d er t he p rovisions of t he B rown A ct , th e C ity C ou n c il is p rohib ited from d iscu ssion of it em s n ot listed on t he ag end a, and th erefore, th e C ity C oun cil, C ity M an ag er, or C it y A tt orn ey w il l t ake com m u n i cat ion s un d er ad visem en t for consid eration an d ap p rop riate resp on s e or d i sc u s si on at a later tim e.
10.C O N S E N T C A L E N D A R
A ll m at ters list ed u n d er th e C onsent C al en d ar are c on s id ered t o b e rou ti ne and will b e en act ed b y on e roll call vot e. T h ere w i ll b e no sep arat e d is cu ss ion of these i tem s u n l ess m em b ers of t h e l eg i sl ati ve b od y req uest sp ecific item s b e rem oved from th e C on sen t C alen d ar for sep arate action.
A .A P P R O V A L O F M I N U T E S
A p p rove t he Reg u lar M eeti n g M in u t es of J u ne 13 , 2 02 2. (S taff Person :
Keri J oh nson)
B.R E S I G N A T I O N F R O M T H E P L A N N I N G C O M M I S S I O N A ccep t t he resi g n ati on from P l an n in g C om m ission er Pat ri ck S h im and i nstruct th e C i ty C l erk t o p ost th e vac an c y p u rsuan t to G overnm ent C od e S ection 5 49 74 . (S taff Person: Keri J ohn son ) C .T R E A S U R E R 'S R E P O RT M A Y 20 22
Receive an d fi le th e M ay 20 22 Treasurer's Rep ort . (S taff Pers on : S tep hen Parker)
D.C O N S I D E R A P P R O V A L O F A N A G R E E M E N T W I T H T Y L E R T E C H N O LO G I E S, I N C .
A p p rove an ag reem ent with Tyler Tech nolog ies, I n c. for S oftw are-as-a- S ervice for a not to exceed am oun t of $7 60 ,49 2; an d au th ori ze t he C ity M an ag er to execute th e ag reem en t. (S taff Person : S tep h en Parker)
E.PROFESS IONAL SERVICE AGREEMENT WITH HdL COREN & CONE FOR
PROPERTY TAX AUD IT AND INFORMATI ON SERVICES
Approve a professional services agreement with HdL Coren & Cone to provide the City with property tax management services, secured and unsecured parcel audits, and budget projections ; and authorize the City Manager to execute the agreement. (Staff Person: Stephen Parker) F.SENATE BILL 1 (S B1) ROAD MAINTE NANCE AND REHABILITATI ON
ACCOUNT FUN DING AND PROJECT LI ST
Adopt a Resolution approving a list of projects for Fiscal Year 2022-2023 funded by Senate Bill 1: Road Repair and Accountability Act of 2017. (Staff Person: Braden Yu)
G.REQUE ST FOR ADDITI ONAL FUN DING FOR WEST COAST ARBORIST FOR 2022 WINDSTO RM CLE ANUP
Approve a reallocation of $40,000 from the Street Maintenance Division to the Street Tree Maintenance Division to cover the additional unexpected West Coast Arborist costs resulting from the January 2022 extreme wind event. (Staff Person: Braden Yu)
H.EXTE NSION TO PROFESS IONAL SERVICES AGREEMENT FOR FLE ET
SUP ERVISION - CONSULTA NT SERVICES
Approve the final one-year extension to the professional services agreement with MK Consulting for specialized fleet services for a not-to- exceed amount of $37,300 and authorize the City Manager to execute the extension letter. (Staff Person: Braden Yu)
I.MAINTE NANCE SERVICES AGREEMENT FOR THE REHABILITATI ON OF CITY WELL 7A
Award a Maintenance Services Agreement to General Pump Company for the rehabilitation of City Well 7A in the amount of $157,180; approve a contingency amount of $32,820 for a total amount of $190,000; and authorize the City Manager to execute the agreement and all extensions. (Staff Person: Braden Yu)
J.UP DATED UN IT PRICING FOR CITYW IDE CONCRETE MAINTE NANCE CONTR ACT FOR 2022 WINDSTO RM CLE ANUP
Approve the updated unit prices for D.M. Contracting, Inc. to repair of sidewalk & curb/gutter damages sustained from fallen City trees. (Staff Person: Braden Yu)
K.BLA NKET PUR CHASE ORDERS - UTILITI ES
Approve blanket purchase orders for Armorcast Products Company, Inc; Badger Meter, Inc; Eurofins Eaton Analytical, Inc; Holliday Rock Company, Inc; Metron-Farnier, LLC; and S & J Pipe Supply Company, Inc for Fiscal Year 2022/2023. (Staff Person: Braden Yu)
11. PUBLIC HEARINGS
A. FORMATION OF COMMUNITY FACILITIES DISTRICT NO. 2022-1 (ENCLAVE AT UPLAND)
The City Council will conduct a public hearing to consider formation proceedings and elections for Community Facilities District No. 2022-1 (Enclave at Upland). (Staff Person: Stephen Parker)
Recommendation: 1) Staff Presentation.
2) Open the Public Hearing.
3) Close the Public Hearing.
4) Adopt a Resolution establishing Community
Facilities District No. 2022-1 (Enclave at Upland) of
th e C i ty of U p l an d , C oun ty of S an B ernard ino, S tate of C al iforn i a, an d th e b oun d aries t hereof an d ap p roving a fun d ing ag reem en t.
5 )A d op t a Res olu ti on d eterm i ni ng th e necessit y to in cu r a b ond ed in d eb ted ness for C om m u nity
Facilities D istrict N o. 2 02 2-1 (E n cl ave at Up lan d ), su b m itting t o th e q ual ifi ed electors of the
C om m u nity Facilities D istrict a p rop osition to
authorize the levy of a sp ecial tax th erein, to
authorize su ch C om m un it y Facilities D is tric t to in cu r a b on d ed i nd eb t ed n ess secu red b y th e levy of sp ecial tax th erein to fin anc e c ert ain t yp es of p ub lic facilities an d to es tab li sh an d ap p rop riat ion s li m i t for su ch C om m u n it y Faci li ti es D istrict an d callin g a sp ecial elect ion for t he C om m u n it y Faci li ti es D istrict on a p rop osi ti on for i ncurri ng s u c h b ond ed in d eb ted ness.
6 )A d op t a Resolu ti on calling a s p ec ial elect ion an d su b m itting t o th e vot ers of C om m un it y Facilities D istrict N o. 20 22 -1 (E n cl ave at U p land ) of t he C ity of U p land p rop osi ti ons reg ard i n g th e an nu al levy of sp ecial taxes with in the C om m u nity Facilities
D istrict t o p ay p rin cip al an d interest on b ond s th ereof an d t o p ay th e cos ts of p ub li c fac il it ies an d estab lishing an ap p rop riation s lim it th erefor.
7 )H old E lection.
8 )A d op t a Resolution d eclarin g the resu lts of the con solid ated sp eci al elections w it hi n C om m u nity Facilities D istrict N o. 20 22 -1 (E n clave at U p land ).
9 )H old first read in g b y t it le only, w aive furth er read in g , an d in trod u ce an O rd in anc e of th e C ity C ou ncil of th e C it y of U p lan d act in g as the leg islative b od y of C om m u ni ty Facilities D i st ri ct N o. 20 22 -1 (E n clave at Up lan d ) of t h e C ity of Up lan d , authorizin g th e levy of sp ecial taxes in
su ch C om m u nity Facilities D istrict.
B.P U B L I C H E A R I N G TO C O N S I D E R P R O P O S E D S E W E R A N D S O L I D
W A S T E R A T E S , C O N S I D E R A T I O N O F A P P R O V A L O F A M E N D E D A N D
R E S TA T E D A G R E E M E N T F O R S O L I D W A S T E C O L L E C T I O N ,
P R O C E S S I N G A N D D I S P O S A L S E R V I C E S W I T H B U R R T E C W A S T E I N D U S T R I E S, I N C .
Th e C i ty C ou n c il wi ll cond uct a p ub lic hearin g t o c on s id er ap p roval of th e p rop osed sew er rates and solid w aste rates. (S taff Person : B rad en Yu) Recom m end ation:1 )S taff P resen tation .
2 )H old P u b lic H earing .
3 )C lose P ub lic H earin g .
4 )A p p rove a Resolution ad op ting revisions to ad just the sched ule of sew er service rat es inclu d ing p ass-
th rou g h sewer rat es from I n l an d E m p ire U tilities A g ency.
5 )A p p rove a Resolution ap p roving A m end ed an d Restated A g reem ent for S olid Waste C ollection,
P rocessing an d D i sp osal S ervic es wi th B u rrtec Waste
I n d u stries, I nc. and A d op tin g Rates for S olid Waste C ollection S ervices Rates.
12.C O U N C I L C O M M I T T E E R E P O R T S
A .P U B L I C S A F E T Y C O M M I TT E E M E E T I N G , J U N E 2 0, 2 02 2 Th e C om m it tee C hairp erson will rep ort on th e m eeti n g . T h i s i s an in form ation item only.
13.B U S I N E S S I T E M S
A .D I S C U S S I O N O F Q U A R T E R LY R E P O RT O N S A N A N TO N I O W A T E R
C O M PA N Y A N D W E S T E N D C O N S O L I D A T E D W A T E R C O M PA N Y D iscu ss w hether an oral rep ort shou ld b e p rovid ed to C oun cil, b y a m em b er of the S an A ntonio Water C om p any B oard and West E n d C on solid ated Water C om p any B oard , on a q uarterly b asis. (S taff Person : M ich ael B lay) B.A N O R D I N A N C E R E Q U I R I N G A S U P E R M A J O R I T Y V OT E O F T H E C I T Y
C O U N C I L TO H I R E O R F I R E A C I T Y M A N A G E R O R C I T Y A TTO R N E Y
D U R I N G A L A M E D U C K P E R I O D
H old fi rs t read i ng b y ti tl e on l y, w aive fu rther read i n g an d in trod u ce an O rd in ance ad d ing U p land M un icip al C od e S ect ion 2 .02 .16 0 req u i ri n g a su p erm ajority vot e of th e C i ty C oun ci l t o hire or fi re a C it y M an ag er or C ity Attorn ey d u ring a lam e d u ck p eriod . (S taff Person : S tep h en D eitsch )
14.C O U N C I L C O M M U N I C A T I O N S
15.C I T Y M A N A G E R
16.A D J O U R N M E N T
T he n ext reg u larly sch ed u led C ity C oun cil m eeting is M on d ay, J uly 11 , 20 22 N O T E : I f yo u cha l l e ng e t h e p u b l i c h e a ri ng (s ) o r t he re l a t e d e nvi ro nm e n t a l d e t e rm i na t i o ns i n co u rt , yo u m a y b e l i m i t e d t o ra i s i n g o nl y t h o s e i s s ue s yo u o r s o m e o n e e l s e ra i s e d a t t h e p ub l i c h e a ri ng d e s cri b e d i n t h i s no t i ce , o r i n w ri t t e n co rre s p o nd e nce d e l i ve re d t o t he C i t y o f U p l a nd , a t , o r p ri o r t o , t he p ub l i c he a ri n g .
A l l A g e n d a i t e m s a n d b a ck-u p m a t e ri a l s a re a va i l a b l e f o r p u b l i c re vi e w a t t h e U p l a nd P ub l i c L i b ra ry, d o w n s t a i rs re f e re n ce d e s k a t 4 5 0 N o rt h E ucl i d A ve nue , t h e C i t y C l e rk's O f f i ce a t 460 N o rt h E ucl i d A ve nue a nd t h e C i t y w e b s i t e a t w w w.u p l a nd ca .g o v.
I n co m p l i a n ce w i t h t h e A m e ri ca n s w i t h D i s a b i l i t i e s A ct , i f yo u n e e d s p e ci a l a s s i s t a nce t o p a rt i ci p a t e i n t hi s m e e t i n g , p l e a s e co n t a ct t h e C i t y C l e rk's O f f i ce , 931-4 1 2 0 . N o t i f i ca t i o n 48 h o u rs p ri o r t o t h e m e e t i n g w i l l e n a b l e t he C i t y t o m a ke re a s o n a b l e a rra n g e m e n t s t o e n s ure a cce s s i b i l i t y t o t h i s me e t i ng . [2 8 C F R 3 5 .1 0 2 -35.104 A D A T i t l e I I ] P O S T I N G S T A T E M E N T : O n J une 22, 2022 a t ru e a n d co rre ct co p y o f t hi s a g e nd a w a s p o s t e d o n t he b ul l e t i n b o a rd s a t 450 N . E ucl i d A ve nue (U p l a n d P ub l i c L i b ra ry) a n d 4 6 0 N . E u cl i d Ave n u e (U p l a nd C i t y H a l l ) a n d t he C i t y w e b s i t e a t w w w.up l a n d ca .g o v.
S T A F F R E P O R T
I T E M N O . 10.B .
D A T E :J un e 27 , 20 22
T O :M A YO R A N D C I T Y C O U N C I L
F R O M : M I C H A E L B L A Y, C I T Y M A N A G E R P R E P A R E D B Y : K E R I J O H N S O N , C I T Y C L E R K S U B J E C T :R E S I G N A T I O N F R O M T H E P L A N N I N G C O M M I S S I O N
R E C O M M E N D E D A C T I O N
I t i s recom m en d ed th at th e C ity C oun cil accep t the resig n ation from P lan ning C om m ission er Patrick S h im and in st ru ct th e C ity C lerk t o p os t t h e vacan cy p ursu ant to G overn m en t C od e S ection 5 49 74 .
G O A L S T A T E M E N T
Th e p rop osed act ion su p p ort s th e C i ty's g oal to p rovi d e op p ortu nities for t h e cit izenry to p articip ate i n local g overn m en t throug h servic e on vari ous com m ittees, com m i ss ion s, an d b oard s.
B A C K G R O U N D
Th e P lan ni ng C om m ission was estab lished i n 1 9 3 0 p u rsuan t to t he P l an n in g A ct of 1 92 9.
C h ang es t o t h e C om m i ss ion w ere l ater m ad e in 1 95 0 in accord an ce w it h th e C onservation an d P lann in g A c t. Resolu tion N o. 6 3 9 7 set s forth th e p rocess for ap p oi n t m en t an d stat es the M ayor s h al l ap p oi nt th e C om m it tee, C om m is si on , B oard , and A u t h orit y m em b ers sub ject to ratification b y the m ajority of the C oun cil.
I S S U E S /A N A L Y S I S
Patrick S h im was ap p ointed t o t he P lann in g C om m is si on in J u n e 20 20 , to fil l an un sched uled vacan cy, with a term exp irin g in J un e 20 23 .
Th e C ity C lerk's O ffi ce rec eived M r. S h im 's resi g n ati on , effect ive J u n e 1 3 , 20 22 . T his resig nation c reat es an u n s ch ed u led vacan cy, an d G overn m en t C od e S ection 54 97 4 req u ires vacan cies b e p osted for 1 0 workin g d ays b efore n ew ap p oin tm ents can b e m ad e.
F I S C A L I M P A C T S
Th ere are no fiscal im p acts associated with th is action .
A L T E R N A T I V E S
P rovid e altern ative d irection to staff.
AT TAC HM E NT S :
Description
Resolution No. 6608
S T A F F R E P O R T
I T E M N O . 10.C .
D A T E :J un e 27 , 20 22
T O :M A YO R A N D C I T Y C O U N C I L
F R O M : M I C H A E L B L A Y, C I T Y M A N A G E R P R E P A R E D B Y : S T E P H E N PA R K E R , C PA , A S S I S TA N T C I T Y M A N A G E R
LO N D A B O C K-H E L M S C PA , F I N A N C E O F F I C E R S U B J E C T :T R E A S U R E R 'S R E P O R T M A Y 2 02 2
R E C O M M E N D E D A C T I O N
I t is recom m end ed that th e C ity C oun cil receive and file th e M ay 2 02 2 Treasurer's Rep ort.
G O A L S T A T E M E N T
Th e p rop osed ac ti on su p p ort s the C i ty's g oal to m an ag e th e C it y's resources i n a fiscally resp on sib le m an ner.
B A C K G R O U N D
Per C aliforn ia G overn m en t C od e S ect ion 53 64 6(b ), the C it y's treasu rer or ch ief fi sc al officer m ay rend er a treasu rer's rep ort t o th e C it y C ou n c il on a q uarterly b asi s. Th e C ity has elected to p rovi d e th is rep ort t o C i ty C ou nc il m onthly, b u t th e C i ty's I n vest m en t Pol ic y (ap p roved M ay 23 , 20 22 ) req u ires th e I nvestm ent O ffic er to p rovid e a rep ort q u art erl y t o t he F inan ce C om m ittee at reg u larly s ch ed u led m eet in g s . T his rep ort shall i nclu d e t he t yp e of in vestm en t, issu er, d ate of m atu ri ty, p ar, an d d ol lar am ou n t in vest ed on all secu rities, cu rrent m arket value as of th e d at e of th e rep ort , investm ent s and m on ies h eld b y th e local ag en cy, and shall ad d ition ally inclu d e a d esc ri p t ion of an y of th e l ocal ag en cy's fun d s, i nves tm ent s, or p rog ram s, th at are u nd er t he m an ag em ent of con tract ed p arties, i n c lu d i n g lend in g p rog ram s. Th e rep ort sh all in cl u d e a st atem ent of c om p li an c e wi th t he in vest m en t p olicy an d s hal l in clud e a statem ent n oting t h e C ity's ab ilit y t o m eet i ts exp en d it u re req u irem en ts for th e n ext six m on th s.
I S S U E S /A N A L Y S I S
Th e su b m ission of the m onthly Treasu rer's Rep ort is a com p liance m easure.
F I S C A L I M P A C T S
Th ere is n o fiscal im p act associated with th is action .
A L T E R N A T I V E S
P rovid e altern ative d irection to staff.
AT TAC HM E NT S :
Description
T reasurer's Report M ay 2022
S T A F F R E P O R T
I T E M N O . 10.D .
D A T E :J u ne 2 7, 2 02 2
T O :M A YO R A N D C I T Y C O U N C I L
F R O M : M I C H A E L B L A Y, C I T Y M A N A G E R P R E P A R E D B Y : S T E P H E N PA R K E R , A S S I S TA N T C I T Y M A N A G E R
R I C H A R D J E G A N A T H A N , I N F O R M A T I O N T E C H N O LO G Y M A N A G E R S U B J E C T :C O N S I D E R A P P R O V A L O F A N A G R E E M E N T W I T H T Y L E R T E C H N O LO G I E S, I N C .
R E C O M M E N D E D A C T I O N
I t is recom m end ed th at C i ty C ou n c il ap p rove an ag reem en t w it h Tyl er Tec h n olog ies , I n c . for S oftw are-as-a-S ervice for a not to exceed am ou n t of $76 0,4 92 ; an d au th orize t h e C ity M an ag er to execute th e ag reem en t.
G O A L S T A T E M E N T
Th e p rop os ed act ion sup p orts th e C it y’s g oal to p rovid e st aff wi th the resou rc es need ed to d eliver efficien t services to the C ity of Up lan d resid en ts.
B A C K G R O U N D
Th e C ity u ses Tyler Tech nol og i es, I n c's M u n i s E n t erp ri se Resou rc e P lan n i n g s yst em w h i ch w as im p lem en ted in 2 01 6. Th is s yst em has served the C ity w el l for si x years. T he cu rrent system is u sed for F in ancial an d H um an Resou rces transaction s w ith th e following op eration al m od ules in p lace:
A ccou ntin g /G L
P u rchase O rd ers
Req u isition s
A ccou nt Receivab le
G eneral B illing
Tyler Form s P rocessing
H um an Resources M an ag em ent
Payroll
Tyler C ontent M an ag em ent
Utility B illin g (n ot in p rod uction)
I S S U E S /A N A L Y S I S
I n review in g the curren t tech nolog y offerin g s, staff recom m end s m ovin g to a cloud -b ased system known as S aaS to p rovid e res il ien ce from loc al d isasters l ike ran som w are at tac ks or earthq uakes. O n c e we m i g rate and g o live w ith th e U t il it y B il li n g M od u le, it will b e even m ore vital to h ave b u siness con ti n u it y an d avoid any lon g t erm d isrup tions. A lt h ou g h th e C ity m aintain s b ackup s, if the p rim ary h ard w are th at op erates th e c urren t fin an c ial system fai ls or oth erwise is rend ered in op erab le, it can not b e eas il y rep lac ed or rep aired . C lou d -b ased S aa S p rovid es sit e red un d an cy wh ic h al low s b usin ess con tinu it y ag ai nst l ocal h ard ware fail u res or d isasters. A n um b er of local ag en c ies u si ng server-b ased M u nis h ave al read y sw it ch ed to cloud b ased S aaS wi th in th e p ast few years. T here are also s ig nal s from Tyl er Tech nolog ies th at t h e server b ased s oftware is slow ly b ein g p h ased ou t an d is m ovin g t ow ard t he su nset p h ase of its p rod u ct life cycle.
Th e g oals are t o com p l ete t he m ig rat ion now so w e c an b e ahead of cu rve, elim in ate the un certainty of c u rren t M u n i s li fe cycle, im p rove th e sys tem red u n d an c y, an d take ad van tag e of techn olog ical efficiencies.
F I S C A L I M P A C T S
Th e first year cost of S oftw are-as-a-S ervice is $2 49 ,91 1. $22 0,0 00 w ill b e fun d ed b y a g ran t from S up ervi sor H ag m an's B oard of S u p ervis ors D iscretionary F un d - D is tric t S p ecific P riorities P rog ram an d the rem ain in g am ou n t is avai lab le in t h e F iscal Year 2 02 1-2 2 op eratin g b u d g et.
Year's t w o an d three w il l c ost ap p roxim ately $2 50 ,00 0 eac h and is in cl u d ed in th e F Y 2 02 2-2 3 op erating b u d g et an d will b e inclu d ed in th e F Y 20 23 -24 op erating b u d g ets.
A L T E R N A T I V E S
P rovid e altern ative d irection to staff.
AT TAC HM E NT S :
Description
Tyler Sofware as a S ervice Agreement
1 SOFTWARE AS A SERVICE AGREEMENT
This Software as a Service Agreement is made between Tyler Technologies, Inc. and Client.
WHEREAS, Client selected Tyler to provide certain products and services set forth in the Investment Summary, including providing Client with access to Tyler’s proprietary software products, and Tyler desires to provide such products and services under the terms of this Agreement;
NOW THEREFORE, in consideration of the foregoing and of the mutual covenants and promises set forth in this Agreement, Tyler and Client agree as follows:
SECTION A – DEFINITIONS
• “Agreement” means this Software as a Service Agreement. • “Business Travel Policy” means our business travel policy. A copy of our current Business Travel Policy is attached as Schedule 1 to Exhibit B.
• “Client” means the City of Upland, California.
• “Data” means your data necessary to utilize the Tyler Software. • “Data Storage Capacity” means the contracted amount of storage capacity for your Data identified in the Investment Summary.
• “Defect” means a failure of the Tyler Software to substantially conform to the functional descriptions set forth in our written proposal to you, or their functional equivalent. Future functionality may be updated, modified, or otherwise enhanced through our maintenance and support services, and the governing functional descriptions for such future functionality will be set forth in our then-current Documentation.
• “Defined Users” means the number of users that are authorized to use the SaaS Services. The Defined Users for the Agreement are as identified in the Investment Summary. If Exhibit A contains EnerGov labeled software, defined users mean the maximum number of named users that are authorized to use the EnerGov labeled modules as indicated in the Investment Summary.
• “Developer” means a third party who owns the intellectual property rights to Third Party Software.
• “Documentation” means any online or written documentation related to the use or functionality of the Tyler Software that we provide or otherwise make available to you, including instructions, user guides, manuals and other training or self-help documentation. • “Effective Date” means the date by which both your and our authorized representatives have signed the Agreement.
• “Force Majeure” means an event beyond the reasonable control of you or us, including, without limitation, governmental action, war, riot or civil commotion, fire, natural disaster, or any other cause that could not with reasonable diligence be foreseen or prevented by you or us. • “Investment Summary” means the agreed upon cost proposal for the products and services attached as Exhibit A.
2 • “Invoicing and Payment Policy” means the invoicing and payment policy. A copy of our current Invoicing and Payment Policy is attached as Exhibit B.
• “Order Form” means an ordering document that includes a quote or investment summary and specifying the items to be provided by Tyler to Client, including any addenda and supplements thereto.
• “SaaS Fees” means the fees for the SaaS Services identified in the Investment Summary. • “SaaS Services” means software as a service consisting of system administration, system management, and system monitoring activities that Tyler performs for the Tyler Software, and includes the right to access and use the Tyler Software, receive maintenance and support on the Tyler Software, including Downtime resolution under the terms of the SLA, and Data storage and archiving. SaaS Services do not include support of an operating system or hardware, support outside of our normal business hours, or training, consulting or other professional services. • “SLA” means the service level agreement. A copy of our current SLA is attached hereto as Exhibit C.
• “Support Call Process” means the support call process applicable to all of our customers who have licensed the Tyler Software. A copy of our current Support Call Process is attached as Schedule 1 to Exhibit C.
• “Third Party Hardware” means the third party hardware, if any, identified in the Investment Summary.
• “Third Party Products” means the Third Party Software and Third Party Hardware. • “Third Party SaaS Services” means software as a service provided by a third party, if any, identified in the Investment Summary.
• “Third Party Services” means the third party services, if any, identified in the Investment Summary.
• “Third Party Software” means the third party software, if any, identified in the Investment Summary.
• “Third Party Terms” means, if any, the end user license agreement(s) or similar terms for the Third Party Products or other parties’ products or services, as applicable, and attached or indicated at Exhibit D.
• “Tyler” means Tyler Technologies, Inc., a Delaware corporation. • “Tyler Software” means our proprietary software, including any integrations, custom modifications, and/or other related interfaces identified in the Investment Summary and licensed by us to you through this Agreement.
• “we”, “us”, “our” and similar terms mean Tyler.
• “you” and similar terms mean Client.
SECTION B – SAAS SERVICES
1. Rights Granted. We grant to you the non-exclusive, non-assignable limited right to use the SaaS Services solely for your internal business purposes for the number of Defined Users only. The Tyler Software will be made available to you according to the terms of the SLA. You acknowledge that we have no delivery obligations and we will not ship copies of the Tyler Software as part of the SaaS Services. You may use the SaaS Services to access updates and enhancements to the Tyler Software, as further described in Section C(9). The foregoing notwithstanding, to the extent we have sold you perpetual licenses for Tyler Software, if and listed in the Investment Summary, for which you are receiving SaaS Services, your rights to use such Tyler Software are perpetual, subject to the terms and conditions of this Agreement including, without limitation, Section B(4). We will make any such
3 software available to you for download.
2. SaaS Fees. You agree to pay us the SaaS Fees. Those amounts are payable in accordance with our Invoicing and Payment Policy. The SaaS Fees are based on the number of Defined Users and amount of Data Storage Capacity. You may add additional users or additional data storage capacity on the terms set forth in Section H(1). In the event you regularly and/or meaningfully exceed the Defined Users or Data Storage Capacity, we reserve the right to charge you additional fees commensurate with the overage(s).
3. Ownership.
3.1 We retain all ownership and intellectual property rights to the SaaS Services, the Tyler Software, and anything developed by us under this Agreement. You do not acquire under this Agreement any license to use the Tyler Software in excess of the scope and/or duration of the SaaS Services.
3.2 The Documentation is licensed to you and may be used and copied by your employees for internal, non-commercial reference purposes only.
3.3 You retain all ownership and intellectual property rights to the Data. You expressly recognize that except to the extent necessary to carry out our obligations contained in this Agreement, we do not create or endorse any Data used in connection with the SaaS Services.
4. Restrictions. You may not: (a) make the Tyler Software or Documentation resulting from the SaaS Services available in any manner to any third party for use in the third party’s business operations; (b) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the SaaS Services; (c) access or use the SaaS Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to us; or (d) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the SaaS Services, Tyler Software, or Documentation available to any third party other than as expressly permitted by this Agreement.
5. Software Warranty. We warrant that the Tyler Software will perform without Defects during the term of this Agreement. If the Tyler Software does not perform as warranted, we will use all reasonable efforts, consistent with industry standards, to cure the Defect in accordance with the maintenance and support process set forth in Section C(9), below, the SLA and our then current Support Call Process.
6. SaaS Services.
6.1 Our SaaS Services are audited at least yearly in accordance with the AICPA’s Statement on Standards for Attestation Engagements (“SSAE”) No. 18. We have attained, and will maintain, SOC 1 and SOC 2 compliance, or its equivalent, for so long as you are timely paying for SaaS Services. The scope of audit coverage varies for some Tyler Software solutions. Upon execution of a mutually agreeable Non-Disclosure Agreement (“NDA”), we will provide you with a summary of our compliance report(s) or its equivalent. Every year thereafter, for so long as the NDA is in effect and in which you make a written request, we will provide that same information. If our SaaS Services are provided using a 3rd party data center, we will provide available compliance reports for that data center.
4 6.2 You will be hosted on shared hardware in a Tyler data center or in a third-party data center. In either event, databases containing your Data will be dedicated to you and inaccessible to our other customers.
6.3 Our Tyler data centers have fully-redundant telecommunications access, electrical power, and the required hardware to provide access to the Tyler Software in the event of a disaster or component failure. In the event of a data center failure, we reserve the right to employ our disaster recovery plan for resumption of the SaaS Services. In that event, we commit to a Recovery Point Objective (“RPO”) of 24 hours and a Recovery Time Objective (“RTO”) of 24 hours. RPO represents the maximum duration of time between the most recent recoverable copy of your hosted Data and subsequent data center failure. RTO represents the maximum duration of time following data center failure within which your access to the Tyler Software must be restored.
6.4 We conduct annual penetration testing of either the production network and/or web application to be performed. We will maintain industry standard intrusion detection and prevention systems to monitor malicious activity in the network and to log and block any such activity. We will provide you with a written or electronic record of the actions taken by us in the event that any unauthorized access to your database(s) is detected as a result of our security protocols. We will undertake an additional security audit, on terms and timing to be mutually agreed to by the parties, at your written request. You may not attempt to bypass or subvert security restrictions in the SaaS Services or environments related to the Tyler Software.
Unauthorized attempts to access files, passwords or other confidential information, and unauthorized vulnerability and penetration test scanning of our network and systems (hosted or otherwise) is prohibited without the prior written approval of our IT Security Officer.
6.5 We test our disaster recovery plan on an annual basis. Our standard test is not client-specific.
Should you request a client-specific disaster recovery test, we will work with you to schedule and execute such a test on a mutually agreeable schedule. At your written request, we will provide test results to you within a commercially reasonable timeframe after receipt of the request.
6.6 We will be responsible for importing back-up and verifying that you can log-in. You will be responsible for running reports and testing critical processes to verify the returned Data.
6.7 We provide secure Data transmission paths between each of your workstations and our servers.
6.8 Tyler data centers are accessible only by authorized personnel with a unique key entry. All other visitors to Tyler data centers must be signed in and accompanied by authorized personnel.
Entry attempts to the data center are regularly audited by internal staff and external auditors to ensure no unauthorized access.
6.9 Where applicable with respect to our applications that take or process card payment data, we are responsible for the security of cardholder data that we possess, including functions relating to storing, processing, and transmitting of the cardholder data and affirm that, as of the Effective Date, we comply with applicable requirements to be considered PCI DSS compliant and have performed the necessary steps to validate compliance with the PCI DSS. We agree to
5 supply the current status of our PCI DSS compliance program in the form of an official Attestation of Compliance, which can be found at https://www.tylertech.com/about- us/compliance, and in the event of any change in our status, will comply with applicable notice requirements.
SECTION C – PROFESSIONAL SERVICES
1. Professional Services. We will provide you the various implementation-related services itemized in the Investment Summary.
2. Professional Services Fees. You agree to pay us the professional services fees in the amounts set forth in the Investment Summary. Those amounts are payable in accordance with our Invoicing and Payment Policy. You acknowledge that the fees stated in the Investment Summary are good-faith estimates of the amount of time and materials required for your implementation. We will bill you the actual fees incurred based on the in-scope services provided to you. Any discrepancies in the total values set forth in the Investment Summary will be resolved by multiplying the applicable hourly rate by the quoted hours.
3. Additional Services. The Investment Summary contains the scope of services and related costs (including programming and/or interface estimates) required for the project based on our understanding of the specifications you supplied. If additional work is required, or if you use or request additional services, we will provide you with an addendum or change order, as applicable, outlining the costs for the additional work. The price quotes in the addendum or change order will be valid for thirty (30) days from the date of the quote.
4. Cancellation. If travel is required, we will make all reasonable efforts to schedule travel for our personnel, including arranging travel reservations, at least two (2) weeks in advance of commitments. Therefore, if you cancel services less than two (2) weeks in advance (other than for Force Majeure or breach by us), you will be liable for all (a) non-refundable expenses incurred by us on your behalf, and (b) daily fees associated with cancelled professional services if we are unable to reassign our personnel. We will make all reasonable efforts to reassign personnel in the event you cancel within two (2) weeks of scheduled commitments.
5. Services Warranty. We will perform the services in a professional, workmanlike manner, consistent with industry standards. In the event we provide services that do not conform to this warranty, we will re-perform such services at no additional cost to you.
6. Site Access and Requirements. At no cost to us, you agree to provide us with full and free access to your personnel, facilities, and equipment as may be reasonably necessary for us to provide implementation services, subject to any reasonable security protocols or other written policies provided to us as of the Effective Date, and thereafter as mutually agreed to by you and us.
7. Background Checks. For at least the past twelve (12) years, all of our employees have undergone criminal background checks prior to hire. All employees sign our confidentiality agreement and security policies.
8. Client Assistance. You acknowledge that the implementation of the Tyler Software is a cooperative process requiring the time and resources of your personnel. You agree to use all reasonable efforts
6 to cooperate with and assist us as may be reasonably required to meet the agreed upon project deadlines and other milestones for implementation. This cooperation includes at least working with us to schedule the implementation-related services outlined in this Agreement. We will not be liable for failure to meet any deadlines and milestones when such failure is due to Force Majeure or to the failure by your personnel to provide such cooperation and assistance (either through action or omission).
9. Maintenance and Support. For so long as you timely pay your SaaS Fees according to the Invoicing and Payment Policy, then in addition to the terms set forth in the SLA and the Support Call Process, we will:
9.1 perform our maintenance and support obligations in a professional, good, and workmanlike manner, consistent with industry standards, to resolve Defects in the Tyler Software (subject to any applicable release life cycle policy);
9.2 provide support during our established support hours;
9.3 provide Tyler Systems Management (TSM) services during our established TSM support hours (currently 8 AM to 8 PM Eastern Time, Monday through Friday). For critical outage issues, a third-party answering service will gather details from you and page our on-call resource.
9.4 maintain personnel that are sufficiently trained to be familiar with the Tyler Software and Third Party Software, if any, in order to provide maintenance and support services;
9.5 make available to you all releases to the Tyler Software (including updates and enhancements) that we make generally available without additional charge to customers who have a maintenance and support agreement in effect; and
9.6 provide non-Defect resolution support of prior releases of the Tyler Software in accordance with any applicable release life cycle policy.
We will use all reasonable efforts to perform support services remotely. Currently, we use a third-party secure unattended connectivity tool called Bomgar, as well as GotoAssist by Citrix. Therefore, you agree to maintain a high-speed internet connection capable of connecting us to your PCs and server(s). You agree to provide us with a login account and local administrative privileges as we may reasonably require to perform remote services. We will, at our option, use the secure connection to assist with proper diagnosis and resolution, subject to any reasonably applicable security protocols. If we cannot resolve a support issue remotely, we may be required to provide onsite services. In such event, we will be responsible for our travel expenses, unless it is determined that the reason onsite support was required was a reason outside our control. Either way, you agree to provide us with full and free access to the Tyler Software, working space, adequate facilities within a reasonable distance from the equipment, and use of machines, attachments, features, or other equipment reasonably necessary for us to provide the maintenance and support services, all at no charge to us. We strongly recommend that you also maintain your VPN for backup connectivity purposes.
For the avoidance of doubt, SaaS Fees do not include the following services: (a) onsite support (unless Tyler cannot remotely correct a Defect in the Tyler Software, as set forth above); (b) application design; (c) other consulting services; or (d) support outside our normal business hours as listed in our then-
7 current Support Call Process. Requested services such as those outlined in this section will be billed to you on a time and materials basis at our then current rates. You must request those services with at least one (1) weeks’ advance notice.
SECTION D – THIRD PARTY PRODUCTS
1. Third Party Hardware. We will sell, deliver, and install onsite the Third Party Hardware, if you have purchased any, for the price set forth in the Investment Summary. Those amounts are payable in accordance with our Invoicing and Payment Policy.
2. Third Party Software. As part of the SaaS Services, you will receive access to the Third Party Software and related documentation for internal business purposes only. Your rights to the Third Party Software will be governed by the Third Party Terms.
3. Third Party Products Warranties.
3.1 We are authorized by each Developer to grant access to the Third Party Software.
3.2 The Third Party Hardware will be new and unused, and upon payment in full, you will receive free and clear title to the Third Party Hardware.
3.3 You acknowledge that we are not the manufacturer of the Third Party Products. We do not warrant or guarantee the performance of the Third Party Products. However, we grant and pass through to you any warranty that we may receive from the Developer or supplier of the Third Party Products.
4. Third Party Services. If you have purchased Third Party Services, those services will be provided independent of Tyler by such third-party at the rates set forth in the Investment Summary and in accordance with our Invoicing and Payment Policy.
SECTION E - INVOICING AND PAYMENT; INVOICE DISPUTES
1. Invoicing and Payment. We will invoice you the SaaS Fees and fees for other professional services in the Investment Summary per our Invoicing and Payment Policy, subject to Section E(2).
2. Invoice Disputes. If you believe any delivered software or service does not conform to the warranties in this Agreement, you will provide us with written notice within thirty (30) days of your receipt of the applicable invoice. The written notice must contain reasonable detail of the issues you contend are in dispute so that we can confirm the issue and respond to your notice with either a justification of the invoice, an adjustment to the invoice, or a proposal addressing the issues presented in your notice. We will work with you as may be necessary to develop an action plan that outlines reasonable steps to be taken by each of us to resolve any issues presented in your notice.
You may withhold payment of the amount(s) actually in dispute, and only those amounts, until we complete the action items outlined in the plan. If we are unable to complete the action items outlined in the action plan because of your failure to complete the items agreed to be done by you, then you will remit full payment of the invoice. We reserve the right to suspend delivery of all SaaS Services, including maintenance and support services, if you fail to pay an invoice not disputed as described above within fifteen (15) days of notice of our intent to do so.
8 SECTION F – TERM AND TERMINATION
1. Term. The initial term of this Agreement is equal to the number of years indicated for SaaS Services in Exhibit A, commencing on the first day of the first month following the Effective Date, unless earlier terminated as set forth below. If no duration is indicated in Exhibit A, the initial term is one (1) year. Upon expiration of the initial term, this Agreement will renew automatically for additional one (1) year renewal terms at our then-current SaaS Fees unless terminated in writing by either party at least sixty (60) days prior to the end of the then-current renewal term. Your right to access or use the Tyler Software and the SaaS Services will terminate at the end of this Agreement.
2. Termination. This Agreement may be terminated as set forth below. In the event of termination, you will pay us for all undisputed fees and expenses related to the software, products, and/or services you have received, or we have incurred or delivered, prior to the effective date of termination. Disputed fees and expenses in all terminations other than your termination for cause must have been submitted as invoice disputes in accordance with Section E(2).
2.1 Failure to Pay SaaS Fees. You acknowledge that continued access to the SaaS Services is contingent upon your timely payment of SaaS Fees. If you fail to timely pay the SaaS Fees, we may discontinue the SaaS Services and deny your access to the Tyler Software. We may also terminate this Agreement if you don’t cure such failure to pay within forty-five (45) days of receiving written notice of our intent to terminate.
2.2 For Cause. If you believe we have materially breached this Agreement, you will invoke the Dispute Resolution clause set forth in Section H(3). You may terminate this Agreement for cause in the event we do not cure, or create a mutually agreeable action plan to address, a material breach of this Agreement within the thirty (30) day window set forth in Section H(3).
2.3 Force Majeure. Either party has the right to terminate this Agreement if a Force Majeure event suspends performance of the SaaS Services for a period of forty-five (45) days or more.
2.4 Lack of Appropriations. If you should not appropriate or otherwise make available funds sufficient to utilize the SaaS Services, you may unilaterally terminate this Agreement upon thirty (30) days written notice to us. You will not be entitled to a refund or offset of previously paid, but unused SaaS Fees. You agree not to use termination for lack of appropriations as a substitute for termination for convenience.
SECTION G – INDEMNIFICATION, LIMITATION OF LIABILITY AND INSURANCE
1. Intellectual Property Infringement Indemnification.
1.1 We will defend you against any third party claim(s) that the Tyler Software or Documentation infringes that third party’s patent, copyright, or trademark, or misappropriates its trade secrets, and will pay the amount of any resulting adverse final judgment (or settlement to which we consent). You must notify us promptly in writing of the claim and give us sole control over its defense or settlement. You agree to provide us with reasonable assistance, cooperation, and information in defending the claim at our expense.
9 1.2 Our obligations under this Section G(1) will not apply to the extent the claim or adverse final judgment is based on your use of the Tyler Software in contradiction of this Agreement, including with non-licensed third parties, or your willful infringement.
1.3 If we receive information concerning an infringement or misappropriation claim related to the Tyler Software, we may, at our expense and without obligation to do so, either: (a) procure for you the right to continue its use; (b) modify it to make it non-infringing; or (c) replace it with a functional equivalent, in which case you will stop running the allegedly infringing Tyler Software immediately. Alternatively, we may decide to litigate the claim to judgment, in which case you may continue to use the Tyler Software consistent with the terms of this Agreement.
1.4 If an infringement or misappropriation claim is fully litigated and your use of the Tyler Software is enjoined by a court of competent jurisdiction, in addition to paying any adverse final judgment (or settlement to which we consent), we will, at our option, either: (a) procure the right to continue its use; (b) modify it to make it non-infringing; or (c) replace it with a functional equivalent. This section provides your exclusive remedy for third party copyright, patent, or trademark infringement and trade secret misappropriation claims.
2. General Indemnification.
2.1 We will indemnify and hold harmless you and your agents, officials, and employees from and against any and all third-party claims, losses, liabilities, damages, costs, and expenses (including reasonable attorney's fees and costs) for (a) personal injury or property damage to the extent caused by our negligence or willful misconduct; or (b) our violation of PCI-DSS requirements or a law applicable to our performance under this Agreement. You must notify us promptly in writing of the claim and give us sole control over its defense or settlement. You agree to provide us with reasonable assistance, cooperation, and information in defending the claim at our expense.
2.2 To the extent permitted by applicable law, you will indemnify and hold harmless us and our agents, officials, and employees from and against any and all third-party claims, losses, liabilities, damages, costs, and expenses (including reasonable attorney's fees and costs) for personal injury or property damage to the extent caused by your negligence or willful misconduct; or (b) your violation of a law applicable to your performance under this Agreement.
We will notify you promptly in writing of the claim and will give you sole control over its defense or settlement. We agree to provide you with reasonable assistance, cooperation, and information in defending the claim at your expense.
3. DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS AGREEMENT AND TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE HEREBY DISCLAIM ALL OTHER
WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT
NOT LIMITED TO, ANY IMPLIED WARRANTIES, DUTIES, OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CLIENT UNDERSTANDS AND AGREES THAT TYLER DISCLAIMS ANY LIABILITY FOR ERRORS THAT RELATE TO USER ERROR.
4. LIMITATION OF LIABILITY. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT,
OUR LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT, WHETHER BASED ON A THEORY
OF CONTRACT OR TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, SHALL BE LIMITED TO
10 YOUR ACTUAL DIRECT DAMAGES, NOT TO EXCEED (A) DURING THE INITIAL TERM, AS SET FORTH IN SECTION F(1), TOTAL FEES PAID AS OF THE TIME OF THE CLAIM; OR (B) DURING ANY RENEWAL TERM, THE THEN-CURRENT ANNUAL SAAS FEES PAYABLE IN THAT RENEWAL TERM. THE PARTIES
ACKNOWLEDGE AND AGREE THAT THE PRICES SET FORTH IN THIS AGREEMENT ARE SET IN
RELIANCE UPON THIS LIMITATION OF LIABILITY AND TO THE MAXIMUM EXTENT ALLOWED UNDER
APPLICABLE LAW, THE EXCLUSION OF CERTAIN DAMAGES, AND EACH SHALL APPLY REGARDLESS OF THE FAILURE OF AN ESSENTIAL PURPOSE OF ANY REMEDY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO CLAIMS THAT ARE SUBJECT TO SECTIONS G(1) AND G(2).
5. EXCLUSION OF CERTAIN DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
IN NO EVENT SHALL WE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR
CONSEQUENTIAL DAMAGES WHATSOEVER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Insurance. During the course of performing services under this Agreement, we agree to maintain the following levels of insurance: (a) Commercial General Liability of at least $1,000,000; (b) Automobile Liability of at least $1,000,000; (c) Professional Liability of at least $1,000,000; (d) Workers Compensation complying with applicable statutory requirements; and (e) Excess/Umbrella Liability of at least $5,000,000. We will add you as an additional insured to our Commercial General Liability and Automobile Liability policies, which will automatically add you as an additional insured to our Excess/Umbrella Liability policy as well. We will provide you with copies of certificates of insurance upon your written request.
SECTION H – GENERAL TERMS AND CONDITIONS
1. Additional Products and Services. You may purchase additional products and services at the rates set forth in the Investment Summary for twelve (12) months from the Effective Date by executing a mutually agreed addendum. If no rate is provided in the Investment Summary, or those twelve (12) months have expired, you may purchase additional products and services at our then-current list price, also by executing a mutually agreed addendum. The terms of this Agreement will control any such additional purchase(s), unless otherwise specifically provided in the addendum.
2. Optional Items. Pricing for any listed optional products and services in the Investment Summary will be valid for twelve (12) months from the Effective Date.
3. Dispute Resolution. You agree to provide us with written notice within thirty (30) days of becoming aware of a dispute. You agree to cooperate with us in trying to reasonably resolve all disputes, including, if requested by either party, appointing a senior representative to meet and engage in good faith negotiations with our appointed senior representative. Senior representatives will convene within thirty (30) days of the written dispute notice, unless otherwise agreed. All meetings and discussions between senior representatives will be deemed confidential settlement discussions not subject to disclosure under Federal Rule of Evidence 408 or any similar applicable state rule. If we fail to resolve the dispute, then the parties shall participate in non-binding mediation in an effort to resolve the dispute. If the dispute remains unresolved after mediation, then either of us may assert our respective rights and remedies in a court of competent jurisdiction. Nothing in this section shall prevent you or us from seeking necessary injunctive relief during the dispute resolution procedures.
11 4. Taxes. The fees in the Investment Summary do not include any taxes, including, without limitation, sales, use, or excise tax. If you are a tax-exempt entity, you agree to provide us with a tax-exempt certificate. Otherwise, we will pay all applicable taxes to the proper authorities and you will reimburse us for such taxes. If you have a valid direct-pay permit, you agree to provide us with a copy. For clarity, we are responsible for paying our income taxes, both federal and state, as applicable, arising from our performance of this Agreement.
5. Nondiscrimination. We will not discriminate against any person employed or applying for employment concerning the performance of our responsibilities under this Agreement. This discrimination prohibition will apply to all matters of initial employment, tenure, and terms of employment, or otherwise with respect to any matter directly or indirectly relating to employment concerning race, color, religion, national origin, age, sex, sexual orientation, ancestry, disability that is unrelated to the individual's ability to perform the duties of a particular job or position, height, weight, marital status, or political affiliation. We will post, where appropriate, all notices related to nondiscrimination as may be required by applicable law.
6. E-Verify. We have complied, and will comply, with the E-Verify procedures administered by the U.S.
Citizenship and Immigration Services Verification Division for all of our employees assigned to your project.
7. Subcontractors. We will not subcontract any services under this Agreement without your prior written consent, not to be unreasonably withheld.
8. Binding Effect; No Assignment. This Agreement shall be binding on, and shall be for the benefit of, either your or our successor(s) or permitted assign(s). Neither party may assign this Agreement without the prior written consent of the other party; provided, however, your consent is not required for an assignment by us as a result of a corporate reorganization, merger, acquisition, or purchase of substantially all of our assets.
9. Force Majeure. Except for your payment obligations, neither party will be liable for delays in performing its obligations under this Agreement to the extent that the delay is caused by Force Majeure; provided, however, that within ten (10) business days of the Force Majeure event, the party whose performance is delayed provides the other party with written notice explaining the cause and extent thereof, as well as a request for a reasonable time extension equal to the estimated duration of the Force Majeure event.
10. No Intended Third Party Beneficiaries. This Agreement is entered into solely for the benefit of you and us. No third party will be deemed a beneficiary of this Agreement, and no third party will have the right to make any claim or assert any right under this Agreement. This provision does not affect the rights of third parties under any Third Party Terms.
11. Entire Agreement; Amendment. This Agreement represents the entire agreement between you and us with respect to the subject matter hereof, and supersedes any prior agreements, understandings, and representations, whether written, oral, expressed, implied, or statutory. Purchase orders submitted by you, if any, are for your internal administrative purposes only, and the terms and conditions contained in those purchase orders will have no force or effect. This Agreement may only be modified by a written amendment signed by an authorized representative of each party.
12 12. Severability. If any term or provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will be considered valid and enforceable to the fullest extent permitted by law.
13. No Waiver. In the event that the terms and conditions of this Agreement are not strictly enforced by either party, such non-enforcement will not act as or be deemed to act as a waiver or modification of this Agreement, nor will such non-enforcement prevent such party from enforcing each and every term of this Agreement thereafter.
14. Independent Contractor. We are an independent contractor for all purposes under this Agreement.
15. Notices. All notices or communications required or permitted as a part of this Agreement, such as notice of an alleged material breach for a termination for cause or a dispute that must be submitted to dispute resolution, must be in writing and will be deemed delivered upon the earlier of the following: (a) actual receipt by the receiving party; (b) upon receipt by sender of a certified mail, return receipt signed by an employee or agent of the receiving party; (c) upon receipt by sender of proof of email delivery; or (d) if not actually received, five (5) days after deposit with the United States Postal Service authorized mail center with proper postage (certified mail, return receipt requested) affixed and addressed to the other party at the address set forth on the signature page hereto or such other address as the party may have designated by proper notice. The consequences for the failure to receive a notice due to improper notification by the intended receiving party of a change in address will be borne by the intended receiving party.
16. Client Lists. You agree that we may identify you by name in client lists, marketing presentations, and promotional materials.
17. Confidentiality. Both parties recognize that their respective employees and agents, in the course of performance of this Agreement, may be exposed to confidential information and that disclosure of such information could violate rights to private individuals and entities, including the parties.
Confidential information is nonpublic information that a reasonable person would believe to be confidential and includes, without limitation, personal identifying information (e.g., social security numbers) and trade secrets, each as defined by applicable state law. Each party agrees that it will not disclose any confidential information of the other party and further agrees to take all reasonable and appropriate action to prevent such disclosure by its employees or agents. The confidentiality covenants contained herein will survive the termination or cancellation of this Agreement. This obligation of confidentiality will not apply to information that:
(a) is in the public domain, either at the time of disclosure or afterwards, except by breach of this Agreement by a party or its employees or agents;
(b) a party can establish by reasonable proof was in that party's possession at the time of initial disclosure;
(c) a party receives from a third party who has a right to disclose it to the receiving party; or (d) is the subject of a legitimate disclosure request under the open records laws or similar applicable public disclosure laws governing this Agreement; provided, however, that in the event you receive an open records or other similar applicable request, you will give us prompt notice and otherwise perform the functions required by applicable law.
18. Quarantining of Client Data. Some services provided by Tyler require us to be in possession of your Data. In the event we detect malware or other conditions associated with your Data that are
13 reasonably suspected of putting Tyler resources or other Tyler clients’ data at risk, we reserve the absolute right to move your Data from its location within a multi-tenancy Tyler hosted environment to an isolated “quarantined” environment without advance notice. Your Data will remain in such quarantine for a period of at least six (6) months during which time we will review the Data, and all traffic associated with the Data, for signs of malware or other similar issues. If no issues are detected through such reviews during the six (6) month period of quarantine, we will coordinate with you the restoration of your Data to a non-quarantined environment. In the event your Data must remain in quarantine beyond this six (6) month period through no fault of Tyler’s, we reserve the right to require payment of additional fees for the extended duration of quarantine. We will provide an estimate of what those costs will be upon your request.
19. Business License. In the event a local business license is required for us to perform services hereunder, you will promptly notify us and provide us with the necessary paperwork and/or contact information so that we may timely obtain such license.
20. Governing Law. This Agreement will be governed by and construed in accordance with the laws of your state of domicile, without regard to its rules on conflicts of law.
21. Multiple Originals and Authorized Signatures. This Agreement may be executed in multiple originals, any of which will be independently treated as an original document. Any electronic, faxed, scanned, photocopied, or similarly reproduced signature on this Agreement or any amendment hereto will be deemed an original signature and will be fully enforceable as if an original signature.
Each party represents to the other that the signatory set forth below is duly authorized to bind that party to this Agreement.
22. Cooperative Procurement. To the maximum extent permitted by applicable law, we agree that this Agreement may be used as a cooperative procurement vehicle by eligible jurisdictions. We reserve the right to negotiate and customize the terms and conditions set forth herein, including but not limited to pricing, to the scope and circumstances of that cooperative procurement.
23. Socrata Solution Terms. Your use of certain Tyler solutions includes Tyler’s Socrata data platform.
Your rights, and the rights of any of your end users, to use Tyler’s Socrata data platform is subject to the Socrata SaaS Services Terms of Service, available at https://www.tylertech.com/terms/socrata- saas-services-terms-of-service. By signing a Tyler Agreement or Order Form, or accessing, installing, or using any of the Tyler solutions listed at the linked terms, you certify that you have reviewed, understand, and agree to said terms.
24. Contract Documents. This Agreement includes the following exhibits:
Exhibit A Investment Summary
Exhibit B Invoicing and Payment Policy
Schedule 1: Business Travel Policy
Exhibit C Service Level Agreement
Schedule 1: Support Call Process
Exhibit D Third Party Terms
Schedule 1: Hyperlinked Terms
Schedule 2: DocOrigin Terms
14 IN WITNESS WHEREOF, a duly authorized representative of each party has executed this Agreement as of the date(s) set forth below.
Tyler Technologies, Inc. City of Upland, California
By: By:
Name: Name:
Title: Title:
Date: Date:
Address for Notices: Address for Notices:
Tyler Technologies, Inc. City of Upland
One Tyler Drive 460 N. Euclid Ave.
Yarmouth, ME 04096 Upland, CA 91786-4732
Attention: Chief Legal Officer Attention: ______________________________
Exhibit A
1 Exhibit A
Investment Summary
The following Investment Summary details the software and services to be delivered by us to you under the Agreement. This Investment Summary is effective as of the Effective Date. Capitalized terms not otherwise defined will have the meaning assigned to such terms in the Agreement.
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Exhibit B
1 Exhibit B
Invoicing and Payment Policy
We will provide you with the software and services set forth in the Investment Summary of the Agreement. Capitalized terms not otherwise defined will have the meaning assigned to such terms in the Agreement.
Invoicing: We will invoice you for the applicable software and services in the Investment Summary as set forth below. Your rights to dispute any invoice are set forth in the Agreement.
1. SaaS Fees. SaaS Fees are invoiced on an annual basis, beginning on the commencement of the initial term as set forth in Section F (1) of this Agreement. Your annual SaaS fees for the initial term are set forth in the Investment Summary. Upon expiration of the initial term, your annual SaaS fees will be at our then-current rates.
2. Other Tyler Software and Services.
2.1 VPN Device: The fee for the VPN device will be invoiced upon installation of the VPN.
2.2 Implementation and Other Professional Services (including training): Implementation and other professional services (including training) are billed and invoiced as delivered, at the rates set forth in the Investment Summary.
2.3 Consulting Services: If you have purchased any Business Process Consulting services, if they have been quoted as fixed-fee services, they will be invoiced 50% upon your acceptance of the Best Practice Recommendations, by module, and 50% upon your acceptance of custom desktop procedures, by module. If you have purchased any Business Process Consulting services and they are quoted as an estimate, then we will bill you the actual services delivered on a time and materials basis.
2.4 Conversions: Fixed-fee conversions are invoiced 50% upon initial delivery of the converted Data, by conversion option, and 50% upon Client acceptance to load the converted Data into Live/Production environment, by conversion option. Where conversions are quoted as estimated, we will bill you the actual services delivered on a time and materials basis.
2.5 Requested Modifications to the Tyler Software: Requested modifications to the Tyler Software are invoiced 50% upon delivery of specifications and 50% upon delivery of the applicable modification. You must report any failure of the modification to conform to the specifications within thirty (30) days of delivery; otherwise, the modification will be deemed to be in compliance with the specifications after the 30-day window has passed. You may still report Defects to us as set forth in this Agreement.
Exhibit B
2 2.6 Other Fixed Price Services: Other fixed price services are invoiced as delivered, at the rates set forth in the Investment Summary. For the avoidance of doubt, where “Project Planning Services” are provided, payment will be due upon delivery of the Implementation Planning document.
2.7 Annual Services: Unless otherwise indicated in this Exhibit B, fees for annual services are due annually, in advance, commencing on the availability of the service. Your annual fees for the initial term are set forth in the Investment Summary. Upon expiration of the initial term, your annual fees will be at our then-current rates.
3. Third Party Products.
3.1 Third Party Software License Fees: License fees for Third Party Software, if any, are invoiced when we make it available to you for downloading.
3.2 Third Party Software Maintenance: The first year maintenance for the Third Party Software is invoiced when we make it available to you for downloading.
3.3 Third Party Hardware: Third Party Hardware costs, if any, are invoiced upon delivery.
3.4 Third Party Services: Fees for Third Party Services, if any, are invoiced as delivered, along with applicable expenses, at the rates set forth in the Investment Summary.
3.5 Third Party SaaS: Third Party SaaS Services fees, if any, are invoiced annually, in advance, commencing with availability of the respective Third Party SaaS Services. Pricing for the first year of Third Party SaaS Services is indicated in the Investment Summary. Pricing for subsequent years will be at the respective third party’s then-current rates.
4. Transaction Fees. Unless paid directly by an end user at the time of transaction, per transaction (call, message, etc.) fees are invoiced on a quarterly basis. Fees are indicated in Schedule A and may be increased by Tyler upon notice of no less than thirty (30) days.
5. Expenses. The service rates in the Investment Summary do not include travel expenses.
Expenses for Tyler delivered services will be billed as incurred and only in accordance with our then-current Business Travel Policy, plus a 10% travel agency processing fee. Our current Business Travel Policy is attached to this Exhibit B as Schedule 1. Copies of receipts will be provided upon request; we reserve the right to charge you an administrative fee depending on the extent of your requests. Receipts for miscellaneous items less than twenty-five dollars and mileage logs are not available.
6. Credit for Prepaid Maintenance and Support Fees for Tyler Software. Client will receive a credit for the maintenance and support fees prepaid for the Tyler Software for the time period commencing on the first day of the SaaS Term.
Payment. Payment for undisputed invoices is due within forty-five (45) days of the invoice date. We prefer to receive payments electronically. Our electronic payment information is available by contacting [email protected].
Exhibit B
Schedule 1
1 Exhibit B
Schedule 1
Business Travel Policy
1. Air Travel
A. Reservations & Tickets
The Travel Management Company (TMC) used by Tyler will provide an employee with a direct flight within two hours before or after the requested departure time, assuming that flight does not add more than three hours to the employee’s total trip duration and the fare is within $100 (each way) of the lowest logical fare. If a net savings of $200 or more (each way) is possible through a connecting flight that is within two hours before or after the requested departure time and that does not add more than three hours to the employee’s total trip duration, the connecting flight should be accepted.
Employees are encouraged to make advanced reservations to take full advantage of discount opportunities. Employees should use all reasonable efforts to make travel arrangements at least two (2) weeks in advance of commitments. A seven (7) day advance booking requirement is mandatory. When booking less than seven (7) days in advance, management approval will be required.
Except in the case of international travel where a segment of continuous air travel is six (6) or more consecutive hours in length, only economy or coach class seating is reimbursable. Employees shall not be reimbursed for “Basic Economy Fares” because these fares are non-refundable and have many restrictions that outweigh the cost-savings.
B. Baggage Fees
Reimbursement of personal baggage charges are based on trip duration as follows:
• Up to five (5) days = one (1) checked bag
• Six (6) or more days = two (2) checked bags
Baggage fees for sports equipment are not reimbursable.
Exhibit B
Schedule 1
2 2. Ground Transportation
A. Private Automobile
Mileage Allowance – Business use of an employee’s private automobile will be reimbursed at the current IRS allowable rate, plus out of pocket costs for tolls and parking. Mileage will be calculated by using the employee's office as the starting and ending point, in compliance with IRS regulations.
Employees who have been designated a home office should calculate miles from their home.
B. Rental Car
Employees are authorized to rent cars only in conjunction with air travel when cost, convenience, and the specific situation reasonably require their use. When renting a car for Tyler business, employees should select a “mid-size” or “intermediate” car. “Full” size cars may be rented when three or more employees are traveling together. Tyler carries leased vehicle coverage for business car rentals; except for employees traveling to Alaska and internationally (excluding Canada), additional insurance on the rental agreement should be declined.
C. Public Transportation
Taxi or airport limousine services may be considered when traveling in and around cities or to and from airports when less expensive means of transportation are unavailable or impractical. The actual fare plus a reasonable tip (15-18%) are reimbursable. In the case of a free hotel shuttle to the airport, tips are included in the per diem rates and will not be reimbursed separately.
D. Parking & Tolls
When parking at the airport, employees must use longer term parking areas that are measured in days as opposed to hours. Park and fly options located near some airports may also be used. For extended trips that would result in excessive parking charges, public transportation to/from the airport should be considered. Tolls will be reimbursed when receipts are presented.
3. Lodging
Tyler’s TMC will select hotel chains that are well established, reasonable in price, and conveniently located in relation to the traveler's work assignment. Typical hotel chains include Courtyard, Fairfield Inn, Hampton Inn, and Holiday Inn Express. If the employee has a discount rate with a local hotel, the hotel reservation should note that discount and the employee should confirm the lower rate with the hotel upon arrival. Employee memberships in travel clubs such as AAA should be noted in their travel profiles so that the employee can take advantage of any lower club rates.
“No shows” or cancellation fees are not reimbursable if the employee does not comply with the hotel’s cancellation policy.
Tips for maids and other hotel staff are included in the per diem rate and are not reimbursed separately.
Exhibit B
Schedule 1
3 Employees are not authorized to reserve non-traditional short-term lodging, such as Airbnb, VRBO, and HomeAway. Employees who elect to make such reservations shall not be reimbursed.
4. Meals and Incidental Expenses
Employee meals and incidental expenses while on travel status within the continental U.S. are in accordance with the federal per diem rates published by the General Services Administration.
Incidental expenses include tips to maids, hotel staff, and shuttle drivers and other minor travel expenses. Per diem rates are available at www.gsa.gov/perdiem .
Per diem for Alaska, Hawaii, U.S. protectorates and international destinations are provided separately by the Department of State and will be determined as required.
A. Overnight Travel
For each full day of travel, all three meals are reimbursable. Per diems on the first and last day of a trip are governed as set forth below.
Departure Day
Depart before 12:00 noon Lunch and dinner
Depart after 12:00 noon
Return Day
Dinner
Return before 12:00 noon Breakfast
Return between 12:00 noon & 7:00 p.m. Breakfast and lunch Return after 7:00 p.m.* Breakfast, lunch and dinner
*7:00 p.m. is defined as direct travel time and does not include time taken to stop for dinner.
The reimbursement rates for individual meals are calculated as a percentage of the full day per diem as follows:
Breakfast 15%
Lunch 25%
Dinner 60%
B. Same Day Travel
Employees traveling at least 100 miles to a site and returning in the same day are eligible to claim lunch on an expense report. Employees on same day travel status are eligible to claim dinner in the event they return home after 7:00 p.m.*
*7:00 p.m. is defined as direct travel time and does not include time taken to stop for dinner.
Exhibit B
Schedule 1
4 5. Internet Access – Hotels and Airports
Employees who travel may need to access their e-mail at night. Many hotels provide free high speed internet access and Tyler employees are encouraged to use such hotels whenever possible. If an employee’s hotel charges for internet access it is reimbursable up to $10.00 per day. Charges for internet access at airports are not reimbursable.
6. International Travel
All international flights with the exception of flights between the U.S. and Canada should be reserved through TMC using the “lowest practical coach fare” with the exception of flights that are six (6) or more consecutive hours in length. In such event, the next available seating class above coach shall be reimbursed.
When required to travel internationally for business, employees shall be reimbursed for photo fees, application fees, and execution fees when obtaining a new passport book, but fees related to passport renewals are not reimbursable. Visa application and legal fees, entry taxes and departure taxes are reimbursable.
The cost of vaccinations that are either required for travel to specific countries or suggested by the U.S. Department of Health & Human Services for travel to specific countries, is reimbursable.
Section 4, Meals & Incidental Expenses, and Section 2.b., Rental Car, shall apply to this section.
Exhibit C
1 Exhibit C
Service Level Agreement
I. Agreement Overview
This SLA operates in conjunction with, and does not supersede or replace any part of, the Agreement. It outlines the information technology service levels that we will provide to you to ensure the availability of the application services that you have requested us to provide. This SLA does not apply to any Third Party SaaS Services. All other support services are documented in the Support Call Process.
II. Definitions. Except as defined below, all defined terms have the meaning set forth in the Agreement.
Actual Attainment: The percentage of time the Tyler Software is available during a calendar quarter, calculated as follows: (Service Availability – Downtime) ÷ Service Availability.
Client Error Incident: Any service unavailability resulting from your applications, content or equipment, or the acts or omissions of any of your service users or third-party providers over whom we exercise no control.
Downtime: Those minutes during Service Availability, as defined below, when all users cannot launch, login, search or save primary data in the Tyler Software. Downtime does not include those instances in which only a Defect is present.
Emergency Maintenance: (1) maintenance that is required to patch a critical security vulnerability; (2) maintenance that is required to prevent an imminent outage of Service Availability; or (3) maintenance that is mutually agreed upon in writing by Tyler and the Client.
Planned Downtime: Downtime that occurs during a Standard or Emergency Maintenance window.
Service Availability: The total number of minutes in a calendar quarter that the Tyler Software is capable of receiving, processing, and responding to requests, excluding Planned Downtime, Client Error Incidents, denial of service attacks and Force Majeure.
Standard Maintenance: Routine maintenance to the Tyler Software and infrastructure. Standard Maintenance is limited to five (5) hours per week.
III. Service Availability
a. Your Responsibilities
Whenever you experience Downtime, you must make a support call according to the procedures outlined in the Support Call Process. You will receive a support case number. b. Our Responsibilities
When our support team receives a call from you that Downtime has occurred or is occurring, we will work with you to identify the cause of the Downtime (including whether it may be the result of Planned
Exhibit C
2 Downtime, a Client Error Incident, Denial of Service attack or Force Majeure). We will also work with you to resume normal operations.
c. Client Relief
Our targeted Attainment Goal is 100%. You may be entitled to credits as indicated in the Client Relief Schedule found below. Your relief credit is calculated as a percentage of the SaaS fees paid for the calendar quarter.
In order to receive relief credits, you must submit a request through one of the channels listed in our Support Call Process within fifteen days (15) of the end of the applicable quarter. We will respond to your relief request within thirty (30) day(s) of receipt.
The total credits confirmed by us will be applied to the SaaS Fee for the next billing cycle. Issuing of such credit does not relieve us of our obligations under the Agreement to correct the problem which created the service interruption.
Client Relief Schedule
Actual Attainment Client Relief
99.99% - 98.00% Remedial action will be taken
97.99% - 95.00% 4%
Below 95.00% 5%
IV. Maintenance Notifications
We perform Standard Maintenance during limited windows that are historically known to be reliably low-traffic times. If and when maintenance is predicted to occur during periods of higher traffic, we will provide advance notice of those windows and will coordinate to the greatest extent possible with you.
Not all maintenance activities will cause application unavailability. However, if Tyler anticipates that activities during a Standard or Emergency Maintenance window may make the Tyler Software unavailable, we will provide advance notice, as reasonably practicable that the Tyler Software will be unavailable during the maintenance window.
Exhibit C
Schedule 1
1 Exhibit C
Schedule 1
Support Call Process
Support Channels
Tyler Technologies, Inc. provides the following channels of software support for authorized users*:
(1) On-line submission (portal) – for less urgent and functionality-based questions, users may create support incidents through the Tyler Customer Portal available at the Tyler Technologies website.
A built-in Answer Panel provides users with resolutions to most “how-to” and configuration- based questions through a simplified search interface with machine learning, potentially eliminating the need to submit the support case.
(2) Email – for less urgent situations, users may submit emails directly to the software support group.
(3) Telephone – for urgent or complex questions, users receive toll-free, telephone software support.
* Channel availability may be limited for certain applications.
Support Resources
A number of additional resources are available to provide a comprehensive and complete support experience:
(1) Tyler Website – www.tylertech.com – for accessing client tools, documentation, and other information including support contact information.
(2) Tyler Search -a knowledge based search engine that lets you search multiple sources simultaneously to find the answers you need, 24x7.
(3) Tyler Community –provides a venue for all Tyler clients with current maintenance agreements to collaborate with one another, share best practices and resources, and access documentation. (4) Tyler University – online training courses on Tyler products.
Support Availability
Tyler Technologies support is available during the local business hours of 8 AM to 5 PM (Monday – Friday) across four US time zones (Pacific, Mountain, Central and Eastern). Tyler’s holiday schedule is outlined below. There will be no support coverage on these days.
New Year’s Day Labor Day
Martin Luther King, Jr. Day Thanksgiving Day
Memorial Day Day after Thanksgiving
Independence Day Christmas Day
For support teams that provide after-hours service, we will provide you with procedures for contacting support staff after normal business hours for reporting Priority Level 1 Defects only. Upon receipt of
Exhibit C
Schedule 1
2 such a Defect notification, we will use commercially reasonable efforts to meet the resolution targets set forth below.
We will also make commercially reasonable efforts to be available for one pre-scheduled Saturday of each month to assist your IT staff with applying patches and release upgrades, as well as consulting with them on server maintenance and configuration of the Tyler Software environment.
Incident Handling
Incident Tracking
Every support incident is logged into Tyler’s Customer Relationship Management System and given a unique case number. This system tracks the history of each incident. The case number is used to track and reference open issues when clients contact support. Clients may track incidents, using the case number, through Tyler’s Customer Portal or by calling software support directly.
Incident Priority
Each incident is assigned a priority level, which corresponds to the Client’s needs. Tyler and the Client will reasonably set the priority of the incident per the chart below. This chart is not intended to address every type of support incident, and certain “characteristics” may or may not apply depending on whether the Tyler software has been deployed on customer infrastructure or the Tyler cloud. The goal is to help guide the Client towards clearly understanding and communicating the importance of the issue and to describe generally expected response and resolution targets in the production environment only.
References to a “confirmed support incident” mean that Tyler and the Client have successfully validated the reported Defect/support incident.
Priority
Level Characteristics of Support Incident Resolution Targets* 1 Critical
Support incident that causes (a)
complete application failure or
application unavailability; (b)
application failure or unavailability in
one or more of the client’s remote
location; or (c) systemic loss of
multiple essential system functions.
Tyler shall provide an initial response to Priority Level 1 incidents within one (1) business hour of receipt of
the incident. Once the incident has been confirmed,
Tyler shall use commercially reasonable efforts to
resolve such support incidents or provide a
circumvention procedure within one (1) business
day. For non-hosted customers, Tyler’s responsibility
for lost or corrupted data is limited to assisting the
Client in restoring its last available database.
Exhibit C
Schedule 1
3 Priority
Level Characteristics of Support Incident Resolution Targets* 2 High
Support incident that causes (a)
repeated, consistent failure of
essential functionality affecting more
than one user or (b) loss or corruption
of data.
Tyler shall provide an initial response to Priority Level 2 incidents within four (4) business hours of receipt of the incident. Once the incident has been confirmed,
Tyler shall use commercially reasonable efforts to
resolve such support incidents or provide a
circumvention procedure within ten (10) business
days. For non-hosted customers, Tyler’s
responsibility for loss or corrupted data is limited to assisting the Client in restoring its last available
database.
3 Medium
Priority Level 1 incident with an
existing circumvention procedure, or
a Priority Level 2 incident that affects
only one user or for which there is an
existing circumvention procedure.
Tyler shall provide an initial response to Priority Level 3 incidents within one (1) business day of receipt of
the incident. Once the incident has been confirmed,
Tyler shall use commercially reasonable efforts to
resolve such support incidents without the need for a
circumvention procedure with the next published
maintenance update or service pack, which shall
occur at least quarterly. For non-hosted customers,
Tyler’s responsibility for lost or corrupted data is
limited to assisting the Client in restoring its last
available database.
4 Non-
critical
Support incident that causes failure of
non-essential functionality or a
cosmetic or other issue that does not
qualify as any other Priority Level.
Tyler shall provide an initial response to Priority Level 4 incidents within two (2) business days of receipt of
the incident. Once the incident has been confirmed,
Tyler shall use commercially reasonable efforts to
resolve such support incidents, as well as cosmetic
issues, with a future version release.
*Response and Resolution Targets may differ by product or business need
Incident Escalation
If Tyler is unable to resolve any priority level 1 or 2 defect as listed above or the priority of an issue has elevated since initiation, you may escalate the incident to the appropriate resource, as outlined by each product support team. The corresponding resource will meet with you and any Tyler staff to establish a mutually agreeable plan for addressing the defect.
Remote Support Tool
Some support calls may require further analysis of the Client’s database, processes or setup to diagnose a problem or to assist with a question. Tyler will, at its discretion, use an industry-standard remote support tool. Tyler’s support team must have the ability to quickly connect to the Client’s system and view the site’s setup, diagnose problems, or assist with screen navigation. More information about the remote support tool Tyler uses is available upon request.
Exhibit D
1 Exhibit D
Third Party Terms
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Exhibit D
Schedule 1
1 Exhibit D
Schedule 1
Hyperlinked Terms
Mobile Eyes Terms. Your use of Tyler’s MobileEyes solutions is subject to the terms found here:
https://www.tylertech.com/terms/mobileeyes-third-party-terms . By signing a Tyler Agreement or Order Form, or accessing, installing, or using the MobileEyes solution, you agree that you have read, understood, and agree to such terms.
Pattern Stream Terms. Your use of Pattern Stream software and services is subject to the terms found here: https://www.tylertech.com/terms/finite-matters-ltd-consolidated-terms . By signing a Tyler Agreement or Order Form, or accessing, installing, or using Pattern Stream software or services, you agree that you have read, understood, and agree to such terms.
Quatred Terms. Your use of Quatred solutions is subject to the End User License Agreement terms found here: https://www.quatred.com/eula . By signing a Tyler Agreement or Order Form, or accessing, installing, or using Quatred solutions provided to you by Tyler, you agree that you have read, understood, and agree to such terms.
ThinPrint Terms. Your use of Tyler Forms software and forms is subject to the End User License Agreement terms for ThinPrint Engine, ThinPrint License Server, and Connected Gateway found here: https://www.thinprint.com/en/legal-notes/eula/ . By signing a Tyler Agreement or Order Form, or accessing, installing, or using Tyler Forms software or forms, you agree that you have read, understood, and agree to such terms.
Twilio Acceptable Use Policy. Your use of the Tyler solutions listed below includes functionality provided by a Third Party Developer, Twilio. Your rights, and the rights of any of your end users, to use said functionality are subject to the terms of the Twilio Acceptable Use Policy, available at http://www.twilio.com/legal/aup . By signing a Tyler Agreement or Order Form, or accessing, installing, or using any such Tyler solution, you certify that you have reviewed, understand and agree to said terms. Tyler hereby disclaims any and all liability related to your or your end user’s failure to abide by the terms of the Twilio Acceptable Use Policy. Any liability for failure to abide by said terms shall rest solely with the person or entity whose conduct violated said terms. • Electronic Warrants
• Modria
• Odyssey Notifications Add On (text notifications)
• ReadySub
• Tyler Notify
• Tyler Jury Manager
Exhibit D
Schedule 1
2 • Tyler Supervision
• Virtual Court
Exhibit D
Schedule 2
1 Exhibit D
Schedule 2
DocOrigin Terms
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Exhibit D
Schedule 2
2
Exhibit D
Schedule 2
3
Exhibit D
Schedule 2
4
Exhibit D
Schedule 2
5
Exhibit D
Schedule 2
6
STAFF REPORT
ITEM NO. 10.E.
DATE:June 27, 2022
TO:MAYOR AND CITY COUNCIL
FROM: MICHAEL BLAY, CITY MANAGER
PREPARED BY: STEPHEN PARKER, CPA, ASSISTANT CITY MANAGER
LONDA BOCK-HELMS, CPA, FINANCE OFFICER
SUBJECT:PROFESSIONAL SERVICE AGREEMENT WITH HdL COREN & CONE
FOR PROPERTY TAX AUDIT AND INFORMATION SERVICES
RECO MMENDED ACTION
It is recommended that the City Council approve a professional services agreement with HdL Coren & Cone (HdL) to provide the City with property tax management services, secured and unsecured parcel audits, and budget projections ; and authorize the City Manager to execute the agreement.
GOAL STATEMENT
The proposed action supports the City's goal to provide fiscal stewardship for the City of Upland.
BACKGROU ND
In 1990, HdL Coren and Cone was established to provide property and documentary transfer tax services. HdL Software was formed in 1996 to provide software systems for other city revenues and to link to other HdL revenue tracking systems.
The City has contracted with HdL Coren & Cone since 2002 to provide property tax related services, including allocation audits and trend analysis in order to maximize the property tax revenues for the City. From 2002 to 2014 HdL had identified and recovered $138,450 for the City of Upland. The cumulative result of revenue recovered over that period was $1.3 million. During the most recent contract term of 2015 to the present, HdL audits resulted in property value additions of $966,555 which resulted in additional property tax revenue of approximately $850 annually from the date of discovery .
I S S U E S /A N A L Y S I S
Th e curren t con tract am ou n t h as rem ain ed th e s am e si n c e i t's incep tion an d exp i res on J u ne 30 , 20 22 . H istorically, H d L h as p rovid ed out st and in g c u s tom er s ervi ce. Th ey h ave p rovid ed th e C it y w it h val u ab le rep orti n g , an al yti c an d c ons ul tat ion services inclu d ing access to p rop erty t ax d ata via th eir w eb ap p l ic ati on , an al ysi s of val ues an d allocat ion s, tracking of sales and assessm en t ap p eal s and p roject ion of values. S t aff h as recei ved req u est ed in form ation tim ely and th eir b u d g et estim ates h ave b een a valu ab le p art of the b ud g et p rocess.
S taff recom m en d s ap p roval of a n ew seven year ag reem en t w it h H d L C oren & C on e. T h e b ase ann ual fee effective J uly 1, 2 02 2 is $18 ,25 0 with an an nu al increase for C P I (not to exceed 3%) for su b seq u ent years of t h e ag reem ent. A d d i ti onal ly, th e C it y w ill p ay an au d it fee of 25 % of p rop ert y tax revenu e or oth er fu nd s recovered or reall ocat ed wh ic h are d irectly or in d irectly th e result of an aud it, analysis or con su ltation p erform ed b y H d L .
F I S C A L I M P A C T S
Th e b ase an n u al fee of $1 8,2 50 is i nc lu d ed i n t he F Y 2 0 2 2 /2 3 op erat in g b u d g et. A n y fees for recovery of revenu es will b e offset b y th e reven ues collected .
A L T E R N A T I V E S
P rovid e altern ative d irection to staff.
AT TAC HM E NT S :
Description
Professional S ervices Agreement
01089/0001/61175.03
CITY OF UPLAND
AGREEMENT FOR PROPERTY TAX
CONSULTING/AUDIT SERVICES
This AGREEMENT (the “Agreement”) is made and entered into as of the 1st day of July, 2022 by and between the CITY OF UPLAND, a municipal corporation hereinafter called CITY, and HdL Coren & Cone, a California Corporation hereinafter called CONTRACTOR.
RECITALS
WHEREAS, property tax revenues can be verified and potentially increased through a system of continuous monitoring, identification and reconciliation to county records; and WHEREAS, an effective program of property tax management will assist the CITY in fiscal, economic and community development planning; and WHEREAS, CITY desires the property tax data based reports and data analysis required to effectively manage the CITY property tax base and identify and recover revenues misallocated within the CITY, or to other jurisdictions; and
WHEREAS, CONTRACTOR is a state-wide expert in such data analysis with over 240 public agency clients for whom such services are performed and has the programs, equipment, data and personnel required to deliver the property tax services referenced herein; WHEREAS, CITY prefers to pay for certain of such services through a contingency arrangement where payment is made from monies recovered and CONTRACTOR is willing to base its compensation on such a risk-based formula.
NOW, THEREFORE, CITY and CONTRACTOR, for the consideration hereinafter described, mutually agree as follows:
1.0 DEFINITIONS
For purposes of this Agreement, the following terms shall have the meaning stated below:
Audit Review: “Audit” or “Audit Review” shall mean the comparison of databases to ensure that parcels are correctly coded with the appropriate tax rate area to return revenue to the client city. Audits include the secured and unsecured tax rolls and where secured records are corrected; the corresponding unsecured records related to those properties are also corrected. A review of the calculation methodologies developed by auditor/controller offices in the administration of property tax is made to ensure compliance. New annexations are audited the 1st or 2nd year after the area’s adoption due to the timing of LAFCO and the State Board of Equalization in assigning new tax rate areas and county processing of those changes.
County: “County” shall mean the County of San Bernardino.
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Data Base: “Data Base” shall mean a computerized listing of property tax parcels and information compiled for CITY from information provided by the County.
Days: “Days” shall mean calendar days.
Property Tax Roll: “Property Tax Roll” shall mean the assessed values of parcels on the secured and unsecured lien date rolls as reported by the County.
Proprietary Information: “Proprietary Information” shall be the reports, technical information, compilations of data, methodologies, formula, software, programs, technologies and other processes previously designed and developed by CONTRACTOR and used in the performance of the services hereunder.
Successor Agency: “Successor Agency” means the City's administration pursuant to Section 34176 of the Health and Safety Code of the former community redevelopment agency of CITY).
Recovered/Reallocated Revenue: “Recovered or Reallocated Revenue” shall mean additional revenue received as a result of an audit or review of properties submitted for correction or for corrections due erroneous calculations or incorrect methods of distributing revenue discovered by the CONTRACTOR and then made by county agencies which result in a return of additional revenue to the AGENCY. Reviews of AGENCY administered pass throughs are performed to ensure the correctness of distributions being made t o participating agencies.
Scope of Services: “Scope of Services” shall mean all of the Base Services specified in Section 2.0, the Optional Services in Section 3.0, the Additional Services in Section 4.0, or any other services rendered hereunder.
TRA: “Tax Rate Area” shall mean the area subject to the tax rate.
2.0 BASE SERVICES
The CONTRACTOR shall perform all of the following duties as part of the Base Services provided hereunder, unless otherwise specified in writing by the Contract Officer:
2.1 Analysis And Identification Of Misallocation Errors (Contingent Fee)
(a) In the first year of this Agreement, and as necessary thereafter but not less than once every five (5) years, CONTRACTOR shall conduct an analysis to identify and verify in the CITY, those parcels on the secured Property Tax Roll which are not properly attributed to a CITY, and will provide the correct TRA designation to the proper County agency. Typical errors include parcels assigned to incorrect TRAs within the CITY or an adjacent city, and TRAs allocated to wrong taxing agencies.
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(b) CONTRACTOR shall annually reconcile the annual auditor- controller assessed valuations report to the assessor's lien date rolls and identify discrepancies.
(c) CONTRACTOR shall annually review parcels on the unsecured Property Tax Roll to identify inconsistencies such as value variations, values being reported to a mailing address rather than the situs address, and errors involving TRAs (to the extent records are available).
(d) CONTRACTOR may audit general fund or tax increment property tax revenue or other revenues attributable to the CITY departments, districts, (including but not limited to base year value audits; administration of tax sharing agreements; tax increment allocation reviews; county allocation and payments reviews).
2.2 Annual Services (Fixed Fee)
Annually, after the Property Tax Roll is available:
(a) CONTRACTOR shall establish a Data Base for CITY available through CONTRACTOR’S online property tax application
(b) Utilizing the Data Base, CONTRACTOR will provide:
(1) A listing of the major property owners in the CITY, including the assessed value of their property.
(2) A listing of the major property tax payers, including an estimate of the property taxes.
(3) A listing of property tax transfers which occurred since the prior lien date.
(4) A listing of parcels that have not changed ownership since the enactment of Proposition XIIIA.
(5) A comparison of property within the CITY by county-use code designation.
(6) A listing by parcel of new construction activity to identify non-residential parcels with new construction activity and to provide reports for use in the CITY's preparation of Gann (Propositions 4 and 111) State Appropriation Limit calculations.
(7) A listing of multiple owned parcels.
(8) A listing of absentee owner parcels.
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(9) Calculate an estimate of property tax revenue anticipated to be received for the fiscal year by the CITY. This estimate is based upon the initial information provided by the County and is subject to modification. This estimate shall not be used to secure the indebtedness of the CITY. (10) Development of historical trending reports involving taxable assessed values for the CITY, median and average sales prices, foreclosure activity and related economics trends.
(11) Upon written request, analyses based on geographic areas designated by the CITY to include assessed valuations and square footage computations for use in community development planning. (12) One and five-year budget projections for the city general fund and special districts. This report is interactive for tax modeling.
2.3 Successor Agency Services
Successor Agency Services including but not limited to:
(a) Annual tax increment projections and, as requested, cash flow analysis for the Successor Agency by Project Area
(b) Review of Redevelopment Obligation Payment Schedules (ROPS) as requested.
(c) Provide property tax information to the Oversight Board at the direction of the Successor Agency
(d) Provide access to the Oversight Board to City and former redevelopment agency documents at the direction of the Successor Agency (e) Monitor the County distribution of tax-sharing revenues to the taxing entities of the former redevelopment agency
(f) Advice and consultation on the City/Successor Agency’s preparation of required reports, such as revenue projections; review of Recognized Obligation Payment Schedules (ROPS), submittals to the Oversight Board and/or County or State agencies, and new or revised legislative requirements
(g) Analysis of legislative and judicial matters impacting Redevelopment Property Tax Trust Fund (RPTTF) revenues to the Successor Agency and to the City.
2.4 Quarterly Services/Monthly Services (Fixed Fee)
The CONTRACTOR shall perform the following services quarterly:
(a) A listing of property tax appeals filed on properties in the CITY (selected counties).
(b) A listing of property transfers that have occurred since the last report.
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(c) Monthly update of CONTRACTOR’S web-based software
program to include parcel transfer data and, in select counties, appeal updates.
2.5 On-Going Consultation (Fixed Fee)
During the term of this Agreement, CONTRACTOR will serve as the CITY's resource staff on questions relating to property tax and assist in estimating current year property tax revenues.
On-going consultation would include, but not be limited to, inquiries resolved through use of the CITY's data base.
3.0 OPTIONAL SERVICES
The following services are available on a time and materials basis:
3.1 Specified Data
Generation of specialized data-based reports which would require additional programming, the purchase of additional data, costs for County staff research, or similar matters not necessary to carry out services outlined in Section 2.0.
3.2 County Research
Any research with County agencies for which CONTRACTOR does not have a current database.
3.3 Bond Services
Bond services are available for a fixed negotiated fee, including:
(a) Tax Allocation Bonds fiscal consultant reports
(b) Mello-Roos Special Tax studies
3.4 Additional Meetings Requested
Meetings in excess of the annual meeting to review the analysis of property tax data, trending information, and other findings with AGENCY shall be considered an Optional Service.
4.0 ADDITIONAL SERVICES
CITY shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the CONTRACTOR, incorporating therein any material adjustment in the contract and/or the time to perform this Agreement, which said adjustments are subject to the written approval of the City and the
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CONTRACTOR. Any increase in compensation of up to $50,000, or in the time to perform of up to one hundred eighty (180) days may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively must be approved by the City Council. It is expressly understood by Contractor that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein.
5.0 OBLIGATIONS OF THE PARTIES WITH RESPECT TO SERVICES
5.1 City Materials and Support
CITY agrees to provide the following information:
1. Current CITY maps and zoning map;
2. A copy of reports received by the CITY annually from the Auditor- Controller's office detailing assessed values (secured, unsecured and utilities), as well as unitary values for reconciliation analysis;
3. Parcel listing and maps of CITY parcel annexations since the lien date roll;
4. A listing of completed new construction projects with Assessor's map book, page and parcel numbers (APN) for proper identification and tracking for two years prior to the date of this Agreement. If the data does not include the APN information, CONTRACTOR will research this information at an additional cost;
5. A listing of the CITY levies assessment districts and direct assessments.
5.2 Compliance with Law
All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the CITY and any Federal, State or local governmental agency having jurisdiction in effect at the time service is rendered.
5.3 License, Permits, Fees and Assessments
CONTRACTOR shall obtain such licenses, permits and approvals (collectively the “Permits”) as may be required by law for the performance of the serv ices required by this Agreement. CITY shall assist CONTRACTOR in obtaining such Permits, and CITY shall absorb all fees, assessments and taxes which are necessary for any Permits required to be issued by CITY.
5.4 Further Responsibilities of Parties
Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments,
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prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other.
6.0 CONSIDERATION
6.1 Base Fixed Fee Services
CONTRACTOR shall provide the Base Services described in Section 2.0 above, for a fixed annual fee of $18,250.00 (invoiced quarterly).
The Base Fixed Fee shall be adjusted annually by the California Consumer Price Index (CCPI) for all items as determined by the California Department of Industrial Relations as measured February to February by the California All Urban Consumers index equal to the CCPI but no greater than 3%.
6.2 Base Contingent Fee Services
For Base Services pursuant to Section 2.1 which are payable on a contingent basis, CONTRACTOR shall receive 25 percent of net general fund attributable to CITY departments, districts, or funds recovered or reallocated which are directly or indirectly the result of an audit, analysis or consultation performed by CONTRACTOR (including but not limited to base year value audits; administration of tax sharing agreements; tax increment allocation reviews; county allocation reviews). CONTRACTOR shall separate and support said reallocation and provide CITY with an itemized invoice showing all amounts due as a result of revenue recovery or reallocation. CITY shall pay audit fees after Contractor's submittal of evidence that corrections have been made by the appropriate agency. Payment to CONTRACTOR shall be made within thirty (30) days after CITY receives its first remittance advice during the fiscal year for which the correction applies.
6.3 Optional Services
Fees for Optional Services as outlined in Services in Section 3.0 above (except Section 3.3) shall be billed at the following hourly rates:
Partner $250 per hour
Principal $225 per hour
Programmer $200 per hour
Associate $175 per hour
Senior Analyst $125 per hour
Analyst $ 90 per hour
Administrative $ 70 per hour
Hourly rates are exclusive of expenses and are subject to adjustment by CONTRACTOR annually. On July 1st of each year CONTRACTOR shall provide CITY with an updated schedule of hourly rates. The rates will not be increased by more than five percent (5%) per year.
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6.4 Fees for Bond Services
Services under Section 3.3 above will be determined depending upon the complexity of the bond issue and the time available for completion of the task and will be mutually agreed to be the parties.
6.5 Expenses
Except as specified above, no other charges shall be made for direct or indirect expenses incurred by CONTRACTOR in performing the services in the Scope of Services including for administrative overhead, salaries of CONTRACTOR’S employees, travel expenses or similar matters.
6.6 Due Date
All fees are due 30 days immediately following billing. All amounts that are not paid when due shall accrue interest from the due date at the rate of one percent per month (12% per annum).
7.0 TERM PERFORMANCE SCHEDULE
7.1 Time of Essence
Time is of the essence in the performance of this Agreement.
7.2 Schedule of Performance
CONTRACTOR shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the “Schedule of Performance” attached hereto as Exhibit “A”, and incorporated herein by this reference. When requested by the CONTRACTOR, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding one hundred eighty (180) days cumulatively.
7.3 Force Majeure
The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the CONTRACTOR, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the CITY, if the CONTRACTOR shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified.
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7.4 Term
Unless earlier terminated in accordance with Section 11.6 of this Agreement, this Agreement shall continue in full force and effect for seven (7) years.
8.0 COORDINATION OF WORK
8.1 Representative of Contractor
The following principals of CONTRACTOR are hereby designated as being the principals and representatives of CONTRACTOR authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
Nichole Cone-Morishita
HdL COREN & CONE
120 S State College Boulevard, Suite 200
Brea, California 92821
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for CITY to enter into this Agreement.
Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of CONTRACTOR and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement, the foregoing principals may not be replaced nor may their responsibilities be substantially reduced by CONTRACTOR without the express written approval of CITY.
8.2 Contract Officer
The Contract Officer shall be such person as may be designated by the City Manager of CITY. It shall be the CONTRACTOR’S responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the CONTRACTOR shall refer any decisions which must be made by CITY to the Contract Officer. Unless otherwise specified herein, any approval of CITY required hereunder shall mean the approval of the Contract Officer.
The Contract Officer shall have authority to sign all documents on behalf of the CITY required hereunder to carry out the terms of this Agreement.
8.3 Prohibition Against Subcontracting or Assignment
The experience, knowledge, capability and reputation of CONTRACTOR, its principals and employees were a substantial inducement for the CITY to enter into this Agreement.
Therefore, CONTRACTOR shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the CITY. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of CITY. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than fifty percent
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(50%) of the present ownership and/or control of CONTRACTOR, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the CONTRACTOR or any surety of CONTRACTOR of any liability hereunder without the express consent of CITY.
8.4 Independent Contractor
Neither the CITY nor any of its employees shall have any control over the manner, mode or means by which CONTRACTOR, its agents or employees, perform the services required herein, except as otherwise set forth herein. CITY shall have no voice in the selection, discharge, supervision or control of CONTRACTOR’S employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. CONTRACTOR shall perform all services required herein as an independent CONTRACTOR of CITY and shall remain at all times as to CITY a wholly independent CONTRACTOR with only such obligations as are consistent with that role. CONTRACTOR shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of CITY. CITY shall not in any way or for any purpose become or be deemed to be a partner of CONTRACTOR in its business or otherwise or a joint venturer or a member of any joint enterprise with CONTRACTOR.
9.0 INSURANCE AND INDEMNIFICATION
9.1 Insurance
The CONTRACTOR shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to CITY, during the entire term of this Agreement including any extension thereof, the following policies of insurance:
(a) Comprehensive General Liability Insurance. The policy of insurance shall be in an amount not less than either (i) a combined single limit of $2,000,000 for bodily injury, death and property damage or (ii) bodily injury limits of $500,000 per person, $2,000,000 per occurrence and $2,000,000 products and completed operations and property damage limits of $500,000 per occurrence and $500,000 in the aggregate.
(b) Worker’s Compensation Insurance. A policy of worker’s compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both the CONTRACTOR and the CITY against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the CONTRACTOR in the course of carrying out the work or services contemplated in this Agreement. (c) Automotive Insurance. A policy of comprehensive automobile liability insurance written on a per occurrence basis in an amount not less than either (i) bodily injury liability limits of $250,000 per person and $500,000 per occurrence and property damage liability limits of $100,000 per occurrence and $250,000 in the aggregate or (ii) combined single limit liability of $1,000,000. Said policy shall include coverage for owned, non-owned, leased and hired cars.
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(d) Errors and Omissions (Professional Liability). A policy of professional liability issuance written on a claims-made basis in an amount not less than Two Million Dollars ($2,000,000).
(e) General Requirements. All of the above policies of insurance shall be primary insurance and shall name the CITY, its officers, employees and agents as additional insureds. The insurer shall waive all rights of subrogation and contribution it may have against the CITY, its officers, employees and agents and their respective insurers. All of said policies of insurance shall provide that said insurance may not be amended or cancelled without providing thirty (30) days prior written notice by registered mail to the CITY. In the event any of said policies of insurance are cancelled, the CONTRACTOR shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 9.0 to the Contract Officer. No work or services under this Agreement shall commence until the CONTRACTOR has provided the CITY with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the CITY.
9.2 Indemnification
CONTRACTOR agrees to indemnify the CITY, its officers, agents and employees against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities, (herein “claims or liabilities”) that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities of CONTRACTOR, its agents, employees, subcontractors, or invitees, provided for herein, or arising from the negligent acts or omissions of CONTRACTOR hereunder, or arising from CONTRACTOR’S negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, whether or not there is concurrent passive or active negligence on the part of the CITY, its officers, agents or employees but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the CITY, its officers, agents or employees, who are directly responsible to the CITY.
9.3 Sufficiency of Insurer or Surety
Insurance or bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated “A” or better i n the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the CITY due to unique circumstances. In the event the Risk Manager of CITY (“Risk Manager”) determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the CITY, the CONTRACTOR agrees that the minimum limits of the insurance policies and the performance bond required by this Section 9.0 may be changed accordingly upon receipt of written notice from the Risk Manager; provided that the CONTRACTOR shall have the right to appeal a determination of increased coverage by the Risk Manager to the CITY Council of CITY within 10 days of receipt of notice from the Risk Manager.
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10.0 RECORDS AND REPORTS
10.1 Reports
CONTRACTOR shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require.
10.2 Records
CONTRACTOR shall keep, and require subcontractors to keep, such books and records as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of CITY, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the CITY shall have access to such records in the event any audit is required.
10.3 Non-Disclosure of Proprietary Information
In performing its duties under this Agreement, CONTRACTOR will produce reports, technical information and other compilations of data to CITY. These reports, technical information and compilations of data are derived by CONTRACTOR using methodologies, formulae, programs, techniques and other processes designed and developed by CONTRACTOR at a substantial expense. CONTRACTOR'S reports, technical information, compilations of data, methodologies, formulae, software, programs, techniques and other processes designed and developed by CONTRACTOR shall be referred to as Proprietary Information. CONTRACTOR'S Proprietary Information is not generally known by the entities with which CONTRACTOR competes.
CONTRACTOR desires to protect its Proprietary Information. Accordingly, CITY agrees that neither it nor any of its employees, agents, independent contractors or other persons or organizations over which it has control, will at any time during or after the term of this Agreement, directly or indirectly use any of CONTRACTOR'S Proprietary Information for any purpose not associated with CONTRACTOR'S activities. Further, CITY agrees that it nor any of its employees, agents, independent contractors or other persons or organizations over which it has control, will disseminate or disclose any of CONTRACTOR'S Proprietary Information to any person or organization not connected with CONTRACTOR, without the express written consent of CONTRACTOR. The CITY also agrees that consistent with its obligations under the California Public Records Act and related disclosure laws, it will undertake all necessary and appropriate steps to maintain the proprietary nature of CONTRACTOR'S Proprietary Information.
Any use of the Proprietary Information or any other reports, records, documents or other materials prepared by CONTRACTOR hereunder for other projects and/or use of uncompleted documents without specific written authorization by the CONTRACTOR will be at the CITY’s sole risk and without liability to CONTRACTOR, and the CITY shall indemnify the CONTRACTOR for all damages resulting therefrom.
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10.4 Release of Documents Pursuant to Public Records Act Notwithstanding any other provision in this Agreement, all obligations relating to disclosure of Proprietary Information remain subject to the Freedom of Information Act or California Public Records Act, Cal. Gov’t Code §§ 6250 et seq. (collectively, the “PRA”). The Parties intend that if CITY is served with a request for disclosure under the PRA, or any similar statute, the CITY in good faith will make the determination as to whether the material is disclosable or exempt under the statute, and shall resist the disclosure of Proprietary Information which is exempt from disclosure to the extent allowable under the law. CITY shall advise CONTRACTOR in writing five (5) days prior to the intended disclosure of any d ecision to disclose Proprietary Information, and the reasons therefore, and if CONTRACTOR then timely advises CITY in writing that it objects to the disclosure, CITY shall not disclose the information. In such case, CONTRACTOR shall then be solely liable for defending the non-disclosure and shall indemnify and hold CITY harmless for such nondisclosure.
11.0 ENFORCEMENT OF AGREEMENT
11.1 California Law
This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of San Bernardino, State of California, or any other appropriate court in such county, and CONTRACTOR covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.
11.2 Disputes
In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the injured party; provided that if the default is an immediate danger to the health, safety and general welfare, such immediate action may be necessary. Compliance with the provisions of this Section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party’s right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit CITY’s or the CONTRACTOR’S right to terminate this Agreement without cause pursuant to Section 11.6.
11.3 Waiver
No delay or omission in the exercise of any right or remedy by a non -defaulting party on any default shall impair such right or remedy or be construed as a waiver. A party’s consent to or
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approval of any act by the other party requiring the party’s consent or approval shall not be deemed to waive or render unnecessary the other party’s consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
11.4 Rights and Remedies are Cumulative
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
11.5 Legal Action
In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
11.6 Termination Prior to Expiration of Term
This Section shall govern any termination of this Agreement. The Parties reserve the right to terminate this Agreement at any time, with or without cause, upon forty-five (45) days’ written notice to the non-terminating party, except that where termination is for cause, the Parties will comply with the dispute resolution process in Section 11.2. Upon issuance of any notice of termination, CONTRACTOR shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. The CONTRACTOR shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non -terminating party with the opportunity to cure pursuant to Section 11.2.
11.7 Attorneys’ Fees
If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney’s fees. Attorney’s fees shall include attorney’s fees on any appeal, and in addition a party entitled to attorney’s fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.
15 01089/0001/61175.03
12.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
12.1 Non-liability of CITY Officers and Employees
No officer or employee of the CITY shall be personally liable to the CONTRACTOR, or any successor in interest, in the event of any default or breach by the CITY or for any amount which may become due to the CONTRACTOR or to its successor, or for breach of any obligation of the terms of this Agreement.
12.2 Conflict of Interest
No officer or employee of the CITY shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. The CONTRACTOR warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.
12.3 Covenant Against Discrimination
CONTRACTOR covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. CONTRACTOR shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry.
13.0 MISCELLANEOUS PROVISIONS
13.1 Notice
Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail addressed as follows:
CITY CITY OF UPLAND
400 North Euclid Avenue
Upland, California 91786
CONTRACTOR: HdL COREN & CONE
120 S State College Boulevard, Suite 200
Brea, California 92821
16 01089/0001/61175.03
Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy- two (72) hours from the time of mailing if mailed as provided in this Section.
13.2 Interpretation
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
13.3 Integration; Amendment
It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing.
13.4 Severability
In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.
13.5 Corporate Authority
The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound.
17 01089/0001/61175.03
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above.
CITY OF UPLAND
Michael Blay, City Manager
CONTRACTOR:
HdL COREN & CONE
A California Corporation
Paula Cone, President David Schey, Secretary
ATTEST:
Keri Johnson, City Clerk
APPROVED AS TO FORM:
Stephen P. Deitsch, City Attorney
01089/0001/61175.03
EXHIBIT “A”
SCHEDULE OF PERFORMANCE
TIMELINE FOR DELIVERABLES
July/August Data available for purchase from counties September 30 Data available on HdLCC’s web-based property tax application September-October Unsecured audits performed and forwarded to county assessor October Appeals quarterly updates emailed in counties where the data is available October-February Delivery of preliminary property tax reports January Appeals quarterly updates emailed in counties where the data is available March/April General Fund Budget Projections
April Appeals quarterly updates emailed in counties where the data is available April/May Final Books – Addendums emailed to clients
July Appeals quarterly updates emailed in counties where the data is available Ongoing Secured Audits – City
Property sales reports
City and Successor Agency mid-year budget reviews and budget projections
Analytical work at the request of clients
Monthly updates of database with property sale information
S T A F F R E P O R T
I T E M N O . 10.F .
D A T E :J u ne 2 7, 2 02 2
T O :M A YO R A N D C I T Y C O U N C I L
F R O M : M I C H A E L B L A Y, C I T Y M A N A G E R P R E P A R E D B Y : B R A D E N Y U, P U B L I C W O R K S D I R E C TO R
B O B C R I TC H F I E L D, E N G I N E E R I N G M A N A G E R S U B J E C T :S E N A T E B I L L 1 (S B 1 ) R O A D M A I N T E N A N C E A N D
R E H A B I L I TA T I O N A C C O U N T F U N D I N G A N D P R O J E C T L I S T
R E C O M M E N D E D A C T I O N
I t is recom m end ed th at th e C ity C oun cil ad op t a Resolu tion ap p roving a list of p rojects for F iscal Year 20 22 -20 23 fun d ed b y S enate B ill 1: Road Rep air an d A ccoun tab ility A ct of 2 01 7.
G O A L S T A T E M E N T
Th e p rop osed action su p p ort s th e C it y's g oal to con ti n u e t o m ain tai n an d i m p rove th e C ity's p u b lic road w ay facilities.
B A C K G R O U N D
O n A p ril 18 , 20 17 , th e G overn or sig n ed S enat e B i ll 1 (S B 1 ), also kn ow n as th e Road Rep air and A ccou nt ab ility A ct of 20 17 ; created the Road M ai nt enan ce an d Reh ab i li tat ion P rog ram to ad d ress d eferred m ain ten ance on the S tate's m u ltim od al tran sp ortation netw ork; and created th e Road M ai nt enan ce an d Reh ab ilitation A cc ou n t (R M R A ) for th e d ep osit of vari ous fun d s for th e p rog ram . To fu n d t hi s p rog ram , S B 1 in creased several taxes and fees (fu el tax, value- b ased transp ortat ion fee, p ri ce-b ased exc is e tax an d zero em issi ons veh ic le fee) an d p rovid ed for in flat ion ary ad ju st m en ts so th at th e p u rchasin g p ower of t he reven u es d oes n ot d im in ish.
A p erc en t ag e of R M R A fu n d in g w il l b e ap p ortion ed b y form u la to el ig ib le ci ti es and coun ties for b asi c road m ai n t en an ce, reh ab i li tat ion , an d c ri ti cal safety p rojec ts on the l ocal streets an d road s system .
I S S U E S /A N A L Y S I S
I n ord er to rec eive an ap p orti on m en t of R M R A fu nd s in a fiscal year, th e C it y m u st ann ually ap p rove a list of p rojects (E xhib it 'A ') to b e constructed w ith R M R A fu nd in g an d m ust sub m it th e l is t to t he C aliforn ia Trans p ortat ion C om m ission . T he li st of p rojec ts m u st i nc lu d e a d escrip tion an d loc ati on of each p rop os ed p rojec t, a p rop osed s ch ed u le, an d t he estim ated useful life of th e im p rovem en t.
Th e R M R A req u ires t hat l ocal ag en ci es m ain tai n an d rep ort a local M ai n t en an ce of E ffort (M O E ) to en s u re th at new road fun d s d o n ot sup p lant exi st in g level s of C i ty g en eral reven ue sp end in g on st reet s and road s. Th e M O E req u ires th e C i ty t o m ain tain a g en eral fun d sp end in g at n o less t han t h e averag e of 2 00 9-1 0, 2 01 0-1 1, and 2 01 1-1 2 fiscal years. A ud its are p erform ed to en s u re th e M O E req u irem en ts are m et . U p lan d 's M O E req u irem en t for F Y 20 22 -23 is estim ated to b e $2 ,28 0,6 31 .
F I S C A L I M P A C T S
Th ere is n o fi scal im p act related t o ad op ti on of a Resolu tion ap p rovi n g a p roject list for the Road M ain ten ance and Rehab ilitation A ccoun t (R M R A ).
Up lan d 's estim ated R M R A fu nd s for F Y 20 22 -23 is $1 ,78 9,6 77 an d is b u d g eted as reven u e in th e F Y 20 22 -23 R M R A F u nd b u d g et
A L T E R N A T I V E S
P rovid e altern ative d irection to staff.
AT TAC HM E NT S :
Description
Resolution for S B1 F Y 2022-23
Exhibit A - Project L ist
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
UPLAND, CALIFORNIA ADOPTING A LIST OF PROJECTS
FOR FISCAL YEAR 2022-2023 FUNDED BY SB 1: THE ROAD
REPAIR AND ACCOUNTABILITY ACT OF 2017
WHEREAS, Senate Bill 1 (SB 1), the Road Repair and Accountability Act of 2017 (Chapter 5, Statutes of 2017) was passed by the Legislature and Signed into law by the Governor in April 2017 to address the significant multi-modal transportation funding shortfalls statewide; and
WHEREAS, SB 1 includes accountability and transparency provisions that will ensure the residents of Upland are aware of the projects proposed for funding in our community and which projects have been completed each fiscal year; and
WHEREAS, the City must adopt by resolution a list of projects proposed to receive fiscal year funding from the Road Maintenance and Rehabilitation Account (RMRA), created by SB 1, which must include a description and the location of each proposed project, a proposed schedule for the project’s completion, and the estimated useful life of the improvement; and
WHEREAS, the City will receive an estimated $1,789,677 in RMRA funding in Fiscal Year 2022-23 from SB 1; and
WHEREAS, this is the sixth year in which the City is receiving SB 1 funding and will enable the City to continue essential road maintenance and rehabilitation projects, safety improvements, and increasing access and mobility options for the traveling public that would not have otherwise been possible without SB 1; and
WHEREAS, the City conducts a review process to ensure public input into our community’s transportation priorities/the project list; and
WHEREAS, the City used a Pavement Management System to develop the SB 1 project list to ensure revenues are being used on the most high-priority and cost- effective projects that also meet the communities priorities for transportation investment; and
WHEREAS, the funding from SB 1 will help the City maintain and rehabilitate its streets this year and similar projects into the future; and
WHEREAS, the State requires the City create an SB 1 project list and overall investment in our local streets and roads infrastructure with a focus on basic maintenance and safety, investing in complete streets infrastructure, and using cutting-edge technology, materials, and practices, will have significant positive co- benefits statewide.
NOW, THEREFORE, the City Council of the City of Upland hereby finds, determines and resolves as follows:
Resolution No.
Page
Section 1. The above recitals are true and correct and are incorporated herein by this reference.
Section 2. The City of Upland is adopting the fiscal year 2022-23 list of projects planned to be funded in-part or solely with Road Maintenance and Rehabilitation Account revenues provided in Exhibit A.
Section 3. Compliance with California Environmental Quality Act. The City Council finds that this Resolution is not subject to the California Environmental Quality Act (“CEQA”) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the State CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly.
Further, if the activity is deemed a project this City Council finds that this Resolution is exempt pursuant to Section 15061(b)(3) of the State CEQA Guidelines.
Section 4. Certification. The City Clerk shall certify to the passage and adoption of this resolution and enter it into the book of original resolutions.
Section 5. Severability. If any section, subsection, subdivision, sentence, or clause or phrase in this Resolution or any part thereof is for any reason held to be unconstitutional, invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Resolution or any part thereof. The City Council hereby declares that it would have adopted each section irrespective of the fact that any one or more subsections, subdivisions, sentences, clauses, or phrases are declared unconstitutional, invalid, or ineffective.
Section 6. Effective Date. This Resolution shall become effective immediately.
PASSED, APPROVED and ADOPTED this 27th day of June, 2022.
Bill Velto, Mayor
I, Keri Johnson, City Clerk of the City of Upland, do hereby certify that the foregoing Resolution was adopted at a regular meeting of the City Council held on the 27th day of June, 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAINED:
ATTEST:
Keri Johnson, City Clerk
Project Title Project Description Project Location Proposed Start
Date
Proposed
Completion
Date
Estimated
Useful
Life
Estimated
Project
Cost
14th Street Rehabilitation 0.70 miles of asphalt pavement rehabilitation, replacement of damaged
curbs, gutters, sidewalks, handicap
ramps, and re-striping.
14th Street, from Campus Ave.
to Grove Ave
7/1/2021 6/30/2023 20 Years $1,000,000
Mulberry Avenue Reconstruction 0.17 miles of asphalt pavement rehabilitation, replacement of damaged
curbs, gutters, sidewalks, handicap
ramps, and re-striping. Project also
includes water infrastructure under
separate funding.
Mulberry Avenue, from Foothill
Blvd. to Pine Street
7/1/2021 12/31/2022 20 Years $350,000
Foothill Blvd. Rehabilitation Project
70015
0.61 miles of asphalt pavement
rehabilitation, replacement of damaged
curbs, gutters, sidewalks, handicap
ramps, and re-striping. Project will also
include water infrastructure replacement
under separate funding.
Foothill Blvd., from Benson
Avenue to Mountain Avenue
7/1/2022 6/30/2024 20 Years $2,500,000
Foothill Blvd. Rehabilitation Project
70016
0.55 miles of asphalt pavement
rehabilitation, replacement of damaged
curbs, gutters, sidewalks, handicap
ramps, and re-striping. Project will also
include water infrastructure replacement
under separate funding.
Foothill Blvd., from Mountain
Avenue to San Antonio
Avenue
7/1/2022 6/30/2024 20 Years $2,000,000
EXHIBIT 'A'
City of Upland, California
SB 1 - Road Maintenance and Rehabilitation
FY 2022-2023 Project List
S T A F F R E P O R T
I T E M N O . 10.G .
D A T E :J u ne 2 7, 2 02 2
T O :M A YO R A N D C I T Y C O U N C I L
F R O M : M I C H A E L B L A Y, C I T Y M A N A G E R P R E P A R E D B Y : B R A D E N Y U, P U B L I C W O R K S D I R E C TO R
R I C H A R D S M I D E R L E , O P E R A T I O N S M A N A G E R S U B J E C T :R E Q U E S T F O R A D D I T I O N A L F U N D I N G F O R W E S T C O A S T A R B O R I S T F O R 2 02 2 W I N D S TO R M C L E A N U P
R E C O M M E N D E D A C T I O N
I t is rec om m en d ed th e C i ty C ou n ci l ap p rove a reallocation of $4 0 ,0 0 0 from th e S treet M aintenan ce D ivision to th e S treet Tree M ain ten an c e D i vis ion t o c over th e ad d ition al un exp ected West C oast A rb orist costs resu ltin g from the J anu ary 2 02 2 extrem e w in d even t.
G O A L S T A T E M E N T
Th e p rop osed act ion su p p orts th e C ity’s g oal i n m ain taining a h ealt h y u rb an forest as w ell as th e sw ift resp on s e and c it yw id e c lean u p of t ree d eb ri s, wh ich hel p s b eau t ify the C i ty of Up lan d and m ake it a b etter p lace to work, live and p lay.
B A C K G R O U N D
O n M ay 22 , 2 01 7, C i ty C oun cil ap p roved a Tree C are an d M aint enan ce A g reem ent wi th West C oast A rb orists for the rou tine m aintenan ce of city trees. Th is ag reem ent was for an initial th ree (3) year term with t h ree op tion al one (1) year ext ension s an d th at th e an n u al am oun t w ould vary from year-to-year b ased up on am ou nt of fu n d i n g ap p roved b y C it y C ou n ci l each year in the an nu al b ud g et.
O n M arch 8 , 20 21 , t he C i ty C oun cil au t h orized the C i ty M an ag er to execu te th e rem ain in g two, one (1) year exten sions to the West C oast A rb orist ag reem en t, in clud in g th e contract am ou nt consisten t w ith th e am oun t ap p roved an nu ally b y C ity C oun cil in the C ity’s op eratin g b u d g et.
O n J an uary 21 , 2 02 2, the C i ty exp erienced an extrem e wi nd st orm cau sing s ig ni fic ant d am ag e to trees, hom es, b usin esses, veh icles, sid ewalks, an d road s. H urrican e force w in d s, over 8 0 m iles p er h our, cau sed a l evel of d am ag e s uffi ci ent to lead th e C ity’s D i rec tor of E m erg en cy S ervices t o is su e a p rocl am at ion d eclaring th e exis ten ce of a local em erg ency cau sed b y an extrem e w in d even t. Th e P roc lam ati on was s ub seq uen tl y ratified b y the C i ty C oun cil w it h the ad op tion of Resolu tion N o. 6 63 6. T he d am ag es attrib uted b y th e event exceed ed the C ity’s availab le p ers on n el, eq u i p m en t , and faci li ti es, lead ing staff to cal l u p on out si d e resou rces an d con tractors to com p let e t he em erg en cy res p on se cl ean -u p act ivi ti es. W est C oast A rb orist (W C A ) w as on e of th e con tractors th e C ity u sed to assist w ith the 2 02 2 wind storm cleanu p .
I S S U E S /A N A L Y S I S
S ince W C A’s cont ract an n u al am ou nt varies from year-to-year b as ed up on am ou n t of fu nd in g ap p roved b y C it y C ou ncil i n each year’s op erat in g b ud g et, s taff is req uesting t h at an ad d ition al allocat ion i n the am ou nt of $40 ,00 0 b e ass ig n ed to W C A c on t rac t to cover th e cost associated w ith W C A assistance in th e w in d storm clean up .
F I S C A L I M P A C T S
F u nd in g is availab le in the S treet M ain ten ance D ivision 's F Y 20 21 -22 op eratin g b u d g et. T his req uest wi ll m ove $4 0,0 00 from S treet M ain ten an c e (5 40 1) t o S treet Tree M aintenan ce (54 09 ). N o ad d it ion al ap p rop riations are b ein g req uested and th is w il l not res ul t i n an in crease in the G en eral F u nd b u d g et.
A L T E R N A T I V E S
P rovid e altern ative d irection to staff.
AT TAC HM E NT S :
Description
West Coast Arborist Agreement
S T A F F R E P O R T
I T E M N O . 10.H .
D A T E :J u ne 2 7, 2 02 2
T O :M A YO R A N D C I T Y C O U N C I L
F R O M : M I C H A E L B L A Y, C I T Y M A N A G E R P R E P A R E D B Y : B R A D E N Y U, P U B L I C W O R K S D I R E C TO R
R I C H A R D S M I D E R L E , O P E R A T I O N S M A N A G E R S U B J E C T :E X T E N S I O N TO P R O F E S S I O N A L S E R V I C E S A G R E E M E N T F O R
F L E E T S U P E R V I S I O N - C O N S U LTA N T S E R V I C E S
R E C O M M E N D E D A C T I O N
I t is recom m en d ed th at th e C ity C ou n c il ap p rove th e fi nal on e-year ext en s ion t o the p rofession al servic es ag reem en t w it h M K C onsulting for sp ecialized fleet servic es for a not-to- exceed am ou nt of $3 7,3 00 and authorize th e C ity M anag er to execu te the extension letter.
G O A L S T A T E M E N T
Th e p rop osed ac ti on su p p ort s the C ity’s g oal of p rovi d i n g sp ecial fleet m anag em en t servic es in a cost-effective m an ner
B A C K G R O U N D
Th e C ity h as an in -hou se F leet S ervic e D ivi si on t h at p rocu res , rep airs, m ain tai n s an d salvag es C ity veh i cl es an d eq u ip m en t for th e C it y's various op erat ion s (i nclu d i ng G en eral C i ty, P ub lic Works and Pol ic e). T he F l eet S ervices D i vision i s com p rised of a L ead F l eet M ec h an ic , two F leet M ech anics and an I nven tory S p ecialist.
O n J u l y 1 , 2 0 1 9 , th e C it y h ad en t ered i nt o a p rofession al service ag reem ent with M K C on su ltin g for $3 8 ,2 0 0 to p rovid e S p ecialized c on s u l ti n g services. T h i s ag reem ent was for one-year wi th th ree (3 ) m u tu ally ag reed to on e (1 ) year extension s. O n J uly 1 , 20 20 , th e C ity exten d ed t his ag reem en t w it h the first on e (1) year exten si on an d on S ep tem b er 2 7, 2 02 1, C ity C ou n c il ap p roved t h e secon d on e-year exten si on with an in creased c on t rac tu al h ourly rate of $3 8.8 2 p er h our.
I S S U E S /A N A L Y S I S
S p ecialized con su lt in g servic es are necessary to ensure th e b est sui ted veh icles an d eq u ip m en t are secu red t o p erform t he variou s op erati onal fun ction s, w hi le existin g st aff are allow ed to focus on p erform in g d ail y m echan ical rep air, eq u ip m en t s ervi ci n g , and in sp ection s.
Th e sp ecialized con su ltin g services in clud e b u t are not lim ited to the following :
• D esig n an d im p lem ent lon g -term vehicle and eq u ip m en t rep lacem ent p rog ram • Write veh icle an d eq uip m ent sp ecification for R F P b id p ackets • O versee the M un is F leet M ain ten ance softw are m od u le
W ith p as t t urnover of fl eet s taff, th e sp ecialized c on s u l tan t p rovid ed stab ility to t he fleet d ivision . S taff i s recom m end in g C it y C oun cil ap p rove the fi nal on e-year ext ens ion for a n ot- to-exceed am oun t of $37 ,30 0.
F I S C A L I M P A C T S
S p ecialized F leet S ervices are b u d g et ed i n the F i sc al Year 20 22 -23 B u d g et un d er accoun t nu m b er 7 52 -54 14 -52 53 .
A L T E R N A T I V E S
P rovid e altern ative d irection to staff.
AT TAC HM E NT S :
Description
F inal E xtension
Extension two
Extension one
Professional S ervices Agreement
PUBLIC WORKS DEPARTMENT
1370 North Benson Avenue
Upland, California 91786-0460
Telephone (909) 291-2930
Facsimile (909) 291-2974
City of Upland
460 North Euclid Avenue, Upland, CA 91786-4732 • (909) 931-4100 • Fax (909) 931-4123 • TDD (900) 735-2929 • www.uplandca.gov June 27, 2022
Mike Kitchen
MK Consulting PO Box 3535
Wrightwood, Ca 92397
Subject: Extension of Terms and Conditions Agreement for Professional Consultant Services.
Dear Mr. Kitchen:
The City of Upland and MK Consulting have executed an Agreement dated July 1, 2019 for professional consultant services for an initial term of one-year, commencing on July 1, 2019 thru June 3, 2020 unless sooner terminated pursuant to the provisions of this agreement. Subsequently, the City and MK Consulting have agreed to two additional one-year extensions that has extended this agreement thru June 31, 2022. In accordance with Agreement Provision 1, the City of Upland is exercising the option to extend this Agreement, upon your concurrence, for a final additional one-year period to June 30, 2023.
Please indicate your acceptance to extend the Agreement as indicated above by signing below and returning via-US Mail the original wet executed document to this office for our records.
Sincerely
Michael Blay
City Manager
I concur and agree to extend this Agreement as stated above
Mike Kitchen
Sole Proprietor
S T A F F R E P O R T
I T E M N O . 10.I.
D A T E :J u ne 2 7, 2 02 2
T O :M A YO R A N D C I T Y C O U N C I L
F R O M : M I C H A E L B L A Y, C I T Y M A N A G E R P R E P A R E D B Y : B R A D E N Y U, P U B L I C W O R K S D I R E C TO R
J O H N R O B L E S, A C T I N G U T I L I T I E S M A N A G E R S U B J E C T :M A I N T E N A N C E S E R V I C E S A G R E E M E N T F O R T H E R E H A B I L I TA T I O N O F C I T Y W E L L 7 A
R E C O M M E N D E D A C T I O N
I t is rec om m end ed t h at the C it y C ou ncil aw ard a M ain ten ance S ervice A g reem ent to G eneral P u m p C om p an y for the reh ab il it ati on of C it y Wel l 7 A in t h e am ou nt of $15 7,1 80 ; ap p rove a con ting ency am ou nt of $3 2,8 20 for a tot al am ou n t of $1 90 ,00 0; an d au th ori ze t h e C ity M an ag er to execute th e ag reem en t an d all extension s.
G O A L S T A T E M E N T
Th e p rop osed action sup p orts th e C i ty's g oal t o p rop erly m ain tai n , ren ew, or rep l ace as set s to ensures that th e C ity's infrastru cture is effectively and efficien tly op erating .
B A C K G R O U N D
C ity Wel l 7 A p rovid es ap p roxim atel y 1,1 00 g allon s p er m i n u te (g p m ) of d ri n ki n g w ater to the C ity’s sou th ern m os t zon e. Recent ly t h e w ell h as exhib ited exces si ve vi b rati on and p rod uction has b een severely red u ced to ap p roxim ately 40 0 g p m . C on seq uen tly, staff has ceased op eration of the well to p revent furth er d am ag e.
I S S U E S /A N A L Y S I S
O n M ay 2 4, 20 22 , th e C it y req uested b id s for t h e Reh ab ilitat ion of C it y W ell 7 A an d on J u ne 6, 2 02 2, the C ity received and op en ed tw o (2) b id s p rop osals (see b id resu lts as listed b elow).
C o m p any N am e B id A mo unt
G en eral P u m p C om p an y $15 7,1 80
Layn e C h ristensen d id n ot resp ond
Tri C ou nty P u m p C om p an y $16 2,9 55
Th e C it y h as reviewed t he b i d inform at ion an d confirm ed th at G en eral P um p C om p an y, i s the lowest resp onsib le an d resp onsive b id d er.
F I S C A L I M P A C T S
F iscal Year 20 21 /22 b u d g et c ont ain s s u ffi ci en t fu n d s for t h i s p rojec t; h ow ever, t h i s p rojec t w ill con tinu e in to F iscal Year 2 02 2/2 3. S taff wi ll rollover u n u sed fu nd s in to F is cal Year 2 02 2/2 3.
Th e estim ated p roject costs and fun d ing are sum m arized b elow:
E stimated P ro ject C o sts
B asic B id A m oun t $15 7,1 80
C ontin g en cy $3 2,8 20
T o tal C o ntract B udget $190,000
F un d ing
A ccoun t N o. 6 40 -62 50 -52 58 $1 90 ,00 0
A L T E R N A T I V E S
P rovid e altern ative d irection to staff.
AT TAC HM E NT S :
Description
M aintenance S ervices Agreement
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CITY OF UPLAND
MAINTENANCE SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered into this 27th day of June, 2022 by and between the City of Upland, a general law city and municipal corporation organized under the laws of the State of California with its principal place of business at 460 N. Euclid Avenue, Upland, CA 91786 (“City”) and General Pump Company, Inc., a California Corporation with its principal place of business at 159 N Acacia St, San Dimas, CA 91773 (“Contractor”). City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.
2. RECITALS.
2.1 Contractor.
Contractor desires to perform and assume responsibility for the provision of certain maintenance services required by the City on the terms and conditions set forth in this Agreement.
Contractor represents that it is experienced in providing sanitary sewer manhole roach control services to public clients, that it and its employees or subcontractors have all necessary licenses and permits to perform the Services in the State of California, and that is familiar with the plans of City. Contractor shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
2.2 Project.
City desires to engage Contractor to render such services for City Well 7A Rehabilitation project (“Project”) as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Contractor promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional sanitary sewer manhole roach control maintenance services necessary for the Project (“Services”). The Services are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
3.1.2 Term. The term of this Agreement shall be from June 27, 2022, to June 27, 2023, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than two additional one- year terms. Contractor shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.
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3.2 Responsibilities of Contractor.
3.2.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Contractor or under its supervision. Contractor will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Contractor on an independent contractor basis and not as an employee.
Contractor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Contractor shall also not be employees of City and shall at all times be under Contractor’s exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance
3.2.1.1 PERS Eligibility Indemnification. In the event that Contractor or any employee, agent, or subcontractor of Contractor providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (“PERS”) to be eligible for enrollment in PERS as an employee of the City, Contractor shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Contractor or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, Contractor and any of its employees, agents, and subcontractors providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to any contribution to be paid by City for employer contribution and/or employee contributions for PERS benefits.
3.2.2 Schedule of Services. Contractor shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit “B” attached hereto and incorporated herein by reference. Contractor represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Contractor’s conformance with the Schedule, City shall respond to Contractor’s submittals in a timely manner. Upon request of City, Contractor shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.
3.2.3 Conformance to Applicable Requirements. All work prepared by Contractor shall be subject to the approval of City.
3.2.4 City’s Representative. The City hereby designates Braden Yu, Public Works Director, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Agreement. Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.
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3.2.5 Contractor’s Representative. Contractor hereby designates Thomas Nanchy, Senior Project Manager, or his or her designee, to act as its representative for the performance of this Agreement (“Contractor’s Representative”). Contractor’s Representative shall have full authority to represent and act on behalf of the Contractor for all purposes under this Agreement. The Contractor’s Representative shall supervise and direct the Services, using his or her best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
3.2.6 Coordination of Services. Contractor agrees to work closely with City staff in the performance of Services and shall be available to City’s staff, consultants and other staff at all reasonable times.
3.2.7 Standard of Care; Performance of Employees. Contractor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Services. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Contractor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Contractor’s failure to comply with the standard of care provided for herein. Any employee of the Contractor or its sub-contractors who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Contractor and shall not be re-employed to perform any of the Services or to work on the Project.
3.2.8 Period of Performance. Contractor shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”).
Contractor shall perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be provided separately in writing to the Contractor.
3.2.9 Disputes. Should any dispute arise respecting the true value of any work done, of any work omitted, or of any extra work which Contractor may be required to do, or respecting the size of any payment to Contractor during the performance of this Contract, Contractor shall continue to perform the Work while said dispute is decided by the City. If Contractor disputes the City’s decision, Contractor shall have such remedies as may be provided by law.
3.2.10 Laws and Regulations; Employee/Labor Certifications. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with Services. If the Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written
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notice to the City, Contractor shall be solely responsible for all costs arising therefrom. City is a public entity of the State of California subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Agreement to the same extent as though set forth herein and will be complied with. These include but are not limited to the payment of prevailing wages, the stipulation that eight (8) hours’ labor shall constitute a legal day’s work and that no worker shall be permitted to work in excess of eight (8) hours during any one calendar day except as permitted by law. Contractor shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.
3.2.10.1 Employment Eligibility; Contractor. By executing this Agreement, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such requirements and restrictions include, but are not limited to, examination and retention of documentation confirming the identity and immigration status of each employee of the Contractor.
Contractor also verifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement. Contractor shall avoid any violation of any such law during the term of this Agreement by participating in an electronic verification of work authorization program operated by the United States Department of Homeland Security, by participating in an equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, or by some other legally acceptable method. Contractor shall maintain records of each such verification, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses related to Contractor’s compliance with the requirements provided for in Section 3.2.10 or any of its sub- sections.
3.2.10.2 Employment Eligibility; Subcontractors, Sub-subcontractors and Consultants. To the same extent and under the same conditions as Contractor, Contractor shall require all of its subcontractors, sub-subcontractors and consultants performing any work relating to the Project or this Agreement to make the same verifications and comply with all requirements and restrictions provided for in Section 3.2.10.1.
3.2.10.3 Employment Eligibility; Failure to Comply. Each person executing this Agreement on behalf of Contractor verifies that they are a duly authorized officer of Contractor, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Contractor or its subcontractors, sub-subcontractors or consultants to meet any of the requirements provided for in Sections 3.2.10.1 or 3.2.10.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Contractor under Section 3.2.10.2); or (3) failure to immediately remove from the Project any person found not to be in compliance with such requirements.
3.2.10.4 Labor Certification. By its signature hereunder, Contractor certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers’ Compensation or to undertake
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self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
3.2.10.5 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
3.2.10.6 Air Quality. Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (CARB). Contractor shall specifically be aware of the CARB limits and requirements’ application to “portable equipment”, which definition is considered by CARB to include any item of equipment with a fuel-powered engine. Contractor shall indemnify City against any fines or penalties imposed by CARB or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Contractor, its subcontractors, or others for whom Contractor is responsible under its indemnity obligations provided for in this Agreement.
3.2.10.7 Water Quality.
(A) Management and Compliance. To the extent applicable, Contractor’s Services must account for, and fully comply with, all local, state and federal laws, rules and regulations that may impact water quality compliance, including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); laws, rules and regulations of the Environmental Protection Agency and the State Water Resources Control Board; the City’s ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State.
(B) Liability for Non-Compliance. Failure to comply with the laws, regulations and policies described in this Section is a violation of law that may subject Contractor or City to penalties, fines, or additional regulatory requirements. Contractor shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from and against any and all fines, penalties, claims or other regulatory requirements imposed as a result of Contractor’s non-compliance with the laws, regulations and policies described in this Section, unless such non-compliance is the result of the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers. (C) Training. In addition to any other standard of care requirements set forth in this Agreement, Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them without impacting water quality in violation of the laws, regulations and policies described in this Section. Contractor further warrants that it, its employees and subcontractors will receive adequate training, as determined by City, regarding the requirements of the laws, regulations and policies described in this Section as they may relate to the Services provided under this
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Agreement. Upon request, City will provide Contractor with a list of training programs that meet the requirements of this paragraph.
3.2.11 Insurance.
3.2.11.1 Time for Compliance. Contractor shall not commence Work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this Section. In addition, Contractor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this Section.
3.2.11.2 Minimum Requirements. Contractor shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Contractor, its agents, representatives, employees or subcontractors.
Contractor shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage:
(A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability:
Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. The policy shall not contain any exclusion contrary to the Agreement, including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 29); or (2) cross liability for claims or suits by one insured against another. (B) Minimum Limits of Insurance. Contractor shall maintain limits no less than: (1) General Liability: $1,000,000 MINIMUM; and $2,000,0000 aggregate. per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used including, but not limited to, form CG 2503, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability:
$1,000,000 MINIMUM; per accident for bodily injury and property damage; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Liability limits of $1,000,000 MINIMUM; per accident for bodily injury or disease. Defense costs shall be paid in addition to the limits. (C) Notices; Cancellation or Reduction of Coverage. At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or materially reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be promptly reimbursed by Contractor or the City may withhold amounts sufficient to pay premium from Contractor payments. In the alternative, the City may suspend or terminate this Agreement.
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(D) Additional Insured. The City of Upland, its directors, officials, officers, employees, agents, and volunteers shall be named as additional insureds on Contractor’s and its subcontractors’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.
3.2.11.3 Insurance Endorsements. The insurance policies shall contain the following provisions, or Contractor shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies:
(A) General Liability. The general liability policy shall include or be endorsed (amended) to state that: (1) using ISO CG forms 20 10 and 20 37, or endorsements providing the exact same coverage, the City of Upland, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insured with respect to the Services or ongoing and complete operations performed by or on behalf of the Contractor, including materials, parts or equipment furnished in connection with such work; and (2) using ISO form 20 01, or endorsements providing the exact same coverage, the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor ’s scheduled underlying coverage. Any excess insurance shall contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of the City, before the City’s own primary insurance or self-insurance shall be called upon to protect it as a named insured. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Contractor’s insurance and shall not be called upon to contribute with it in any way. Notwithstanding the minimum limits set forth in Section
3.2.11.2(B), any available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional insureds pursuant to this Section 3.2.11.3(A).
(B) Automobile Liability. The automobile liability policy shall include or be endorsed (amended) to state that: (1) the City, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Contractor or for which the Contractor is responsible; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor’s scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Contractor’s insurance and shall not be called upon to contribute with it in any way.
Notwithstanding the minimum limits set forth in Section 3.2.11.2(B), any available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional insureds pursuant to this Section 3.2.11.3(B). (C) Workers’ Compensation and Employer’s Liability Coverage.
The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents, and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Contractor. (D) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days (10 days for nonpayment of premium) prior written notice by certified mail, return receipt requested, has been given to the City; and (B) any failure to comply
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with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents, and volunteers.
Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officials, officers, employees, agents and volunteers, or any other additional insureds.
3.2.11.4 Separation of Insureds; No Special Limitations; Waiver of Subrogation. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents, and volunteers.
All policies shall waive any right of subrogation of the insurer against the City, its officials, officers, employees, agents, and volunteers, or any other additional insureds, or shall specifically allow Contractor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City, its officials, officers, employees, agents, and volunteers, or any other additional insureds, and shall require similar written express waivers and insurance clauses from each of its subcontractors.
3.2.11.5 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. Contractor shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, employees, agents, and volunteers; or (2) the Contractor shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.
3.2.11.6 Subcontractor Insurance Requirements. Contractor shall not allow any subcontractors to commence work on any subcontract relating to the work under the Agreement until they have provided evidence satisfactory to the City that they have secured all insurance required under this Section. If requested by Contractor, the City may approve different scopes or minimum limits of insurance for particular subcontractors. The Contractor and the City shall be named as additional insureds on all subcontractors’ policies of Commercial General Liability using ISO form 20 38, or coverage at least as broad.
3.2.11.7 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the City.
3.2.11.8 Verification of Coverage. Contractor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
3.2.11.9 Reporting of Claims. Contractor shall report to the City, in addition to Contractor’s insurer, any and all insurance claims submitted by Contractor in connection with the Services under this Agreement.
3.2.12 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Contractor shall at all times
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be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and lifesaving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.
3.2.13 Bonds.
3.2.13.1 Performance Bond. If required by law or otherwise specifically requested by City in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Agreement a Performance Bond in the amount of the total, not-to-exceed compensation indicated in this Agreement, and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until it has been received and approved by the City.
3.2.13.2 Payment Bond. If required by law or otherwise specifically requested by City in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Agreement a Payment Bond in the amount of the total, not-to-exceed compensation indicated in this Agreement, and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until it has been received and approved by the City.
3.2.13.3 Bond Provisions. Should, in City’s sole opinion, any bond become insufficient or any surety be found to be unsatisfactory, Contractor shall renew or replace the affected bond within 10 days of receiving notice from City. In the event the surety or Contractor intends to reduce or cancel any required bond, at least thirty (30) days prior written notice shall be given to the City, and Contractor shall post acceptable replacement bonds at least ten (10) days prior to expiration of the original bonds. No further payments shall be deemed due or will be made under this Agreement until any replacement bonds required by this Section are accepted by the City. To the extent, if any, that the total compensation is increased in accordance with the Agreement, the Contractor shall, upon request of the City, cause the amount of the bonds to be increased accordingly and shall promptly deliver satisfactory evidence of such increase to the City. To the extent available, the bonds shall further provide that no change or alteration of the Agreement (including, without limitation, an increase in the total compensation, as referred to above), extensions of time, or modifications of the time, terms, or conditions of payment to the Contractor, will release the surety. If the Contractor fails to furnish any required bond, the City may terminate this Agreement for cause.
3.2.13.4 Surety Qualifications. Only bonds executed by an admitted surety insurer, as defined in Code of Civil Procedure Section 995.120, shall be accepted. The surety must be a California-admitted surety with a current A.M. Best’s rating no less than A:VIII and satisfactory to the City. If a California-admitted surety insurer issuing bonds does not meet these requirements, the insurer will be considered qualified if it is in conformance with Section 995.660 of the California Code of Civil Procedure, and proof of such is provided to the City.
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3.2.14 Accounting Records. Contractor shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Contractor shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.2.15 Work Site.
3.2.15.1 Inspection Of Site. Contractor shall visit sites where Services are to be performed and shall become acquainted with all conditions affecting the Services prior to commencing the Services. Contractor shall make such examinations as it deems necessary to determine the condition of the work sites, its accessibility to materials, workmen and equipment, and to determine Contractor’s ability to protect existing surface and subsurface improvements. No claim for allowances–time or money–will be allowed as to such matters after commencement of the Services.
3.2.15.2 Field Measurements. Contractor shall make field measurements, verify field conditions and shall carefully compare such field measurements and conditions and other information known to Contractor with the Contract Documents, including any plans, specifications, or scope of work before commencing Services. Errors, inconsistencies or omissions discovered shall be reported to the City immediately and prior to performing any Services or altering the condition.
3.2.16 Loss and Damage. Contractor shall be responsible for all loss and damage which may arise out of the nature of the Services agreed to herein, or from the action of the elements, or from any unforeseen difficulties which may arise or be encountered in the prosecution of the Services until the same is fully completed and accepted by City.
3.2.17 Warranty. Contractor warrants all Services under the Contract (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year (or the period of time specified elsewhere in the Contract or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by the City of any defect in the Services or non-conformance of the Services to the Contract, commence and prosecute with due diligence all Services necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act sooner as requested by the City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the work (or work of other contractors) damaged by its defective Services or which becomes damaged in the course of repairing or replacing defective work. For any work so corrected, Contractor’s obligation hereunder to correct defective work shall be reinstated for an additional one year period, commencing with the date of acceptance of such corrected work. Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of the Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any
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portion of the work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the City, regardless of whether or not such warranties and guarantees have been transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Contract, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non-conforming work and any work damaged by such work or the replacement or correction thereof at Contractor's sole expense. Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand.
3.3 Fees and Payments.
3.3.1 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “C” in the amount of $157,180.00 attached hereto and incorporated herein by reference; and at the City’s discretion. The total compensation shall not exceed $190,000.00 without approval of the City Council or if costs increases are the result of a request Extra Work. Extra Work may be authorized, as described below.
3.3.2 Payment of Compensation. Contractor shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Contractor. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon.
3.3.3 Deductions. City may deduct or withhold, as applicable, from each progress payment an amount necessary to protect City from loss because of: (1) stop payment notices as allowed by state law; (2) unsatisfactory prosecution of the Services by Contractor; (3) sums representing expenses, losses, or damages as determined by the City, incurred by the City for which Contractor is liable under the Agreement; and (4) any other sums which the City is entitled to recover from Contractor under the terms of the Agreement or pursuant to state law, including Section 1727 of the California Labor Code. The failure by the City to deduct any of these sums from a progress payment shall not constitute a waiver of the City's right to such sums.
3.3.4 Reimbursement for Expenses. Contractor shall not be reimbursed for any expenses unless authorized in writing by City.
3.3.5 Extra Work. At any time during the term of this Agreement, City may request that Contractor perform Extra Work. As used herein, “Extra Work” means any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. The City Manager may approve Extra Work up to ten percent (10%) of the amount of the Agreement or fifty thousand dollars ($50,000.00). In no event shall the total sum of the agreement (basic compensation amount and Extra W ork) exceed fifty thousand dollars ($50,000.00). Any Extra Work in excess of this amount shall be approved by the City Council. Contractor shall not perform, nor be compensated for, Extra Work without written authorization from City’s Representative.
3.3.6 Prevailing Wages. Contractor is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing
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wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. City shall provide Contractor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Contract. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at Contractor’s principal place of business and at the project site. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.
3.3.7 Registration/DIR Compliance. If the Services are being performed as part of an applicable “public works” or “maintenance” project, and if the total compensation is $15,000 or more, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Contractor and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Contractor shall maintain registration for the duration of the Project and require the same of any subcontractors, as applicable. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements.
Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1. Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor’s performance of Services, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor.
3.4 Termination of Agreement.
3.4.1 Grounds for Termination. City may, by written notice to Contractor, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Contractor of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Contractor shall be compensated only for those services which have been adequately rendered to City, and Contractor shall be entitled to no further compensation. Contractor may not terminate this Agreement except for cause.
3.4.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Contractor to provide all finished or unfinished Documents and Data and other
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information of any kind prepared by Contractor in connection with the performance of Services under this Agreement. Contractor shall be required to provide such document and other information within fifteen (15) days of the request.
3.4.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
3.5 General Provisions.
3.5.1 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Contractor:
General Pump Company
159 N Acacia Street
San Dimas, CA 91773
Attn:
City:
City of Upland
460 N. Euclid Avenue
Upland, CA 91786
Attn: Braden Yu, Public Works Director
With Copy To:
City of Upland
460 N. Euclid Avenue
Upland, CA 91786
Attn: City Attorney
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.5.2 Indemnification.
3.5.2.1 Scope of Indemnity. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold the City, its officials, employees, agents and volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, regardless of whether the allegations are false, fraudulent, or groundless, to property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Contractor, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Contractor’s Services, the Project or this Agreement, including without limitation the payment of all expert witness fees, attorneys’ fees and other
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related costs and expenses. Notwithstanding the foregoing, to the extent required by Civil Code section 2782, Contractor’s indemnity obligation shall not apply to liability for damages for death or bodily injury to persons, injury to property, or any other loss, damage or expense which is caused by the the sole or active negligence or willful misconduct of the City or the City’s agents, servants, or independent contractors who are directly responsible to the City.
3.5.2.2 Additional Indemnity Obligations. Contractor shall defend, with counsel of City’s choosing and at Contractor’s own cost, expense and risk, any and all Claims covered by this indemnification section that may be brought or instituted against City or its officials, employees, agents and volunteers. In addition, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Contractor shall also reimburse City for the cost of any settlement paid by City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for City’s attorney’s fees and costs, including expert witness fees. Contractor shall reimburse City and its officials, employees, agents and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor’s obligation to indemnify shall survive expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by the City, its officials, employees, agents and volunteers.
3.5.3 Governing Law; Government Code Claim Compliance. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County, California. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Contractor must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Contractor. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Contractor shall be barred from bringing and maintaining a valid lawsuit against the City.
3.5.4 Time of Essence. Time is of the essence for each and every provision of this Agreement.
3.5.5 City’s Right to Employ Other Contractors. City reserves right to employ other contractors in connection with this Project.
3.5.6 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.5.7 Assignment or Transfer. Contractor shall not assign, hypothecate or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
3.5.8 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term
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referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Contractor include all personnel, employees, agents, and subcontractors of Contractor, except as otherwise specified in this Agreement. All references to City include its officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs ar e for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement.
3.5.9 Amendment; Modification. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.5.10 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise.
3.5.11 No Third Party Beneficiaries. Except to the extent expressly provided for in Section 3.5.7, there are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.5.12 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.5.13 Prohibited Interests. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Agreement. Further, Contractor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Contractor further agrees to file, or shall cause its employees or subcontractors to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.5.14 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
3.5.15 Authority to Enter Agreement. Contractor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
3.5.16 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
3.5.17 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations,
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understandings or agreements. This Agreement may only be modified by a writing signed by both parties.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR
MAINTENANCE SERVICES AGREEMENT
BETWEEN THE CITY OF UPLAND
AND GENERAL PUMP COMPANY
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above.
CITY OF UPLAND
APPROVED BY:
Michael Blay,
City Manager
ATTESTED BY:
Keri Johnson,
City Clerk
APPROVED AS TO FORM:
Best Best & Krieger LLP
City Attorney
GENERAL PUMP COMPANY
By:
Its:
Printed
Name:
By:
Its:
Printed
Name:
____________________________________
Contractor’s License Number
____________________________________
DIR Registration Number
EXHIBIT A
EXHIBIT A
SCOPE OF SERVICES
General Pump Company will perform the following items:
Mobilization, Demobilization, Public Convenience & Safety. Removal of the existing pump equipment from the well, transportation of all materials to the repair facility, disassembly, and inspection of pump equipment. Furnish, install, or repair all materials on the attached as-built. Replace or refurbish Column, Tube, and Shaft.
Brush and bail for 16 hours.
Air Burst if needed.
Dual swab airlift for 8 hours
Furnish and install the well pump and install motor (City will have the motor repaired by Sulzer Electric)
Pre and Post Cleaning Video and Inspections.
Record Drawings, warranty documents and Operation and Maintenance Manuals.
EXHIBIT B
EXHIBIT B
SCHEDULE OF SERVICES
N/A
EXHIBIT C
EXHIBIT C
COMPENSATION
ITEM DESCRIPTION SUBTOTAL
Mobilization, Demobilization, Public Convenience & Safety. $29,500.00 Removal of the existing pump equipment from the well, transportation of all materials to the repair facility, disassembly, and inspection of pump equipment.
$18,500.00
Furnish, install, or repair all materials on the attached as-built. $45,850.00 Column, Tube, and Shaft: refurbished (based on per section). $1,450.00 Column, Tube, and Shaft: replace if necessary (based on per section). $2,980.00 Brush and bail.(if needed per discretion of the City) $6,720.00 Air Burst. $15,800.00
Sonar-Jet. (if needed per discretion of the City)
$7,800.00
Dual swab airlift. $4,480.00
Furnish and install the well pump and install motor (City will have the motor repaired by Sulzer Electro Mechanical Services). $18,500.00 Pre and Post Cleaning Video and Inspection. $1,150.00
Disinfect Well (simple chlorination). $650.00
Record Drawings, warranty documents and Operation and Maintenance Manuals. $150.00
Bonding. $2,500.00
TOTAL $157,180.00
S T A F F R E P O R T
I T E M N O . 10.J.
D A T E :J u ne 2 7, 2 02 2
T O :M A YO R A N D C I T Y C O U N C I L
F R O M : M I C H A E L B L A Y, C I T Y M A N A G E R P R E P A R E D B Y : B R A D E N Y U, P U B L I C W O R K S D I R E C TO R
R I C H A R D S M I D E R L E , O P E R A T I O N S M A N A G E R S U B J E C T :U P D A T E D U N I T P R I C I N G F O R C I T Y W I D E C O N C R E T E M A I N T E N A N C E C O N T R A C T F O R 20 22 W I N D S TO R M C L E A N U P
R E C O M M E N D E D A C T I O N
I t i s recom m en d ed th at th e C i ty C oun cil ap p rove t he u p d at ed u ni t p rices for D.M . C on tractin g , I n c. (D M C on tractin g ) to rep air of sid ewalk & cu rb /g u tter d am ag es sustained from fallen C ity trees.
G O A L S T A T E M E N T
Th e p rop osed ac ti on sup p orts t he C i ty's ob ject ive to contin ue to m ai n t ain and i m p rove the C ity's infrastru cture.
B A C K G R O U N D
O n J an uary 21 , 2 02 2, the C i ty exp erienced an extrem e wi nd st orm cau sing s ig ni fic ant d am ag e to trees, hom es, b usin esses, veh icles, sid ewalks, an d road s. H urrican e force w in d s, over 8 0 m iles p er h our, cau sed a l evel of d am ag e s uffi ci ent to lead th e C ity’s D i rec tor of E m erg en cy S ervices t o i ss ue a p rocl am at ion d ecl ari n g t he existen ce of a Local E m erg en c y c aus ed b y an E xtrem e W in d E ven t . T he P rocl am at ion w as su b seq u ent ly rat ifi ed b y t he C i ty C ou n c il w ith th e ad op ti on of Res olu ti on N o. 6 63 6. T he d am ag es att ri b u ted b y t he event exceed ed the C ity’s avail ab l e p ersonn el, eq u ip m en t, an d faci li ti es, lead in g staff to cal l up on outsid e resources and con tract ors to com p lete t he em erg en c y res p on se clean-u p acti vit ies. T he w in d storm even t caused sid ew alk d am ag e citywid e at a total of 4 1 location s.
O n D ecem b er 13 , 20 21 , th e C i ty en tered int o an A g reem en t w it h D M C on tract in g , P roject N o. 70 70 & 70 79 C itywid e C oncrete M aintenan ce im p rovem ents throug hou t variou s location s in th e C ity. T he term of th is A g reem ent is valid throug h F Y 2 02 2-2 3.
I S S U E S /A N A L Y S I S
D ue to inflation, p rices for m at erial an d fu el costs have in creased d ram at ically. For th is year, th e averag e g asolin e p ri ces for all g rad es in C ali forn ia h ave i n c reas ed 4 4% (4 .0 6 8 vs. 5 .87 1) and since th e year t his cont ract was aw ard ed i n 2 01 8, g asol in e p ric es h ave in creased 5 9% (3.6 90 vs 5 .87 1) vased on th e U S E n erg y I n form at ion A d m in is trati on . B ased on the C alifornia C on st ru ct ion C ost I n d ex, con st ru ct ion cos ts h ave in creased an averag e of 16 .7% th is year.
D M C ont racting has su b m it ted an up d ate to t he orig in al c on t rac t un it p rice to ad ju s t for in flation to c om p let e th e concrete w ork d u e to t he 2 02 2 w i n d st orm d am ag e. Th e averag e in crease req u es ted is 22 %, wh ic h i s in li n e wi th in creases s een on fuel an d construction costs.
Th ese chan g es w ould affect the u nit p rices b u t n ot the total con tract p rice.
F I S C A L I M P A C T S
Th e ad op ted F Y 2 02 1-2 2 and F Y 20 22 -23 b ud g et contain s su fficien t fun d s in th e b elow accoun ts for the p rop osed un it cost increase, as sum m arized b elow:
P ro ject F unding
C I P A ccou nt N o. 20 4-7 50 0-7 00 08 $5 00 ,00 0
C I P A ccou nt N o. 22 9-7 50 0-1 61 61 (A R PA ) $5 26 ,00 0 T o tal P ro ject F unding fo r F Y 2021-22: $1,026,000
C I P A ccou nt N o. 20 4-7 50 0-7 00 12 $5 00 ,00 0
C I P A ccou nt N o. 22 9-7 50 0-1 61 62 (A R PA )$4 74 ,00 0 T o tal P ro ject F unding fo r F Y 2022-23: $974,000
A L T E R N A T I V E S
P rovid e altern ative d irection to staff.
AT TAC HM E NT S :
Description
D M Contracting Unit Quote Cost
D M Contracting Original Bid Form
05/13/2022
To: Mr. Alex CarrascoSenior Maintenance WorkerPublice Works DepartmentOperations and Maintenance Division1370 N. Benson AveUpland, Ca 91786 jl106
Project #7070 and #7079, Windstorm Conc. Repairs
Citywide Concrete MaintenanceWindstorm Concrete RepairsAreas #1, #2, and #8 (see red tabs)Various locations throughout city of Upland Revised prices for area's #1, #2, and #8Windstorm Concrete Repairs.
New bid schedule price items,Windstorm Concrete Repairs:
4" asphalt sq. ft. = $186" asphalt sq. ft. = $24Curb & 12" gutter per lin. ft. = $65Curb & 18" gutter per lin. ft. = $70Curb & 24" gutter per lin. ft. = $85A-1 Curb per lin. ft. = $65Rock curb per lin. ft. = $195Rock curb & 18" gutter per lin. ft. = $210Sidewalk per sq. ft. = $22Dwy/Approach per sq. ft. = $25Cross gutter / Spandrel per sq. ft. = $35Wheel chair H/C ramp = $5,400 ea.
S T A F F R E P O R T
I T E M N O . 10.K .
D A T E :J un e 27 , 20 22
T O :M A YO R A N D C I T Y C O U N C I L
F R O M : M I C H A E L B L A Y, C I T Y M A N A G E R P R E P A R E D B Y : B R A D E N Y U, P U B L I C W O R K S D I R E C TO R
J O H N R O B L E S, A C T I N G U T I L I T I E S M A N A G E R S U B J E C T :B L A N K E T P U R C H A S E O R D E R S - U T I L I T I E S
R E C O M M E N D E D A C T I O N
I t i s rec om m en d ed t hat t h e C it y C ou n ci l ap p rove b lan ket p u rc h as e ord ers for A rm orcast P rod u cts C om p an y, I n c; B ad g er M et er, I n c; E urofin s E at on A n alyt ical, I n c ; H ol li d ay Rock C om p an y, I n c; M etron-Farnier, L LC ; an d S & J P ip e S u p p ly C om p any, I nc for F iscal Year 20 22 /20 23 .
G O A L S T A T E M E N T
Th e p rop osed act ion su p p ort s t h e C it y's g oal to m ain tai n asset p rotection an d m anag em en t th at en su res th e in frastructu re is effectively renewed , rep laced , an d m ain tained .
B A C K G R O U N D
I n accord an ce w it h C h ap t er 2 .48 of th e U p l an d M u nicip al C od e (U M C ), p u rc h as in g an d con tractin g of su p p li es, eq u ip m en t, vehicles, m aintenan ce, p u b li c w orks p rojects an d p rofession al servic es over $5 0,0 00 are sub ject to a form al p u rch asi n g p roced ure and are aw ard ed b y th e C ity C oun cil.
I n th e even t t he C it y M anag er d eterm i n es that it is n ecessary to om it an y p hase of the selection p roces s, th e C ity M an ag er shal l notify t h e C i ty C ou ncil or F inan ce of su ch action. A w ritten stat em en t of t h e C ity M anag er’s d et erm in ati on s h al l b e retained in th e p roject file. (U M C 2 .48 .08 0)
I S S U E S /A N A L Y S I S
I t rem ain s im p erati ve t hat the P u b li c Works D ep artm ent h ave th e ab il it y t o effectively p u rchase h ard w are su p p li es an d /or tool s, etc. from l ocal ven d ors on a reg ular b as is . B lan ket P u rchase O rd ers (B P O ) p rovi d e efficient cont rol of th e p u rch ases of sup p lies an d faci li tat es the acq uisition of sm all d ollar item s ($5 ,00 0 or less p er item ) n eed ed for d aily op eration s th at are oth erwise u n econ om i cal to s tore or t o p rocu re t hroug h form al b id d i n g p roces ses . Th e B P O s in th e am oun ts req u est ed , exceed th e $5 0,0 00 s ig n i n g authority of th e C ity M an ag er as p rescrib ed in t he C it y's P urch asi ng Policy an d P roced u re M an u al. T h erefore, staff are req uesting th at t h e C i ty C ou n ci l ap p rove t h e follow in g ven d or B P O s to en su re citywid e op erational efficien cy an d contin uity.
A rm o rcast Pro ducts C o mpany, I nc (A rm o rcast): T he C it y h as st an d ard ized on A rm orcast m eter b oxes and vaults w here ap p licab le. M anu factured from p olym er con crete, t hey are fou r ti m es strong er an d 7 5% l ig ht er t han st an d ard con crete m eter b oxes an d vau lt s. Th ese p rod u ct s are u n affec ted b y m oistu re an d hol d up b et ter t o the crushing st ren g t h of tree root s. Th e li g h ter w eig h t of t he p rod u c t aid s i n red u ci n g b ack in juries d u ring in stallation, the p oten tial inju ries from p ed estrian s step p ing in to a d am ag ed p arkw ay enclosure, enh ances the p rop erty w ith an attractive altern ative to con ceal th e utility, and p rovid es easy access to the infrastru cture.
B adger M eter, Inc (B adger M eter): T h e C ity h as st an d ard ized on B ad g er M et ers for w ater m et ers t o c oll ect c on s u m p t ion d ata for w ater b il li n g p urp os es. T hese m eters have a consisten t useful l ife of fi fteen years (1 5-yrs) b efore accu racy d ecl in es to a l evel wh ere lost revenu e outw eig hs th e rep lacem en t cost of a new m eter.
M etro n-F arnier, L L C (M etro n-F arnier): T he C ity has stan d ard ized on M etron-Farnier for m eter reg is ters, wh ic h u ses a cellular n etwork to ob tai n m eter d ata wi rel ess ly. O n O ctob er 25 , 20 21 , th e C ity C oun cil ap p roved a p urch ase ord er for M etron-Farnier an d the new m eters h ave p rovid ed the C ity w ith 1 00 % sig n al reliab ility an d n o d ead sp ots.
E uro fins E ato n A nalytical, Inc (E uro fins): D ail y, weekl y, m on t h l y, q u arterly, an d ann ual d ri nki ng w ater s am p les are req ui red b y th e S tate Wat er Rescou ces C ont rol B oard (S W R C B ), an d the U n it ed S tates E n vi ron m en tal P rotection A g en c y (U S E PA ) to en su re th at p otab le w ater m eets al l S t ate an d Fed eral D rin kin g Wat er S t and ard s. T he E nviron m en tal L ab oratory A ccred itation P rog ram (E L A P ) p rovi d es eval uat ion an d accred itation of environ m en tal tes ti ng lab oratories to ensure th e q uality of an alytical d ata u sed for reg u lat ory p u rp oses t o m eet th e req u irem en ts of th e S tat e's d rin kin g w ater. E urofin s is the closest E L A P certified lab oratory th at can an alyze all of the sam p les collected b y city staff, an d rep orts th e resu lts d irectly to the S W R C B an d U S E PA .
H o lliday R o ck C o mpany, I nc (H o lliday R o ck): H ollid ay Rock su p p lies construction m aterials s uc h as rock, sand , g ravel , as p h alt , and c on c ret e and t h ei r m ain offi ce an d q u arry are l ocat ed at 1 49 9 N . B en son A ve, w h i ch is across t h e street from th e P ub lic Works faci li ty. D u e t o th eir locati on an d on -h an d in vent ory, H ollid ay Rock h as a su b stan tial ad vant ag e i n d eli very, c on ven ien ce, and resp on siveness t o th e C i ty of Up lan d and as a resu lt , P u b li c Works can g et m at eri al at all t im es of d ay an d /or n ig ht as well as d u ring em erg en c ies (i.e. rai n s torm ). I n ad d it ion , since H ol li d ay Roc k is a local vend or and has an O p erat in g C ovenan t A g reem en t wi th th e C i ty, t h e C it y rec eives loc al sales tax revenu es for all p u rchases from H ollid ay Rock.
S & J P ip e S up p ly C o m p any (S &J S upply): S & J S u p p ly is a w holesale wat er works d istrib u tor located in S ou th ern C al iforni a, w it h fac il it ies in S an ta Fe S p rin g s an d Tem ecu la. S & J h as b een su p p lyi n g p ip eli n e m aterials to th e C ity for over ten-years,
and S ou th ern C alifornia m u nicip alities and th e con stru ction in d u stry sin ce 1 98 7.
F I S C A L I M P A C T S
B u d g et for each of t he B P O ’s req u ested is al read y in clud ed in t h e ap p roved F iscal Year 2 02 2- 23 op erating b u d g et. A llocation s for th e follow in g ven d or and accoun t n um b ers are:
A rm orcast (A ccoun t N o. 6 40 -62 06 -52 17 ) - $8 0,0 00 B ad g er M eter (A ccoun t 6 40 -62 03 -52 33 ) - $2 00 ,00 0 B ad g er M eter (A ccoun t N o. 6 40 -62 03 -52 58 ) - $1 5,0 00 M etron -Farn ier (64 0-6 20 3-5 23 3) - $70 0,0 00
H ollid ay Rock (A ccoun t N o. 2 04 -54 01 -52 17 ) - $1 0,0 00 H ollid ay Rock (A ccoun t N o. 6 40 -62 06 -52 17 ) - $5 0,0 00 E urofin s (A ccoun t N o. 6 40 -62 05 -52 58 ) - $8 5,0 00 S & J S u p p ly (6 40 -62 06 -52 17 ) - $3 00 ,00 0
A L T E R N A T I V E S
P rovid e altern ative d irection to staff.
AT TAC HM E NT S :
Description
No Attachments Available
S T A F F R E P O R T
I T E M N O . 11.A .
D A T E :J u ne 2 7, 2 02 2
T O :M A YO R A N D C I T Y C O U N C I L
F R O M : M I C H A E L B L A Y, C I T Y M A N A G E R P R E P A R E D B Y : S T E P H E N PA R K E R , C PA , A S S I S TA N T C I T Y M A N A G E R
R O B E R T D A L Q U E S T, D E V E LO P M E N T S E R V I C E S D I R E C TO R
D O U G A N D E R S O N , C O N S U LTA N T
S U B J E C T :F O R M A T I O N O F C O M M U N I T Y F A C I L I T I E S D I S T R I C T N O. 2 02 2-1 (E N C L A V E A T U P L A N D )
R E C O M M E N D E D A C T I O N
I t is recom m end ed that th e C ity C oun cil take th e follow in g actions:
1. H old a P u b li c H earin g t o con si d er form ati on p roc eed i ng s an d elect ion s for C om m u nity Facilities D istrict N o. 20 22 -1 (E n clave at U p land ).
2. C lose the P ub lic H earin g .
3. A d op t a Resolu tion es tab li sh in g C om m u nity Fac il it ies D istrict N o. 2 02 2-1 (E nc lave at Up lan d ) of t he C i ty of U p l an d , C ou nty of S an B ern ard in o, S tat e of C al iforn i a, an d the b ou nd aries thereof and ap p roving a fun d ing ag reem en t.
4. A d op t a Resolu tion d et erm in in g the n ec ess it y to in cu r a b on d ed in d eb ted ness for C om m un it y Faci li ti es D i st ri ct N o. 2 02 2-1 (E nclave at U p lan d ), s u b m i tt in g t o the q u alified elec tors of th e C om m un it y Facilities D is tric t a p rop os it ion t o au t h oriz e t he levy of a sp eci al tax therein , t o au th ori ze such C om m u nity Faci li ti es D is tric t t o i nc ur a b ond ed in d eb ted ness secured b y th e levy of sp ecial tax therein to finan ce certain typ es of p ub lic facilities an d t o est ab l is h an ap p rop riation s lim it for s u c h C om m u n it y Faci li ti es D istrict and callin g a sp ecial election for the C om m u ni ty Faci li ti es D is tric t on a p rop os it ion for in cu rrin g such b ond ed ind eb ted n ess.
5. A d op t a Resol u t ion calling a sp eci al elect ion an d sub m ittin g to th e voters of C om m u nity Facilities D istrict N o. 2 02 2-1 (E n cl ave at Up lan d ) of t he C i ty of U p l an d p rop osition s reg ard in g t he ann ual levy of sp eci al t axes w it hin t h e C om m u nity Fac il it ies D istrict to p ay p rin cip al an d i n t eres t on b on d s th ereof an d t o p ay th e cos ts of p u b lic facilities an d estab lishing an ap p rop riation s lim it th erefor.
6. H old E lection.
7. A d op t a Resolu tion d ecl ari ng the resu lt s of th e consolid ated s p ec ial election s w ithin C om m un ity Facilities D istrict N o. 20 22 -1 (E n clave at U p land ).
8. H old fi rs t read i ng b y ti tl e on l y, w aive fu rther read i n g , and in trod u ce an O rd i nan ce of the
C ity C ou n ci l of the C it y of Up lan d ac ti n g as th e l eg i sl ati ve b od y of C om m u nity Facilities D istrict N o. 2 02 2-1 (E n cl ave at U p l an d ) of t he C ity of U p l and , au th ori zi n g t h e levy of sp ecial taxes in such C om m un ity Facilities D istrict.
G O A L S T A T E M E N T
Th e p rop osed action sup p orts th e C ity’s g oal of p rovid in g soun d fiscal steward ship an d p rovid in g d ec en t h ou si n g , a su it ab l e li vin g en vironm ent , and exp an d ed econ om ic op p ortun ities for citizens.
B A C K G R O U N D
O n M ay 2 3, 2 0 2 2 th e C ity C ou n c il ad op ted Res olu ti on N o. 6 65 9 d ec larin g int ent ion to estab lish t h e p rop os ed C om m u n i ty Faci li ti es D is tric t N o. 2 02 2-1 (E n cl ave at U p land ), an d Resolution N o. 6 66 0 d ec larin g t he n ec ess it y to in cu r a b ond ed in d eb ted nes s of th e p rop osed C om m u nity Facilities D istrict N o. 2 02 2-1 . A p u b lic hearin g on th e est ab l is h m en t of the p rop osed C om m un ity Facilities D istrict N o. 20 22 -1 was set for J un e 27 , 20 22 .
I S S U E S /A N A L Y S I S
Th e D is tric t is b ein g form ed t o fi n an ce p u b l ic facilit ies for p l an n ed d evel op m ent b y L E N N A R H O M E S O F C A L I F O R N I A , L LC , (“O wn er”) of ap p roxim atel y 1 9 2 con d om in iu m un it s on a 15 .56 acre site, in cl ud in g b u t n ot l im it ed to facilities own ed and op erat ed b y th e C it y i n li eu of certain C ity d evelop m ent i m p act fees , w h ic h inclu d e b u t are not l im it ed to p ark, t raffi c, water, sewer, s torm d rain, an d oth er cap it al i m p rovem ent s, p olice an d fire fac il it ies , and t o fun d the in cid en tal exp en ses in reg ard s to form ation an d ad m inistration of th e D istrict.
A P u b li c H eari n g on t he est ab lishm ent of th e p rop os ed C om m u n i ty Faci li ti es D istrict 20 22 -1 w ill b e h eld , an d aft er t h e P u b lic H eari n g i s closed , sh ou l d th e C i ty C ou ncil d et erm in e t o form C F D 20 22 -1, a s p ec ial elec ti on w i ll b e held t o au t h orize th e is su an c e of t he b ond s an d l evy of th e sp eci al tax. I f a vote is h eld , t h e voti n g p roc ed u re at th e el ect ion will b e a lan d own er vote w ith each land ow ner, w ho is an ow ner of record at the close of th e p u b lic hearin g .
B y form ing th e D istrict, th e C i ty w ill consid er fi n an ci n g th e facilit ies and in ci d en tal exp enses th rou g h th e sale of b on d ed in d eb ted ness in an ap p roxim ate am ou nt of $6 ,50 0,0 00 .
Up on form at ion of t he D istrict, i t w ill b e the i nt ent ion of t he C ity t o levy a sp ecial tax w ithin th e D istrict. T he Rate and M ethod of A p p ortionm ent and C ollection for th e sp ecial tax are d escrib ed in d et ail in t h e C F D Rep ort p rep ared b y W illd an F in an c ial S ervices. Th e Rate an d M ethod of A p p orti on m en t w ill allow eac h p rop erty own er w it h i n th e D istrict to est im ate the m axim u m am oun t of tax th at m ay b e levied ag ainst each p arcel.
F I S C A L I M P A C T S
A ll cost s of t h e C ity an d c ons ul tan ts in cu rred w ith resp ect to form at ion of C F D 2 02 2-1 w il l b e p aid b y th e d evelop er.
Th e p rop os ed C om m u n i ty Faci li ti es B on d s are n ot a d irect ob li g at ion of th e C ity of Up lan d .
N either th e faith an d c red it , n or t h e taxing p ow er of th e C i ty, C ou nt y, S tate, or any p olitical su b d ivision is p led g ed to th e rep aym en t of t h e b on d s . T he b on d s are li m i ted ob li g at ion s of th e D istrict p ayab le solely from sp ecial tax revenu es. A ll costs of issu ance of th e p rop osed B on d s w ould com e from b ond p roceed s.
A L T E R N A T I V E S
P rovid e altern ative d irection to staff.
AT TAC HM E NT S :
Description
Resolution of F ormation and Approving Funding Agreement Resolution Determining Necessity to Incur Bonded Indebtedness Resolution Calling E lection
Resolution Declaring Results of Election
Ordinance Authorizing the Levy of S pecial Taxes
C F D Report
F unding Agreement
RESOLUTION NO. ________
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
UPLAND ESTABLISHING COMMUNITY FACILITIES
DISTRICT NO. 2022-1 (ENCLAVE AT UPLAND) OF THE CITY
OF UPLAND, COUNTY OF SAN BERNARDINO, STATE OF
CALIFORNIA, AND THE BOUNDARIES THEREOF AND
APPROVING A FUNDING AGREEMENT
WHEREAS, the City Council (the "City Council") of the City of Upland (the "City") has heretofore adopted the Resolution of Intention stating that a community facilities district to be known as "Community Facilities District No. 2022-1 (Enclave at Upland) of the City of Upland, County of San Bernardino, State of California" ("CFD No. 2022-1"), is proposed to be established pursuant to Chapter 2.5 (commencing with Section 53311) of Part 1 of Division 2 of Title 5 of the California Government Code, commonly known as the "Mello-Roos Community Facilities Act of 1982" (the "Act"), and fixing the time and place for a public hearing on the formation of CFD No. 2022-1; and
WHEREAS, CFD No. 2022-1 is proposed to be established for the purpose of financing public facilities which are necessary to meet increased demands placed upon the City as a result of the development of the property within CFD No. 2022-1 in lieu of certain City development impact fees, which include, but are not limited to park, traffic, water, sewer, storm drain and other capital improvements, police and fire facilities, and it is proposed that CFD No. 2022-1 will be authorized to issue bonds in one or more series and incur a bonded indebtedness for the purpose of financing such Facilities in the aggregate principal amount of $6,500,000; and WHEREAS, notice was published and mailed to the owner of all of the property in CFD No. 2022-1 relative to the intention of the City Council to establish CFD No. 2022-1, the levy of special taxes therein, the provision of public facilities therein and the incurring of a bonded indebtedness by CFD No. 2022-1 for the purpose of financing such public facilities, and of the time and place of the public hearing; and WHEREAS, there has been presented to the City Council an agreement entitled "Funding Agreement" (the "Funding Agreement") to be entered into between the City, on behalf of CFD No. 2022-1, Lewis Land Developers, LLC, a Delaware limited liability company, and Lennar Homes of California, LLC, a California limited liability company; and
WHEREAS, on June 27, 2022, the City Council conducted the public hearing as required by law relative to the formation of CFD No. 2022-1, the levy of special taxes therein, the provision of public facilities therein, and the incurring of a bonded indebtedness by CFD No. 2022-1; and
WHEREAS, prior to the commencement of the public hearing there was filed with the City Council a report (the "Report") containing a description of the public facilities required to adequately meet the needs of CFD No. 2022-1, and an estimate of the fair and reasonable costs of providing such public facilities, as required by Section 53321.5 of the Act; and
Resolution No.
WHEREAS, at the public hearing all persons desiring to be heard on all matters pertaining to the formation of CFD No. 2022-1, the levy of the special taxes therein, the provision of public facilities therein, and the incurring of the bonded indebtedness thereby were heard, and a full and fair hearing was held; and WHEREAS, at the public hearing evidence was presented to the City Council on the matters before it, and the City Council, at the conclusion of the hearing, was fully advised as to all matters relating to the formation of CFD No. 2022-1, the levy of the special taxes therein, the provision of public facilities therein, and the incurring of the bonded indebtedness therefor; and
WHEREAS, the City Council may, therefore, proceed to establish CFD No. 2022-1; and
WHEREAS, the City Clerk has advised the City Council that she has received a statement from the Registrar of Voters of the County of San Bernardino that there are no persons registered to vote in the territory of CFD No. 2022-1.
NOW, THEREFORE, the City Council of the City of Upland hereby finds, determines and resolves as follows:
Section 1. Findings. The City Council finds as follows:
(a) All of the preceding recitals are true and correct; (b) On June 27, 2022, pursuant to notice thereof duly given as provided by law, the City Council conducted a public hearing with respect to the formation of CFD No. 2022-1, and the incurring of bonded indebtedness by and for CFD No. 2022-1 and the annual levying of specified special taxes on the taxable property within CFD No. 2022-1 to pay principal of and interest on bonds to be issued by and for CFD No. 2022-1 to finance the Facilities and other obligations which are described in Section 3(a) hereof;
(c) The boundary map of CFD No. 2022-1 was recorded on May 25, 2022, pursuant to Sections 3111 and 3113 of the California Streets and Highways Code, at page 35 in Book 90 of Maps of Assessment and Community Facilities Districts, and as Instrument No. 2022-0193415 in the official records of the County of San Bernardino;
(d) All prior proceedings with respect to the formation of CFD No. 2022-1 prior to and during the public hearing with respect to the formation of CFD No. 2022- 1 which was conducted by the City Council on June 27, 2022, were valid and in conformity with the requirements of the Act;
(e) No written protests were received, at or prior to the time of the public hearing, against the formation of CFD No. 2022-1, or the levying of the special taxes, or the incurring of a bonded indebtedness by CFD No. 2022-1, or the furnishing of specified types of public facilities, and the special taxes and public facilities have, therefore, not been eliminated by majority protest pursuant to Section 53324 of the Act;
Resolution No.
(f) The City Council is, therefore, authorized to adopt a resolution of formation pursuant to Section 53325.1 of the Act for the formation of Community Facilities District No. 2022-1 (Enclave at Upland) of the City of Upland, County of San Bernardino, State of California, and CFD No. 2022-1 should be established; and (g) Twelve (12) persons have not been registered to vote within the territory of CFD No. 2022-1 for each of the 90 days preceding the close of the public hearing on June 27, 2022, and pursuant to Section 53326 of the Act, the vote in the Consolidated Special Elections (defined below) provided for in Section 10 hereof shall, therefore, be by the landowners of CFD No. 2022-1 whose property would be subject to the special taxes if they were levied at the time of the elections, and each landowner shall have one vote for each acre, or portion thereof, which he or she owns within CFD No. 2022-1 which would be subject to the proposed special taxes if they were levied at the time of the elections.
Section 2. Formation of District. Community Facilities District No. 2022-1 (Enclave at Upland) of the City of Upland, County of San Bernardino, State of California, is hereby established. The boundaries of CFD No. 2022-1 are set forth and shown on the map entitled "Proposed Boundary Map - Community Facilities District No. 2022-1 (Enclave at Upland) City of Upland, County of San Bernardino, State of California," which is on file with the City Clerk, and those boundaries are hereby established.
Section 3. Types of Facilities; Incidental Expenses.
A general description of public facilities proposed to be acquired or constructed and financed by CFD No. 2022-1 (the "Facilities") include but are not limited to:
(a) Facilities owned and operated by the City in lieu of certain City development impact fees, which include, but are not limited to park, traffic, water, sewer, storm drain and other capital improvements, police and fire facilities; and (b) The incidental expenses as such term is defined in Section 53317(e) of the Act, which will be incurred may include, but not be limited to: (i) the cost of planning and designing the public facilities and the cost of environmental evaluations thereof, (ii) all costs associated with the formation of CFD No. 2022-1, the issuance of the bonds thereof, the determination of the amount of and collection of special taxes, the payment of special taxes, and costs otherwise incurred in order to carry out the authorized purposes of CFD No. 2022-1, and (iii) any other expenses incidental to the construction, completion, and inspection of the public Facilities (the "Incidental Expenses").
Section 4. Special Taxes. Except where funds are otherwise available, a special tax sufficient to finance the Facilities and related Incidental Expenses (the "Special Taxes"), secured by the recordation of a continuing lien against all taxable or nonexempt property in CFD No. 2022-1, shall be annually levied within CFD No. 2022-1.
Under no circumstances will the Special Taxes levied in any fiscal year against any parcel used for private residential purposes be increased as consequence of
Resolution No.
delinquency or default by the owner of any other parcel or parcels within CFD No. 2022-1 by more than 10 percent (10%) above the amount that would have been levied in that fiscal year had there never been any such delinquencies or defaults. A parcel shall be considered "used for private residential purposes" not later than the date on which an occupancy permit or the equivalent for private residential use is issued and for such parcel.
For further particulars as to the rate and method of apportionment of the Special Taxes to be levied on parcels of taxable property in CFD No. 2022-1 reference is made to the attached and incorporated Exhibit "A" (the "Rate and Method") which sets forth in sufficient detail the rate and method of apportionment of the Special Taxes to allow each landowner or resident within each CFD No. 2022-1 to clearly estimate the maximum amount that such person will have to pay.
The conditions under which the obligation to pay the Special Taxes may be prepaid and permanently satisfied are as set forth in the Rate and Method.
Pursuant to Section 53340 of the Act, said Special Taxes shall be collected in the same manner and at the same time as ordinary ad valorem property taxes; provided however, that CFD No. 2022-1 may collect Special Taxes at a different time or in a different manner if necessary to meet its financial obligations, and may covenant to foreclose and may actually foreclose on delinquent assessor's parcels as permitted by the Act.
Upon recordation of a notice of special tax lien pursuant to Section 3114.5 of the California Streets and Highways Code, a continuing lien to secure each levy of the Special Taxes shall attach to all non-exempt real property in CFD No. 2022-1, and that lien shall continue in force and effect until the special tax obligation is prepaid and permanently satisfied and the lien is canceled in accordance with law or until collection of the Special Taxes ceases.
Section 5. Exempt Properties. Pursuant to Section 53340 of the Act, and except as provided in Section 53317.3 of the Act, properties of entities of the state, federal, and local governments shall be exempt from the levy of Special Taxes.
Section 6. Report. The Report is hereby approved and is made a part of the record of the public hearing regarding the formation of CFD No. 2022-1, and is ordered to be kept on file with the City Clerk as part of the transcript of these proceedings.
Section 7. Repayment of Funds Advanced or Work-in-Kind. Pursuant to Section 53314.9 of the Act, the City Council proposes to accept advances of funds or work-in-kind from private persons or private entities and to provide, by resolution, for the use of those funds or that work-in-kind for any authorized purpose, including but not limited to, paying any costs incurred by the City in creating CFD No. 2022-1, and to enter into an agreement, by resolution, with the person or entity advancing the funds or work-in-kind to repay funds advanced, or to reimburse the person or entity for the value, or cost, whichever is less, of the work-in-kind, as determined by the City Council.
Resolution No.
Section 8. Prohibition of Owner Contracts. Pursuant to Section 53329.5 of the Act, the City Council finds that the public interest will not be served by allowing the owners of property within CFD No. 2022-1 to enter into a contract in accordance with subdivision (a) of that section, and that such owners shall not be permitted to elect to perform the work and enter into a written contract with the City for the construction for the Facilities pursuant to said Section 53329.5.
Section 9. Description of Voting Procedures. Except as otherwise provided in this section, the consolidated special elections on the propositions identified below shall be conducted by the City Clerk in accordance with the provisions of the California Elections Code governing mail ballot elections of cities, insofar as they may be applicable. The voting procedures to be followed in conducting the consolidated special elections on (i) the proposition with respect to CFD No. 2022-1 incurring a bonded indebtedness, (ii) the proposition with respect to the levy of special taxes on parcels of taxable property within CFD No. 2022-1 to pay the principal of and interest on the bonds of CFD No. 2022-1, and (iii) the proposition with respect to establishing an appropriations limit for CFD No. 2022-1 in the amount of $6,500,000 (the "Consolidated Special Elections") shall be as follows:
(a) The Consolidated Special Elections shall be held on the earliest date, following the adoption by the City Council of this resolution, the resolution determining the necessity for CFD No. 2022-1 to incur a bonded indebtedness pursuant to Section 53351 of the Act, and a resolution pursuant to Section 53326 of the Act submitting to the qualified electors of CFD No. 2022-1 the propositions with respect to (i) CFD No. 2022-1 incurring a bonded indebtedness, (ii) the levy of special taxes to pay the principal of and interest on the bonds of CFD No. 2022-1, and (iii) establishing an appropriations limit for the community facilities district to the qualified electors of the community facilities district, upon which such elections can be held pursuant to Section 53326 which may be selected by the City Council, or such earlier date as the owners of land within CFD No. 2022-1 and the City Clerk agree and concur is acceptable.
(b) Pursuant to Section 53326 of the Act, the Consolidated Special Elections may be held earlier than 90 days following the close of the public hearing if the qualified electors of CFD No. 2022-1 waive the time limits for conducting the elections set forth in said Section 53326 by unanimous written consent and the City Clerk concurs in such earlier election date as shall be consented to by the qualified electors. (c) Pursuant to Section 53326 of the Act, ballots for the Consolidated Special Elections shall be distributed to the qualified electors by the City Clerk by mail with return postage prepaid, or by personal service.
(d) Pursuant to applicable sections of the California Elections Code governing the conduct of mail ballot elections of cities, and specifically Division 4 (commencing with Section 4000) of the California Elections Code with respect to elections conducted by mail, the City Clerk shall mail or deliver to each qualified elector an official ballot in a form specified by the City Council in the resolutions calling and consolidating the Consolidated Special Elections, and shall also mail or deliver to all such qualified electors a ballot pamphlet and instructions to voter, including a sample ballot identical in form to the official ballot but identified as a
Resolution No.
sample ballot, a statement pursuant to Section 9401 of that Code, an impartial analysis by the City Attorney pursuant to Section 9280 of that Code with respect to the ballot propositions contained in the official ballot, arguments and rebuttals, if any, pursuant to Sections 9281 to 9287, inclusive, and 9295 of that Code, a return identification envelope with prepaid postage thereon addressed to the City Clerk for the return of voted official ballots, and a copy of the Resolution of Formation provided, however, that such statement, analysis and arguments may be waived with the unanimous consent of all the landowners who are qualified electors and shall be so stated in the resolution adopted by the City Council calling the Consolidated Special Elections. Such statement, impartial analysis and arguments, if any, shall be prepared by the City Attorney.
(e) The official ballot to be mailed or delivered by the City Clerk or her designee to each landowner-voter shall have printed or typed thereon the name of the landowner-voter and the number of votes to be voted by the landowner-voter and shall have appended to it a certification to be signed by the person voting the official ballot which shall certify that the person signing the certification is the person who voted the official ballot, and if the landowner-voter is other than a natural person, that he or she is an officer of or other person affiliated with the landowner- voter entitled to vote such official ballot, that he or she has been authorized to vote such official ballot on behalf of the landowner-voter, that in voting such official ballot it was his or her intent, as well as the intent of the landowner-voter, to vote all votes to which the landowner-voter is entitled based on its land ownership on the propositions set forth in the official ballot as marked thereon in the voting square opposite each such proposition, and further certifying as to the acreage of the landowner-voter's land ownership within CFD No. 2022-1. (f) The return identification envelope mailed or delivered by the City Clerk to each landowner-voter shall have printed or typed thereon the following: (i) the name of the landowner, (ii) the address of the landowner, (iii) a declaration under penalty of perjury stating that the voter is the landowner or the authorized representative of the landowner entitled to vote the enclosed ballot and is the person whose name appears on the identification envelope, (iv) the printed name and signature of the voter, (v) the address of the voter, (vi) the date of signing and place of execution of the declaration, and (vii) a notice that the envelope contains an official ballot and is to be opened only by the City Clerk.
(g) The instruction to voter form to be mailed or delivered by the City Clerk to the landowner-voters shall inform them that the official ballots shall be returned to the City Clerk properly voted as provided thereon and with the certification appended thereto properly completed and signed in the sealed return identification envelope with the certification thereon completed and signed and all other information to be inserted thereon properly inserted by the hour on the date of the election which is specified by the City Council in the resolution calling the Consolidated Special Elections for the receipt of voted ballots; provided that if all qualified voters have voted, the elections shall be closed with the concurrence of the City Clerk.
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(h) Upon receipt of the return identification envelopes which are returned prior to the voting deadline on the date of the elections, the City Clerk shall canvass the votes cast in the Consolidated Special Elections, and shall file a statement with the City Council as to the results of such canvass and the election on each proposition set forth in the official ballot.
The procedures set forth in this section for conducting the consolidated special elections, if they are held, may be modified as the City Council may determine to be necessary or desirable by a resolution subsequently adopted by the City Council.
Section 10. Funding Agreement. The Funding Agreement is approved and the City Manager and the City Clerk are authorized to execute and deliver the Funding Agreement on behalf of the City in the form presented to the City Council at the meeting at which this resolution is adopted, with such changes therein as the officer executing the same may approve, such approval to be conclusively evidenced by the execution and delivery thereof.
Section 11. Effective Date. This Resolution is and shall be effective from the date of its adoption.
PASSED, APPROVED AND ADOPTED this 27th day of June, 2022.
Bill Velto, Mayor
I, Keri Johnson, City Clerk of the City of Upland, do hereby certify that the foregoing Resolution was adopted at a regular meeting of the City Council held on the 27th day of June, 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAINED:
ATTEST:
Keri Johnson, City Clerk
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EXHIBIT A
RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAXES FOR
COMMUNITY FACILITIES DISTRICT NO. 2022-1 (ENCLAVE AT UPLAND)
OF THE CITY OF UPLAND
A Special Tax shall be levied on all Taxable Property within the boundaries of Community Facilities District No. 2022-1 (Enclave at Upland) of the City of Upland (“CFD No. 2022-1”) and collected each Fiscal Year commencing in Fiscal Year 2022- 23, in an amount determined by the CFD Administrator through the application of the procedures described below. All of the real property within CFD No. 2022-1, unless exempted by law or by the provisions hereof, shall be taxed for the purposes, to the extent, and in the manner herein provided.
1. DEFINITIONS
The terms hereinafter set forth have the following meanings:
“Acre” or “Acreage” means the land area of an Assessor’s Parcel as shown on an Assessor's Parcel Map, or if the land area is not shown on an Assessor's Parcel Map, the land area shown on the applicable Final Map. An Acre means 43,560 square feet of land.
“Act” means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5 of Part 1 of Division 2 of Title 5 of the Government Code of the State of California.
“Administrative Expenses” means the following actual or reasonably estimated costs related to the administration of CFD No. 2022-1 including, but not limited to:
the costs of preparing and computing the Annual Special Tax (whether by the City or designee thereof or both); the costs of collecting the Special Taxes (whether by the City, the County or otherwise); the costs of remitting the Special Taxes to the Trustee; the costs of the Trustee (including its legal counsel) in the discharge of the duties required of it under the Indenture; the costs to the City, CFD No. 2022-1, or any designee thereof complying with arbitrage rebate requirements, including without limitation rebate liability costs and periodic rebate calculations; the costs to the City, CFD No. 2022-1, or any designee thereof complying with disclosure or reporting requirements of the City or CFD No. 2022-1, associated with applicable federal and State laws; the costs associated with preparing Special Tax disclosure statements and responding to public inquiries regarding the Special Taxes; the costs to the City, CFD No. 2022-1, or any designee thereof related to an appeal of the Special Tax; and the City’s annual administration fees and third party expenses.
Administrative Expenses shall also include amounts estimated or advanced by the City or CFD No. 2022-1 for any other administrative purposes of CFD No. 2022-1, including attorney’s fees and other costs related to commencing and pursuing any foreclosure of delinquent Special Taxes.
“Annual Special Tax” means the Special Tax actually levied in any Fiscal Year on any Assessor’s Parcel.
“Assessor” means the Assessor of the County of San Bernardino. “Assessor's Parcel” means a lot or parcel shown on an Assessor's Parcel Map with an assigned Assessor's Parcel Number.
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“Assessor's Parcel Map” means an official map of the Assessor designating parcels by Assessor’s Parcel Number.
“Assessor's Parcel Number” means the number assigned to an Assessor's Parcel by the County for purposes of identification.
“Assigned Special Tax” means the Special Tax of that name described in Section
3.A below.
“Attached Residential Property” means Residential Property for which each Residential Unit share an interior wall with another Residential Unit. “Backup Special Tax” means the Special Tax of that name described in Section 3.B below.
“Bonds” means any bonds or other Debt of CFD No. 2022-1, whether in one or more series, secured by the levy of Special Taxes.
“Building Permit” means a building permit for construction of a Residential Unit within CFD No. 2022-1 issued by the City.
“Building Square Footage” means all of the square footage of usable area within the perimeter of a residential structure, not including any carport, walkway, garage, overhang, or similar area. The determination of Building Square Footage shall be made by reference to the Building Permit(s) issued for such Assessor’s Parcel and/or by reference to appropriate records kept by the City.
“Calendar Year” means the period commencing January 1 of any year and ending the following December 31.
“CFD Administrator” means an authorized representative of the City, or designee thereof, responsible for determining the Special Tax Requirement, for preparing the Annual Special Tax roll and/or calculating the Backup Special Tax. “CFD No. 2022-1” means the Community Facilities District No. 2022-1 (Enclave at Upland) of the City of Upland.
“City” means the City of Upland, California.
"Condominium" means a unit, whether attached or detached, meeting the statutory definition of a condominium contained in the California Civil Code Section 4285. “Council” means the City Council of the City acting as the legislative body of CFD No. 2022-1 under the Act.
“County” means the County of San Bernardino, California. “Debt” means any binding obligation to pay or repay a sum of money, including obligations in the form of bonds, certificates of participation, long-term leases, loans from government agencies, or loans from banks, other financial institutions, private businesses, or individuals, or long-term contracts.
“Debt Service” means for each Fiscal Year, the total amount of principal and interest payable on any Outstanding Bonds during the Calendar Year commencing on January 1 of such Fiscal Year.
“Detached Residential Property” means Residential Property not classified as Attached Residential Property.
“Developed Property” means for each Fiscal Year, all Taxable Property, exclusive of Provisional Property, for which a Building Permit was issued prior to May 1 of the
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previous Fiscal Year. An Assessor’s Parcel classified as Developed Property but for which the Building Permit that caused such Assessor’s Parcel to be classified as Developed Property has been cancelled and/or voided prior to the Fiscal Year for which Special Taxes are being levied shall be reclassified as Undeveloped Property, provided that the levy of the Annual Special Tax after such reclassification shall not be less than 1.1 times the annual Debt Service less Administrative Expenses on all Outstanding Bonds. If Bonds have not been issued, an Assessor’s Parcel classified as Developed Property for which such a Building Permit has been cancelled and/or voided shall be reclassified as Undeveloped Property.
“Exempt Property” means for each Fiscal Year, all Assessor’s Parcels designated as being exempt from Special Taxes pursuant to Section 8 below. “Final Map” means a subdivision of property by recordation of a final map, parcel map, or lot line adjustment, pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq.) or recordation of a condominium plan pursuant to California Civil Code 4285 that creates individual lots for which Building Permits may be issued without further subdivision.
“Fiscal Year” means the period starting on July 1 and ending the following June 30. “Funding Agreement” means the Funding Agreement dated June 27, 2022, by and among the City, Lewis Land Developers, LLC, and Lennar Homes of California, LLC, as it may be amended.
“Indenture” means the indenture, fiscal agent agreement, resolution or other instrument pursuant to which Bonds are issued, as modified, amended and/or supplemented from time to time, and any instrument replacing or supplementing the same.
“Land Use Class” means any of the classes listed in Table 1 under Section 3 below. “Lot” means a parcel created by a Final Map on which a Residential Unit can be constructed.
“Maximum Special Tax” means for each Assessor’s Parcel, the maximum Special Tax, determined in accordance with Sections 3.C and 3.D below, which may be levied in a given Fiscal Year on such Assessor’s Parcel of Taxable Property. “Non-Residential Property” means all Assessor’s Parcels of Developed Property for which a building permit has been issued for the purpose of constructing one or more non-residential units or facilities.
“Outstanding Bonds” means all Bonds, which are deemed to be outstanding under the Indenture.
“Prepayment Amount” means the amount required to prepay the Annual Special Tax obligation in full for an Assessor’s Parcel as described in Section 6.A below. “Property Owner Association Property” means any Assessor’s Parcel within the boundaries of CFD No. 2022-1 owned in fee by a property owner association, including any master or sub-association.
“Proportionately” or “Proportionate” means for Developed Property, that the ratio of the actual Special Tax levy to the applicable Assigned Special Tax or Backup Special Tax is equal for all Assessor’s Parcels of Developed Property. For Undeveloped Property, "Proportionately" means that the ratio of the actual Special Tax levy per
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Acre to the Maximum Special Tax per Acre is equal for all Assessor's Parcels of Undeveloped Property. “Proportionately” may similarly be applied to other categories of Taxable Property as listed in Section 4 below. “Provisional Property” means all Assessor’s Parcels of Public Property, Property Owner Association Property or property that would otherwise be classified as Exempt Property pursuant to the provisions of Section 8, but cannot be classified as Exempt Property because to do so would reduce the Acreage of all Taxable Property below the required minimum Acreage as set forth in Section 8. “Public Property” means any property within the boundaries of CFD No. 2022-1, which is owned by, or irrevocably offered for dedication to the federal government, the State of California, the County, the City or any other public agency; provided however that any property owned by a public agency and leased to a private entity and subject to taxation under Section 53340.1 of the Act shall be taxed and classified in accordance with its use.
“Residential Property” means Assessor’s Parcels of Developed Property for which a Building Permit has been issued for the purpose of constructing one or more Residential Units.
“Residential Unit” means each separate residential dwelling unit that comprises an independent facility capable of conveyance or rental, separate from adjacent residential dwelling units.
“Special Tax” means any special tax levied within CFD No. 2022-1 pursuant to the Act and this Rate and Method of Apportionment of Special Tax. “Special Tax Obligation” means the total obligation of an Assessor’s Parcel of Taxable Property to pay the Special Tax for the remaining life of CFD No. 2022-1. “Special Tax Requirement” means that amount required in any Fiscal Year to: (i) pay regularly scheduled Debt Service on all Outstanding Bonds; (ii) pay periodic costs on the Outstanding Bonds, including but not limited to, credit enhancement and rebate payments on the Outstanding Bonds; (iii) pay Administrative Fees and Expenses; (iv) pay any amounts required to establish or replenish any reserve funds for all Outstanding Bonds; (v) accumulate funds to pay directly for acquisition or construction of facilities authorized by CFD No. 2022-1 and as required by the Funding Agreement provided that the inclusion of such amount does not cause an increase in the Special Tax to be levied on Undeveloped Property; and (vi) pay for reasonably anticipated delinquent Special Taxes based on the delinquency rate for Special Taxes levied in the previous Fiscal Year; less (vii) a credit for funds available to reduce the Annual Special Tax levy, as determined by the CFD Administrator pursuant to the Indenture.
“State” means the State of California.
“Taxable Property” means all of the Assessor's Parcels within the boundaries of CFD No. 2022-1, which are not exempt from the levy of the Special Tax pursuant to law or Section 8 below.
“Trustee” means the trustee or fiscal agent under the Indenture. “Undeveloped Property” means, for each Fiscal Year, all Taxable Property not classified as Developed Property or Provisional Property.
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2. LAND USE CLASSIFICATION
Each Fiscal Year, beginning with Fiscal Year 2022-23, each Assessor’s Parcel within CFD No. 2022-1 shall be classified as Taxable Property or Exempt Property. In addition, all Taxable Property shall further be classified as Developed Property, Undeveloped Property or Provisional Property, and all such Taxable Property shall be subject to the levy of Special Taxes in accordance with this Rate and Method of Apportionment of Special Tax determined pursuant to Sections 3 and 4 below.
Furthermore, each Assessor’s Parcel of Developed Property shall be classified according to its applicable Land Use Class based on its land use type and Building Square Footage.
3. SPECIAL TAX RATES
A. Assigned Special Tax for Developed Property
The Assigned Special Tax applicable to an Assessor's Parcel classified as Developed Property commencing in Fiscal Year 2022-23 shall be determined pursuant to Table 1 below.
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Table 1
Assigned Special Tax Rates
B. Backup Special Tax for Developed Property
The Backup Special Tax for Developed Property commencing in Fiscal Year 2022-23 shall be $41,404 per Acre.
For the purpose of calculating the Backup Special Tax, the land area applicable to a Condominium shall be computed from the Acreage of the Lot on which the Condominium is located, with the Acreage for such Lot allocated equally among all of the Condominiums located or to be located on such Lot.
C. Maximum Special Tax for Developed Property
The Maximum Special Tax for Developed Property shall be the greater of the Assigned Special Tax for Developed Property and the Backup Special Tax for Developed Property.
D. Maximum Special Tax for Provisional Property and Undeveloped Property
The Maximum Special Tax for Provisional Property and Undeveloped Property commencing in Fiscal Year 2022-23 shall be $41,404 per Acre.
Land
Use
Class
Land Use Type Building
Square Footage
Assigned
Special Tax
1 Detached Residential Property > 1,900 $2,106 per
Residential Unit
2 Detached Residential Property 1,801 – 1,900 $2,059 per Residential Unit
3 Detached Residential Property 1,701 – 1,800 $2,023 per Residential Unit
4 Detached Residential Property ≤ 1,700 $1,995 per
Residential Unit
5 Attached Residential Property > 1,750 $1,804 per
Residential Unit
6 Attached Residential Property 1,626 – 1,750 $1,747 per Residential Unit
7 Attached Residential Property 1,501 – 1,625 $1,694 per Residential Unit
8 Attached Residential Property ≤ 1,500 $1,673 per
Residential Unit
9 Non-Residential Property N/A $41,404 per Acre
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4. METHOD OF APPORTIONMENT
For each Fiscal Year, commencing Fiscal Year 2022-23, the CFD Administrator shall levy the Special Tax on all Taxable Property in accordance with the following steps:
Step 1: The Special Tax shall be levied Proportionately on each Assessor’s Parcel of Developed Property at 100% of the applicable Assigned Special Tax; Step 2: If additional monies are needed to satisfy the Special Tax Requirement after Step 1 has been completed, the Special Tax shall be levied Proportionately on each Assessor's Parcel of Undeveloped Property up to 100% of the Maximum Special Tax for Undeveloped Property;
Step 3: If additional monies are needed to satisfy the Special Tax Requirement after the first two steps have been completed, then the Special Tax amount determined in Step 1 shall be increased Proportionately on each Assessor’s Parcel of Developed Property up to 100% of the Maximum Special Tax for Developed Property; Step 4: If additional monies are needed to satisfy the Special Tax Requirement after the first three steps have been completed, then the Special Tax shall be levied Proportionately on each Assessor’s Parcel of Provisional Property up to 100% of the Maximum Special Tax for Provisional Property.
Notwithstanding the above, under no circumstances will the Special Tax levied in any Fiscal Year against any Assessor’s Parcel of Residential Property for which an occupancy permit for private residential use has been issued be increased as a result of a delinquency or default in the payment of the Special Tax applicable to any other Assessor’s Parcel within CFD No. 2022-1 by more than ten percent (10%) above what would have been levied in the absence of such delinquencies or defaults.
5. COLLECTION OF SPECIAL TAXES
Collection of the Annual Special Tax shall be made by the County in the same manner as ordinary ad valorem property taxes are collected and the Annual Special Tax shall be subject to the same penalties and the same lien priority in the case of delinquency as ad valorem taxes; provided, however, that the Council may provide for (i) other means of collecting the Special Tax, including direct billings thereof to the property owners; and (ii) judicial foreclosure of delinquent Annual Special Taxes.
6. PREPAYMENT OF SPECIAL TAX OBLIGATION
A. Prepayment in Full
Property owners may prepay and permanently satisfy the Special Tax Obligation by a cash settlement with the City as permitted under Government Code Section 53344. The following definitions apply to this Section 6:
“CFD Public Facilities Costs” means $3,600,000 or such lower number as (i) shall be determined by the CFD Administrator as sufficient to acquire or construct the facilities to be financed under the Act and financing program for CFD No. 2022-1, or (ii) shall be determined by the Council concurrently with a covenant that it will not issue any more Bonds (except refunding bonds). “Construction Fund” means the fund (regardless of its name) established pursuant to the Indenture to hold funds, which are currently available for