2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 5
4.1 Workers’ Compensation. Consultant shall, at its sole cost and expense, maintain Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all persons employed directly or indirectly by Consultant pursuant to the provisions of the California Labor Code. Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per accident, ONE MILLION DOLLARS ($1,000,000.00) disease per employee, and ONE MILLION DOLLARS ($1,000,000.00) disease per policy.
In the alternative, Consultant may rely on a self-insurance program to meet those requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the California Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or Consultant, if a program of selfinsurance is provided, shall waive all rights of subrogation against City and its officers, officials, employees, and authorized volunteers for loss arising from the Services performed under this Agreement.
4.2 Commercial General and Automobile Liability Insurance. a. General requirements. Consultant, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit coverage, for risks associated with the Services contemplated by this Agreement, TWO MILLION DOLLARS ($2,000,000.00) general aggregate, and TWO MILLION DOLLARS ($2,000,000.00) products/completed operations aggregate. If a Commercial General Liability Insurance or an Automobile Liability Insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the Services to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from the Services contemplated under this Agreement, including the use of hired, owned, and non-owned automobiles.
b. Minimum Scope of Coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 Code 2, 8, and 9. No endorsement shall be attached limiting the coverage.
c. Additional Requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
(i) The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis.
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 6
(ii) Any failure of Consultant to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers.
4.3 Professional Liability Insurance.
a. General Requirements. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing the Services pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals’ errors and omissions. Any deductible or self-insured retention shall be shown on the Certificate. If the deductible or self-insured retention exceeds TWENTY-FIVE THOUSAND DOLLARS ($25,000), it must be approved in writing by City. b. Claims-Made Limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
(i) The retroactive date of the policy must be shown and must be no later than the commencement of the Services.
(ii) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after the expiration or termination of this Agreement or completion of the Services, so long as commercially available at reasonable rates.
(iii) If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the Effective Date of this Agreement, Consultant must provide extended reporting coverage for a minimum of five (5) years after the expiration or termination of this Agreement or the completion of the Services. Such continuation coverage may be provided by one of the following: (1) renewal of the existing policy; (2) an extended reporting period endorsement; or (3) replacement insurance with a retroactive date no later than the commencement of the Services under this Agreement. City shall have the right to exercise, at Consultant’s sole cost and expense, any extended reporting provisions of the policy, if Consultant cancels or does not renew the coverage. (iv) A copy of the claim reporting requirements must be submitted to City prior to the commencement of the Services under this Agreement.
4.4 All Policies Requirements.
a. Acceptability of Insurers. All insurance required by this Section is to be placed with insurers with a Bests’ rating of no less than A:VII and admitted in California. b. Verification of Coverage. Prior to beginning the Services under this Agreement, Consultant shall furnish City with certificates of insurance, additional insured
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 7
endorsement or policy language granting additional insured status complete certified copies of all policies, including complete certified copies of all endorsements. All copies of policies and certified endorsements shall show the signature of a person authorized by that insurer to bind coverage on its behalf. The certificate of insurance must include the following reference: “Professional Services Agreement”. The name and address for additional insured endorsements, certificates of insurance and notice of cancellation is:
City of Yorba Linda, 4845 Casa Loma Ave, Yorba Linda, CA 92886. City must be endorsed as an additional insured for liability arising out of ongoing and completed operations by or on behalf of Consultant.
c. Notice of Reduction in or Cancellation of Coverage. Consultant shall provide written notice to City within ten (10) working days if: (1) any of the required insurance policies is terminated; (2) the limits of any of the required polices are reduced; or (3) the deductible or self insured retention is increased. In the event any of said policies of insurance are cancelled, Consultant shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 4 to the Contract Administrator. d. Additional Insured; Primary Insurance. City and its officers, employees, agents, and authorized volunteers shall be covered as additional insureds with respect to each of the following: liability arising out of the Services performed by or on behalf of Consultant, including the insured’s general supervision of Consultant; products and completed operations of Consultant, as applicable; premises owned, occupied, or used by Consultant; and automobiles owned, leased, or used by Consultant in the course of providing the Services pursuant to this Agreement. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers, employees, agents, or authorized volunteers. The insurance provided to City as an additional insured must apply on a primary and non-contributory basis with respect to any insurance or self-insurance program maintained by City. Additional insured status shall continue for one (1) year after the expiration or termination of this Agreement or completion of the Services.
A certified endorsement must be attached to all policies stating that coverage is primary insurance with respect to City and its officers, officials, employees, and volunteers, and that no insurance or self-insurance maintained by City shall be called upon to contribute to a loss under the coverage.
e. Deductibles and Self-Insured Retentions. Consultant shall obtain the written approval of City for the self-insured retentions and deductibles before beginning any of the Services.
During the term of this Agreement, only upon the prior express written authorization of the Contract Administrator, Consultant may increase such deductibles or self-insured retentions with respect to City, its officers, employees, agents, and volunteers. The Contract Administrator may condition approval of an increase in deductible or self-insured retention levels with a requirement that Consultant procure a
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 8
bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them. f. Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
g. Variation. The Contract Administrator may, but is not required to, approve in writing a variation in the foregoing insurance requirements, upon a determination that the coverage, scope, limits, and forms of such insurance are either not commercially available, or that City’s interests are otherwise fully protected.
4.5 Remedies. In addition to any other remedies at law or equity City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option, exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:
a. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under this Agreement; b. Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or c. Terminate this Agreement.
SECTION 5. INDEMNIFICATION.
5.1 Indemnification for Professional Liability. Where the law establishes a professional standard of care for performance of the Services, to the fullest extent permitted by law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City and any and all of its officers, employees, officials, volunteers, and agents from and against any and all claims, losses, costs, damages, expenses, liabilities, liens, actions, causes of action (whether in tort, contract, under statute, at law, in equity, or otherwise) charges, awards, assessments, fines, or penalties of any kind (including reasonable consultant and expert fees and expenses of investigation, costs of whatever kind and nature and, if Consultant fails to provide a defense for City, the legal costs of counsel retained by City) and any judgment (collectively, “Claims”) to the extent same are caused in whole or in part by any negligent or wrongful act, error, or omission of Consultant, its officers, agents, employees, or subcontractors (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this Agreement.
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 9
5.2 Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any and all of its officers, employees, officials, volunteers, and agents from and against any and all Claims, where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to officers, agents, employees or subcontractors of Consultant.
5.3 Limitation of Indemnification for Design Professionals. Notwithstanding any provision of this Section 5 to the contrary, design professionals, as that term is defined in Civil Code Section 2782.8, are required to defend and indemnify City only to the extent permitted by Civil Code Section 2782.8. The term “design professional” as defined in Section 2782.8, is limited to licensed architects, licensed landscape architects, registered professional engineers, professional land surveyors, and the business entities that offer such services in accordance with the applicable provisions of the California Business and Professions Code. This Subsection 5.3 shall only apply to Consultant if Consultant is a “design professional” as that term is defined in Civil Code Section 2782.8.
5.4 Limitation of Indemnification. The provisions of this Section 5 do not apply to claims occurring as a result of City’s sole or active negligence. The provisions of this Section 5 shall not release City from liability arising from gross negligence or willful acts or omissions of City or any and all of its officers, officials, employees, and agents acting in an official capacity.
SECTION 6. INDEPENDENT CONTRACTOR.
At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of the Services rendered pursuant to this Agreement and assignment of personnel pursuant to Subsection 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes the Services rendered pursuant to this Agreement. The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Consultant shall not at any time or in any manner represent that it is or any of its officers, employees, or agents are in any manner officers, officials, employees, or agents of City. Consultant shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner. Except for the fees paid to Consultant as provided in this Agreement, City shall not pay salaries, wages, or other compensation to Consultant for performing the Services hereunder for City. City shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing the Services hereunder. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to any compensation, benefit, or any
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 10
incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (“PERS”) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits.
SECTION 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractor shall comply with all applicable local, state, and federal laws and regulations applicable to the performance of the work hereunder. Consultant shall not hire or employ any person to perform work within City or allow any person to perform the Services required under this Agreement unless such person is properly documented and legally entitled to be employed within the United States. Consultant acknowledges and agrees that it shall be independently responsible for reviewing the applicable laws and regulations and effectuating compliance with such laws. Consultant shall require the same of all subcontractors.
7.3 Prevailing Wages. Consultant acknowledges and agrees that it shall be independently responsible for reviewing the applicable prevailing wage laws and regulations and effectuating compliance with such laws, including, but not limited to the prevailing wage and related requirements set forth in this Subsection 7.3. Consultant shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law.
a. Public Work. Consultant hereby expressly acknowledges and agrees that City has never previously affirmatively represented to Consultant, its employees or agents in writing or otherwise that the Services are not a “public work,” as defined in Section 1720 of the Labor Code. It is agreed by the Parties that, in connection with the development, construction (as defined by applicable law) and operation of the Services, including, without limitation, any public work (as defined by applicable law), if any, Consultant shall bear all risks of payment or non-payment of state and/or federal prevailing wages and/or the implementation of Labor Code Sections 1726 and 1781, as the same may be enacted, adopted or amended from time to time, and/or any other provision of law. To the extent applicable, City will enforce all penalties required by law for Consultant’s failure to pay prevailing wages.
b. Labor Code of California. The Consultant’s attention is directed to Division 2, Part 7, Chapter 1 of the Labor Code of the State of California and especially to Article 2 (Wages); and Article 3 (Working Hours), thereof.
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 11
(i) In accordance with Sections 1773 and 1773.2 of the Labor Code, City has found and determined the general prevailing rates of wages in the locality in which the public work is to be performed are those determined by the Director of Industrial Relations and available at https://www.dir.ca.gov/OPRL/2022- 1/PWD/Southern.html. Copies of the prevailing rates of wages are maintained with City’s principal office and are available to any interested party on request. Consultant shall post a copy of the prevailing rate of per diem wages at each job site. (ii) Consultant is aware of and will comply with the provisions of Labor Code Section 1776, including the keeping of payroll records and furnishing certified copies thereof in accordance with said Section. Pursuant to Labor Code Section 1771.4, Consultant must submit certified payroll records to the Labor Commissioner using the Department of Industrial Relations’ electronic certified payroll reporting (eCPR) system. (iii) Pursuant to Labor Code Section 1810, it is stipulated hereby that eight (8) hours labor constitutes a legal day’s work hereunder. (iv) Pursuant to Labor Code Section 1815, work performed by employees of contractors in excess of eight (8) hours per day, and 40 hours during any one week, shall be permitted upon public work upon compensation for all hours worked in excess of eight (8) hours per day at not less than 1 ½ times the basic rate of pay. (v) Pursuant to Labor Code Section 1813, it is stipulated hereby that Consultant shall, as a penalty to City, forfeit twenty-five dollars ($25) for each worker employed in the execution of this Agreement by Consultant or by any subcontractor hereunder for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one (1) calendar week in violation of the provisions of Article 3 (commencing with Section 1810), Chapter 1, Part 7, Division 2 of the Labor Code. (vi) Consultant is aware of and will comply with the provisions of Labor Code Sections 1777.5 and 1777.6 with respect to the employment of apprentices.
Pursuant to Section 1777.5 it is hereby stipulated that Consultant will be responsible for obtaining compliance therewith on the part of any and all sub-consultants or subcontractors employed by Consultant in connection with this Agreement. (vii) Pursuant to Labor Code Section 1775, it is hereby stipulated that Consultant shall, as a penalty to City, forfeit not more than two-hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of Industrial Relations for the work or craft in which the worker is employed for the Services by Consultant or any sub-consultant or subcontractor.
c. Bidding Eligibility. Pursuant to Labor Code Section 1771.1, no contractor or subcontractor (or consultant or subconsultant) may be listed on a bid
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 12
proposal for a public works project unless registered with the Department of Industrial Relations.
d. DIR Monitoring. Pursuant to Labor Code Section 1771.4, Consultant is hereby notified that this project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
e. Indemnification Related to Prevailing Wages. Section 5, Indemnification, specifically encompasses Claims arising from or related to (i) the noncompliance by Consultant or any party performing the Services of any applicable local, state, and/or federal law, including, without limitation, any applicable federal and/or state labor laws (including, without limitation, the requirement to pay state prevailing wages and hire apprentices); (ii) the implementation of Labor Code Sections 1726 and 1781, as the same may be amended from time to time, or any other similar law; and/or (iii) failure by Consultant or any party performing the Services to provide any required disclosure or identification as required by Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law.
7.4 Licenses and Permits, Fees and Assessments. Consultant represents, warrants, and covenants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions, and perform the Services. Consultant represents, warrants, and covenants to City that Consultant and its employees, agents, and subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions, and perform the Services.
In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid business licenses from City. Consultant shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for Consultant’s performance of the Services, and shall indemnify, defend and hold harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed, or imposed against City hereunder.
7.5 Conflicts of Interest, Political Reform Act. Consultant represents, warrants, and covenants that Consultant presently has no interest, direct or indirect, which would interfere with or impair in any manner or degree the performance of Consultant’s obligations and responsibilities under this Agreement. Consultant further agrees that while this Agreement is in effect, Consultant shall not acquire or otherwise obtain any interest, direct or indirect, that would interfere with or impair in any manner or degree the performance of Consultant’s obligations and responsibilities under this Agreement.
Consultant acknowledges that pursuant to the provisions of the Political Reform Act (Government Code Section 87100 et seq.), City may determine the Consultant to be a “consultant” as that term is defined by 2 California Code of Regulations Section 18700.3.
In the event City makes such a determination, Consultant agrees to complete and file a
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 13
“Statement of Economic Interest” with the City Clerk to disclose such financial interests as required by City. In such event, Consultant further agrees to require any other person doing work under this Agreement to complete and file a “Statement of Economic Interest” to disclose such other person’s financial interests as required by City.
7.6 Annual Appropriation of Funding. In accord with Article 16 Section 18 of the California Constitution, payment of compensation under this Agreement is contingent upon annual appropriation of funds by City for that purpose. Consultant acknowledges and agrees that to the extent that the Services extend beyond one (1) fiscal year, payment for such Services is expressly conditioned on City’s annual appropriation of funds for such Services for each year. If no funds are appropriated then this Agreement shall be terminated. City pledges and agrees to process such appropriation requests annually and in good faith. Nothing in this Subsection shall be construed to limit the right of either Party to terminate this Agreement as provided herein.
SECTION 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant.
8.2 Termination by Consultant. Consultant may cancel this Agreement upon 30 days’ written notice to City.
8.3 Consequences of Termination. In the event of termination, Consultant shall be entitled to compensation for the Services performed up to the date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or City in connection with this Agreement.
8.4 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Consultant understands and agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period.
8.5 Amendments. The Parties may amend this Agreement only by a writing signed by all the Parties.
8.6 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant’s unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 14
into this Agreement was and is the professional reputation and competence of Consultant.
Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in Consultant’s proposal, without prior written approval of the Contract Administrator. In the event that key personnel leave Consultant’s employ, Consultant shall notify City immediately.
8.7 Survival. All obligations arising prior to the expiration or termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the expiration or termination of this Agreement.
8.8 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City's remedies shall include, but not be limited to, any or all of the following:
a. Immediately terminate this Agreement;
b. Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement;
c. Retain a different consultant to complete the Services described in Exhibit A; and/or
d. Charge Consultant the difference between the cost to complete the Services described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the Services.
SECTION 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant’s Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of City. Consultant hereby agrees to deliver those documents to City upon the expiration or termination of this Agreement.
It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for City and are not necessarily suitable for any future or other use. Any use of such documents for other projects by City shall be without liability to Consultant. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports, and other documents are confidential and will not be released to third parties without prior written consent of both Parties unless required by law. Consultant
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 15
understands and agrees that it may be required to provide documents to the City to be produced in response to a Public Records Act request.
9.2 Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, rights of reproduction, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, test data, survey results, models, renderings, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings, digital renderings, or data stored digitally, magnetically, or in any other medium, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents and Data”). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents and Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents and Data. Consultant makes no such representation and warranty in regard to Documents and Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk.
9.3 Consultant’s Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for the Services or expenditures and disbursements charged to City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible.
9.4 Inspection and Audit of Records. Any records or documents that Subsection 9.3 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of City, for a period of three (3) years after final payment under this Agreement.
SECTION 10. MISCELLANEOUS PROVISIONS.
10.1 Attorneys’ Fees. If either Party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing Party shall be entitled to reasonable attorneys’ fees and expenses including costs, in addition to any other relief to which that Party may be entitled; provided, however, that the attorneys’ fees awarded pursuant to this Subsection shall not exceed the hourly rate paid by City for legal services multiplied by the reasonable
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 16
number of hours spent by the prevailing Party in the conduct of the litigation. The court may set such fees in the same action or in a separate action brought for that purpose.
10.2 Venue. In the event that either Party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in Orange County.
10.3 Severability. If any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected thereby and all other parts of this Agreement shall nevertheless be in full force and effect.
10.4 Section Headings and Subheadings. The section headings and subheadings contained in this Agreement are included for convenience only and shall not limit or otherwise affect the terms of this Agreement.
10.5 No Implied Waiver of Breach. Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a nondefaulting Party on any default shall impair such right or remedy or be construed as a waiver. 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.
10.6 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the Parties.
10.7 Consultant Representative. All matters under this Agreement shall be handled for Consultant by «Consultant_Contact» (“Consultant’s Representative”). The Consultant’s Representative shall have full authority to represent and act on behalf of Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his 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.
10.8 City Contract Administration. This Agreement shall be administered by a City employee, «Staff_Contact», «Staff_Title» (“Contract Administrator”). All correspondence shall be directed to or through the Contract Administrator or his designee. The Contract Administrator shall have the power to act on behalf of City for all purposes under this Agreement. Unless otherwise provided in this Agreement, Consultant shall not accept direction or orders from any person other than the Contract Administrator or his designee.
10.9 Notices. Any written notice to Consultant shall be sent to:
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 17
JAS Pacific
Attn: Rajesh Patel
PO Box 2002
Upland, CA 91785
Any written notice to City shall be sent to the Contract Administrator at:
City of Yorba Linda
4845 Casa Loma Ave
Yorba Linda, CA 92886
with a copy to:
City Clerk
City of Yorba Linda
4845 Casa Loma Ave
Yorba Linda, CA 92886
10.10 Professional Seal. Where applicable in the determination of the Contract Administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled “Seal and Signature of Registered Professional with report/design responsibility,” as in the following example.
__________________________________________
Seal and Signature of Registered Professional with
report/design responsibility.
10.11 Rights and Remedies. 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.
10.12 Integration. This Agreement, including the scope of services attached hereto and incorporated herein as Exhibit A, represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. 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.
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 18
10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
10.14 Execution of Contract. The persons executing this Agreement on behalf of each of the Parties hereto represent and 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) that entering into this Agreement does not violate any provision of any other agreement to which said Party is bound.
10.15 Nondiscrimination. Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that in the performance of this Agreement there shall be no discrimination against or segregation of, any person or group of persons on account of any impermissible classification including, but not limited to, race, color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry.
10.16 No Third-Party Beneficiaries. There are no intended third-party beneficiaries under this Agreement and no such other third parties shall have any rights or obligations hereunder.
10.17 Nonliability of City Officers and Employees. No officer, official, employee, agent, representative, or volunteer of City shall be personally liable to Consultant, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
10.18 No Undue Influence. Consultant declares and warrants that no undue influence or pressure is used against or in concert with any officer or employee of City in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of City shall receive compensation, directly or indirectly, from Consultant, or from any officer, employee, or agent of Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement.
10.19 No Benefit to Arise to City Employees. No member, officer, or employee of City, or their designees or agents, and no public official who exercises authority over or has responsibilities with respect to this Agreement during his/her tenure or for one (1) year thereafter, shall have any interest, direct or indirect, in any agreement or subagreement, or the proceeds thereof, for the Services to be performed under this Agreement.
[Signatures on Following Page]
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 19
IN WITNESS WHEREOF, the Parties hereto have executed and entered into this Agreement as of the Effective Date.
CITY OF YORBA LINDA
Mark Pulane, City Manager
Attest:
Marcia Brown, City Clerk
Approved as to Form:
Todd Litfin, City Attorney
CONSULTANT
Rajesh Patel, PE, CBO
President
Christine Champany
Vice President
[Note: 2 officer’s signatures required if
Consultant is a corporation, unless
provided with a certificate of secretary inlieu]
2905/009410-1001
19412602.3 a02/27/24
EXHIBIT A.
EXHIBIT A
SCOPE OF SERVICES
Services shall include Professional Services Agreement in the amount not to exceed (THREE HUNDRED AND FIFTY THOUSAND DOLLARS, $350,000.00) as further detailed in the following page(s).
• Plan review and inspections of residential, commercial and industrial buildings and structures for compliance with the adopted 2022 version of the California Building Code, California Residential Code, California Mechanical Code, California Plumbing Code, California Electrical Code, 2021 Uniform Swimming Pool, Spa and Hot Tub Code, The City of Yorba Linda Municipal Code, Accessibility, and Noise and Energy Conservation requirements as mandated by State Title 24, Green Building Standards and all applicable Ordinances. • Structural design compliance review with the submitted Geotechnical Report, Division of Oil and Gas Requirements, and the Orange County Fire Authority findings and recommendations and Ground Motion Hazard Analysis findings and recommendations for design and construction. • Notification to each applicant prepared by the consultant, consisting of two complete typewritten plan check letters which outline the documents reviewed, instructions to the applicant regarding the processing of documents, and a listing of plan check comments. The plan check comments will refer to appropriate sheets, details or calculation pages and the code section of concern. Comments shall specify the apparent code violation. • Plan checkers shall be available during work hours to discuss and clarify plan check issues with designers, owners, and contractors. Resolution of code issues may be by telephone, Zoom, Teams, or in person meetings prior to resubmitting corrected plans and documents.
• Plan checkers will attend all required meetings as directed by the Building Official.
2905/009410-1001
19412602.3 a02/27/24 EXHIBIT B
EXHIBIT B
FEE SCHEDULE
Engineering Ìhe Way
Plan Review
JA
VS
RATE & SERVICE STRUCTURE
Percentage - 680/o ($400 minimum)
Hourly - $1 15.00-$145.00
Building lnspection Hourly - $95.00 - $1 15.00*
Permit Technician Hourly - $75.00 - $95.00*
Building Official Hourly - $165.00
*Overtime rate charged when applicable.
Plan Review
Residential
Commercial
lst Review
13 Working Days
L3 Working Days
Reviews
5 Working Days
5 Working Days
Descri n Rate
Service Goa ls
201 N Euclid Avenue I Upland, CA 91786 I 800.818.3677 I JASpacif ic.com Page 206 of 343 Engineering the Way
Plan Review
JA
VS
RATE & SERVICE STRUCTURE
Percentage * 68o/o ($400 minimum)
Hourlv - $1 15.00-$145.00
Building lnspection Hourly - $95.00 - $1 15.00*
Permit Technician Hourly - $75.00 - $95.00.
Building Official Hourly - $165.00
*Overtime rate charged when applicable
Plan Review
Residential
Commercial
1st
13 Working Days
L3 Working Days
ent
5 Working Days
5 Working Days
Description Rate
Service Goals
201 N Euclid Avenue I Upland, CA9i786 I 800.8.18.3677 I JASpacific.com Page 207 of 343 Professional
Services
Agreement
2905/009410-1001
19412602.3 a02/28/24
Professional Services Agreement | 1
PROFESSIONAL SERVICES AGREEMENT
«Contract_Title»
THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and effective this ______ day of __________, _____ (“Effective Date”) by and between the CITY OF YORBA LINDA, a California municipal corporation, (“City”) and The Code Group, dba, VCA Consultants, Inc. (“Consultant”). City and Consultant may sometimes herein be referred to individually as a “Party” and collectively as the “Parties.” SECTION 1. SERVICES.
Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Services, attached hereto as Exhibit A and incorporated herein by this reference (the “Services”). Consultant will perform subsequent task orders as requested by the Contract Administrator (as defined below), in accordance with the Scope of Services. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, this Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on Ju;y 1, 2024, and shall end on June 30, 2025, unless the term of this Agreement is otherwise terminated or extended as provided for in Section 8. The time provided to Consultant to complete the Services required by this Agreement shall not affect the City’s right to terminate this Agreement, as provided for in Section 8.
The agreement is effective for one-year, with the option of being renewed annually at the discretion of the City for no more than four additional one-year terms per the Yorba Linda Municipal Code § 3.04.080 (L).
1.2 Standard of Performance. Consultant represents and warrants that Consultant is a provider of first class work and services and Consultant is experienced in performing the Services contemplated herein and, in light of such status and experience, Consultant shall perform the Services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged in the geographical area in which Consultant practices its profession and to the sole satisfaction of the Contract Administrator.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform the Services pursuant to Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons.
2905/009410-1001
19412602.3 a02/28/24
Professional Services Agreement | 2
1.4 Time. Consultant shall devote such time to the performance of the Services pursuant to this Agreement as may be reasonably necessary to satisfy Consultant’s obligations hereunder.
1.5 Authorization to Perform Services. Consultant is not authorized to perform any of the Services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator.
1.6 Warranty. By executing this Agreement, Consultant warrants that Consultant (i) has thoroughly investigated and considered the Services, (ii) has carefully considered how the Services should be performed, and (iii) fully understands the facilities, difficulties, and restrictions attending performance of the Services.
SECTION 2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed the total amount of the Building Division’s approved budget for Plan Check and Inspection Services in the amount of (THREE HUNDRED AND FIFTY THOUSAND DOLLARS AND ZERO CENTS), $350,000.00), notwithstanding any contrary indications that may be contained in Consultant’s proposal, for the Services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Exhibit A, regarding the amount of compensation, this Agreement shall prevail. City shall pay Consultant for the Services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for the Services rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein. Except as specifically authorized in advance by City, Consultant shall not bill City for duplicate services performed by more than one person.
2.1 Invoices. Consultant shall submit invoices monthly during the term of this Agreement, based on the cost for the Services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information:
a. Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.;
b. The beginning and ending dates of the billing period; c. A “Task Summary” containing the original contract amount, the amount of prior billings, the total due this period, the balance available under this Agreement, and the percentage of completion;
d. At City’s option, for each item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person performing the Services, the hours spent by each person, a brief description of the Services, and each reimbursable expense;
2905/009410-1001
19412602.3 a02/28/24
Professional Services Agreement | 3
e. The total number of hours of work performed under this Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing the Services hereunder necessary to complete the Services described in Exhibit A;
f. Receipts for expenses to be reimbursed;
g. The Consultant Representative’s signature.
Invoices shall be submitted to:
City of Yorba Linda
Attn: Accounts Payable
4845 Casa Loma Ave
Yorba Linda, CA 92886
2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for the Services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have thirty (30) days from the receipt of an invoice that complies with all of the requirements above to pay Consultant.
2.3 Retention of Funds, Final Payment. Consultant hereby authorizes City to retain and deduct from any amount payable to Consultant not exceeding five percent (5%) of the total compensation. The retained funds shall be paid to Consultant within sixty (60) days after final acceptance of the Services by the City and after Consultant has furnished City with full release of all undisputed payments under this Agreement. In the event there are any claims specifically excluded by Consultant from the operation of the release, City may retain proceeds of up to one hundred fifty percent (150%) of the amount in dispute. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of Consultant to insure, indemnify, and protect City as provided in this Agreement. City shall pay the last five percent (5%) of the total amount due pursuant to this Agreement within sixty (60) days after completion of the Services and submittal to City of a final invoice, if all of the Services required have been satisfactorily performed.
2.4 Total Payment. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering the Services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entirety of the Services performed pursuant to this Agreement, unless this Agreement is modified in writing prior to the submission of such an invoice.
2905/009410-1001
19412602.3 a02/28/24
Professional Services Agreement | 4
2.5 Hourly Fees. Fees for the Services performed by Consultant on an hourly basis shall not exceed the amounts shown on the fee schedule included with Exhibit A.
2.6 Reimbursable Expenses. Reimbursable expenses are included within the maximum amount of this Agreement.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any federal or state taxes.
2.8 Payment upon Termination. In the event that City or Consultant terminates this Agreement pursuant to Section 8, City shall compensate Consultant for all outstanding costs and reimbursable expenses incurred for Services satisfactorily completed and for reimbursable expenses as of the date of written notice of termination.
Consultant shall maintain adequate logs and timesheets in order to verify costs and reimbursable expenses incurred to that date.
SECTION 3. FACILITIES AND EQUIPMENT.
Except as otherwise provided, Consultant shall, at its sole cost and expense, provide all facilities and equipment necessary to perform the services required by this Agreement. City shall make available to Consultant only physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and the information in possession of City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be required to furnish any facility or equipment that may involve incurring any direct expense, including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities.
SECTION 4. INSURANCE REQUIREMENTS.
Before beginning any work under this Agreement, Consultant, at its own cost and expense, shall procure the types and amounts of insurance listed below and provide certificates of insurance, indicating that Consultant has obtained or currently maintains insurance that meets the requirements of this Section and which is satisfactory, in all respects, to City. Consultant shall maintain the insurance policies required by this Section throughout the term of this Agreement. The cost of such insurance shall be included in Consultant’s compensation. Consultant shall not allow any subcontractor, consultant or other agent to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City.
Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. Consultant acknowledges the insurance policy must cover interinsured suits between City and other insureds. Consultant agrees that the requirement to provide insurance shall not be construed as limiting in any way the extent to which
2905/009410-1001
19412602.3 a02/28/24
Professional Services Agreement | 5
Consultant may be held responsible for the payment of damages to any persons or property resulting from Consultant activities or the activities of any person or persons for which Consultant is otherwise responsible nor shall it limit Consultant’s indemnification liabilities as provided in Section 5.
4.1 Workers’ Compensation. Consultant shall, at its sole cost and expense, maintain Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all persons employed directly or indirectly by Consultant pursuant to the provisions of the California Labor Code. Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per accident, ONE MILLION DOLLARS ($1,000,000.00) disease per employee, and ONE MILLION DOLLARS ($1,000,000.00) disease per policy. In the alternative, Consultant may rely on a self-insurance program to meet those requirements, but only if the program of selfinsurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the California Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or Consultant, if a program of self-insurance is provided, shall waive all rights of subrogation against City and its officers, officials, employees, and authorized volunteers for loss arising from the Services performed under this Agreement.
4.2 Commercial General and Automobile Liability Insurance. a. General requirements. Consultant, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit coverage, for risks associated with the Services contemplated by this Agreement, TWO MILLION DOLLARS ($2,000,000.00) general aggregate, and TWO MILLION DOLLARS ($2,000,000.00) products/completed operations aggregate. If a Commercial General Liability Insurance or an Automobile Liability Insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the Services to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from the Services contemplated under this Agreement, including the use of hired, owned, and non-owned automobiles.
b. Minimum Scope of Coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 Code 2, 8, and 9. No endorsement shall be attached limiting the coverage.
2905/009410-1001
19412602.3 a02/28/24
Professional Services Agreement | 6
c. Additional Requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
(i) The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis.
(ii) Any failure of Consultant to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers.
4.3 Professional Liability Insurance.
a. General Requirements. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing the Services pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals’ errors and omissions. Any deductible or self-insured retention shall be shown on the Certificate. If the deductible or self-insured retention exceeds TWENTYFIVE THOUSAND DOLLARS ($25,000), it must be approved in writing by City. b. Claims-Made Limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
(i) The retroactive date of the policy must be shown and must be no later than the commencement of the Services.
(ii) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after the expiration or termination of this Agreement or completion of the Services, so long as commercially available at reasonable rates.
(iii) If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the Effective Date of this Agreement, Consultant must provide extended reporting coverage for a minimum of five (5) years after the expiration or termination of this Agreement or the completion of the Services. Such continuation coverage may be provided by one of the following: (1) renewal of the existing policy; (2) an extended reporting period endorsement; or (3) replacement insurance with a retroactive date no later than the commencement of the Services under this Agreement. City shall have the right to exercise, at Consultant’s sole cost and expense, any extended reporting provisions of the policy, if Consultant cancels or does not renew the coverage. (iv) A copy of the claim reporting requirements must be submitted to City prior to the commencement of the Services under this Agreement.
2905/009410-1001
19412602.3 a02/28/24
Professional Services Agreement | 7
4.4 All Policies Requirements.
a. Acceptability of Insurers. All insurance required by this Section is to be placed with insurers with a Bests’ rating of no less than A:VII and admitted in California.
b. Verification of Coverage. Prior to beginning the Services under this Agreement, Consultant shall furnish City with certificates of insurance, additional insured endorsement or policy language granting additional insured status complete certified copies of all policies, including complete certified copies of all endorsements. All copies of policies and certified endorsements shall show the signature of a person authorized by that insurer to bind coverage on its behalf. The certificate of insurance must include the following reference: “Professional Services Agreement”.
The name and address for additional insured endorsements, certificates of insurance and notice of cancellation is: City of Yorba Linda, 4845 Casa Loma Ave, Yorba Linda, CA 92886. City must be endorsed as an additional insured for liability arising out of ongoing and completed operations by or on behalf of Consultant. c. Notice of Reduction in or Cancellation of Coverage.
Consultant shall provide written notice to City within ten (10) working days if: (1) any of the required insurance policies is terminated; (2) the limits of any of the required polices are reduced; or (3) the deductible or self insured retention is increased. In the event any of said policies of insurance are cancelled, Consultant shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 4 to the Contract Administrator.
d. Additional Insured; Primary Insurance. City and its officers, employees, agents, and authorized volunteers shall be covered as additional insureds with respect to each of the following: liability arising out of the Services performed by or on behalf of Consultant, including the insured’s general supervision of Consultant; products and completed operations of Consultant, as applicable; premises owned, occupied, or used by Consultant; and automobiles owned, leased, or used by Consultant in the course of providing the Services pursuant to this Agreement. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers, employees, agents, or authorized volunteers. The insurance provided to City as an additional insured must apply on a primary and non-contributory basis with respect to any insurance or self-insurance program maintained by City. Additional insured status shall continue for one (1) year after the expiration or termination of this Agreement or completion of the Services.
A certified endorsement must be attached to all policies stating that coverage is primary insurance with respect to City and its officers, officials, employees, and volunteers, and that no insurance or self-insurance maintained by City shall be called upon to contribute to a loss under the coverage.
2905/009410-1001
19412602.3 a02/28/24
Professional Services Agreement | 8
e. Deductibles and Self-Insured Retentions. Consultant shall obtain the written approval of City for the self-insured retentions and deductibles before beginning any of the Services.
During the term of this Agreement, only upon the prior express written authorization of the Contract Administrator, Consultant may increase such deductibles or self-insured retentions with respect to City, its officers, employees, agents, and volunteers. The Contract Administrator may condition approval of an increase in deductible or self-insured retention levels with a requirement that Consultant procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them. f. Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
g. Variation. The Contract Administrator may, but is not required to, approve in writing a variation in the foregoing insurance requirements, upon a determination that the coverage, scope, limits, and forms of such insurance are either not commercially available, or that City’s interests are otherwise fully protected.
4.5 Remedies. In addition to any other remedies at law or equity City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option, exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:
a. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under this Agreement; b. Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or
c. Terminate this Agreement.
SECTION 5. INDEMNIFICATION.
5.1 Indemnification for Professional Liability. Where the law establishes a professional standard of care for performance of the Services, to the fullest extent permitted by law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City and any and all of its officers, employees, officials, volunteers, and agents from and against any and all claims, losses, costs, damages, expenses, liabilities, liens, actions, causes of action (whether in tort, contract, under
2905/009410-1001
19412602.3 a02/28/24
Professional Services Agreement | 9
statute, at law, in equity, or otherwise) charges, awards, assessments, fines, or penalties of any kind (including reasonable consultant and expert fees and expenses of investigation, costs of whatever kind and nature and, if Consultant fails to provide a defense for City, the legal costs of counsel retained by City) and any judgment (collectively, “Claims”) to the extent same are caused in whole or in part by any negligent or wrongful act, error, or omission of Consultant, its officers, agents, employees, or subcontractors (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this Agreement.
5.2 Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any and all of its officers, employees, officials, volunteers, and agents from and against any and all Claims, where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to officers, agents, employees or subcontractors of Consultant.
5.3 Limitation of Indemnification for Design Professionals.
Notwithstanding any provision of this Section 5 to the contrary, design professionals, as that term is defined in Civil Code Section 2782.8, are required to defend and indemnify City only to the extent permitted by Civil Code Section 2782.8. The term “design professional” as defined in Section 2782.8, is limited to licensed architects, licensed landscape architects, registered professional engineers, professional land surveyors, and the business entities that offer such services in accordance with the applicable provisions of the California Business and Professions Code. This Subsection 5.3 shall only apply to Consultant if Consultant is a “design professional” as that term is defined in Civil Code Section 2782.8.
5.4 Limitation of Indemnification. The provisions of this Section 5 do not apply to claims occurring as a result of City’s sole or active negligence. The provisions of this Section 5 shall not release City from liability arising from gross negligence or willful acts or omissions of City or any and all of its officers, officials, employees, and agents acting in an official capacity.
SECTION 6. INDEPENDENT CONTRACTOR.
At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of the Services rendered pursuant to this Agreement and assignment of personnel pursuant to Subsection 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes the Services rendered pursuant to this Agreement. The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Consultant shall not at any time or in any manner represent that it
2905/009410-1001
19412602.3 a02/28/24
Professional Services Agreement | 10
is or any of its officers, employees, or agents are in any manner officers, officials, employees, or agents of City. Consultant shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner. Except for the fees paid to Consultant as provided in this Agreement, City shall not pay salaries, wages, or other compensation to Consultant for performing the Services hereunder for City. City shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing the Services hereunder. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (“PERS”) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits.
SECTION 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractor shall comply with all applicable local, state, and federal laws and regulations applicable to the performance of the work hereunder. Consultant shall not hire or employ any person to perform work within City or allow any person to perform the Services required under this Agreement unless such person is properly documented and legally entitled to be employed within the United States. Consultant acknowledges and agrees that it shall be independently responsible for reviewing the applicable laws and regulations and effectuating compliance with such laws. Consultant shall require the same of all subcontractors.
7.3 Prevailing Wages. Consultant acknowledges and agrees that it shall be independently responsible for reviewing the applicable prevailing wage laws and regulations and effectuating compliance with such laws, including, but not limited to the prevailing wage and related requirements set forth in this Subsection 7.3. Consultant shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law.
a. Public Work. Consultant hereby expressly acknowledges and agrees that City has never previously affirmatively represented to Consultant, its employees or agents in writing or otherwise that the Services are not a “public work,” as defined in Section 1720 of the Labor Code. It is agreed by the Parties that, in connection with the development, construction (as defined by applicable law) and operation of the Services, including, without limitation, any public work (as defined by applicable law), if any, Consultant shall bear all risks of payment or non-payment of state and/or federal
2905/009410-1001
19412602.3 a02/28/24
Professional Services Agreement | 11
prevailing wages and/or the implementation of Labor Code Sections 1726 and 1781, as the same may be enacted, adopted or amended from time to time, and/or any other provision of law. To the extent applicable, City will enforce all penalties required by law for Consultant’s failure to pay prevailing wages.
b. Labor Code of California. The Consultant’s attention is directed to Division 2, Part 7, Chapter 1 of the Labor Code of the State of California and especially to Article 2 (Wages); and Article 3 (Working Hours), thereof. (i) In accordance with Sections 1773 and 1773.2 of the Labor Code, City has found and determined the general prevailing rates of wages in the locality in which the public work is to be performed are those determined by the Director of Industrial Relations and available at https://www.dir.ca.gov/OPRL/2022- 1/PWD/Southern.html. Copies of the prevailing rates of wages are maintained with City’s principal office and are available to any interested party on request. Consultant shall post a copy of the prevailing rate of per diem wages at each job site. (ii) Consultant is aware of and will comply with the provisions of Labor Code Section 1776, including the keeping of payroll records and furnishing certified copies thereof in accordance with said Section. Pursuant to Labor Code Section 1771.4, Consultant must submit certified payroll records to the Labor Commissioner using the Department of Industrial Relations’ electronic certified payroll reporting (eCPR) system. (iii) Pursuant to Labor Code Section 1810, it is stipulated hereby that eight (8) hours labor constitutes a legal day’s work hereunder. (iv) Pursuant to Labor Code Section 1815, work performed by employees of contractors in excess of eight (8) hours per day, and 40 hours during any one week, shall be permitted upon public work upon compensation for all hours worked in excess of eight (8) hours per day at not less than 1 ½ times the basic rate of pay. (v) Pursuant to Labor Code Section 1813, it is stipulated hereby that Consultant shall, as a penalty to City, forfeit twenty-five dollars ($25) for each worker employed in the execution of this Agreement by Consultant or by any subcontractor hereunder for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one (1) calendar week in violation of the provisions of Article 3 (commencing with Section 1810), Chapter 1, Part 7, Division 2 of the Labor Code. (vi) Consultant is aware of and will comply with the provisions of Labor Code Sections 1777.5 and 1777.6 with respect to the employment of apprentices.
Pursuant to Section 1777.5 it is hereby stipulated that Consultant will be responsible for obtaining compliance therewith on the part of any and all sub-consultants or subcontractors employed by Consultant in connection with this Agreement.
2905/009410-1001
19412602.3 a02/28/24
Professional Services Agreement | 12
(vii) Pursuant to Labor Code Section 1775, it is hereby stipulated that Consultant shall, as a penalty to City, forfeit not more than two-hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of Industrial Relations for the work or craft in which the worker is employed for the Services by Consultant or any sub-consultant or subcontractor.
c. Bidding Eligibility. Pursuant to Labor Code Section 1771.1, no contractor or subcontractor (or consultant or subconsultant) may be listed on a bid proposal for a public works project unless registered with the Department of Industrial Relations.
d. DIR Monitoring. Pursuant to Labor Code Section 1771.4, Consultant is hereby notified that this project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
e. Indemnification Related to Prevailing Wages. Section 5, Indemnification, specifically encompasses Claims arising from or related to (i) the noncompliance by Consultant or any party performing the Services of any applicable local, state, and/or federal law, including, without limitation, any applicable federal and/or state labor laws (including, without limitation, the requirement to pay state prevailing wages and hire apprentices); (ii) the implementation of Labor Code Sections 1726 and 1781, as the same may be amended from time to time, or any other similar law; and/or (iii) failure by Consultant or any party performing the Services to provide any required disclosure or identification as required by Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law.
7.4 Licenses and Permits, Fees and Assessments. Consultant represents, warrants, and covenants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions, and perform the Services. Consultant represents, warrants, and covenants to City that Consultant and its employees, agents, and subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions, and perform the Services. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid business licenses from City. Consultant shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for Consultant’s performance of the Services, and shall indemnify, defend and hold harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed, or imposed against City hereunder.
2905/009410-1001
19412602.3 a02/28/24
Professional Services Agreement | 13
7.5 Conflicts of Interest, Political Reform Act. Consultant represents, warrants, and covenants that Consultant presently has no interest, direct or indirect, which would interfere with or impair in any manner or degree the performance of Consultant’s obligations and responsibilities under this Agreement. Consultant further agrees that while this Agreement is in effect, Consultant shall not acquire or otherwise obtain any interest, direct or indirect, that would interfere with or impair in any manner or degree the performance of Consultant’s obligations and responsibilities under this Agreement. Consultant acknowledges that pursuant to the provisions of the Political Reform Act (Government Code Section 87100 et seq.), City may determine the Consultant to be a “consultant” as that term is defined by 2 California Code of Regulations Section 18700.3. In the event City makes such a determination, Consultant agrees to complete and file a “Statement of Economic Interest” with the City Clerk to disclose such financial interests as required by City. In such event, Consultant further agrees to require any other person doing work under this Agreement to complete and file a “Statement of Economic Interest” to disclose such other person’s financial interests as required by City.
7.6 Annual Appropriation of Funding. In accord with Article 16 Section 18 of the California Constitution, payment of compensation under this Agreement is contingent upon annual appropriation of funds by City for that purpose. Consultant acknowledges and agrees that to the extent that the Services extend beyond one (1) fiscal year, payment for such Services is expressly conditioned on City’s annual appropriation of funds for such Services for each year. If no funds are appropriated then this Agreement shall be terminated. City pledges and agrees to process such appropriation requests annually and in good faith. Nothing in this Subsection shall be construed to limit the right of either Party to terminate this Agreement as provided herein.
SECTION 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant.
8.2 Termination by Consultant. Consultant may cancel this Agreement upon 30 days’ written notice to City.
8.3 Consequences of Termination. In the event of termination, Consultant shall be entitled to compensation for the Services performed up to the date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or City in connection with this Agreement.
8.4 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein.
Consultant understands and agrees that, if City grants such an extension, City shall have
2905/009410-1001
19412602.3 a02/28/24
Professional Services Agreement | 14
no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period.
8.5 Amendments. The Parties may amend this Agreement only by a writing signed by all the Parties.
8.6 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant’s unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in Consultant’s proposal, without prior written approval of the Contract Administrator. In the event that key personnel leave Consultant’s employ, Consultant shall notify City immediately.
8.7 Survival. All obligations arising prior to the expiration or termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the expiration or termination of this Agreement.
8.8 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City's remedies shall include, but not be limited to, any or all of the following:
a. Immediately terminate this Agreement;
b. Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement;
c. Retain a different consultant to complete the Services described in Exhibit A; and/or
d. Charge Consultant the difference between the cost to complete the Services described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the Services.
SECTION 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant’s Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies,
2905/009410-1001
19412602.3 a02/28/24
Professional Services Agreement | 15
specifications, records, files, or any other documents or materials, in electronic or any other form that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of City. Consultant hereby agrees to deliver those documents to City upon the expiration or termination of this Agreement.
It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for City and are not necessarily suitable for any future or other use. Any use of such documents for other projects by City shall be without liability to Consultant. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports, and other documents are confidential and will not be released to third parties without prior written consent of both Parties unless required by law. Consultant understands and agrees that it may be required to provide documents to the City to be produced in response to a Public Records Act request.
9.2 Licensing of Intellectual Property. This Agreement creates a nonexclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, rights of reproduction, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, test data, survey results, models, renderings, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings, digital renderings, or data stored digitally, magnetically, or in any other medium, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents and Data”).
Consultant shall require all subcontractors to agree in writing that City is granted a nonexclusive and perpetual license for any Documents and Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents and Data. Consultant makes no such representation and warranty in regard to Documents and Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk.
9.3 Consultant’s Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for the Services or expenditures and disbursements charged to City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible.
9.4 Inspection and Audit of Records. Any records or documents that Subsection 9.3 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND
2905/009410-1001
19412602.3 a02/28/24
Professional Services Agreement | 16
DOLLARS ($10,000.00), this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of City, for a period of three (3) years after final payment under this Agreement.
SECTION 10. MISCELLANEOUS PROVISIONS.
10.1 Attorneys’ Fees. If either Party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing Party shall be entitled to reasonable attorneys’ fees and expenses including costs, in addition to any other relief to which that Party may be entitled; provided, however, that the attorneys’ fees awarded pursuant to this Subsection shall not exceed the hourly rate paid by City for legal services multiplied by the reasonable number of hours spent by the prevailing Party in the conduct of the litigation. The court may set such fees in the same action or in a separate action brought for that purpose.
10.2 Venue. In the event that either Party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in Orange County.
10.3 Severability. If any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected thereby and all other parts of this Agreement shall nevertheless be in full force and effect.
10.4 Section Headings and Subheadings. The section headings and subheadings contained in this Agreement are included for convenience only and shall not limit or otherwise affect the terms of this Agreement.
10.5 No Implied Waiver of Breach. Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a nondefaulting Party on any default shall impair such right or remedy or be construed as a waiver. 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.
10.6 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the Parties.
10.7 Consultant Representative. All matters under this Agreement shall be handled for Consultant by «Consultant_Contact» (“Consultant’s Representative”).
The Consultant’s Representative shall have full authority to represent and act on behalf of Consultant for all purposes under this Agreement. The Consultant’s Representative
2905/009410-1001
19412602.3 a02/28/24
Professional Services Agreement | 17
shall supervise and direct the Services, using his 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.
10.8 City Contract Administration. This Agreement shall be administered by a City employee, «Staff_Contact», «Staff_Title» (“Contract Administrator”). All correspondence shall be directed to or through the Contract Administrator or his designee. The Contract Administrator shall have the power to act on behalf of City for all purposes under this Agreement. Unless otherwise provided in this Agreement, Consultant shall not accept direction or orders from any person other than the Contract Administrator or his designee.
10.9 Notices. Any written notice to Consultant shall be sent to:
VCA Code
Attn: Tom VanDorpe
1845 W. Orangewood Ave
Suite #210
Ornage, CA 92868
Any written notice to City shall be sent to the Contract Administrator at:
City of Yorba Linda
4845 Casa Loma Ave
Yorba Linda, CA 92886
with a copy to:
City Clerk
City of Yorba Linda
4845 Casa Loma Ave
Yorba Linda, CA 92886
10.10 Professional Seal. Where applicable in the determination of the Contract Administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled “Seal and Signature of Registered Professional with report/design responsibility,” as in the following example. __________________________________________
Seal and Signature of Registered Professional with
report/design responsibility.
2905/009410-1001
19412602.3 a02/28/24
Professional Services Agreement | 18
10.11 Rights and Remedies. 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.
10.12 Integration. This Agreement, including the scope of services attached hereto and incorporated herein as Exhibit A, represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. 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.
10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
10.14 Execution of Contract. The persons executing this Agreement on behalf of each of the Parties hereto represent and 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) that entering into this Agreement does not violate any provision of any other agreement to which said Party is bound.
10.15 Nondiscrimination. Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that in the performance of this Agreement there shall be no discrimination against or segregation of, any person or group of persons on account of any impermissible classification including, but not limited to, race, color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry.
10.16 No Third-Party Beneficiaries. There are no intended third-party beneficiaries under this Agreement and no such other third parties shall have any rights or obligations hereunder.
10.17 Nonliability of City Officers and Employees. No officer, official, employee, agent, representative, or volunteer of City shall be personally liable to Consultant, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
10.18 No Undue Influence. Consultant declares and warrants that no undue influence or pressure is used against or in concert with any officer or employee of City in connection with the award, terms or implementation of this Agreement, including
2905/009410-1001
19412602.3 a02/28/24
Professional Services Agreement | 19
any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of City shall receive compensation, directly or indirectly, from Consultant, or from any officer, employee, or agent of Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement.
10.19 No Benefit to Arise to City Employees. No member, officer, or employee of City, or their designees or agents, and no public official who exercises authority over or has responsibilities with respect to this Agreement during his/her tenure or for one (1) year thereafter, shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceeds thereof, for the Services to be performed under this Agreement.
[Signatures on Following Page]
2905/009410-1001
19412602.3 a02/28/24
Professional Services Agreement | 20
IN WITNESS WHEREOF, the Parties hereto have executed and entered into this Agreement as of the Effective Date.
CITY OF YORBA LINDA
Mark Pulane, City Manager
Attest:
Marcia Brown, City Clerk
Approved as to Form:
Todd Litfin, City Attorney
VCA CONSULTANTS, INC.
Tom VanDorpe
President
Gina Birkett
Chief Financial Officer
[Note: 2 officer’s signatures required if
Consultant is a corporation, unless
provided with a certificate of secretary inlieu]
2905/009410-1001
19412602.3 a02/28/24
EXHIBIT A.
EXHIBIT A
SCOPE OF SERVICES
Services shall include Professional Services Agreement in the amount not to exceed
THREE HUNDRED AND FIFTY THOUSAND DOLLARS AND ZERO CENTS ($350,000.00) as further detailed in the following page(s). • Plan review and inspections of residential, commercial and industrial buildings and structures for compliance with the adopted 2022 version of the California Building Code, California Residential Code, California Mechanical Code, California Plumbing Code, California Electrical Code, 2021 Uniform Swimming Pool, Spa and Hot Tub Code, The City of Yorba Linda Municipal Code, Accessibility, and Noise and Energy Conservation requirements as mandated by State Title 24, Green Building Standards and all applicable Ordinances. • Structural design compliance review with the submitted Geotechnical Report, Division of Oil and Gas Requirements, and the Orange County Fire Authority findings and recommendations and Ground Motion Hazard Analysis findings and recommendations for design and construction. • Notification to each applicant prepared by the consultant, consisting of two complete typewritten plan check letters which outline the documents reviewed, instructions to the applicant regarding the processing of documents, and a listing of plan check comments. The plan check comments will refer to appropriate sheets, details or calculation pages and the code section of concern. Comments shall specify the apparent code violation. • Plan checkers shall be available during work hours to discuss and clarify plan check issues with designers, owners, and contractors. Resolution of code issues may be by telephone, Zoom, Teams, or in person meetings prior to resubmitting corrected plans and documents.
• Plan checkers will attend all required meetings as directed by the Building Official.
2905/009410-1001
19412602.3 a02/28/24 EXHIBIT B
EXHIBIT B
FEE SCHEDULE
City of Yorba Linda
Proposalfor Plan Check Services, lnspection Services and Administrative Services VGA Hounlv Rnres FoR Srnrrrruc
Code
Function Hourly Rate
Plan Check Engineer at Gity $130.00 to $145.00
Sr. Building'lnspector (DOE/Certs) $90.00 to $100.00
Gombination Building lnspector (Multiple Certs) $85.00 to $95.00 Building lnspector (Min. 1 Cert) $80.00 to $95.00
CASp Services $145.00 to $155.00
Code Enforcement Officer $7s.00 to $85.00
CALGreen lnspector $90.00 to $105.00
Sr. Planner, AICP (DOE) $145.00 to $155.00
Permit Technician $65.00 to $75.00
Administrative Personnel $55.00 to $65.00
Client Consultation at City Hall (CBO/Sr. Management) $145.00 to $195.00 Note: Compensation for various staffing functions will be based on experience and discussions with the City. Overtime is billed at 1.5x the following rates.
Overhead Costs for Mileage Fees: VCA charges the City the current IRS rate for City related driving to and from job sites for inspections. VCA does not provide vehicles for contract personnel. VCA reimburses contract employees for their mileage while driving their vehicle for City related driving. Mileage is required to be posted for each day on the contract employees' Time Card. Weekly Time Cards must be signed by an authorized supervisor or manager at the City. lnvoices will be billed to the City at the end of each month.
CPI Adjustment: Rates are subject to annual adjustments based on CPI with approval from the City.
VCA Code | 1845 W. Orangewood Ave., #270, Orange, CA92B6B 17L4.363.4700 | Page "
City of Yorba Linda
Proposalfor Plan Check Services, lnspection Services and Administrative Services 4) Rnre AND SenucE SrRUcruRE
Plnru Revrew Fees
Code
Full Plan Check
Percentage of Plan Check Fees Collected
Expedited Plan Check
Percentage of Plan Check Fees Collected
Structural
Percentage of Plan Check Fees Collected
Non-Structural
Percentage of Plan Check Fees Collected
MEP Plan Check Submittal
Percentage of Plan Check Fees Collected
650/o
70o/o
50o/o
..........50%
50o/o
Notes: VGA will invoice the City for 100% of the VGA plan check percentage upon completion of the first plan review. Above fees include all required plan checks.
Siqnificant revisions or chanqes in scope in which the citv charqes additional fees to aoolicant. will be invoiced hourlv at s 1 l5 or as otherwise aoreed to bv the hour lan check 1
Plnru Rev¡ew TunrunnouND Trmes -WonrcNG DAYS
Type of Job Turn Around Time
First Check
Turn Around
Time Re-Check
Residential:
New Construction 13 davs 8 days
Addition 13 days 8 davs
Remodel 13 davs 8 davs
Non-Residential:
New Construction 13 davs 8 days
Addition 13 days I davs
Remodel 13 davs 8 davs
Notes:
1. VGA will arrange pick-up and delivery of plans at no additionalfee to the City.
2. Projects with unique or unusual characteristics may be individually negotiated.
3. All plan checks are included in the initial percentage fee rate.
4. VCA Code will comply with all local amendments provided by the City.
5. VCA shall provide plan check review services expeditiously with the City's request.
6. VCA charges a 2-hour or $230 minimum for any plan review, unless otherwise agreed to and based on the project.
VCA Code | 1845 W. Orangewood Ave., #270, Orange, CA92B6B 1774.363'4700 | PaP.
Professional
Services
Agreement
Professional Services Agreement | 1
PROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and effective this ______ day of __________, «Year» (“Effective Date”) by and between the CITY OF YORBA LINDA, a California municipal corporation, (“City”) and TRB and Associates, Inc. (“Consultant”). City and Consultant may sometimes herein be referred to individually as a “Party” and collectively as the “Parties.” SECTION 1. SERVICES.
Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Services, attached hereto as Exhibit A and incorporated herein by this reference (the “Services”). Consultant will perform subsequent task orders as requested by the Contract Administrator (as defined below), in accordance with the Scope of Services. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, this Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on July 1, 2024 and shall end on June 30, 2025, unless the term of this Agreement is otherwise terminated or extended as provided for in Section 8. The time provided to Consultant to complete the Services required by this Agreement shall not affect the City’s right to terminate this Agreement, as provided for in Section 8.
The agreement is effective for one-year, with the option of being renewed annually at the discretion of the City for no more than four additional one-year terms per the Yorba Linda Municipal Code § 3.04.080 (L).
1.2 Standard of Performance. Consultant represents and warrants that Consultant is a provider of first class work and services and Consultant is experienced in performing the Services contemplated herein and, in light of such status and experience, Consultant shall perform the Services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged in the geographical area in which Consultant practices its profession and to the sole satisfaction of the Contract Administrator.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform the Services pursuant to Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons.
2905/009410-1001
19412602.3 a02/27/24
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 2
1.4 Time. Consultant shall devote such time to the performance of the Services pursuant to this Agreement as may be reasonably necessary to satisfy Consultant’s obligations hereunder.
1.5 Authorization to Perform Services. Consultant is not authorized to perform any of the Services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator.
1.6 Warranty. By executing this Agreement, Consultant warrants that Consultant (i) has thoroughly investigated and considered the Services, (ii) has carefully considered how the Services should be performed, and (iii) fully understands the facilities, difficulties, and restrictions attending performance of the Services.
SECTION 2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed the total amount of the Building Division’s approved budget for Plan Review and Inspection Services in the amount of (THREE HUNDRED AND FIFTY THOUSAND DOLLARS AND ZERO CENTS, $350,000.00), notwithstanding any contrary indications that may be contained in Consultant’s proposal, for the Services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Exhibit A, regarding the amount of compensation, this Agreement shall prevail. City shall pay Consultant for the Services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for the Services rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein. Except as specifically authorized in advance by City, Consultant shall not bill City for duplicate services performed by more than one person.
2.1 Invoices. Consultant shall submit invoices monthly during the term of this Agreement, based on the cost for the Services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information:
a. Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.;
b. The beginning and ending dates of the billing period; c. A “Task Summary” containing the original contract amount, the amount of prior billings, the total due this period, the balance available under this Agreement, and the percentage of completion;
d. At City’s option, for each item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person performing the Services, the hours spent by each person, a brief description of the Services, and each reimbursable expense;
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 3
e. The total number of hours of work performed under this Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing the Services hereunder necessary to complete the Services described in Exhibit A; f. Receipts for expenses to be reimbursed;
g. The Consultant Representative’s signature.
Invoices shall be submitted to:
City of Yorba Linda
Attn: Accounts Payable
4845 Casa Loma Ave
Yorba Linda, CA 92886
2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for the Services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have thirty (30) days from the receipt of an invoice that complies with all of the requirements above to pay Consultant.
2.3 Retention of Funds, Final Payment. Consultant hereby authorizes City to retain and deduct from any amount payable to Consultant not exceeding five percent (5%) of the total compensation. The retained funds shall be paid to Consultant within sixty (60) days after final acceptance of the Services by the City and after Consultant has furnished City with full release of all undisputed payments under this Agreement. In the event there are any claims specifically excluded by Consultant from the operation of the release, City may retain proceeds of up to one hundred fifty percent (150%) of the amount in dispute.
The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of Consultant to insure, indemnify, and protect City as provided in this Agreement. City shall pay the last five percent (5%) of the total amount due pursuant to this Agreement within sixty (60) days after completion of the Services and submittal to City of a final invoice, if all of the Services required have been satisfactorily performed.
2.4 Total Payment. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering the Services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entirety of the Services performed pursuant to this Agreement, unless this Agreement is modified in writing prior to the submission of such an invoice.
2.5 Hourly Fees. Fees for the Services performed by Consultant on an hourly basis shall not exceed the amounts shown on the fee schedule included with Exhibit A.
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 4
2.6 Reimbursable Expenses. Reimbursable expenses are included within the maximum amount of this Agreement.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any federal or state taxes.
2.8 Payment upon Termination. In the event that City or Consultant terminates this Agreement pursuant to Section 8, City shall compensate Consultant for all outstanding costs and reimbursable expenses incurred for Services satisfactorily completed and for reimbursable expenses as of the date of written notice of termination.
Consultant shall maintain adequate logs and timesheets in order to verify costs and reimbursable expenses incurred to that date.
SECTION 3. FACILITIES AND EQUIPMENT.
Except as otherwise provided, Consultant shall, at its sole cost and expense, provide all facilities and equipment necessary to perform the services required by this Agreement. City shall make available to Consultant only physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and the information in possession of City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be required to furnish any facility or equipment that may involve incurring any direct expense, including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities.
SECTION 4. INSURANCE REQUIREMENTS.
Before beginning any work under this Agreement, Consultant, at its own cost and expense, shall procure the types and amounts of insurance listed below and provide certificates of insurance, indicating that Consultant has obtained or currently maintains insurance that meets the requirements of this Section and which is satisfactory, in all respects, to City. Consultant shall maintain the insurance policies required by this Section throughout the term of this Agreement. The cost of such insurance shall be included in Consultant’s compensation. Consultant shall not allow any subcontractor, consultant or other agent to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City.
Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. Consultant acknowledges the insurance policy must cover interinsured suits between City and other insureds. Consultant agrees that the requirement to provide insurance shall not be construed as limiting in any way the extent to which Consultant may be held responsible for the payment of damages to any persons or property resulting from Consultant activities or the activities of any person or persons for which Consultant is otherwise responsible nor shall it limit Consultant’s indemnification liabilities as provided in Section 5.
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 5
4.1 Workers’ Compensation. Consultant shall, at its sole cost and expense, maintain Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all persons employed directly or indirectly by Consultant pursuant to the provisions of the California Labor Code. Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per accident, ONE MILLION DOLLARS ($1,000,000.00) disease per employee, and ONE MILLION DOLLARS ($1,000,000.00) disease per policy.
In the alternative, Consultant may rely on a self-insurance program to meet those requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the California Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or Consultant, if a program of selfinsurance is provided, shall waive all rights of subrogation against City and its officers, officials, employees, and authorized volunteers for loss arising from the Services performed under this Agreement.
4.2 Commercial General and Automobile Liability Insurance. a. General requirements. Consultant, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit coverage, for risks associated with the Services contemplated by this Agreement, TWO MILLION DOLLARS ($2,000,000.00) general aggregate, and TWO MILLION DOLLARS ($2,000,000.00) products/completed operations aggregate. If a Commercial General Liability Insurance or an Automobile Liability Insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the Services to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from the Services contemplated under this Agreement, including the use of hired, owned, and non-owned automobiles.
b. Minimum Scope of Coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 Code 2, 8, and 9. No endorsement shall be attached limiting the coverage.
c. Additional Requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
(i) The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis.
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 6
(ii) Any failure of Consultant to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers.
4.3 Professional Liability Insurance.
a. General Requirements. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing the Services pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals’ errors and omissions. Any deductible or self-insured retention shall be shown on the Certificate. If the deductible or self-insured retention exceeds TWENTY-FIVE THOUSAND DOLLARS ($25,000), it must be approved in writing by City. b. Claims-Made Limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
(i) The retroactive date of the policy must be shown and must be no later than the commencement of the Services.
(ii) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after the expiration or termination of this Agreement or completion of the Services, so long as commercially available at reasonable rates.
(iii) If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the Effective Date of this Agreement, Consultant must provide extended reporting coverage for a minimum of five (5) years after the expiration or termination of this Agreement or the completion of the Services. Such continuation coverage may be provided by one of the following: (1) renewal of the existing policy; (2) an extended reporting period endorsement; or (3) replacement insurance with a retroactive date no later than the commencement of the Services under this Agreement. City shall have the right to exercise, at Consultant’s sole cost and expense, any extended reporting provisions of the policy, if Consultant cancels or does not renew the coverage. (iv) A copy of the claim reporting requirements must be submitted to City prior to the commencement of the Services under this Agreement.
4.4 All Policies Requirements.
a. Acceptability of Insurers. All insurance required by this Section is to be placed with insurers with a Bests’ rating of no less than A:VII and admitted in California. b. Verification of Coverage. Prior to beginning the Services under this Agreement, Consultant shall furnish City with certificates of insurance, additional insured
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 7
endorsement or policy language granting additional insured status complete certified copies of all policies, including complete certified copies of all endorsements. All copies of policies and certified endorsements shall show the signature of a person authorized by that insurer to bind coverage on its behalf. The certificate of insurance must include the following reference: “PROFESSIONAL SERVICES AGREEMENT”. The name and address for additional insured endorsements, certificates of insurance and notice of cancellation is: City of Yorba Linda, 4845 Casa Loma Ave, Yorba Linda, CA 92886. City must be endorsed as an additional insured for liability arising out of ongoing and completed operations by or on behalf of Consultant.
c. Notice of Reduction in or Cancellation of Coverage. Consultant shall provide written notice to City within ten (10) working days if: (1) any of the required insurance policies is terminated; (2) the limits of any of the required polices are reduced; or (3) the deductible or self insured retention is increased. In the event any of said policies of insurance are cancelled, Consultant shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 4 to the Contract Administrator. d. Additional Insured; Primary Insurance. City and its officers, employees, agents, and authorized volunteers shall be covered as additional insureds with respect to each of the following: liability arising out of the Services performed by or on behalf of Consultant, including the insured’s general supervision of Consultant; products and completed operations of Consultant, as applicable; premises owned, occupied, or used by Consultant; and automobiles owned, leased, or used by Consultant in the course of providing the Services pursuant to this Agreement. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers, employees, agents, or authorized volunteers. The insurance provided to City as an additional insured must apply on a primary and non-contributory basis with respect to any insurance or self-insurance program maintained by City. Additional insured status shall continue for one (1) year after the expiration or termination of this Agreement or completion of the Services.
A certified endorsement must be attached to all policies stating that coverage is primary insurance with respect to City and its officers, officials, employees, and volunteers, and that no insurance or self-insurance maintained by City shall be called upon to contribute to a loss under the coverage.
e. Deductibles and Self-Insured Retentions. Consultant shall obtain the written approval of City for the self-insured retentions and deductibles before beginning any of the Services.
During the term of this Agreement, only upon the prior express written authorization of the Contract Administrator, Consultant may increase such deductibles or self-insured retentions with respect to City, its officers, employees, agents, and volunteers. The Contract Administrator may condition approval of an increase in deductible or self-insured retention levels with a requirement that Consultant procure a
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 8
bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them. f. Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
g. Variation. The Contract Administrator may, but is not required to, approve in writing a variation in the foregoing insurance requirements, upon a determination that the coverage, scope, limits, and forms of such insurance are either not commercially available, or that City’s interests are otherwise fully protected.
4.5 Remedies. In addition to any other remedies at law or equity City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option, exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:
a. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under this Agreement; b. Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or c. Terminate this Agreement.
SECTION 5. INDEMNIFICATION.
5.1 Indemnification for Professional Liability. Where the law establishes a professional standard of care for performance of the Services, to the fullest extent permitted by law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City and any and all of its officers, employees, officials, volunteers, and agents from and against any and all claims, losses, costs, damages, expenses, liabilities, liens, actions, causes of action (whether in tort, contract, under statute, at law, in equity, or otherwise) charges, awards, assessments, fines, or penalties of any kind (including reasonable consultant and expert fees and expenses of investigation, costs of whatever kind and nature and, if Consultant fails to provide a defense for City, the legal costs of counsel retained by City) and any judgment (collectively, “Claims”) to the extent same are caused in whole or in part by any negligent or wrongful act, error, or omission of Consultant, its officers, agents, employees, or subcontractors (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this Agreement.
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 9
5.2 Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any and all of its officers, employees, officials, volunteers, and agents from and against any and all Claims, where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to officers, agents, employees or subcontractors of Consultant.
5.3 Limitation of Indemnification for Design Professionals. Notwithstanding any provision of this Section 5 to the contrary, design professionals, as that term is defined in Civil Code Section 2782.8, are required to defend and indemnify City only to the extent permitted by Civil Code Section 2782.8. The term “design professional” as defined in Section 2782.8, is limited to licensed architects, licensed landscape architects, registered professional engineers, professional land surveyors, and the business entities that offer such services in accordance with the applicable provisions of the California Business and Professions Code. This Subsection 5.3 shall only apply to Consultant if Consultant is a “design professional” as that term is defined in Civil Code Section 2782.8.
5.4 Limitation of Indemnification. The provisions of this Section 5 do not apply to claims occurring as a result of City’s sole or active negligence. The provisions of this Section 5 shall not release City from liability arising from gross negligence or willful acts or omissions of City or any and all of its officers, officials, employees, and agents acting in an official capacity.
SECTION 6. INDEPENDENT CONTRACTOR.
At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of the Services rendered pursuant to this Agreement and assignment of personnel pursuant to Subsection 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes the Services rendered pursuant to this Agreement. The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Consultant shall not at any time or in any manner represent that it is or any of its officers, employees, or agents are in any manner officers, officials, employees, or agents of City. Consultant shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner. Except for the fees paid to Consultant as provided in this Agreement, City shall not pay salaries, wages, or other compensation to Consultant for performing the Services hereunder for City. City shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing the Services hereunder. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to any compensation, benefit, or any
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 10
incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (“PERS”) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits.
SECTION 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractor shall comply with all applicable local, state, and federal laws and regulations applicable to the performance of the work hereunder. Consultant shall not hire or employ any person to perform work within City or allow any person to perform the Services required under this Agreement unless such person is properly documented and legally entitled to be employed within the United States. Consultant acknowledges and agrees that it shall be independently responsible for reviewing the applicable laws and regulations and effectuating compliance with such laws. Consultant shall require the same of all subcontractors.
7.3 Prevailing Wages. Consultant acknowledges and agrees that it shall be independently responsible for reviewing the applicable prevailing wage laws and regulations and effectuating compliance with such laws, including, but not limited to the prevailing wage and related requirements set forth in this Subsection 7.3. Consultant shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law.
a. Public Work. Consultant hereby expressly acknowledges and agrees that City has never previously affirmatively represented to Consultant, its employees or agents in writing or otherwise that the Services are not a “public work,” as defined in Section 1720 of the Labor Code. It is agreed by the Parties that, in connection with the development, construction (as defined by applicable law) and operation of the Services, including, without limitation, any public work (as defined by applicable law), if any, Consultant shall bear all risks of payment or non-payment of state and/or federal prevailing wages and/or the implementation of Labor Code Sections 1726 and 1781, as the same may be enacted, adopted or amended from time to time, and/or any other provision of law. To the extent applicable, City will enforce all penalties required by law for Consultant’s failure to pay prevailing wages.
b. Labor Code of California. The Consultant’s attention is directed to Division 2, Part 7, Chapter 1 of the Labor Code of the State of California and especially to Article 2 (Wages); and Article 3 (Working Hours), thereof.
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 11
(i) In accordance with Sections 1773 and 1773.2 of the Labor Code, City has found and determined the general prevailing rates of wages in the locality in which the public work is to be performed are those determined by the Director of Industrial Relations and available at https://www.dir.ca.gov/OPRL/2022- 1/PWD/Southern.html. Copies of the prevailing rates of wages are maintained with City’s principal office and are available to any interested party on request. Consultant shall post a copy of the prevailing rate of per diem wages at each job site. (ii) Consultant is aware of and will comply with the provisions of Labor Code Section 1776, including the keeping of payroll records and furnishing certified copies thereof in accordance with said Section. Pursuant to Labor Code Section 1771.4, Consultant must submit certified payroll records to the Labor Commissioner using the Department of Industrial Relations’ electronic certified payroll reporting (eCPR) system. (iii) Pursuant to Labor Code Section 1810, it is stipulated hereby that eight (8) hours labor constitutes a legal day’s work hereunder. (iv) Pursuant to Labor Code Section 1815, work performed by employees of contractors in excess of eight (8) hours per day, and 40 hours during any one week, shall be permitted upon public work upon compensation for all hours worked in excess of eight (8) hours per day at not less than 1 ½ times the basic rate of pay. (v) Pursuant to Labor Code Section 1813, it is stipulated hereby that Consultant shall, as a penalty to City, forfeit twenty-five dollars ($25) for each worker employed in the execution of this Agreement by Consultant or by any subcontractor hereunder for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one (1) calendar week in violation of the provisions of Article 3 (commencing with Section 1810), Chapter 1, Part 7, Division 2 of the Labor Code. (vi) Consultant is aware of and will comply with the provisions of Labor Code Sections 1777.5 and 1777.6 with respect to the employment of apprentices.
Pursuant to Section 1777.5 it is hereby stipulated that Consultant will be responsible for obtaining compliance therewith on the part of any and all sub-consultants or subcontractors employed by Consultant in connection with this Agreement. (vii) Pursuant to Labor Code Section 1775, it is hereby stipulated that Consultant shall, as a penalty to City, forfeit not more than two-hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of Industrial Relations for the work or craft in which the worker is employed for the Services by Consultant or any sub-consultant or subcontractor.
c. Bidding Eligibility. Pursuant to Labor Code Section 1771.1, no contractor or subcontractor (or consultant or subconsultant) may be listed on a bid
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 12
proposal for a public works project unless registered with the Department of Industrial Relations.
d. DIR Monitoring. Pursuant to Labor Code Section 1771.4, Consultant is hereby notified that this project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
e. Indemnification Related to Prevailing Wages. Section 5, Indemnification, specifically encompasses Claims arising from or related to (i) the noncompliance by Consultant or any party performing the Services of any applicable local, state, and/or federal law, including, without limitation, any applicable federal and/or state labor laws (including, without limitation, the requirement to pay state prevailing wages and hire apprentices); (ii) the implementation of Labor Code Sections 1726 and 1781, as the same may be amended from time to time, or any other similar law; and/or (iii) failure by Consultant or any party performing the Services to provide any required disclosure or identification as required by Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law.
7.4 Licenses and Permits, Fees and Assessments. Consultant represents, warrants, and covenants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions, and perform the Services. Consultant represents, warrants, and covenants to City that Consultant and its employees, agents, and subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions, and perform the Services.
In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid business licenses from City. Consultant shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for Consultant’s performance of the Services, and shall indemnify, defend and hold harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed, or imposed against City hereunder.
7.5 Conflicts of Interest, Political Reform Act. Consultant represents, warrants, and covenants that Consultant presently has no interest, direct or indirect, which would interfere with or impair in any manner or degree the performance of Consultant’s obligations and responsibilities under this Agreement. Consultant further agrees that while this Agreement is in effect, Consultant shall not acquire or otherwise obtain any interest, direct or indirect, that would interfere with or impair in any manner or degree the performance of Consultant’s obligations and responsibilities under this Agreement.
Consultant acknowledges that pursuant to the provisions of the Political Reform Act (Government Code Section 87100 et seq.), City may determine the Consultant to be a “consultant” as that term is defined by 2 California Code of Regulations Section 18700.3.
In the event City makes such a determination, Consultant agrees to complete and file a
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 13
“Statement of Economic Interest” with the City Clerk to disclose such financial interests as required by City. In such event, Consultant further agrees to require any other person doing work under this Agreement to complete and file a “Statement of Economic Interest” to disclose such other person’s financial interests as required by City.
7.6 Annual Appropriation of Funding. In accord with Article 16 Section 18 of the California Constitution, payment of compensation under this Agreement is contingent upon annual appropriation of funds by City for that purpose. Consultant acknowledges and agrees that to the extent that the Services extend beyond one (1) fiscal year, payment for such Services is expressly conditioned on City’s annual appropriation of funds for such Services for each year. If no funds are appropriated then this Agreement shall be terminated. City pledges and agrees to process such appropriation requests annually and in good faith. Nothing in this Subsection shall be construed to limit the right of either Party to terminate this Agreement as provided herein.
SECTION 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant.
8.2 Termination by Consultant. Consultant may cancel this Agreement upon 30 days’ written notice to City.
8.3 Consequences of Termination. In the event of termination, Consultant shall be entitled to compensation for the Services performed up to the date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or City in connection with this Agreement.
8.4 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Consultant understands and agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period.
8.5 Amendments. The Parties may amend this Agreement only by a writing signed by all the Parties.
8.6 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant’s unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 14
into this Agreement was and is the professional reputation and competence of Consultant.
Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in Consultant’s proposal, without prior written approval of the Contract Administrator. In the event that key personnel leave Consultant’s employ, Consultant shall notify City immediately.
8.7 Survival. All obligations arising prior to the expiration or termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the expiration or termination of this Agreement.
8.8 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City's remedies shall include, but not be limited to, any or all of the following:
a. Immediately terminate this Agreement;
b. Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement;
c. Retain a different consultant to complete the Services described in Exhibit A; and/or
d. Charge Consultant the difference between the cost to complete the Services described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the Services.
SECTION 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant’s Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of City. Consultant hereby agrees to deliver those documents to City upon the expiration or termination of this Agreement.
It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for City and are not necessarily suitable for any future or other use. Any use of such documents for other projects by City shall be without liability to Consultant. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports, and other documents are confidential and will not be released to third parties without prior written consent of both Parties unless required by law. Consultant
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 15
understands and agrees that it may be required to provide documents to the City to be produced in response to a Public Records Act request.
9.2 Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, rights of reproduction, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, test data, survey results, models, renderings, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings, digital renderings, or data stored digitally, magnetically, or in any other medium, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents and Data”). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents and Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents and Data. Consultant makes no such representation and warranty in regard to Documents and Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk.
9.3 Consultant’s Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for the Services or expenditures and disbursements charged to City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible.
9.4 Inspection and Audit of Records. Any records or documents that Subsection 9.3 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of City, for a period of three (3) years after final payment under this Agreement.
SECTION 10. MISCELLANEOUS PROVISIONS.
10.1 Attorneys’ Fees. If either Party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing Party shall be entitled to reasonable attorneys’ fees and expenses including costs, in addition to any other relief to which that Party may be entitled; provided, however, that the attorneys’ fees awarded pursuant to this Subsection shall not exceed the hourly rate paid by City for legal services multiplied by the reasonable
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 16
number of hours spent by the prevailing Party in the conduct of the litigation. The court may set such fees in the same action or in a separate action brought for that purpose.
10.2 Venue. In the event that either Party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in Orange County.
10.3 Severability. If any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected thereby and all other parts of this Agreement shall nevertheless be in full force and effect.
10.4 Section Headings and Subheadings. The section headings and subheadings contained in this Agreement are included for convenience only and shall not limit or otherwise affect the terms of this Agreement.
10.5 No Implied Waiver of Breach. Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a nondefaulting Party on any default shall impair such right or remedy or be construed as a waiver. 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.
10.6 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the Parties.
10.7 Consultant Representative. All matters under this Agreement shall be handled for Consultant by «Consultant_Contact» (“Consultant’s Representative”). The Consultant’s Representative shall have full authority to represent and act on behalf of Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his 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.
10.8 City Contract Administration. This Agreement shall be administered by a City employee, «Staff_Contact», «Staff_Title» (“Contract Administrator”). All correspondence shall be directed to or through the Contract Administrator or his designee. The Contract Administrator shall have the power to act on behalf of City for all purposes under this Agreement. Unless otherwise provided in this Agreement, Consultant shall not accept direction or orders from any person other than the Contract Administrator or his designee.
10.9 Notices. Any written notice to Consultant shall be sent to:
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 17
TRB and Associates
Attn: Todd Bailey, P.E., LEED AP, CASp, MBA
3180 Crow Canyon Place
Suite 209
Santa Clara, CA 95050
Any written notice to City shall be sent to the Contract Administrator at:
City of Yorba Linda
4845 Casa Loma Ave
Yorba Linda, CA 92886
with a copy to:
City Clerk
City of Yorba Linda
4845 Casa Loma Ave
Yorba Linda, CA 92886
10.10 Professional Seal. Where applicable in the determination of the Contract Administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled “Seal and Signature of Registered Professional with report/design responsibility,” as in the following example.
__________________________________________
Seal and Signature of Registered Professional with
report/design responsibility.
10.11 Rights and Remedies. 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.
10.12 Integration. This Agreement, including the scope of services attached hereto and incorporated herein as Exhibit A, represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. 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.
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 18
10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
10.14 Execution of Contract. The persons executing this Agreement on behalf of each of the Parties hereto represent and 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) that entering into this Agreement does not violate any provision of any other agreement to which said Party is bound.
10.15 Nondiscrimination. Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that in the performance of this Agreement there shall be no discrimination against or segregation of, any person or group of persons on account of any impermissible classification including, but not limited to, race, color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry.
10.16 No Third-Party Beneficiaries. There are no intended third-party beneficiaries under this Agreement and no such other third parties shall have any rights or obligations hereunder.
10.17 Nonliability of City Officers and Employees. No officer, official, employee, agent, representative, or volunteer of City shall be personally liable to Consultant, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
10.18 No Undue Influence. Consultant declares and warrants that no undue influence or pressure is used against or in concert with any officer or employee of City in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of City shall receive compensation, directly or indirectly, from Consultant, or from any officer, employee, or agent of Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement.
10.19 No Benefit to Arise to City Employees. No member, officer, or employee of City, or their designees or agents, and no public official who exercises authority over or has responsibilities with respect to this Agreement during his/her tenure or for one (1) year thereafter, shall have any interest, direct or indirect, in any agreement or subagreement, or the proceeds thereof, for the Services to be performed under this Agreement.
[Signatures on Following Page]
2905/009410-1001
19412602.3 a02/27/24
Professional Services Agreement | 19
IN WITNESS WHEREOF, the Parties hereto have executed and entered into this Agreement as of the Effective Date.
CITY OF YORBA LINDA
Mark Pulane, City Manager
Attest:
Marcia Brown, City Clerk
Approved as to Form:
Todd Litfin, City Attorney
TRB AND ASSOCIATES, INC.
Todd Bailey, P.E, LEED AP, CASp, MBA
Principal and Founder
[Note: 2 officer’s signatures required if
Consultant is a corporation, unless
provided with a certificate of secretary inlieu]
2905/009410-1001
19412602.3 a02/27/24
EXHIBIT A.
EXHIBIT A
SCOPE OF SERVICES
Services shall include Professional Services Agreement in the amount not to exceed
THREE HUNDRED AND FIFTY THOUSAND DOLLARS AND ZERO CENTS, ($350,000.00) as further detailed in the following page(s). • Plan review and inspections of residential, commercial and industrial buildings and structures for compliance with the adopted 2022 version of the California Building Code, California Residential Code, California Mechanical Code, California Plumbing Code, California Electrical Code, 2021 Uniform Swimming Pool, Spa and Hot Tub Code, The City of Yorba Linda Municipal Code, Accessibility, and Noise and Energy Conservation requirements as mandated by State Title 24, Green Building Standards and all applicable Ordinances. • Structural design compliance review with the submitted Geotechnical Report, Division of Oil and Gas Requirements, and the Orange County Fire Authority findings and recommendations and Ground Motion Hazard Analysis findings and recommendations for design and construction. • Notification to each applicant prepared by the consultant, consisting of two complete typewritten plan check letters which outline the documents reviewed, instructions to the applicant regarding the processing of documents, and a listing of plan check comments. The plan check comments will refer to appropriate sheets, details or calculation pages and the code section of concern. Comments shall specify the apparent code violation. • Plan checkers shall be available during work hours to discuss and clarify plan check issues with designers, owners, and contractors. Resolution of code issues may be by telephone, Zoom, Teams, or in person meetings prior to resubmitting corrected plans and documents.
• Plan checkers will attend all required meetings as directed by the Building Official.
2905/009410-1001
19412602.3 a02/27/24 EXHIBIT B.
EXHIBIT B
FEE SCHEDULE
FEE SCHEDUTE section six
Fee Schedule
TRB and Associates offers the following fixed-fee and hourly rate schedules for services provided. Professional staffing services such as Building 0fficial, Building lnspection, Permit Technician, Code Enforcement and Other services (e.9, CASp consulting), would be provided on an hourly basis at rates shown in the following Schedule of Hourly Rates and Reimbursables, Please note that Building Plan Review services may be rendered on either a fixed fee or hourly rate basis, as noted below.
Plan Review Services
Our plan review fees are calculated as a percentage of the total Plan Review Fee collected by the City, at the rates noted in the schedule below. The fee compensation shown covers three total plan review cycles - the initial plan review and two rechecks, Any further review cycles which become necessary and reviews of revisions to approved plans would be billed based upon a negotiated hourly rate, Please note that the turnaround timeframe for providing expedited plan reviews would be negotiated/mutually agreed upon prior to commencement of the review. Please also note that all plan reviews performed on a fixed fee basis are subject to a minimum $250 fee.
Note: For other review scope combinations not specifically identified in the above table (e.9. Electrical Only, Mechanical/ Plumbing Only, etc.), the fee compensation would be on an hourly basis. * For exceptionally large/complex projects, 15-day first check and 10-day rechecks may apply, as mutually agreed upon prior to commencement of review.
** Turnaround timeframe would be mutually agreed upon prior to commencement of work.
Please note that the pickup, shipment, and delivery of hardcopy and/or electronic plan documents and other relevant correspondence to the City are included in the above-noted cost, Turnaround Timeframe*
(in business days)
Structural Only
Review
M/E/P only
Review
Complete Review
(Structural, lÍfe
Safety/Disabted Access,
MIEIP, Green, Energy|
Standard:
- 7-10 days first check
- 5 days rechecks
45% 45% 6s%
Exped¡ted**
- 5-7 days first check
- 5 days rechecks
Standard fee plus an
additional 50 percent
Standard fee plus an
additional 50 percent
Standard fee plus an
additional 50 percent
lllll+ tssneirles
I nu- GITY oF YonBA LII{DA I BUILDING PLAN cHEcK ANÐ STAFF AUGMENTATI0N SERVIcES Ë-f
FEE SCHEDULE
Schedule of Hourly Rates and Reimbursables
The following billing rates apply for services rendered on an hourly basis:
Pos¡t¡on
Principal/ Director
Project Manager
Building Official
Assistant Project Manager
Analyst
Supervising Plan Review Engineer / Architect
Senior Plan Review Engineer / Architect
Senior Plans Examiner (Building & Fire)
Plan Review Engineer/Architect
Plans Examiner (Building & Fire)
Engineering Technician
lntern Plans Examiner
Permit Technician
Clerical/Admin
Geotechnical Engineer
Fire Protection Engineer
CASp Certified I nspector/Exa miner
Grading/Storm Water Plan Review Engineer
QSP Storm Water lnspector
Oil Field Services Coordinator
Supervising lnspector
Senior lnspector
I nspector
lntern lnspector
Hourlv Rate
S17s.0o
Si.ss.oo
Si.ss.oo
Si.4s.oo
s100.00
$i-so.oo
Si.4o.oo
Si.3o,oo
$L20.00
Si.10.oo
Sloo.oo
s 7o.oo
s 6s.00 - 8s.00
s 60.00
S21s.oo
Si.ss.oo
S14o.oo
s1_8s.00
S18s.oo
Si_4o.oo
Sr.3o.oo - 14o.oo
Si-1o.oo - 125.00
s e0.00 - 10s.00
s 7o.oo
Overtime, Emergency, Expedited, and After-hours work is billed at the above-noted rates plus an additional 50 percent (Note that no overtime will be charged without client authorization) Project inspections subject to prevailing wage requirements are at the above-published rates plus 30 percent.
Reimbursement for non-City vehicles used in connection with the work will be at the current IRS mileage rate plus L5%.
All requested inspection services are subject to a minimum 4-hour fee. lnspector Rates apply to both Building and Code Enforcement lnspectors.
The above Schedule is valid through December 31,2024 at least one (1) year from the effective date of the contract and may be adjusted thereafter to account for CPI changes, as mutually agreed upon. a
a
TRB+rssoßinlss CITY OF YOFEA LITOA I BUILDING PLAN CHECK AND STAFF AUGMENTATION SEHVICES 6-2
ADMINISTRATION DEPARTMENT
DATE: MARCH 5, 2024
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: TODD LITFIN, CITY ATTORNEY
SUBJECT: MAIN STREET SCE ELECTRICAL UPGRADE REIMBURSEMENT
AGREEMENTS
RECOMMENDATION
Approve Reimbursement Agreements with the owners of 4895 Main Street and 18293 Imperial Highway for SCE Facility upgrades in the amount of $5,000 each, authorize recordation of the agreements on the properties, and authorize City Manager to execute documents and authorize minor amendments thereto.
BACKGROUND/DISCUSSION
The properties within the City along the west side of Main Street were subdivided and developed a substantial time ago and historically that has created additional legal and development complexities for upgrades to the properties. Specifically, properties within the City located along the west side of Main Street require upgrades to the Southern California Edison electrical facilities (“SCE Facilities Upgrade”) that serve the general area in order to provide for new and more intensive uses of the properties.
The property owners that would receive improved electrical services from the SCE Facilities Upgrade have conceptually agreed to a cost sharing agreement in which the properties would jointly pay for the SCE Facilities Upgrade.
Two property owners (4895 Main Street and 18293 Imperial Highway) have requested a loan to facilitate the SCE Facilities Upgrade. It is in the public benefit to facilitate upgrades to the SCE Facilities for economic development purposes along Main Street in furtherance of the City’s plans to create a vibrant town center area in the historical downtown area of the City for the benefit of the entire City. The amount of the loan is $5,000 to each property owner, for a total City contribution of $10,000.
The City loan will be reimbursed by the property owners either once the property hooks up to the upgraded SCE facilities and develops the property or within 15 years, whichever is earlier. The loan will accrue interest at the standard governmental LAIF rate.
MAIN STREET SCE ELECTRICAL UPGRADE REIMBURSEMENT AGREEMENTS P a g e | 2
FISCAL IMPACT
The cost associated with these agreements is $10,000 total which will be repaid with interest. Adequate funds have already been appropriated in the FY 2023/24 Economic Development budget in the Misc. Other Contract Service account (1010180-433950).
ALTERNATIVES
Do not approve the agreements which will have unknown impacts upon the status of the SCE Facility upgrades and pace of development along Main Street.
ATTACHMENTS
1. Reimbursement Agreement for 4895 Main Street
2. Reimbursement Agreement for 18293 Imperial Highway
-1-
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement (“Agreement”) is made this __ day of March, 2024, by and between the City of Yorba Linda, a municipal corporation (the “City”) and Robert R. Ward (the “Property Owner”).
RECITALS
This Agreement is made with respect to the following facts.
A. The Property Owner is the owner of that certain real property (“Property”) located within the City of Yorba Linda, County of Orange, California, generally described as 4895 Main Street, Yorba Linda, CA, APN 323-304-13.
B. The properties within the City along the west side of Main Street were subdivided and developed a substantial time ago and historically that has created additional legal and development complexities for upgrades of the properties. Properties within the City located along the west side of Main Street require upgrades to the Southern California Edison electrical facilities (“SCE Facilities Upgrade”) that serve the general area in order to provide for new and more intensive uses of the properties.
C. The property owners that would receive improved electrical services from the SCE Facilities Upgrade have conceptually agreed to a cost sharing agreement in which the properties would jointly pay for the SCE Facilities Upgrade.
D. It is in the public benefit to facilitate upgrades to the SCE Facilities for economic development purposes along Main Street in furtherance of the City’s plans to create a vibrant town center area in the historical downtown area of the City for the benefit of the entire City.
E. To facilitate the completion of the upgrade to the SCE Facilities, the City will pay Property Owner’s approximate share of the costs for the upgrade and Property Owner will reimburse the City upon future development of the Property or within a time certain, whichever occurs first.
AGREEMENT
NOW, THEREFORE, in consideration of the following mutual promises and agreements, City and Property Owner agree as follows:
1. Incorporation of Recitals. The parties agree that the Recitals constitute the factual basis upon which the City and the Property Owner have entered into this Agreement. The City and the Property Owner each acknowledge the accuracy of the Recitals and agree that the Recitals are incorporated into this Agreement as though fully set forth at length.
2. City to Loan Property Owner Pro Rate Share Of SCE Facilities Upgrade Cost.
City will loan Property Owner the Property’s approximate pro rata share of the upgraded SCE Facilities cost in the percentage conceptually agreed to the property owners along Main Street that are paying for the upgraded SCE Facilities. The amount of the loan is $ 5,000 (“Loan”).
ATTACHMENT 1
-2-
3. Property Owner to Cooperate Regarding SCE Facilities Upgrade. Property Owner shall enter into all necessary SCE agreements and easements as required to facilitate the SCE Facilities Upgrade.
4. Loan For SCE Facilities Upgrade Only. The City Loan is for the SCE Facilities Upgrade only and does not cover any costs for the Property Owner or the Property to connect to the SCE Facilities Upgrade or connect to the transformer for the SCE Facilities Upgrade.
5. Property Owner’s Reimbursement of Loan. The Property Owner shall reimburse and pay the City for one hundred percent (100%) of the Loan in one lump sum at the earlier of the following: 1) such time that the Property Owner (current or future) connects the Property to the transformer of the SCE Facilities Upgrade in connection with the development of the Property either via expansion or change of use; 2) fifteen (15) years from the date of this Agreement. The Property Owner (current or future) is responsible for all future costs related to connecting to the SCE Facilities Upgrade and any related onsite improvements deemed necessary to service the SCE Facilities Upgrade.
6. No Certificate Of Occupancy Or Similar Permit Until Loan Reimbursed. The City will not issue a new certificate of occupancy or similar permit for the Property based on any improvements to the Property until the Loan is reimbursed.
7. Loan Terms. The Loan will accrue interest compounded yearly at the LAIF rate.
There is no termination or forgiveness of the Loan until the Loan is repaid.
8. No Guarantee Or Responsibility Pertaining To SCE Facilities Upgrade. The City makes no guarantees, warranties, or promises pertaining to the SCE Facilities Upgrade. The City is merely providing a reimbursable loan to Property Owner for economic development purposes.
9. Term. The term of this Agreement shall commence on the date that this Agreement is approved by the City and fully executed by the parties and shall terminate when Property Owner’s obligation to reimburse the City as provided in this Agreement is satisfied.
10. Nonwaiver of Rights or Remedies. The failure of a party to exercise anyone or more of its rights or remedies under this Agreement shall not constitute a waiver of that party’s right to enforce that right or seek that remedy in the future. No course of conduct or act of forbearance on anyone or more occasions by any party to this Agreement shall preclude that party from asserting any right to remedy available to it in the future. No course of conduct or act of forbearance on anyone or more occasions shall be deemed to be an implied modification of the terms of this Agreement.
11. Runs With The Land. This Agreement is intended to run with the land of the Property and bind future owners of the Property until terminated by the City upon repayment of the Loan. This Agreement and each of its terms shall be binding upon the City and the Property Owner and its permitted successors and assigns that own the Property. The Property Owner agrees to the recordation of a restriction regarding the terms of this Agreement being recorded on the Property at the City’s discretion.
-3-
12. No Oral Modifications. This Agreement represents the entire understanding of the City and the Property Owner and supersedes all other prior or contemporaneous written or oral agreements pertaining to the subject matter of this Agreement. This Agreement may be modified only by a writing signed by the authorized representatives of both the City and the Property Owner.
13. Attorneys’ Fees. In the event that any action or proceeding, including arbitration, is commenced by either the City or the Property Owner against the other to establish the validity of this Agreement or to enforce anyone or more of its terms, the prevailing party in any such action or proceeding shall be entitled to recover from the other, in addition to all other legal aid equitable remedies available to it, its actual attorneys’ fees and costs of litigation, including, without limitation, filing fees, service fees, deposition costs, arbitration of costs and expert witness fees, including actual costs and attorneys’ fees on appeal.
14. Nonliability of City Officials. No officer, official, employee, agent, representative, or volunteer of the City shall be personally liable to the Property Owner, 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 Property Owner or to its successor, or for breach of any obligation of the terms of this Agreement.
15. Unknown Events. In the event that unforeseen legal or other issues arise in the connection with this Agreement or the SCE Facilities, the City reserves the right in its sole discretion to call for the immediate repayment of the Loan.
16. Jurisdiction and Venue. This Agreement is executed and is to be performed in the City of Yorba Linda, and any action or proceeding brought relative to this Agreement shall be heard in the appropriate court in the County of Orange, California. The City and the Property Owner each consent to the personal jurisdiction of the court in any such action or proceeding.
17. Notice. Notices provides under this Agreement shall be provided to the following addresses. Upon sale of the Property by Property Owner to a new Property Owner, the then current Property Owner shall provide the City with the address of the new Property Owner.
If to the City: City of Yorba Linda
Attn: City Manager
4845 Casa Loma Ave.
Yorba Linda, CA 92886
If to the Property Owner: ____________________________
____________________________
____________________________
18. Interpretation. The City and the Property Owner agree that this Agreement is the product of mutual negotiations and is an arms-length transaction. Each party has negotiated this Agreement with the advice and assistance of legal counsel if its own choosing.
19. Severability. If any term or provision of this Agreement is found to be invalid or unenforceable, the City and the Property Owner both agree that they would have executed this
-4-
Agreement notwithstanding the invalidity of such term or provision. The invalid term or provision may be severed from the Agreement and the remainder of the Agreement may be enforced in its entirety.
[end—signature page follows]
-5-
“CITY”
CITY OF YORBA LINDA
Dated: ________________________ By: _____________________________ Its: ____________________________
ATTEST
____________________________
City Clerk
APPROVED AS TO FORM:
____________________________
“PROPERTY OWNER”
______________________________
Dated: _______________________ By ___________________________ ______________________________
By ___________________________
-1-
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement (“Agreement”) is made this __ day of March, 2024, by and between the City of Yorba Linda, a municipal corporation (the “City”) and Thomas E.
Larsen (the “Property Owner”).
RECITALS
This Agreement is made with respect to the following facts.
A. The Property Owner is the owner of that certain real property (“Property”) located within the City of Yorba Linda, County of Orange, California, generally described as 18293 Imperial Highway, Yorba Linda, CA, APN 323-301-10.
B. The properties within the City along the west side of Main Street were subdivided and developed a substantial time ago and historically that has created additional legal and development complexities for upgrades of the properties. Properties within the City located along the west side of Main Street require upgrades to the Southern California Edison electrical facilities (“SCE Facilities Upgrade”) that serve the general area in order to provide for new and more intensive uses of the properties.
C. The property owners that would receive improved electrical services from the SCE Facilities Upgrade have conceptually agreed to a cost sharing agreement in which the properties would jointly pay for the SCE Facilities Upgrade.
D. It is in the public benefit to facilitate upgrades to the SCE Facilities for economic development purposes along Main Street in furtherance of the City’s plans to create a vibrant town center area in the historical downtown area of the City for the benefit of the entire City.
E. To facilitate the completion of the upgrade to the SCE Facilities, the City will pay Property Owner’s approximate share of the costs for the upgrade and Property Owner will reimburse the City upon future development of the Property or within a time certain, whichever occurs first.
AGREEMENT
NOW, THEREFORE, in consideration of the following mutual promises and agreements, City and Property Owner agree as follows:
1. Incorporation of Recitals. The parties agree that the Recitals constitute the factual basis upon which the City and the Property Owner have entered into this Agreement. The City and the Property Owner each acknowledge the accuracy of the Recitals and agree that the Recitals are incorporated into this Agreement as though fully set forth at length.
2. City to Loan Property Owner Pro Rate Share Of SCE Facilities Upgrade Cost.
City will loan Property Owner the Property’s approximate pro rata share of the upgraded SCE Facilities cost in the percentage conceptually agreed to the property owners along Main Street that are paying for the upgraded SCE Facilities. The amount of the loan is $ 5,000 (“Loan”).
ATTACHMENT 2
-2-
3. Property Owner to Cooperate Regarding SCE Facilities Upgrade. Property Owner shall enter into all necessary SCE agreements and easements as required to facilitate the SCE Facilities Upgrade.
4. Loan For SCE Facilities Upgrade Only. The City Loan is for the SCE Facilities Upgrade only and does not cover any costs for the Property Owner or the Property to connect to the SCE Facilities Upgrade or connect to the transformer for the SCE Facilities Upgrade.
5. Property Owner’s Reimbursement of Loan. The Property Owner shall reimburse and pay the City for one hundred percent (100%) of the Loan in one lump sum at the earlier of the following: 1) such time that the Property Owner (current or future) connects the Property to the transformer of the SCE Facilities Upgrade in connection with the development of the Property either via expansion or change of use; 2) fifteen (15) years from the date of this Agreement. The Property Owner (current or future) is responsible for all future costs related to connecting to the SCE Facilities Upgrade and any related onsite improvements deemed necessary to service the SCE Facilities Upgrade.
6. No Certificate Of Occupancy Or Similar Permit Until Loan Reimbursed. The City will not issue a new certificate of occupancy or similar permit for the Property based on any improvements to the Property until the Loan is reimbursed.
7. Loan Terms. The Loan will accrue interest compounded yearly at the LAIF rate.
There is no termination or forgiveness of the Loan until the Loan is repaid.
8. No Guarantee Or Responsibility Pertaining To SCE Facilities Upgrade. The City makes no guarantees, warranties, or promises pertaining to the SCE Facilities Upgrade. The City is merely providing a reimbursable loan to Property Owner for economic development purposes.
9. Term. The term of this Agreement shall commence on the date that this Agreement is approved by the City and fully executed by the parties and shall terminate when Property Owner’s obligation to reimburse the City as provided in this Agreement is satisfied.
10. Nonwaiver of Rights or Remedies. The failure of a party to exercise anyone or more of its rights or remedies under this Agreement shall not constitute a waiver of that party’s right to enforce that right or seek that remedy in the future. No course of conduct or act of forbearance on anyone or more occasions by any party to this Agreement shall preclude that party from asserting any right to remedy available to it in the future. No course of conduct or act of forbearance on anyone or more occasions shall be deemed to be an implied modification of the terms of this Agreement.
11. Runs With The Land. This Agreement is intended to run with the land of the Property and bind future owners of the Property until terminated by the City upon repayment of the Loan. This Agreement and each of its terms shall be binding upon the City and the Property Owner and its permitted successors and assigns that own the Property. The Property Owner agrees to the recordation of a restriction regarding the terms of this Agreement being recorded on the Property at the City’s discretion.
-3-
12. No Oral Modifications. This Agreement represents the entire understanding of the City and the Property Owner and supersedes all other prior or contemporaneous written or oral agreements pertaining to the subject matter of this Agreement. This Agreement may be modified only by a writing signed by the authorized representatives of both the City and the Property Owner.
13. Attorneys’ Fees. In the event that any action or proceeding, including arbitration, is commenced by either the City or the Property Owner against the other to establish the validity of this Agreement or to enforce anyone or more of its terms, the prevailing party in any such action or proceeding shall be entitled to recover from the other, in addition to all other legal aid equitable remedies available to it, its actual attorneys’ fees and costs of litigation, including, without limitation, filing fees, service fees, deposition costs, arbitration of costs and expert witness fees, including actual costs and attorneys’ fees on appeal.
14. Nonliability of City Officials. No officer, official, employee, agent, representative, or volunteer of the City shall be personally liable to the Property Owner, 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 Property Owner or to its successor, or for breach of any obligation of the terms of this Agreement.
15. Unknown Events. In the event that unforeseen legal or other issues arise in the connection with this Agreement or the SCE Facilities, the City reserves the right in its sole discretion to call for the immediate repayment of the Loan.
16. Jurisdiction and Venue. This Agreement is executed and is to be performed in the City of Yorba Linda, and any action or proceeding brought relative to this Agreement shall be heard in the appropriate court in the County of Orange, California. The City and the Property Owner each consent to the personal jurisdiction of the court in any such action or proceeding.
17. Notice. Notices provides under this Agreement shall be provided to the following addresses. Upon sale of the Property by Property Owner to a new Property Owner, the then current Property Owner shall provide the City with the address of the new Property Owner.
If to the City: City of Yorba Linda
Attn: City Manager
4845 Casa Loma Ave.
Yorba Linda, CA 92886
If to the Property Owner: ____________________________
____________________________
____________________________
18. Interpretation. The City and the Property Owner agree that this Agreement is the product of mutual negotiations and is an arms-length transaction. Each party has negotiated this Agreement with the advice and assistance of legal counsel if its own choosing.
19. Severability. If any term or provision of this Agreement is found to be invalid or unenforceable, the City and the Property Owner both agree that they would have executed this
-4-
Agreement notwithstanding the invalidity of such term or provision. The invalid term or provision may be severed from the Agreement and the remainder of the Agreement may be enforced in its entirety.
[end—signature page follows]
-5-
“CITY”
CITY OF YORBA LINDA
Dated: ________________________ By: _____________________________ Its: ____________________________
ATTEST
____________________________
City Clerk
APPROVED AS TO FORM:
____________________________
“PROPERTY OWNER”
______________________________
Dated: _______________________ By ___________________________ ______________________________
By ___________________________
PUBLIC WORKS DEPARTMENT
DATE: MARCH 5, 2024
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: JAMIE LAI, P.E., DIRECTOR OF PUBLIC WORKS/CITY ENGINEER PREPARED BY: AUSTIN POSTOVOIT, SENIOR MANAGEMENT ANALYST SUBJECT: RATIFY THE CITY MANAGER’S PROCLAMATION OF EMERGENCY TO
APPROVE EMERGENCY PROCUREMENT PROCEDURES ASSOCIATED
WITH DAMAGES TO THE YORBA LINDA BLVD. AND IMPERIAL HWY
SINKHOLE REPAIR PROJECT (SD241001)
RECOMMENDATION
It is recommended that the City Council:
1. Ratify the City Manager’s declaration of an emergency pertinent to the sinkhole, storm drain and pipeline repairs at the intersection of Yorba Linda Boulevard and Imperial Highway by adopting Resolution 2024-5877; and
2. Authorize the City Manager to conduct necessary emergency procurement procedures, including award of a construction contract potentially exceeding $200,000 in advance of the next regularly scheduled Council meeting; and
3. Direct staff to return to Council at the next regularly scheduled meeting, and as required by the City’s municipal code thereafter, to provide an update regarding the emergency conditions.
BACKGROUND
On Wednesday, February 21, 2024, the City of Yorba Linda’s Public Works staff was made aware of a sinkhole at the northwest corner of Yorba Linda Boulevard and Imperial Highway.
The subsidence formed on the corner of the Yorba Linda Station shopping center property, directly adjacent to the Mimi’s Café lawn area behind a monument/wall located at 18342 Imperial Highway. The sinkhole appeared on the heels of multiple rainstorm events that saw heavy rainfall, soil saturation and conveyance of considerable amounts of stormwater. Upon investigation by City staff, it was determined that two sinkholes had developed, with the larger being approximately 15 feet deep and 15 feet wide. Public Works maintenance and operations staff worked quickly to caution tape and secure the area to prevent access to the area by the public. After initial observations staff then proceeded to cover the sinkholes
R A T I F Y T H E C I T Y M A N A G E R ’ S P R O C L A M A T I O N O F E M E R G E N C Y T O
A P P R O V E E M E R G E N C Y P R O C U R E M E N T P R O C E D U R E S A S S O C I A T E D W I T H D A M A G E S T O T H E Y O R B A L I N D A B L V D . A N D I M P E R I A L H W Y S I N K H O L E R E P A I R P R O J E C T ( S D 2 4 1 0 0 1 ) P a g e | 2
securely to mitigate the potential for further subsidence that could be caused by additional moisture from an impending rain event.
The sinkholes, while on private property, are located directly above a City storm drain easement. Moreover, the sinkholes appeared above the area where a 54" (4.5 feet) storm drain line runs. Continued investigation performed by staff and CCTV (video detection) consultants identified that the City’s storm drain facility had been compromised in association with the sinkhole. A major component of the necessary repair and remediation effort for this project is the replacement of damaged corrugated metal pipe (CMP). This segment is identified as a project slated for future upgrades within the Master Plan of Drainage.
The current repair efforts are planned to be broken into two separate phases (Phase I and Phase II). The first phase of the project will have a contractor replace approximately 90 linear feet of the CMP storm drain piping with Reinforced Concrete Pipe (RCP) or High-Density Polyethylene (HDPE) plastic pipe. Determination of pipe material to be finalized pending availability and constructability. This phase will include excavation, backfilling, compaction, pipe collaring, shoring as well as associated project activities like traffic control, sidewalk repairs, landscape restoration, and potential traffic signal modifications. The second phase of the project, which may be awarded under a separate contract, though that remains to be determined, will include the installation of a liner across the existing 90 linear feet section of CMP pipe that transects Imperial Highway to the Town Center plaza. This section of pipe is considered in fair condition in which the liner should reduce the potential of future corrosion.
On Tuesday February 27, 2024, the City Manager, acting in his capacity as Director of Emergency Services, signed a proclamation of the existence of a local emergency, pursuant to Section 2.32060(A)(1) of the Yorba Linda Municipal Code. The proclamation notes that extreme peril to the safety of persons has arisen in the City of Yorba Linda due to an extreme weather event of a winter storm that has caused massive amounts of rain within the City that has caused sinkholes near the intersection of Yorba Linda Boulevard/Imperial Highway.
The potential for the sinkhole to expand further, possibly into the adjacent large thoroughfares, and its location near critical City infrastructure, poses a risk to public safety and therefore must be repaired as quickly as is feasible.
This proclamation also allowed for timely action to be taken for project remediation and procurement activities. In conjunction with the City’s Finance department, Public Works staff created a Capital Improvement Project for the effort and the City’s Emergency Management Coordinator notified the County and entered this damage into the 2024 Winter Storm Initial Damage Reporting portal in WebEOC. Although Governor Newsom proclaimed a state of emergency for several counties in Southern California, including Orange County, on February 4th, to support the 2024 Winter Storm response and recovery efforts, the County of Orange hasn’t been impacted to the extent needed to proclaim a countywide emergency therefore minimizing the opportunity for federal recovery fund availability for this particular storm damage event.
R A T I F Y T H E C I T Y M A N A G E R ’ S P R O C L A M A T I O N O F E M E R G E N C Y T O
A P P R O V E E M E R G E N C Y P R O C U R E M E N T P R O C E D U R E S A S S O C I A T E D W I T H D A M A G E S T O T H E Y O R B A L I N D A B L V D . A N D I M P E R I A L H W Y S I N K H O L E R E P A I R P R O J E C T ( S D 2 4 1 0 0 1 ) P a g e | 3
Staff have since developed a scope of work to complete necessary repairs and improvements. A site meeting with prospective construction contractors was also held at the sinkhole site and informal bids are expected to be received by March 6, 2024.
DISCUSSION
City staff regularly conduct procurement and consultant solicitation efforts for Public Projects in accordance with the City’s Administrative Policies, specifically the Purchasing, Bidding and Contracting Policy (A-F-5). However, when urgent project needs arise, such as in the case of an emergency repair, staff must circumvent standard procurement processes in order to preserve or protect life, health, or property, or to forestall a shutdown of essential public or contracted service. The City’s Emergency Purchasing Policy allows for the City Manager to declare a public emergency and take any directly related and immediate action required by the emergency and may expend funds up to $200,000 (Threshold) for Public Projects without the use of competitive or formal bids.
The City’s purchasing policy allows for emergency expenditures for Public Projects exceeding $60,000, providing they are reported by the City Manager at the next regular meeting of the City Council and at every meeting thereafter. The policy also allows the City Manager to take any directly related and immediate action required and expend funds up to the Threshold for Public Projects without the use of competitive or formal bids, providing that an Emergency is declared. However, emergency expenditures above the Threshold shall be approved by the City Council. In order to conduct the emergency repairs and project activities in a safe and timely manner, waiver of formal bidding requirements pursuant to the City’s purchasing policy is being requested.
The current projections for the construction cost associated with project SD241001 estimate that bids for both Phase I and Phase II of the project will exceed the $200,000 threshold.
Staff is therefore preemptively requesting that Council authorize the City Manager to approve the award of contracts and project expenditures in excess of the Threshold, but less than $575,000 (project budget) on Council’s behalf. The proposed emergency procurement process is necessary given that bids are expected to be received by March 6, 2024 and the next scheduled meeting of Council does not take place until March 19, 2024. Staff will present a staff report at the next council meeting that describes the bids received and requests the Council ratification of any contract award made by the City Manager in excess of $200,000. It should be noted that while formal bidding requirements are being set aside, the procurement process is being conducted in a competitive manner with multiple contractor bids being solicited. This request is in compliance with the City’s municipal code, purchasing policy and the California Uniform Public Cost Accounting Act and other elements of the Public Contract Code.
Upon approval of the recommendations for this report including adoption of Resolution 2024- 5877, staff will return with a report at the next regularly scheduled meeting to provide an update regarding the emergency conditions. Updates will be provided to Council until the emergency conditions have been deemed to no longer exist.
R A T I F Y T H E C I T Y M A N A G E R ’ S P R O C L A M A T I O N O F E M E R G E N C Y T O
A P P R O V E E M E R G E N C Y P R O C U R E M E N T P R O C E D U R E S A S S O C I A T E D W I T H D A M A G E S T O T H E Y O R B A L I N D A B L V D . A N D I M P E R I A L H W Y S I N K H O L E R E P A I R P R O J E C T ( S D 2 4 1 0 0 1 ) P a g e | 4
FISCAL IMPACT
The City Manager initially approved an addition to the Capital Improvement Program budget of $25,000 for this project in order for staff to begin evaluating the damage, however, staff is now proposing an additional appropriation of funding and corresponding project budget increase of $550,000 from the Master Plan of Drainage Fund. The proposed appropriation is part of the Citywide Mid-Year Budget staff report, which is being considered by the Council for approval as a separate item at this March 5, 2024, council meeting. Should the project appropriation be approved, the total authorized project budget will be $575,000.
The entire project is intended to be funded with Master Plan of Drainage Funding (403) and will provide for the construction portion of the project in the current and upcoming fiscal years. As of the time of this report’s preparation, bids have not yet been received from contractors. The budget for this emergency project is based upon rough order of magnitude estimates and cost projections prepared by engineering staff, with the understanding that additional appropriations may be necessary if bids for the project exceed the current budget.
Any future appropriation for the project would be from the Master Plan of Drainage Fund and would be requested for approval by Council.
ALTERNATIVES
The City Council may elect not to approve the recommended action of ratifying the proclamation of an emergency and approval of procurement procedures. However, that action would limit staff’s ability to comply with the City’s Emergency Purchasing Policy.
ATTACHMENTS
Attachment 1 – Resolution 2024-5877
Attachment 2 – Emergency Proclamation
RESOLUTION NO. 2024-5877
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF YORBA
LINDA, CALIFORNIA, RATIFYING EMERGENCY PROCLAMATION DUE
TO EMERGENCY EVENT
The City Council of the City of Yorba Linda does hereby resolve as follows:
WHEREAS, Section 2.32.050 of the Yorba Linda Municipal Code designates the City Manager as the City’s Director of Emergency Services; and WHEREAS, Section 2.32.060(A)(1) of the Yorba Linda Municipal Code empowers the Director of Emergency Services, to request the City Council to proclaim the existence of a Local Emergency if the Council is in session, or to issue such proclamation if the Council is not in session; and
WHEREAS, conditions of extreme peril to the safety of persons has arisen in the City of Yorba Linda due to an extreme weather event of a winter storm that has caused sinkholes near the intersection of Yorba Linda Boulevard and Imperial Highway (“Emergency Event”); and
WHEREAS, the City’s ability to mobilize local resources, coordinate interagency response, accelerate procurement of vital supplies, use mutual aid, and seek future reimbursement by the State and Federal governments will be critical to successfully responding to the Emergency Event;
WHEREAS, the Director of Emergency Services believes and has concluded that the above-described conditions of extreme peril warrant a proclamation of local emergency; and accordingly proclaimed and declared the existence of a local emergency on February 27, 2024; and
WHEREAS, Section 2.32.060(A)(1) requires the City Council to ratify the decision of the Director of Emergency Services within seven (7) days thereafter or the proclamation shall have no further force or effect; and
WHEREAS, the City Council of the City of Yorba Linda agrees with and desires to affirm and ratify the decision of the Director of Emergency Services.
NOW, THEREFORE, the City Council of the City of Yorba Linda does hereby resolve, order and determine as follows:
Section 1. The Emergency Proclamation made by the Director of Emergency Services on February 27, 2024, attached hereto and incorporated herein, is hereby ratified.
Section 2. The City Clerk shall certify to the adoption of this Resolution.
R E S O L U T I O N N O . 2 0 2 4 - 5 8 7 7
P A G E 2
PASSED, APPROVED AND ADOPTED by the City Council of the City of Yorba Linda, California on the 5th day of March, 2024.
_____________________________
TARA CAMPBELL, MAYOR
CITY OF YORBA LINDA
ATTEST:
______________________________
MARCIA BROWN, CITY CLERK
CITY OF YORBA LINDA
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
_______________________________
CITY ATTORNEY
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE )
I, MARCIA BROWN, City Clerk of the City of Yorba Linda, California, DO HEREBY CERTIFY that the foregoing Resolution was adopted at a regular meeting of the City of Yorba Linda held on the 5th day of March, 2024 and was carried by the following roll call vote:
____________________________________
MARCIA BROWN, CITY CLERK
CITY OF YORBA LINDA
CITY OF YORBA LINDA
PROCLAI,IATION OF THE EXISTENCE OF A LOCAL
EIIIERGENCY BY THE DIRECTOR OF EMERGENCY SERVICES
WHEREAS, Section 2.32.050 of the Yorba Linda Municipal Code designates the City Manager as the City's Director of Emergency Services.
WHEREAS, Section 2.32.060(A)(1) of the Yorba Linda Municipal Code empowers the Director of Emergency Services, to request the City Councilto proclaim the existence of a Local Emergency if the Council is in session, or to issue such proclamation if the Council is not in session.
WHEREAS, conditions of extreme peril to the safety of persons has arisen in the City of Yorba Linda due to an extreme weather event of a winter storm that has caused massive amounts of rain within the City that has caused sinkholes near the intersection of Yorba Linda Boulevard/lmperial Highway ("Emergency Event"); WHEREAS, the City's ability to mobilize local resources, coordinate interagency response, accelerate procurement of vital supplies, use mutual aid, and seek future reimbursement by the State and Federal governments will be critical to successfully responding to the Emergency Event;
WHEREAS, the Director of Emergency Services believes and has concluded that the above-described conditions of extreme peril warrant a proclamation of local emergency;
NOW, THEREFORE, the Director of Emergency Services of the City of Yorba Linda proclaims, declares and orders as follows:
Section 1: Pursuant to Section 2.32.O60(AX1) of the Yorba Linda Municipal Code and California Government Code Section 8630, it is hereby proclaimed that a local emergency now exists in the City of Yorba Linda.
Section 2: Pursuant to Yorba Linda Municipal Code Section 2.32.060 the Director of Emergency Services is empowered to adopt rules, policies and regulations to protect the Public, to protect life and property, and to ensure the availability of essential City services. Furthermore, the Director of Emergency Services is authorized to obtain contract services in accordance with the emergency procurement method in Yorba Linda Municipal Code Section 3.04.130(A) and Adm inistrative Policy A-F-5.
Section 3: Additional or different emergency measures may be implemented
by the Director of Emergency Services pursuant to Chapter 2.32 of the Yorba Linda Municipal Code as deemed reasonable or necessary to address the quickly changing, very fluid emergency situation
City Manager/Director of Emergency Services:
Mark A. Pulone
Date: 247-24
CITY CLERK'S OFFICE
DATE: MARCH 5, 2024
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: MARCIA BROWN, CMC, CITY CLERK
SUBJECT: COUNCIL COMMITTEE AND AGENCY REPORTS
RECOMMENDATION
It is recommended that the City Council receive and file this report.
DISCUSSION
City Council members serve on a number of outside committees and agencies. Attached are updates received recently from these agencies.
ATTACHMENTS
1. Reports from City Council organizations, Agencies and Committees
COMMUNITY DEVELOPMENT DEPARTMENT
DATE: MARCH 5, 2024
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: DAVID BRANTLEY, COMMUNITY DEVELOPMENT DIRECTOR
SUBJECT: PUBLIC HEARING AND ADOPTION OF RESOLUTION NO. 2024-5876
APPROVING THE ISSUANCE OF TAX-EXEMPT BONDS IN SUPPORT OF
THE LAKVIEW SENIOR APARTMENT PROJECT
RECOMMENDATION
It is recommended that the City Council:
1. Conduct a Tax Equity and Fiscal Responsibility Act (“TEFRA”) Hearing and approve Resolution No. 2024-5876 after the hearing in the manner contemplated by IRS Code Section 147(f), and
2. Make a finding in Resolution No. 2024-5876 that the Borrower’s actions related to the project directly lessen the City’s Governmental Burdens, to show that the financing is consistent with CFC’s charitable purpose, and
3. Appoint the City Manager or his designee to serve as City representative to an Advisory Committee, to assist CFC in the operation and management of the Project.
BACKGROUND
Community Finance Corporation (“CFC”), an Arizona based nonprofit corporation, proposes to form CFC – Yorba Linda I, LLC (the “Borrower”), whose sole member is CFC, to purchase a 4.99 acre in-fill parcel generally located at 18222 Mariposa Avenue, Yorba Linda, CA together with completed infrastructure improvements from the current owner, ETCO Homes, Inc., in order to finance, construct, develop, equip and operate the 188-unit/205 bed senior living facility originally planned for the site, known as the Lakeview Senior Apartments (“The Project”). The Project will charge market rents and will include units with licensing designations and expected unit counts of (1) 80 Independent Living units, (2) 49 Assisted Living units and (3) 59 Memory Care units.
The Lakeview Senior Apartments project originally was approved by the Planning Commission on July 25, 2018, pursuant to Conditional Use Permit 2017-01, Tentative Tract Map 17784 and Design Review 2017-01. The original applicant, ETCO Homes, initiated project construction in 2021, concurrent with the COVID-19 pandemic. Although
PUBLIC HEARING AND ADOPTION OF RESOLUTION NO. 2024-5876 APPROVING THE
ISSUANCE OF TAX-EXEMPT BONDS IN SUPPORT OF THE LAKVIEW SENIOR
APARTMENT PROJECT
P a g e | 2
construction progressed over the ensuing year and a half, it ultimately came to a halt as a result of constraints arising in the commercial lending market. As a result, ETCO has partnered with CFC, a community-based, nonprofit corporation authorized to provide taxexempt bond financing for projects that meet the public benefit goals of their organization.
CFC was organized and is operated solely for charitable purposes in order to develop, manage and/or operate public buildings, monuments or works for governmental agencies (such as municipal, county, state, university and other public entities or political subdivisions) and nonprofit organizations and, in doing so, lessen the burdens of such governmental agencies and exempt organizations.
Since completing its first project in 2000, CFC has participated in over $2.0 billion in bond financed projects located throughout the United States. These 20 projects include a wide range of governmental and nonprofit uses, including office facilities, parking structures, essential public safety facilities, university facilities, privatized student housing, nonprofit retail facilities, multifamily residential rental housing and infrastructure. For the City Council’s reference, please see attached detailed explanation/overview of CFC and their representative projects.
DISCUSSION
The commercial lending market is not effectively operating and as a result extraordinary measures are needed to finance projects that are close to development. In this instance, ETCO Homes has advised the City that it is unable to commercially finance the construction of the Project and has determined that CFC’s proposal to serve as the Owner of the Project and the Borrower pursuant to a 501(c)(3) bond financing (the “Bonds”) is the only available option, without which the Project cannot be constructed and developed for the foreseeable future.
CFC expects to contract with El Yorba Linda, LLC, whose sole member is ETCO Homes, Inc., to serve as the Developer and/or Asset Manager of the Project and Sunrise Senior Management, Inc. to manage the day-to-day operations of the Project. Sunrise Senior Living currently operates an assisted living and memory care facility in Yorba Linda, adjacent to the Yorba Linda Public Library and Cultural Arts Center.
The City is (1) not a part of the financing structure, (2) has no liability or legal exposure related to the Bonds, and (3) is intended by CFC to receive either the Project or the proceeds from the sale of the Project by CFC in the future, at the discretion of the City, after the Bonds are paid in full.
The Bonds, to be issued by the California Public Finance Authority in an amount not to exceed $175 million (35-year term), will not affect the City’s (1) debt limits, (2) general credit, (3) taxing power, or (4) bond rating.
PUBLIC HEARING AND ADOPTION OF RESOLUTION NO. 2024-5876 APPROVING THE
ISSUANCE OF TAX-EXEMPT BONDS IN SUPPORT OF THE LAKVIEW SENIOR
APARTMENT PROJECT
P a g e | 3
CFC has requested that the City take the following actions:
1. Conduct a Tax Equity and Fiscal Responsibility Act (“TEFRA”) Hearing and approve a City resolution after the hearing in the manner contemplated by IRS Code Section 147(f),
2. Make a finding in a City Resolution that the Borrower’s actions related to the project directly lessen the City’s Governmental Burdens, to show that the financing is consistent with CFC’s charitable purpose, and
3. Appoint a representative to an Advisory Committee, from either its active or retired employees, a City related agency, or a nonprofit working in the community, in its discretion, to assist CFC in the operation and management of the Project.
In determining the Lessening the Burdens of Government Standard, the City may look to Federal Small Difficult to Develop Areas, the State of California’s Housing Element, State Opportunity Zones, the City’s policies, land use restrictions and requirements. The City’s 2001-2029 Housing Element adopted February 9, 2022 (with minor technical corrections made on April 1, 2022) (the “Element”) states that seniors (over 65 years of age) make up 21% of the population, of which 10% live in rental housing, and ½ of the number live alone.
The Element also reflects seniors face a shortage of accessible housing and, for persons with disabilities, higher health costs associated with their disability.
The Project’s location fits with the following governmental designations:
The City’s Land Use is R-H-30 / R-High and Zoning is RM-30 for residential MultiFamily 30. The County’s Transportation Corridor Agencies Zone B. A State High Resource Neighborhood Opportunity Zone.
A Federal Small Difficult Development Area.
The Project also serves to address a portion of the City’s 2020 Strategic Plan related to:
Strategy 2: Maximize and strengthen the image, visual quality and brand of the City. Strategy 3: Sustain and enhance the City’s long-term financial position. Strategy 5: Foster long term prosperity through economic growth and support a vibrant business community.
Resolution No. 2024-5876 includes the required finding related to reduction of governmental burdens based on the above factors in that the proposed project will provide vitally needed senior housing within the community, which helps lessen the City’s burden of meeting state housing mandates as well as providing housing opportunities for the City’s senior residents.
FISCAL IMPACT
There is no direct fiscal impact associated with this request. Because of CFC’s lessening the burdens of government charitable purpose, the City will receive either the Project or the proceeds from the sale of the Project when the Bonds are paid off at the end of the 35-year
PUBLIC HEARING AND ADOPTION OF RESOLUTION NO. 2024-5876 APPROVING THE
ISSUANCE OF TAX-EXEMPT BONDS IN SUPPORT OF THE LAKVIEW SENIOR
APARTMENT PROJECT
P a g e | 4
term. A recent appraisal estimated the stabilized value of the Project to be $118,700,000 and the estimated economic life to be 50 years.
ALTERNATIVES
The City Council may choose not to adopt Resolution No. 2024-5876 supporting the proposed bond issuance in which case the project proponent, ETCO Homes, will not be able to obtain bond financing through the proposed partnership with CFC. In this scenario, it is anticipated that ETCO would sell the property and it is unknown whether the Lakeview Senior Apartment project would be completed or if some other development would occur on the property in the future.
ATTACHMENTS
1) Community Finance Corporation Cover Letter/Proposal
2) Community Finance Corporation Explanation/Overview and Representative Projects 3) Summary of Financing
4) Resolution No. 2024-5876
COMMUNITY FINANCE CORPORATION
5049 E. Broadway Blvd., Ste 156 | Tucson, AZ 85711
www.communityfinancecorp.org
January 29, 2024
Mr. David Brantley
Community Development Director
4845 Casa Loma Avenue | Yorba Linda, CA 92886
RE: Community Finance Corporation
Proposal to acquire, finance, develop and operate
the Lakeview Senior Living Project
Dear Mr. Brantley,
Thank you for the opportunity to submit additional information describing Community Finance Corporation’s (CFC) background and qualifications to serve as the nonprofit owner and borrower for the 188- unit senior living project to be developed in the City of Yorba Linda.
We believe this project is closely aligned with our mission and charitable purpose of serving the special needs of the elderly through our ownership, development, management and operation of this senior living community. As we have described in our previous Summary of Finance submittal, once the bonds are fully paid, CFC will provide a significant benefit to the City of Yorba Linda by either deeding the facility to the City for its use or disposition, or at the direction of the City, selling the facility and remitting the net proceeds to the City.
COMMUNITY FINANCE CORPORATION
CFC has participated in over $2.0 billion in Public-Private Partnership (P3) projects located throughout the United States since undertaking its first project in 2000. These 20 projects include a wide range of governmental and nonprofit uses, including office facilities, parking structures, essential public safety facilities, university facilities, privatized student housing, workforce housing, nonprofit retail facilities and broadband infrastructure.
Workforce Housing and Senior Living Focus: The CFC Board of Trustees has, in response to the nationwide housing shortage, established a strategic focus to assist government’s seeking to develop workforce housing and by owning and operating senior living projects. CFC is the nonprofit owner/borrower of the City of Miami Beach Workforce Housing project, which we understand was the first ground-up construction project successfully financed in the United States. CFC is currently in the bond market working to finalize financing for a multi-location adaptive reuse workforce housing project and has a number of workforce housing and senior living projects in its 2024 pipeline.
Trusted Long Term Partner: CFC takes a collaborative partnership approach to the development, financing, management and operations of its projects. We carefully evaluate project opportunities against our charitable mission and the benefits the project will bring or maintain in the community it serves. Our core values include proactive communication, collaboration and integrity. We are very proud that the State of Arizona, Arizona State University, Clark County, NV and Fort Bend County, TX have all entered into multiple projects with CFC, all of which were successfully financed, developed and managed.
Experience: Community Finance Corporation understands that when we enter into a project, it is about more than real estate. It is about understanding the ultimate needs of the community we serve and building effective relationships. Successful projects are built on strong partnerships among qualified organizations committed to the long-term success of the project over time. Our development and management team is committed to the success of the project.
Key Staff: CFC is led by Gary Molenda, a registered architect and MBA with more than 40 years of leadership experience in architecture, real estate development, public sector led redevelopment, and real estate finance. Mr. Molenda is a member of the Urban Land Institute Public Private Partnership product council. Karen Valdez serves as Program Manager and manages portfolio compliance and administration. These key staff members have participated in every CFC project since 2000.
Attached please find a copy of our Brochure which describes in detail our qualifications and experience.
Please let me know if you have any questions or I can provide any additional information. I look forward to our upcoming meeting.
Sincerely,
COMMUNITY FINANCE CORPORATION
Gary Molenda
Gary Molenda, Manager
COMMUNITY FINANCE CORPORATION
5049 E. Broadway Blvd., Ste. 156 | Tucson, AZ 85711
www.communityfinancecorp.org
Community Finance Corporation is an Arizona nonprofit, non-stock corporation that is exempt from federal income tax pursuant to Section 501 (c) (3) of the Code. The corporation was organized and is operated exclusively for charitable purposes and for the purpose of lessening the burdens of government and nonprofit organizations and to erect, finance the erection of, or maintain public buildings, monuments or works.
CFC is governed by a Board of Trustees which at a minimum consists of the four (4) officers of the corporation, including the President, the Vice President, Secretary and Treasurer, plus one (1) other Director-at-Large elected from the Membership of the Corporation. The Board of Trustees currently has five (5) members; Trustee resumes can be found in Attachment A.
CFC has participated in over $2.0 billion in Public-Private Partnership (P3) projects located throughout the United States since undertaking its first project in 2000. These 20 projects include a wide range of governmental and nonprofit uses, including office facilities, parking structures, public safety/correctional facilities, university facilities, privatized student housing, workforce housing, nonprofit retail facilities and broadband infrastructure.
CFC is classified as a private foundation by the IRS and is committed to charitable giving with a strategic focus on organizations doing innovative work in the fields of economic development and education. The corporation has donated in excess of $3.1 million to publicly supported charities actively working in these areas, including:
• Micro Business Advancement Center
• Small Business Development Center
• Pima Community College Foundation
• University of Arizona Foundation
• Jewish Community Center early Childhood Education Center • Habitat for Humanity
Trusted Long Term Partner: CFC takes a partnership approach to the development, financing, management and operations of its projects. We carefully evaluate project opportunities against our charitable mission and the benefits the project will bring or maintain in the community it serves. Our core values include proactive communication, collaboration and integrity. We are very proud that the State of Arizona, Arizona State University, Clark County, NV and Fort Bend County, TX have all entered into multiple projects with CFC, all of which were successfully financed, developed and managed.
Experience: Community Finance Corporation understands that when we enter into a project it is about more than real estate. It is about understanding the ultimate goals of our governmental or nonprofit partner and building effective relationships. Successful projects are built on strong partnerships among qualified organizations committed to the long-term success of the project over time. These long-term partnerships are consistent with our overall business philosophy and values, economic development focus, and lessening the burdens of government community development mission.
Student Housing, Governmental and Nonprofit Experience: CFC’s current active project portfolio includes 11 projects whose original financing was approximately $926 million. These projects include 4 governmental projects, 3 university / student housing projects, 1 workforce housing project, 1 infrastructure project, 1 nonprofit project and 1 economic development hospitality project. Representative Student Housing, University, Workforce Housing and Nonprofit projects are summarized below, including CFC’s second student housing project for Arizona State University which closed in November 2019 and was placed in operation for the Fall 2021 semester.
Arizona State University Taylor Place Dormitory
• Rated Public Offering Bond Financing total: $142,525,000 • P3 – Arizona State University and the City of Phoenix (ground lessor) • Ground floor master leased to ASU; sublease retail includes Starbucks and Chick-fil-A Taylor Place is Arizona State University's premier residential community located in the heart of downtown Phoenix, just steps away from classrooms, the light rail, bus station and all the City of Phoenix has to offer. Rooms are double-occupancy and suite-style with private bathrooms.
Amenities include 24-hour security, full-service cafeteria, study and TV lounges, laundry facilities that text students when finished, a fitness room, wireless internet and cable.
The residence hall is two 13-story towers and epitomizes sustainable, technologically advanced urban student housing to students in the College of Health Solutions, the Walter Cronkite School of Journalism and Mass Communication, the School of Letters and Sciences, the College of Nursing and Health Innovation, College of Integrative Sciences and Arts and the College of Public Service and Community Solutions. It includes a residential community-withina-community for students of Barrett, the Honors College downtown.
ASU Residential Colleges place students next door to classmates from the same college, so creative connections can happen anywhere. Students will find a supportive environment for their academic and social success through residential programming, intentional experiences and opportunities and targeted support. These living and learning communities provide a closeknit culture designed to help students succeed at ASU. An advisory committee that includes University, City of Phoenix and community stakeholders works with Capstone On-Site Management (COCM) to develop the annual operating and capital budgets for the project. The project was completed on-time and on budget and Phase I was completed in 2008.
Park / University Redevelopment – Mixed Use Project
• Rated Public Offering Bond Financing Total: $17,400,000 • P3 – University of Arizona and nonprofit Marshall Foundation • Ground floor master leased to Marshall Foundation – retail tenants include Panera Bread
This mixed-use P3 Project is located in Tucson, AZ immediately adjacent to the University of Arizona campus at Main Gate Square and consists of a five-story office building containing approximately 97,000 square feet of gross space. The Project was constructed in 2003 on a site leased from the nonprofit Marshall Foundation.
Main Gate Square is a pedestrian-friendly dining and shopping destination featuring over 20 retailers and 30 restaurants near the University of Arizona and Tucson’s historic neighborhoods.
Visitors and students experience the flavors of the Mediterranean, India, Greece, Asia, Thailand, Mexico, Japan, Vietnam and everywhere USA. Main Gate Square offers a diverse mix of specialty retail or the ability to relax at one seven salons and spas. Live music, jam sessions, wine tastings, and karaoke enhance Main Gate Square’s high energy, urban atmosphere.
The top four floors of the project are leased by the University of Arizona and house a range of administrative and educational uses, including offices for the University’s Office of Technology Transfer, Journalism Department, East Asian Studies Department, Center for Middle Eastern Studies, Media Arts Department and Judaic Studies Department. The first floor of the Project is master leased to the Marshall Foundation then subsequently subleased to a range of retail tenants. CFC recently refinanced the outstanding tax-exempt and taxable bonds, achieving a substantial savings which was 100% passed on to the tenants in the form of reduced rent.
ASU Residence Hall and Entrepreneurial Center
• Rated Public Offering Bond Financing Total: $71,188,000 • P3 – ASU academic facility and student housing
The land on which the Project will be constructed is owned by ASU and ground leased to the Borrower, a single member LLC whose sole member is CFC. The University will lease the Project Site to the Borrower pursuant to the Ground Lease to enable the Borrower to acquire, construct, equip and operate thereon an approximately 282,400 gross square foot (“gsf”) integrated residential and academic building known as the Downtown Phoenix Residence Hall and Entrepreneurial Center (Fusion on First), consisting of (i) approximately 7,100 gsf of utilities, systems, mechanical and support space, (ii) approximately 204,900 gsf of residential space, providing beds for an estimated 532 students, and (iii) approximately 70,400 gsf of academic and entrepreneurial space in the first three floors of the building. This Project will make an immediate and material contribution to the success of ASU’s Downtown Phoenix campus.
The Academic Portion will also be located on the Project Site and will be subject to the Ground Lease. The Academic Portion will be subleased to the University pursuant to a University Lease (the “University Lease”). The funds to pay the costs of acquiring, constructing, furnishing, and equipping the Academic Portion will be paid by the University as prepaid rent pursuant to the University Lease for the use and occupancy of the Academic Portion.
City of Miami Beach Workforce Housing Project
• Unrated Limited Offering Bond Financing Total: $34,095,000 • City of Miami Beach provided additional financial support totaling $6,850,000
The land on which the Project will be constructed is owned by the City of Miami Beach and ground leased to the Borrower, whose sole member is CFC. The Borrower will pay ground rent to the City from excess project revenues, and the City in turn will use these funds in support of the arts and other economic development efforts. The project includes construction of a 7-story building totaling 74,000 square feet which will provide 80 workforce housing units, 8 housing units for the Miami City Ballet and 2,248 sq. ft. on the ground floor for use by the City.
The 80 workforce housing units will include 37 studios, 23 1-bedroom units and 20 2-bedroom units, and will be leased to workforce tenants and used for purposes of providing affordable housing to artists, area educators, City of Miami beach employees and others who are eligible residents of limited income. The Miami City Ballet will lease the entire second floor of the building and the 8 units (32 beds) configured as dormitory style housing for the use of the Ballet.
The City will lease the ground floor space for use in promoting and marketing the creative arts such as music, dance, drama, performing arts, creative writing, fashion, design media and related arts.
Las Vegas Metropolitan Police HQ building
• Rated Public Offering Bond Financing Total: $176,000,000 • P3 – leased to Clark County, NV for the benefit of the Las Vegas Metropolitan Police Department
This project included development of a 13.76-acre site located at the corner of Martin Luther King Boulevard and Alta Drive in the City of Las Vegas. Vertical development includes two approximately 120,000 square foot four-story buildings and one approximately 150,000 square foot building, a multi-level parking garage and site improvements.
The facilities include administrative offices, testing rooms, training and meeting rooms and evidence processing facilities.
Goodwill of Central and Northern Arizona
• Private Placement bond financing total: $18,000,000
This project includes the sale and leaseback of five existing Goodwill retail store locations in Phoenix, Arizona. The sale of the nonprofit Goodwill facilities will release “trapped” equity that will allow Goodwill to pursue additional educational and job training facilities consistent with its charitable mission. Goodwill retains an option to purchase the facilities.
ATTACHMENT A
CFC BOARD OF TRUSTEES
PRESIDENT
Michael Hammond
Founder, Cushman & Wakefield | PICOR Commercial Real Estate Services Michael Hammond has been in commercial real estate for over thirty years and formed PICOR Commercial Real Estate Services in 1985. Today, Cushman & Wakefield | PICOR is Tucson's largest independent commercial Real Estate brokerage and management firm. Mr. Hammond is extensively involved in community service and positions of leadership in professional organizations, including the Arizona Association for Economic Development (Past President), State of Arizona Commerce and Economic Development (Past Commissioner), Society of Industrial and Office Realtors (Past Chapter Chair, Past National Board Member) and the American Red Cross Southern Arizona Chapter (Past Chair).
VICE PRESIDENT
Kathleen Perkins
Former Chair, BAB, UA Mathematical Sciences
University of Arizona Board, Mathematical Sciences (retired) Kathleen Perkins has over 30 years of marketing, technical sales and management experience, serving as Vice President of Sales, Marketing, and Customer Service for Tucson based Breault Research Organization. Ms. Perkins was promoted to CEO in 2003, where her work leading a team of engineers and scientists coincided with establishing Tucson as Arizona’s “Optics Valley”. Ms. Perkins subsequently went to work for the University of Arizona, where she led a number of efforts and organizations engaged in technology transfer and continues her work by leading a team engaged in big data/statistical analysis that will become mission critical to hundreds of sectors. Ms. Perkins currently resides in the Bay Area but continues her involvement in Tucson and Arizona education and economic development projects.
TREASURER
Michael Arnold
Associate Director – Engineering Management Programs
University of Arizona (retired)
Michael Arnold was a founder and managing director of Modular Mining, an Arizona based technology and mining services corporation purchased by Komatsu in 1994. Mr. Arnold subsequently served as Assistant Director of the Berger Entrepreneurial Program at the University of Arizona Karl Eller Business School and most recently served as Associate Director – Engineering Management Programs for the University of Arizona College of Engineering.
SECRETARY
Kendall Bert
Senior Vice President, Regional Competitiveness,
Tucson Regional Economic Opportunities (retired)
Kendall Bert served as Economic Development Director for the City of Tucson since 1984, pursuant to which he was responsible for the coordination of City economic development activities, including manufacturing assistance, workforce development, business retention and expansion, neighborhood revitalization and film promotion. Mr. Bert recently retired from the regional economic development organization TREO, where he served as Senior Vice President with a focus on regional competitiveness, and now manages a small business that manufactures and sells agricultural products.
TRUSTEE
Kenneth Abrahams
Co-General Partner, Cadre Partners, LLC
Kenneth Abrahams has over 36 years of commercial real estate development experience, cofounding Lifezones Corporation, a regional landscape architecture and environmental engineering firm in 1975 and subsequently serving as VP Planning & Development with developer HSL Properties, Inc. Mr. Abrahams joined real estate developer and investor Diamond Ventures, Inc. in 1991, and served as Executive Vice President, where his responsibilities include providing the overall creative vision and direction for a diverse real estate portfolio by managing planning, entitlement and development for a wide range of real estate projects. Mr. Abrahams is currently Co-General Partner with Cadre Partners, LLC which provides advisory services and equity capital to growth stage operating businesses located in the Southwestern US and also serves as Chairman and Principal of NexMetro Communities, LLC.
ADVISOR TO THE CORPORATION
Community Finance Corporation contracts with BDFC Advisor Services, LLC, a wholly owned subsidiary of the nonprofit Arizona Capital Source (“ACS”) for general staffing and project management services. ACS is a private non-profit corporation formed in 1979 whose mission includes stimulating business expansion by providing affordable financing and providing project management services for community-based projects. ACS is ranked among the top 50 largest Certified Development Company for the U.S. Small Business Administration 504 loan program, with a statewide service area. The corporation has 14 employees and maintains offices in Tucson and Phoenix.
ACS has provided over $70 million (“mm”) in lease-revenue bond financing for the City of Tucson (6320 bonds) and has managed the development of over $250 mm of public sector and non-profit projects. Recent project management efforts include the $48.8 mm Santa Cruz County Justice Center, the $4.5 mm Main Gate Center retail project, and the United Way’s $5.2mm Tucson Resource Center. Gary Molenda joined ACS in 1987 as Development Group Manager and has served as President of ACS since 1993. Mr. Molenda has a Master in Architecture and MBA degree from the University of Illinois (UIUC), and is a registered architect in Arizona and Illinois.
1 | P a g e
$175,000,000 California Public Finance Authority
Essential Housing Revenue Bonds
(CFC–Yorba Linda I, LLC Lakeview Senior Living Project) Series 2024
January 9, 2024
Summary of Financing
Prepared for:
City of Yorba Linda
4845 Casa Loma Avenue
Yorba Linda, CA 92886
2 | P a g e
I. BACKGROUND
The commercial lending market is not effectively operating and as a result extraordinary measures are needed to finance projects that are close to development. In this instance, the Developer is unable to commercially finance the construction of the Project and has determined that the below described 50l(c)(3) bond financing concept is the only available option, without which the Project cannot be constructed and developed for the foreseeable future.
CFC – Yorba Linda I, LLC, an Arizona limited liability company (the “Borrower”), whose sole member is a single purpose nonprofit corporation, was formed for the limited purpose of acquiring, constructing, developing, equipping, financing, owning and operating the Project.
The Borrower’s sole member is Community Finance Corporation, an Arizona nonprofit corporation (the “Corporation”) that was organized and is operated solely for charitable purposes in order to develop, manage and/or operate public buildings, monuments or works for governmental agencies (such as municipal, county, state, university and other public entities or political subdivisions) and nonprofit organizations and, in doing so, lessen the burdens of such governmental agencies and exempt organizations described under Section 50l(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code").
Since 2000, the Corporation has participated in over $2.0 billion in bond financed projects located throughout the United States. These 20 projects include a wide range of governmental and nonprofit uses, including office facilities, parking structures, public safety/correctional facilities, university facilities, privatized student housing, nonprofit retail facilities, multifamily residential rental housing and infrastructure.
California Public Finance Authority Essential Housing Revenue Bonds (CFC – Yorba Linda I, LLC Lakeview Senior Living Project), Series 2024 are intended to be issued in one or more series pursuant to a plan of financing, in an amount not to exceed $175,000,000 (the “Bonds”) as qualified 50l(c)(3) bonds, as defined in Code Section 145.
II. THE PROJECT
A. Acquisition, new construction, development, equipping, and operating a 188-unit senior living facility on a 4.99 acre in-fill parcel generally located at 18222 Mariposa Avenue, Yorba Linda, California (the “Project”).
B. The Project will include units with licensing designations as (1) Independent Living, (2) Assisted Living, and (3) Memory Care.
C. There will not be any affordable housing set-aside restrictions, instead the Project will charge market rate rents. HUD Section 8 Vouchers are not expected, but there will be Medicare funding involved.
3 | P a g e
III. CITY’S ROLE
A. City of Yorba Linda, California (the “City”) is (1) not a part of the financing structure, (2) has no liability or legal exposure related to the Bonds, and (3) is intended by the Borrower to receive either the Project or the proceeds from the sale of the Project by Borrower after the Bonds are paid in full.
B. If the Bonds cannot be repaid and a foreclosure occurs, then the City’s rights to the residual value of the Project would be extinguished, unless the proceeds of the foreclosure were greater than the sum needed to pay the Bonds in full. If the foreclosure proceeds were insufficient to pay off the Bonds, then the City would not be liable or expected by anyone to advance funds or take any other action.
C. The Bonds will not affect the City’s (1) debt limits, (2) general credit, (3) taxing power, or (4) bond rating.
D. The Borrower has requested that the City take the following actions:
1. Conduct a Tax Equity and Fiscal Responsibility Act (“TEFRA”) hearing in the manner contemplated by Code Section 147(f),
2. Approve by resolution after the hearing in the manner contemplated by Code Section 147(f),
3. Make a finding in a City Resolution that the Borrower’s actions related to the Project directly lessen the City’s Governmental Burdens, to show that the financing is consistent with the Borrower’s charitable purpose, and
4. Appoint a representative to an Advisory Committee, from either its active or retired employees, a City related agency, or a nonprofit working in the community to assist the Borrower, Asset Manager and Property Manager in the operation and maintenance of the Project.
E. In determining the Lessening the Burdens of Government standard, the City may, for example, look to Federal Small Difficult to Develop Areas, the State of California’s Housing Element, State Opportunity Zones, the City’s policies, and land use restrictions and requirements, including but not limited to applicable land use and zoning.
F. The City’s 2021-2029 Housing Element adopted February 9, 2022 (with minor technical corrections made on April 1, 2022) (the “Element”) states that seniors (over 65 years of age) make up 21% of the population, of which 10% live in rental housing, and ½ of the number live alone. The Element also reflects seniors face a shortage of accessible housing and, for persons with disabilities, higher health costs associated with their disability.
G. The Project’s location fits with the following governmental designations:
a. The City’s Land Use is R-H-30 / R-High and Zoning is RM-30 for Residential MultipleFamily 30. b. The County’s Transportation Corridor Agencies Zone B.
4 | P a g e
c. A State High Resource Neighborhood Opportunity Zone. d. A Federal Small Difficult Development Area.
H. The Project also serves to address a portion of the City’s 2020 Strategic Plan related to:
a. Strategy 2: Maximize and strengthen the image, visual quality and brand of the City. b. Strategy 3: Sustain and enhance the City’s long-term financial position. c. Strategy 5: Foster long-term prosperity through economic growth and support a vibrant business community.
IV. OTHER FINANCING AND PROJECT PARTICIPANTS
A. California Public Finance Authority, a California Joint Powers Authority (the “Issuer” or “CalPFA”).
B. Orrick, Herrington & Sutcliffe (the “Bond Counsel”) is California’s and the nation’s leading bond counsel firm.
C. Lotzar Law Firm, P.C. (the “Borrower Counsel).
D. El Yorba Linda, LLC (“ETCO”) whose manager is ETCO Homes, Inc. (the “Manager”) are both owned or controlled by Afshin Etebar, Bob Etebar and/or their family members.
E. ETCO or its affiliate is expected to serve as the developer (the “Developer”) and/or Asset Manager of the Project.
F. The General Contractor will be a regional or national company that will provide a Guaranteed Maximum Price Contract, Performance Bond, and Completion Bond.
G. Sunrise Senior Management, Inc., a Virginia corporation (the “Property Manager”) will manage and operate the Project pursuant to a Pre-opening and Management Agreement (the “Property Management Agreement”) with the Borrower. The Property Management Agreement will be required to comply with the Qualified Management Contract Rules (IRS Rev.
Proc 2017-13).
H. Other than contractually, there is no relationship between the Borrower and (1) the Developer, (2) the Asset Manager, (3) the Property Manager, or (4) the General Contractor.
RESOLUTION NO. 2024-5876
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
YORBA LINDA APPROVING THE ISSUANCE OF
ESSENTIAL HOUSING REVENUE BONDS FOR CFC –
YORBA LINDA I, LLC
WHEREAS, the California Public Finance Authority, a California Joint Powers Authority (the “Issuer”) is authorized to issue revenue bonds for the purpose of financing residential rental housing facilities throughout the State of California; and WHEREAS, CFC – Yorba Linda I, LLC, an Arizona limited liability company (the “Borrower”), whose sole member is Community Finance Corporation (the “Corporation”), an Arizona nonprofit corporation described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), has requested that the Issuer issue qualified 501(c)(3) bonds, as defined in Section 145 of the Code, under a plan of financing in one or more series issued in order to pay the costs of acquiring, constructing, developing, equipping, and operating senior living facilities (the “Facilities”), together with funding reserves and paying costs of issuance, located in the City of Yorba Linda, California (the “City”) generally located at 18222 Mariposa Avenue, Yorba Linda, California 92886, expected to be acquired and improved for no more than $175,000,000.00 (the “Project”), and to be owned by the Borrower; and
WHEREAS, the Corporation was organized and is operated in order to develop, manage and/or operate public buildings, monuments or works for governmental agencies (such as municipal, county, state, university and other public entities or political subdivisions) and nonprofit organizations and, in doing so, lessen the burdens of such governmental agencies and exempt organizations described under Section 50l(c)(3) of the Code; and WHEREAS, the Borrower is organized exclusively to further the stated charitable purposes of the Community Finance Corporation, which specifically includes, among other purposes, the purpose of lessening the government burdens of erecting, financing and maintaining public buildings, including, without limitation, rental housing; and WHEREAS, the Borrower has represented that the Project is intended to lessen the burdens of the City by providing safe and sanitary housing for seniors living in the City and promoting the health, welfare and prosperity of all citizens of the City in a manner consistent with the City’s 2021-2029 Housing Element and the 2020 Strategic Plan and promoting the health, welfare and prosperity of all citizens of the City (collectively, the “Expressed Government Burdens”), and the Borrower requests that the City finds the Expressed Government Burdens to be burdens of the City and that the actions of the Borrower related to the Project will lessen the Expressed Government Burdens; and WHEREAS, pursuant to Section 147(f) of the Code, prior to their issuance, private activity bonds are required to be approved by the “applicable elected representative” of the governmental unit having jurisdiction over the entire area in which any facility financed by such bonds is to be located, after a public hearing held following reasonable public notice; and
RESOLUTION NO. 2024-5876
PAGE NO. 2
WHEREAS, the members of this City Council (this “City Council”) are the applicable elected representatives of the City; and
WHEREAS, there has been published, at least 7 days prior to the date hereof, in a newspaper of general circulation within the City or on the City’s website, a notice that a public hearing regarding the bonds would be held on a date specified in such notice; and WHEREAS, such public hearing was conducted on such date, at which time an opportunity was provided to interested parties to present arguments both for and against the issuance of the bonds; and
WHEREAS, it is intended that this resolution shall constitute the approval of the issuance of the bonds required by Section 147(f) of the Code;
WHEREAS, the City Council understands that its actions in holding this public hearing and in approving this resolution do not obligate the City in any manner for payment of the principal, interest, fees, or any other costs associated with the issuance of the bonds, and said City Council expressly conditions its approval of this resolution on that understanding.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YORBA LINDA AS FOLLOWS:
Section 1.Approval. The City Council hereby approves the issuance of the bonds by the Issuer. It is the purpose and intent of the City Council that this resolution constitutes approval of the bonds for the purposes of Section 147(f) of the Code.
Section 2. Findings. The City Council finds that the development, construction, and operation of the Project undertaken by the Borrower will actually lessen the Expressed Government Burdens of the City by providing necessary affordable, essential and marketrate senior rental housing within the City in a manner consistent with the City’s 2021-2029 Housing Element and the 2020 Strategic Plan.
Section 3. Further Actions. The officers and staff of the City are hereby authorized and directed, jointly and severally, to do any and all things and to execute and deliver any and all documents, which in consultation with the City Attorney, they deem necessary or advisable in order to carry out, give effect to and comply with the terms and intent of this resolution and the financing approved hereby.
Section 4. No Obligations of City. The City Council expressly conditions its approval of this resolution on its understanding that the City shall have no obligation whatsoever to pay any principal, interest, fees, or any other costs associated with the issuance of the bonds for the financing of the Project.
Section 5.Effectiveness. This resolution shall take effect immediately upon its passage.
RESOLUTION NO. 2024-5876
PAGE NO. 3
PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Yorba Linda on this 5
th day of March 2024.
_________________________________
TARA CAMPBELL, MAYOR
CITY OF YORBA LINDA
ATTEST:
_________________________________
MARCIA BROWN, CITY CLERK
CITY OF YORBA LINDA
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
_________________________________
CITY ATTORNEY
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE )
I, MARCIA BROWN, City Clerk of the City of Yorba Linda, California, DO HEREBY CERTIFY that the foregoing Resolution was adopted at a regular meeting of the City Council of the City of Yorba Linda held on the 5
th day of March 2024, and was carried by
the following roll call vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
_________________________________
MARCIA BROWN, CITY CLERK
CITY OF YORBA LINDA
FINANCE DEPARTMENT
DATE: MARCH 5, 2024
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: DIANNA HONEYWELL, FINANCE DIRECTOR / CITY TREASURER SUBJECT: FISCAL YEAR 2023/24 MID-YEAR BUDGET UPDATE
RECOMMENDATION
It is recommended that the City Council:
1. Approve adjustments to the fiscal year 2023/24 operating budget as follows (Attachment 1):
Fund Resources Appropriations
General Fund <$149,488> <$ 152,564>
LMAD Fund $ 0 <$ 6,500>
Library Fund $ 0 $ 15,467
CDBG Fund $ 0 $ 5,000
AQMD Fund $ 0 $ 10,000
PEG Fund $ 0 $ 60,500
CIP Fund $274,787 $ 274,787
Master Plan of Drainage Fund $ 0 $ 550,000
Black Gold Golf Club Fund $ 0 $ 209,958
Total $125,299 $ 966,648
2. Receive and file the attached list of line-item budget transfers and supplemental budget appropriations for the first two quarters of the fiscal year (Attachment 2), as required by City Council Policy A-15 – Supplemental Budget and Line-Item Transfers.
3. Approve one change to the Authorized Position List (Attachment 3).
BACKGROUND
On June 20, 2023, the City Council adopted the Two-Year Budget for fiscal years 2023/24 and 2024/25. On November 21, 2023, staff presented the first quarter budget update for fiscal year 2023/24. There were no significant budget changes at that time.
FISCAL YEAR 2023/24 MID-YEAR BUDGET UPDATE
P a g e | 2
DISCUSSION
Since the Two-Year Budget was adopted in June, the City Council has made additional appropriations, the revenue projection for the General Fund has been revised based on new information and the City Manager has authorized several small adjustments to the budget pursuant to City Council Policy F-4. Proposed revisions to the revenue and appropriations estimates are discussed throughout the report and summarized below.
Requested Mid-Year Budget Adjustments to the General Fund General Fund Revenue Adjustments
Total operating revenue is projected to decrease by $149,488 which is summarized as follows:
Property Tax - $298,700
Increases in property tax are driven mainly by higher property values and fine tuning of original estimates.
Sales Tax - <$440,000>
Decreases in sales tax are driven mainly by declines in general consumer goods which includes lower gasoline sales impacted by lower gasoline prices. Home furnishing stores have also declined more significantly than originally anticipated as consumers shift spending from the purchase of tangible goods (where home improvement projects spiked during Covid) to leisure, entertainment and travel. The business and industry sector was negatively impacted by the loss of a large taxpayer. The State and County pool allocation to each City is based on proportional cash receipts withing the County each quarter and this was also negatively impacted by the previously discussed factors affecting sales tax revenue.
Franchise Tax - <$50,000>
This is due to a decrease in cable television franchise fee revenue as more people are moving away from cable television to streaming services.
Fees, Charges & Permits - $60,000
Building permit and plan check revenue is tracking higher than anticipated due to some larger projects coming online and a higher volume of routine permits.
Parks & Recreation Revenue - $500
This increase is due to an increase in facility maintenance reimbursement from the Placentia Yorba Linda Unified School District.
Other Revenue - <$18,688>
This category includes a decrease in the miscellaneous state grant which funds the Drug Use Is Life Abuse (DUILA) officer. The officer is currently still in place.
Reimbursement for damage to City facilities has been increased due to a higher
FISCAL YEAR 2023/24 MID-YEAR BUDGET UPDATE
P a g e | 3
rate of collection. The sale earlier this fiscal year of the land for Evans BBQ has been reclassified and increased due to the final sale proceeds being slightly higher than originally budgeted. Finally, the Miscellaneous Reimbursement account includes an anticipated reimbursement from MWD and YLWD for the Green Crest Erosion Project described later in this report.
General Fund Expenditure/Transfers Adjustments
The operating expenditures/transfers are projected to decrease by $152,564. Highlights of the changes are summarized as follows:
Administration - $72,723
City Manager – Earlier this fiscal year, the City Manager’s new contract was adopted with the understanding that any changes to the budget would be appropriated with the Mid-Year budget. Additional salary and benefits increases are due to the adjustment of staff charges originally budgeted in the Public Works division, Parks & Recreation division and the LMAD Fund which are now being charged to the City Manager’s division due to staffing realignments. The increase in salary & benefits total $62,525 with offsets in the aforementioned divisions/fund. Information Technology – There is an addition to the cell phone stipend ($900) which was overlooked during the initial budget adoption. There is also an additional carryover from FY 2022/23 ($3,410).
General Government – There is an additional carryover from FY 2022/23 ($3,388). Communications – There is an additional appropriation to assist with Housing Element advertising ($3,700) and a reduction in travel/meetings/seminars (<$1,200>).
Community Development - $196,792
Building – There is a reduction in Temporary Personnel in the amount of $42,751 due to processing solar applications in house.
Planning – There is a reduction in printing, dues & publications, Planning Commission minute secretary and office equipment costs totaling $10,000.
Publications/Advertising are being increased by $76,000 for printing and mailing notices for the Housing Element public hearing. Consultant Services are also being increased for the housing element due to a carryover from FY 2022/23 not being recorded at the time carryover adjustments were made in October 2023 ($12,743). Code Enforcement – Public nuisance notice costs are projected to be lower by $17,500 due to better compliance with the municipal code. $178,250 is contingent on approval of an earlier action on tonight’s consent calendar approving the agreement with Tripepi Smith & Associates in the amount of $155,000 plus a 15% contingency. This amount is included in this report to reflect the effect on the General Fund.
Finance - $325
An additional carryover in Miscellaneous Other Services that was not recorded at the time of carryover adjustments in October 2023.
FISCAL YEAR 2023/24 MID-YEAR BUDGET UPDATE
P a g e | 4
Parks & Recreation - $45,300
Administration – Overtime* ($1,000); Salary & Benefits reduction due to realignment of staff to the City Manager’s division (<$5,200>).
Contract Class – Overtime* ($5,000).
Travis Ranch – Custodial supply costs ($1,000).
Youth Activities – Overtime* ($5,000).
Community Center – Facilities maintenance costs due to unexpected repairs and higher costs ($5,000).
Field House – Facilities maintenance costs due to unexpected repairs and higher costs ($10,000).
Park Maintenance – Overtime* ($10,000) and Miscellaneous Contract Services ($13,500) due to higher level of equestrian sand for the footing replenishment at the Philip S. Paxton Equestrian Center.
Facilities Maintenance – Personnel reclassification Facilities Maintenance Custodian (see separate personnel section).
*Overtime in various divisions is due to the need to backfill vacant part-time positions with full-time employees to provide scheduled programming.
Police Services - <$265,000>
The City recently received the adjusted Law Enforcement Contract Agreement which reflects the updated salary and benefits changes approved and adopted by the Orange County Board of Supervisors for the Memorandum of Understandings (MOU’s) between the County and various bargaining units representing Deputy Sheriffs, Law Enforcement Managers and other Couty support staff. The changes were approved after the adoption of the City’s FY 2023/24 Agreement and the associated budget. The changes to the agreements resulted in a net increase of $458,808 (3.41%) to the current contract. During the preparation of the FY 2023/24 budget, staff estimated an increase higher than the final net increase to the contract, so staff is proposing to reduce the amount originally projected by $275,000.
Additionally, it is not necessary to return to Council to ratify the contract because there is a clause in the existing contract that allows for changes due to bargaining unit negotiations.
There is a reclassification of the budget for overtime from the Police Services line item to the Overtime line item which should have been separated during the initial adoption of the FY 2023/24 budget.
Other adjustments include an increase in facility maintenance costs ($10,000).
FISCAL YEAR 2023/24 MID-YEAR BUDGET UPDATE
P a g e | 5
Public Works - $72,559
Administration – Salary & Benefits reduction due to realignment of staff to the City Manager’s division (<$41,700>)
Engineering – Increases to Miscellaneous Engineering Services ($71,000) and Temporary Inspection Services ($20,000) for staff augmentation due to staff vacancies.
Stormwater – Increase to NPDES Consultant Services for one-time “mock audit” services ($10,000) which will evaluate all components of the City’s NPDES program against MSF Permit requirements.
Infrastructure Maintenance – An additional carryover in Machinery/Equipment ($13,259) that was not recorded at the time of carryover adjustments in October 2023.
Transfers Out – To CIP Fund <$275,213>
Project Cost Savings – there is an initial cost savings to the Ongoing Street Maintenance Program APPP Zone 5/6B in the amount of $344,681. This results in a reduction in the transfer from the General Fund to the CIP Fund. There is a request to provide preliminary funding for a CIP project related to the Green Crest Drive Erosion Repair. The initial request is $69,468 and will be funded with a transfer from the General Fund. It is anticipated that the City will enter into a cost sharing agreement with both the Yorba Linda Water District and the Metropolitan Water District to help offset some of the costs of the project.
FISCAL YEAR 2023/24 MID-YEAR BUDGET UPDATE
P a g e | 6
The following schedule summarizes the changes to the General Fund resources and appropriations that are proposed in this report:
*Use of fund balance reserves have increased since the first quarter due to General Fund operating carryovers in the amount of $447,714, CIP carryovers in the amount of $192,159, and an increase in crossing guard services in the amount of $24,687.
ADJ BUDGET YTD ACTUALS MID-YEAR REVISED
12/31/2023 12/31/2023 ADJUSTMENT BUDGET
RESOURCES
Property Taxes $ 24,672,393 $ 7,703,554 $ 298,700 $ 24,971,093 Sales & Use Tax 9,030,000 2,059,998 (440,000) 8,590,000 Franchise Tax 2,320,680 322,690 (50,000) 2,270,680
Other Taxes 1,613,000 566,442 1,613,000
Fees, Charges & Permits 1,982,350 1,085,749 60,000 2,042,350 Parks & Recreation Revenue 2,637,202 926,441 2,637,202
Administrative Charges 2,810,764 1,372,962 2,810,764
Other Revenue 1,727,692 1,295,724 (18,188) 1,709,504
Total Operating Revenue 46,794,081 15,333,560 (149,488) 46,644,593 Interfund transfers 539,000 - 539,000
Fd Balance Reserves 2,917,693 - (311,556) 2,606,137
Total Resources 50,250,774 15,333,560 (461,044) 49,789,730
APPROPRIATIONS
Administration $9,242,688 $5,359,263 $72,723 $9,315,411 City Attorney 650,000 131,438 650,000
Community Development 4,141,645 1,797,797 196,742 4,338,387 Finance 1,350,998 617,273 325 1,351,323
Non-Departmental 35,000 10,997 35,000
Parks & Recreation 9,897,391 4,654,039 45,300 9,942,691 Police Services 14,638,543 6,915,829 (265,000) 14,373,543 Public Works 6,453,745 2,489,540 72,559 6,526,304
Vacancy Factor (354,075) - - (354,075)
Total Operating Expenditures 46,055,935 21,976,176 122,649 46,178,584 Transfer to LMAD 1,147,637 - - 1,147,637
Transfer to Capital Projects Fund 2,445,292 - (275,213) 2,170,079 Total Appropriations 49,648,864 21,976,176 (152,564) 49,496,300 Excess Resources over Appropriations $601,910 ($6,642,615) ($308,480) $293,430 Fund Balance Reserves @ 7/1/2023 31,633,612 31,633,612 31,633,612 31,633,612 Less Uses of Fd Bal Reserves (2,917,693) - 311,556 (2,606,137) Est. Fund Balance Reserves @ 6/30/24 29,317,829 24,990,997 31,636,688 29,320,905 Uses of Fund Balance Reserves:
Transfer out - CIP $ 2,445,292 $ - $ (344,681) $ 2,100,611 Increase in Crossing Guard Services 24,687 $ - 24,687
GF Carryovers from FY 2022/23 447,714 - 33,125 480,839
2,917,693 - (311,556) 2,606,137
CITY OF YORBA LINDA
GENERAL FUND BUDGET
FY 2023/24 - MID-YEAR BUDGET TOTALS
FISCAL YEAR 2023/24 MID-YEAR BUDGET UPDATE
P a g e | 7
Requested Mid-Year Budget Adjustments to the LMAD Fund
There are minor adjustments to the LMAD fund for the reduction in salary and benefits due to the previously mentioned realignment of staff (<$6,500>).
Requested Mid-Year Budget Adjustments to the Library Fund There are minor adjustments to the Library Fund for additional carryovers in Office Equipment, Computer Hardware/Software and Building Improvements that were not recorded at the time of carryover adjustments in October 2023 ($15,467).
Requested Mid-Year Budget Adjustments to the CDBG Fund
There is one adjustment to the CDBG Fund for an additional carryover that was not recorded at the time of carryover adjustments in October 2023 ($5,000).
Requested Mid-Year Budget Adjustments to the AQMD Fund
There is one adjustment to the AQMD Fund for an increase in the Automobile account due to higher than anticipated costs between the time the vehicles were budgeted and when they were ordered ($10,000).
Requested Mid-Year Budget Adjustments to the PEG Fund
There are miscellaneous adjustments to the PEG Fund for video production and software maintenance ($4,000).
There is an adjustment to Professional Services to produce a Housing Element educational video ($4,500).
There is an adjustment to Office Equipment for the purchase of conference tables and a credenza for two conference rooms ($22,000).
There is an adjustment to Computer Hardware/Software for technology upgrades in the Council Chambers ($30,000).
Requested Mid-Year Budget Adjustments to the Capital Improvement Program (CIP) Fund
Project Cost Savings – there is an initial cost savings to the Ongoing Street Maintenance Program APPP Zone 5/6B in the amount of $344,681. This results in a reduction in the expenditure in the CIP Fund.
There is a request to provide preliminary funding for a CIP project related to the Green Crest Drive Erosion Repair. The initial request is $69,468 and will be funded with a transfer from the General Fund. It is anticipated that the City will enter into a cost sharing agreement with both the Yorba Linda Water District and the Metropolitan Water District to help offset some of the costs of the project.
FISCAL YEAR 2023/24 MID-YEAR BUDGET UPDATE
P a g e | 8
There is a request for an appropriation in the amount of $550,000 from Master Plan of Drainage funds to address the repair of the sinkhole at the corner of Yorba Linda Blvd. and Imperial Highway. Staff have previously appropriated $25,000 under the City Manager’s authority to evaluate the condition of the sinkhole and provide initial safety measures while gathering quotations from vendors. This new funding request is for the “total” project cost as estimated at this time.
Requested Mid-Year Budget Adjustments to the Black Gold Golf Club Fund There are three adjustments to the Black Gold Golf Club Fund for additional carryovers that were not recorded at the time of carryover adjustments in October 2023 ($209,958). One carryover is related to the emergency repairs to the storm drain. The other two carryovers are related to equipment purchases funded by the lease financing proceeds that have not been received yet.
Requested Mid-Year Personnel Changes
The Mid-Year budget proposes one personnel change and is summarized below:
This request is a reclassification of the Custodian at the Community Center to a Facilities Maintenance Custodian at the Community Center, Field House, and Yorba Linda City Hall. This position will assist with a variety of custodial and maintenance related items at each of the three facilities. The Facilities Maintenance Custodian, under the supervision of the Parks and Facilities Superintendent, performs a variety of skilled and semi-skilled maintenance tasks related to carpentry, plumbing, electrical, heating, air conditioning and repair skills. This position is responsible for the daily maintenance and cleaning of the facility in accordance with written maintenance specifications; recognize and report mechanical defects to appropriate staff; move furniture and equipment; assist program staff as assigned; and do other job-related duties. This is a forty (40) hour a week position, working a flexible schedule that may include weekends and evenings.
The Custodian position will be left vacant after an employee’s retirement at the end of February. The approximate increase in salary and benefits for FY 2023/24 is approximately $7,400. Due to the time between staff’s retirement and the anticipated recruitment, there will be enough salary savings to negate the need for a budget adjustment at mid-year.
FISCAL IMPACT
Staff’s current projection for fiscal year 2023/24 remains positive with a projected General Fund budget surplus of $293,430.
ALTERNATIVES
The City Council could choose not to approve one or more of the mid-year budget adjustments and/or provide staff with direction to undertake any additional analysis by the City Council.
FISCAL YEAR 2023/24 MID-YEAR BUDGET UPDATE
P a g e | 9
ATTACHMENTS
1. List of Mid-Year Budget Requests
2. List of Budget Adjustments through the Second Quarter of Fiscal Year 2023/24
3. FY 2023/24 Authorized Positions Listing
Department / Item Account Number Budget
Adjustment
General Fund Revenue Changes
Property Tax - Secured 1015100-311010 $ 100,000
Property Tax - Supplemental 1015100-311040 $ 25,000
Property Tax - Public Utility 1015100-311050 $ 30,000
Property Tax - VLF Backfill 1015100-311070 $ 43,700
Property Tax - YL Residual 1015100-311130 $ 100,000
Sales Tax 1015120-312010 $ (440,000)
Cable TV Franchise 1015130-313080 $ (50,000)
Building Permits 1015210-321010 $ 50,000
Plan Checks 1015210-321020 $ 10,000
Miscellaneous State Grant - DUILA 1015340-353090 $ (95,000) Facility Maintenance Reimbursement 1015430-387050 $ 500 Damage Claim Reimbursement 1015900-388070 $ 15,000
Miscellaneous Reimbursement - Green Crest Project (MWD & YLWD) 1015900-388090 $ 46,312 Sale of Land - Evan's BBQ (reclass) 1015900-388080 $ 215,000 Sale of City Property - reclass of Evan's BBQ original budget 1015900-388100 $ (200,000) Total General Fund Revenue Changes $ (149,488)
Total General Fund Resources Changes $ (149,488)
General Fund Appropriation Requests
Administration
Salaries - F/T Permanent (City Manager) 1010110-410010 $ 49,325 Retirement (City Manager) 1010110-411100 $ 4,400
Insurance (City Manager) 1010110-411200 $ 8,050
Medicare (City Manager) 1010110-411300 $ 750
Cell Phone Stipend - Information Technology 1010130-411110 $ 900 Misc. Other Contract Services (IT - add'l carryover) 1010130-433950 $ 3,410 Misc. Other Contract Services (General Gov't - add'l carryover) 1010170-433950 $ 3,388 Publications/Advertising (Communications) 1010190-424400 $ 3,700 Travel/Meeting/Seminars (Communications) 1010190-426050 $ (1,200) Administration Total $ 72,723
City of Yorba Linda
Fiscal Year 2023/24 Mid-Year Budget Requests
Department / Item Account Number Budget
Adjustment
City of Yorba Linda
Fiscal Year 2023/24 Mid-Year Budget Requests
Community Development
Temporary Personnel 1010210-433200 $ (42,751)
Printing Service 1010220-424380 $ (3,000)
Publication/Advertising - Print/Mail Housing Element Public Hearing 1010220-424400 $ 76,000 Dues/Publications 1010220-426250 $ (2,000)
PC Minutes Clerk 1010220-431930 $ (4,000)
Consultant Services (Add'l carryover for Housing Element) 1010220-431950 $ 12,743 Consultant Services (Tripepi Agreement approved on Consent 3/5/24) 1010220-431950 $ 178,250 Office Equipment/Furniture 1010220-461100 $ (1,000)
Public Nuisance 1010230-432610 $ (17,500)
Community Development Total $ 196,742
Finance
Misc. Other Services - Additional Carryover 1010600-433950 $ 325 Finance Total $ 325
Parks & Recreation
Salaries - F/T Permanent 1010400-411010 $ (4,000)
Retirement 1010400-411100 $ (400)
Insurance 1010400-411200 $ (700)
Medicare 1010400-411300 $ (100)
Overtime - Parks & Rec Admin 1010400-410210 $ 1,000
Overtime - Contract Classes 1010410-410210 $ 5,000
Custodial Supplies - Travis Ranch 1010420-421010 $ 1,000 Overtime - Youth Activities 1010430-410210 $ 5,000
Facilities Maintenance - Community Center 1010440-432750 $ 5,000 Facilities Maintenance - Field House 1010450-432750 $ 10,000 Overtime - Park Maintenance 1010460-410210 $ 10,000
Misc. Contract Services - Park Maintenance 1010460-433950 $ 13,500 Parks & Recreation Total $ 45,300
Police Services
Facility Maintenance 1010500-432750 $ 10,000
Police Services - reclassification of overtime costs 1010500-430050 $ (641,320) Police Services - reduction of excess estimate for increase to contract 1010500-430050 $ (275,000) Police Services - reclassification of overtime costs 1010500-430070 $ 641,320 Police Services Total $ (265,000)
Department / Item Account Number Budget
Adjustment
City of Yorba Linda
Fiscal Year 2023/24 Mid-Year Budget Requests
Public Works
Salaries - F/T Permanent 1010300-411010 $ (30,500)
Retirement 1010300-411100 $ (3,900)
Insurance 1010300-411200 $ (6,800)
Medicare 1010300-411300 $ (500)
Misc. Engineering Services - Staff Augmentation 1010310-431480 $ 71,000 Temporary Inspection Services - Staff Augmentation 1010310-433200 $ 20,000 NPDES Consultant Services 1010340-432860 $ 10,000
Machinery & Equipement - Add'l Carryover 1010330-461150 $ 13,259 Public Works Total $ 72,559
Tranfers
Transfer Out - CIP Fund (SI231003 - APPP Zone 5/6B) 1011999-494010 $ (344,681) Transfer Out - CIP Fund (MS241002 Green Crest Erosion Repair) 1011999-494010 $ 69,468 Transfers Total $ (275,213)
General Fund Expenditure Total $ (152,564)
LMAD Fund Appropriation Requests
Salaries - F/T Permanent 2010350-410010 $ (4,700)
Retirement 2010350-411100 $ (600)
Employee Insurance 2010350-411200 $ (1,100)
Medicare 2010350-411300 $ (100)
LMAD Fund Expenditure Total $ (6,500)
Library Fund Appropriation Requests
Office Equipment - Additional Carryover 2020700-461100 $ 5,713 Computer Hardware/Software - Additional Carryover 2020700-461120 $ 6,938 Building Improvements - Additional Carryover 2020700-463050 $ 2,816 Library Fund Expenditure Total $ 15,467
CDBG Fund Appropriation Requests
CDBG/Neighborhood Program - Additional Carryover 2080173-428200 $ 5,000 Total CDBG Fund Expenditure Total $ 5,000
AQMD Fund Appropriation Requests
Automobile 2091000-461050 $ 10,000
Total AQMD Fund Expenditure Total $ 10,000
Department / Item Account Number Budget
Adjustment
City of Yorba Linda
Fiscal Year 2023/24 Mid-Year Budget Requests
PEG Fund Appropriation Requests
Video Production 2101000-431820 $ 1,600
Software Maintenanance 2101000-431890 $ 2,400
Miscellaneous Professional Services 2101000-433950 $ 4,500 Office Equipment 2101000-461100 $ 22,000
Computer Hardware/Software 2101000-461120 $ 30,000
Total PEG Fund Expenditure Total $ 60,500
CIP Fund Resource Requests
Transfer In/General Fund (SI231003 - APPP Zone 5/6B) 4015999-391010 $ (344,681) Transfer In/General Fund (MS241002 Green Crest Erosion Repair) 4015999-391010 $ 69,468 Transfer In/Master Plann Of Drainage (SD241001 YL Blvd/Imperial Hwy Sinkhole)) 4015999-394030 $ 550,000
Total CIP Fund Resource Total $ 274,787
CIP Fund Appropriation Requests
Street Improvements (SI231003 - APPP Zone 5/6B) 4010050-461620 $ (344,681) Storm Drain Improvements (SD241001 - YL Blvd/Imperial Hwy Sinkhole) 4010050-461670 $ 550,000 Miscellaneous (MS241002 Green Crest Erosion Repair) 4010050-461670 $ 69,468 Total CIP Fund Expenditure Total $ 274,787
Master Plan of Drainage Fund Appropriation Requests
Transfer Out/CIP Fund (SD241001 - YL Blvd/Imperial Hwy Sinkhole) 4031999-494010 $ 550,000 Total Master Plan of Drainage Fund Expenditure Total $ 550,000 Black Gold Golf Course Fund
Emergency Captial Repairs - Additional Carryovers 5010480-461040 $ 71,329 Automobile - Additional Carryovers (Capital Lease) 5010480-461050 $ 22,834 Machinery/Equipment - Additional Carryovers (Capital Lease) 5010480-461150 $ 115,794 Total Black Gold Golf Course Expenditure Total $ 209,958
ATTACHMENT 2
Date Type Purpose Amount Authorization Fund Department Account No. Project string BUA #
GENERAL FUND ADJUSTMENTS
Revenue
9/28/2023 Appropriation Supplemental budget adjustment for fence damage (cost recovery) $ 850 City Manager General Public Works 1015900-388070 BUA-83 Total General Fund Revenue Adjustments - 1Q FY2023/24 $ 850 Total General Fund Revenue Adjustments $ 850
Expenditures
7/19/2023 Appropriation Supplemental budget adjustment for increase in Crossing Guard Services $ 24,687 City Council General (Reserves) Public Works 1010320-432780 BUA-83 9/19/2024 Appropriation Supplemental budget adj for Housing Element Public Outreach consultant $ 100,000 City Council General Community Dev 1010220-431950 BUA-177 9/28/2023 Appropriation Supplemental budget adjustment for fence damage (offset by revenue) $ 850 City Manager General Parks & Recreation 1010440-432700 BUA-142 Total General Fund Expenditure Adjustments - 1Q FY2023/24 $ 125,537 10/17/2023 Appropriation FY 2022/23 Carryovers $ 447,714 City Council General (Reserves) various various BUA-224 12/11/2023 Appropriation Supplemental budget adjustment for the Senior Mobility Program $ 25,000 City Manager General Parks & Recreation 1010440-430230 BUA-43 12/12/2023 Appropriation Supplemental budget adjustment for wildfire preparedness meeting $ 12,413 City Manager General Administration 1010140-424380 BUA-52 Total General Fund Expenditure Adjustments - 2Q FY2023/24 $ 485,127 Total General Fund Appropriation Adjustments $ 610,665
OTHER ADJUSTMENTS
7/11/2023 Transfer Move budget for temporary personnel for additional landscape work $ 25,000 City Manager General Public Works 1010330-433200 BUA-30 8/15/2023 Transfer Move budget for AV equipment at the Cultural Arts Center $ 3,762 City Manager General Parks & Recreation 1010475-461120 BUA-103 8/15/2023 Appropriation AV Equipment/Tables in Executive & Bubble Conference Rooms $ 10,000 City Manager PEG Administration 2101000-461100 BUA-116 8/23/2023 Appropriation Appropriation for Library grant received $ 3,627 City Manager Library Library 2020700-427260 BUA-148 9/19/2023 Transfer Transfer between project FC241003 (incr) and FC241001 (decr) $ 1,650 City Manager CIP Parks & Recreation 4010050-461610 FC241003 BUA-66 9/25/2023 Transfer Transfer for travel/training for Risk Management division $ 2,500 City Manager General Administration 1010150-426050 BUA-102 9/30/2023 Appropriation Supplemental budget adjustment for Pavement Management Program $ 27,890 City Council CIP Public Works 4010050-461620 SI241006 BUA-174 10/5/2023 Transfer Move budget for vehicle maintenance $ 675 City Manager General Parks & Recreation 1010460-424050 BUA-17 10/9/2023 Transfer Move budget for vehicle maintenance $ 15,000 City Manager General Public Works 1010330-424050 BUA-33 10/11/2023 Appropriation Appropriation for additional vehicle purchase costs $ 25,000 City Manager AQMD Public Works 2091000-461050 BUA-53 10/11/2023 Transfer Move budget for trailer purchase $ 10,200 City Manager General Parks & Recreation 1010460-461050 BUA-54 10/11/2024 Transfer Move budget for the Field House roof repairs $ 25,000 City Manager CIP Parks & Recreation 4010050-461610 FC241004 BUA-55 10/17/2023 Appropriation FY 2022/23 Carryovers $ 730 City Council PEG Administration 2101000-431820 BUA-224 10/17/2023 Appropriation FY 2022/23 Carryovers $ 32,705 City Council Black Gold Golf Club Parks & Recreation various BUA-224 10/17/2023 Appropriation FY 2022/23 Carryovers $ 4,484,520 City Council CIP PW/P&R various BUA-224 11/7/2024 Appropriation Appropriation for additional street lighting expenditures $ 1,500 City Manager LMAD Public Works 2010350-432820 BUA-21 11/8/2023 Transfer Move budget for additional tree removals $ 25,000 City Manager General Public Works 1010330-432300 BUA-44 11/14/2023 Transfer Move budget for boot expense $ 200 City Manager General Public Works 1010340-42110 BUA-76 12/7/2023 Appropriation Appropriation for additional funding for Vista Del Verde Park Sport Court $ 180,497 City Council CIP Parks & Recreation 4010050-461660 PR231001 BUA-24 12/7/2023 Transfer Move budget for office supplies $ 300 City Manager General Community Dev 1010210-421050 BUA-25 12/12/2023 Transfer Move budget for temporary staffing services $ 5,000 City Manager General Public Works 1010330-433200 BUA-46 12/14/2023 Transfer Move budget for workers compensation claims administration $ 1,600 City Manager General Administration 1010150-433170 BUA-79 City of Yorba Linda
Quarterly Listing of Year-To-Date Line-Item Budget Transfers and Supplemental Budget Appropriations Fiscal Year 2023/24 - Mid-Year Adjustments
ATTACHMENT 3
Bargaining Unit Status 2023/24
Approved
2023/24
Mid-Year Change
Accountant Miscellaneous Full-Time 1.00 1.00 -
Accounting Technician* Miscellaneous Full-Time 2.00 2.00 - Administrative Secretary Miscellaneous Full-Time 4.00 4.00 - Administrative Services Director Management Full-Time 1.00 1.00 - Assessment District Manager Mid-Management Full-Time 1.00 1.00 - Assistant City Manager Management Full-Time 1.00 1.00 - Assistant Engineer Miscellaneous Full-Time 3.00 3.00 -
Assistant Library Director Mid-Management Full-Time 1.00 1.00 - Assistant to the City Manager Mid-Management Full-Time 2.00 2.00 - Associate Planner Miscellaneous Full-Time 2.00 2.00 -
Borrower Services Manager Mid-Management Full-Time 1.00 1.00 - Building Inspector Miscellaneous Full-Time 3.00 3.00 -
Building Official Mid-Management Full-Time 1.00 1.00 -
Building Permit Technician Miscellaneous Full-Time 2.00 2.00 - Children Services Manager Mid-Management Full-Time 1.00 1.00 - City Clerk Mid-Management Full-Time 1.00 1.00 -
City Clerk Specialist Miscellaneous Full-Time 1.00 1.00 - City Manager Management Full-Time 1.00 1.00 -
Communications Specialist* Miscellaneous Full-Time 1.00 1.00 - Community Development Director Management Full-Time 1.00 1.00 - Community Preservation Officer Miscellaneous Full-Time 1.00 1.00 - Community Pres. Officer / CDBG Coord. Miscellaneous Full-Time 1.00 1.00 - Custodian Miscellaneous Full-Time 1.00 - (1.00)
Deputy City Clerk Miscellaneous Full-Time 1.00 1.00 -
Deputy Public Works Director/Assistant City Engineer Mid-Management Full-Time 1.00 1.00 - Economic Development Manager Mid-Management Full-Time 1.00 1.00 - Executive Assistant Mid-Management Full-Time 1.00 1.00 - Facilities Maintenance Custodian Miscellaneous Full-Time 1.00 2.00 1.00 Facilities Maintenance Technician Miscellaneous Full-Time 2.00 2.00 - Finance Director Management Full-Time 1.00 1.00 -
Financial Services Manager Mid-Management Full-Time 1.00 1.00 - GIS Analyst Miscellaneous Full-Time 1.00 1.00 -
Graphics Specialist* Miscellaneous Full-Time - - -
Information Services & Technology Manager Mid-Management Full-Time 1.00 1.00 - IT Analyst Miscellaneous Full-Time 2.00 2.00 -
IT Technician Miscellaneous Full-Time 1.00 1.00 -
Landscape Inspector Miscellaneous Full-Time 1.00 1.00 - Leadworker Miscellaneous Full-Time 2.00 2.00 -
Librarian Miscellaneous Full-Time 4.00 4.00 -
Library Clerk Miscellaneous Full-Time 2.00 2.00 -
Library Director Management Full-Time 1.00 1.00 -
Library Technician Miscellaneous Full-Time 1.00 1.00 -
Maintenance Contract Administrator Miscellaneous Full-Time 2.00 2.00 - Maintenance Worker II Miscellaneous Full-Time 14.00 14.00 - Management Analyst Mid-Management Full-Time 2.00 2.00 - Office Assistant II Miscellaneous Full-Time 1.00 1.00 - Park Maintenance Supervisor Miscellaneous Full-Time 1.00 1.00 - Parks & Facilities Maintenance Superintendent Mid-Management Full-Time 1.00 1.00 - Parks & Recreation Superintendent Mid-Management Full-Time 1.00 1.00 - Parks and Recreation Director Management Full-Time 1.00 1.00 - Payroll Technician* Miscellaneous Full-Time 1.00 1.00 - Plan Check Engineer Miscellaneous Full-Time 1.00 1.00 - Planning Manager Mid-Management Full-Time 1.00 1.00 -
Principal Civil Engineer Mid-Management Full-Time 1.00 1.00 - Principal Management Analyst Mid-Management Full-Time 1.00 1.00 - Public Works Director/City Engineer Management Full-Time 1.00 1.00 - Public Works Superintendent Mid-Management Full-Time 1.00 1.00 - Recreation Coordinator Miscellaneous Full-Time 5.00 5.00 - Full-Time Positions
City of Yorba Linda
Authorized Positions Listing
As of March 5, 2024
ATTACHMENT 1
Bargaining Unit Status 2023/24
Approved
2023/24
Mid-Year Change
City of Yorba Linda
Authorized Positions Listing
As of March 5, 2024
Recreation Supervisor Miscellaneous Full-Time 4.00 4.00 - Senior Building Inspector Miscellaneous Full-Time 1.00 1.00 - Senior Building Permit Technician Miscellaneous Full-Time 1.00 1.00 - Senior Community Preservation Officer Mid-Management Full-Time 1.00 1.00 - Senior Landscape Inspector Miscellaneous Full-Time 2.00 2.00 - Senior Librarian Miscellaneous Full-Time 2.00 2.00 -
Senior Librarian Assistant Miscellaneous Full-Time 1.00 1.00 - Senior Library Clerk Miscellaneous Full-Time 1.00 1.00 - Senior Library Technician Miscellaneous Full-Time 2.00 2.00 - Senior Management Analyst Mid-Management Full-Time 1.00 1.00 - Senior Office Assistant Miscellaneous Full-Time 3.00 3.00 - Senior Planner Mid-Management Full-Time 1.00 1.00 -
Senior Public Works Inspector Miscellaneous Full-Time 1.00 1.00 - Traffic Engineering Manager Mid-Management Full-Time 1.00 1.00 - Total Full-Time Positions 116.00 116.00 -
Accounting Technician Miscellaneous Perm. Part-Time 0.75 0.75 - Librarian Miscellaneous Perm. Part-Time 0.75 0.75 -
Librarian Assistant Miscellaneous Perm. Part-Time 0.75 0.75 - Library Clerk Miscellaneous Perm. Part-Time 1.50 1.50 - Recreation Specialist Miscellaneous Perm. Part-Time 5.25 5.25 - Senior Librarian Assistant Miscellaneous Perm. Part-Time - - - Senior Library Page* Miscellaneous Perm. Part-Time 0.75 0.75 - Total Permanent Part-Time Positions 9.75 9.75 -
Building Inspector (RA) Temp. Part-Time 0.48 0.48 -
Emergency Management Coordinator (RA) Temp. Part-Time 0.48 0.48 - Intern Temp. Part-Time 4.32 4.32 -
IT Technician Temp. Part-Time - - -
Landscape Inspector Temp. Part-Time 0.48 0.48 -
Library Assistant Temp. Part-Time 4.50 4.50 -
Library Clerk Temp. Part-Time 1.97 1.97 -
Library Page Temp. Part-Time 4.57 4.57 -
Library Technician Temp. Part-Time 0.48 0.48 -
Maintenance Worker Trainee Temp. Part-Time 0.48 0.48 -
Office Assistant I Temp. Part-Time 0.48 0.48 -
Office Assistant II Temp. Part-Time 0.48 0.48 -
Recreation Leader Temp. Part-Time 14.71 14.71 -
Senior Library Page* Temp. Part-Time 1.63 1.63 -
Senior Office Assistant Temp. Part-Time 0.48 0.48 -
Senior Recreation Leader Temp. Part-Time 10.03 10.03 -
Total Temporary Part-Time Positions 45.57 45.57 -
Total Authorized Positions 171.32 171.32 -
Temporary Part-Time Positions
Permanent Part-Time Positions