06/08/2021CITY OF GRAND TERRACE
CITY COUNCIL
AGENDA ● JUNE 8, 2021
Council Chambers Regular Meeting 6:00 PM
Grand Terrace Civic Center ● 22795 Barton Road
City of Grand Terrace Page 1
PUBLIC ADVISORY: THE COUNCIL CHAMBER IS NOW OPEN TO THE PUBLIC!!
Beginning June 15, 2020, the City of Grand Terrace reopened its public meetings. Therefore, the regular meeting of
the City Council for June 8, 2021, is open to the public. Please be advised that face masks are required, social
distancing will be practiced, and occupancy limits will be enforced.
Please note that Pursuant to Section 3 of Executive Order N-29-20, issued by Governor Newsom on March 17, 2020,
the regular meeting of the City Council for June 8, 2021, will also be conducted telephonically through Zoom and
broadcast live on the City’s website.
COMMENTS FROM THE PUBLIC
The public is encouraged to address the City Council on any matter posted on the agenda or on any other matter
within its jurisdiction. If you wish to address the City Council, please complete a Request to Speak Form available at
the front entrance and present it to the City Clerk. Speakers physically present and participating via Zoom will be
called upon by the Mayor at the appropriate time and each person is allowed three (3) minutes speaking time.
If you would like to participate telephonically and speak on an agenda item, you can access the meeting by dialing
the following telephone number and you will be placed in the waiting room, muted until it is your turn to speak:
*67 1-669-900-9128
Enter Meeting ID: 845 0534 6614
Password: 267254
The City wants you to know that you can also submit your comments by email to ccpubliccomment@grandterrace-
ca.gov. To give the City Clerk adequate time to print out your comments for consideration at the meeting, please
submit your written comments prior to 5:00 p.m.; or if you are unable to email, please call the City Clerk’s Office at
(909) 824-6621 x230 by 5:00 p.m.
If you wish to have your comments read to the City Council during the appropriate Public Comment period, please
indicate in the Subject Line “FOR PUBLIC COMMENT” and list the item number you wish to comment on. Comments
that you want read to the City Council will be subject to the three (3) minute time limitation (approximately 350 words).
Pursuant to the provisions of the Brown Act, no action may be taken on a matter unless it is listed on the agenda, or
unless certain emergency or special circumstances exist. The City Council may direct staff to investigate and/or
schedule certain matters for consideration at a future City Council meeting.
PLEASE NOTE: Copies of staff reports and supporting documentation pertaining to each item on this agenda are
available for public viewing and inspection at City Hall, 1st Floor Lobby Area and 2nd Floor Reception Area during
regular business hours and on the City’s website www.grandterrace-ca.gov. For further information regarding agenda
items, please contact the office of the City Clerk at (909) 824-6621 x230, or via e-mail at dthomas@grandterrace-
ca.gov.
Any documents provided to a majority of the City Council regarding any item on this agenda will be made available
for public inspection in the City Clerk’s office at City Hall located at 22795 Barton Road during normal business hours.
In addition, such documents will be posted on the City’s website at www.grandterrace-ca.gov.
AMERICANS WITH DISABILITIES ACT
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting,
please contact the City Clerk’s Office, (909) 824-6621 x230 at least 48 hours prior to the advertised starting time of
the meeting. This will enable the City to make reasonable arrangements to ensure accessibility to this meeting. Later
requests will be accommodated to the extent feasible.
Agenda Grand Terrace City Council June 8, 2021
City of Grand Terrace Page 2
CALL TO ORDER
Convene City Council
Invocation
Pledge of Allegiance
Roll Call
Attendee Name Present Absent Late Arrived
Mayor Darcy McNaboe
Mayor Pro Tem Bill Hussey
Council Member Sylvia Robles
Council Member Doug Wilson
Council Member Jeff Allen
A. REORDERING OF, ADDITIONS TO, OR REMOVAL OF ITEMS FROM THE AGENDA
B. SPECIAL PRESENTATIONS
Southern California Edison Wildfire Mitigation Update and 2020 Reliability Report –
Presented by Mark Cloud, Government Relations Manager
C. CONSENT CALENDAR
The following Consent Calendar items are expected to be routine and noncontroversial.
They will be acted upon by the City Council at one time without discussion. Any Council
Member, Staff Member, or Citizen may request removal of an item from the Consent
calendar for discussion.
1. Waive Full Reading of Ordinances on Agenda
DEPARTMENT: CITY CLERK
2. Approval of Minutes – Regular Meeting – 05/25/2021
DEPARTMENT: CITY CLERK
Agenda Grand Terrace City Council June 8, 2021
City of Grand Terrace Page 3
3. Approval of a Settlement Agreement & Release of All Claims Entered into Between the
City of Grand Terrace, CSG EV, LLC, and Margaret L. Miller, and a Related Easement
Amendment
RECOMMENDATION:
1. Approve the Settlement Agreement & Release of All Claims Entered into
Between the City of Grand Terrace, CSG EV, LLC, and Margaret L. Miller; and
2. Approve the Easement Amendment, which amends access easements between
the City and Margaret L. Miller related to the Settlement Agreement; and
3. Authorize the Mayor to sign the above documents, subject to City Attorney
approval as to form.
DEPARTMENT: CITY ATTORNEY
4. April 1, 2021 Planning Commission Meeting Minutes and April 8, 2021 Parks &
Recreation Advisory Committee Meeting Minutes
RECOMMENDATION:
Receive and file.
DEPARTMENT: CITY CLERK
5. Award and Approve the Purchase and Installation of a Ductless Split Air Conditioner
Which Replaces the Current Inoperable System for the City Hall Computer Server
Room to Honeywell in the Amount of $5,697.53
RECOMMENDATION:
1. Award the purchase and installation of a ductless split air conditioner which replaces
the current inoperable system for the City Hall Computer Server Room to Honeywell
in the amount of $5,697.53
2. Approve the quotation prepared by Honeywell (Attachment 1) and authorize the City
Manager to prepare/execute the quotation, City purchase order, and other
documents (as necessary) subject to City Attorney approval as to form, in order to
carry out the work
DEPARTMENT: PLANNING & DEVELOPMENT SERVICES
D. PUBLIC COMMENT
This is the opportunity for members of the public to comment on any items not
appearing on the regular agenda. Because of restrictions contained in California Law,
the City Council may not discuss or act on any item not on the agenda, but may briefly
respond to statements made or ask a question for clarification. The Mayor may also
request a brief response from staff to questions raised during public comment or may
request a matter be agendized for a future meeting.
E. PUBLIC HEARINGS
Agenda Grand Terrace City Council June 8, 2021
City of Grand Terrace Page 4
F. UNFINISHED BUSINESS
G. NEW BUSINESS
6. Historical & Cultural Activities Committee Members Resignations and Authorization to
Continue Posting Notice of Vacancy
RECOMMENDATION:
Accept the Resignations of Historical & Cultural Activities Committee Members Frances
Carter, Martha Monteon, Rochelle Rosenkild, Martina Boentaran and Lynn Smith, Direct
the City Clerk to Prepare and Send a Letter of Appreciation on Behalf of the City
Council, and Direct the City Clerk to Post Notice of Vacancy
DEPARTMENT: CITY CLERK
7. Amendment No. 8 to the Waste Disposal Agreement Between the City of Grand Terrace
and the County of San Bernardino
RECOMMENDATION:
1) Adopt a RESOLUTION OF THE CITY OF GRAND TERRACE, CALIFORNIA,
ADOPTING AMENDMENT NO. 8, TO THE WASTE DISPOSAL AGREEMENT
BETWEEN THE COUNTY OF SAN BERNARDINO AND THE CITY OF GRAND
TERRACE; and
2) Authorize the Mayor to Sign the Amendment No. 8 subject to City Attorney approval
as to form.
DEPARTMENT: CITY MANAGER
8. Introduction of the FY2021-22 Proposed Budget
RECOMMENDATION:
1. Review the Proposed Budget for Fiscal Year 2021-22; and
2. Begin budget deliberations for the Proposed Budget for Fiscal Year 2021-22 on
June 15, 2021.
DEPARTMENT: FINANCE
H. REQUESTS FOR FUTURE AGENDA ITEMS BY CITY COUNCIL - NONE
I. CITY COUNCIL COMMUNICATIONS
Council Member Jeff Allen
Council Member Doug Wilson
Agenda Grand Terrace City Council June 8, 2021
City of Grand Terrace Page 5
Council Member Sylvia Robles
Mayor Pro Tem Bill Hussey
Mayor Darcy McNaboe
J. CITY MANAGER COMMUNICATIONS
K. RECESS TO CLOSED SESSION
CLOSED SESSION
1. CONFERENCE WITH LABOR NEGOTIATORS, pursuant to Government Code
Section 54957.6
Agency Designated Representatives: G. Harold Duffey, City Manager
Adrian R. Guerra, City Attorney
Colin Tanner, Deputy City Attorney
Employee Organization: Teamsters Local 1932
Unrepresented Employees: City Manager, Assistant City Manager,
City Clerk, Director of Public Works,
Director of Planning & Development
Services, Management Analyst (Two
Positions), Principal Accountant,
Assistant Planner
2. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION pursuant to
Government Code Section 54956.9(a)
Case Name: Sunny Days, LLC v. City of Grand Terrace
Case No.: CIV SB 2107692
3. CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION
Significant exposure to litigation pursuant to Government Code Section
54956.9(b): One Potential Case
RECONVENE TO OPEN SESSION
REPORT OUT OF CLOSED SESSION
Agenda Grand Terrace City Council June 8, 2021
City of Grand Terrace Page 6
L. ADJOURN
The Next Regular City Council Meeting will be held on Tuesday, June 22, 2021 at 6:00
PM. Any request to have an item placed on a future agenda must be made in writing
and submitted to the City Clerk’s office and the request will be processed in accordance
with Council Procedures.
CITY OF GRAND TERRACE
CITY COUNCIL
MINUTES ● MAY 25, 2021
Council Chambers Regular Meeting 6:00 PM
Grand Terrace Civic Center ● 22795 Barton Road
City of Grand Terrace Page 1
CALL TO ORDER
Mayor Darcy McNaboe convened the Regular Meeting of the City Council for Tuesday,
May 25, 2021 at 6:00 p.m.
INVOCATION
The Invocation was given by Chaplain Timothy Isom of Marketplace Chaplains.
PLEDGE OF ALLEGIANCE
The Pledge of Allegiance was led by Mayor Darcy McNaboe.
Attendee Name Title Status Arrived
Darcy McNaboe Mayor Present
Bill Hussey Mayor Pro Tem Present
Sylvia Robles Council Member Present
Doug Wilson Council Member Present
Jeff Allen Council Member Present
G. Harold Duffey City Manager Present
Adrian Guerra City Attorney Present
Debra Thomas City Clerk Present
Steven Weiss Planning & Development Services Director Present
Robert Eisenbeisz Interim Public Works Director Present
Terry Shea Interim Finance Director Present
A. REORDERING OF, ADDITIONS TO, OR REMOVAL OF ITEMS FROM THE AGENDA
None.
B. SPECIAL PRESENTATIONS - NONE
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Minutes Grand Terrace City Council May 25, 2021
City of Grand Terrace Page 2
C. CONSENT CALENDAR
RESULT: APPROVED [UNANIMOUS]
MOVER: Doug Wilson, Council Member
SECONDER: Jeff Allen, Council Member
AYES: McNaboe, Hussey, Robles, Wilson, Allen
1. Waive Full Reading of Ordinances on Agenda
2. Approval of Minutes – Special Meeting Workshop – 05/06/2021
APPROVE THE SPECIAL MEETING WORKSHOP MINUTES OF MAY 6, 2021.
3. Approval of Minutes – Regular Meeting – 05/11/2021
APPROVE THE REGULAR MEETING MINUTES OF MAY 11, 2021.
4. City Department Monthly Activity Report - March 2021
RECEIVE AND FILE.
5. Approval of the April-2021 Check Register in the Amount of $534,650.62
APPROVE THE CHECK REGISTER NO. 04302021 IN THE AMOUNT OF $534,650.62
AS SUBMITTED, FOR THE PERIOD ENDING APRIL 30, 2021.
6. Treasurer's Report as of March 31, 2021
RECEIVE AND FILE THE TREASURER'S REPORT FOR THE PERIOD ENDING
MARCH 31, 2021.
7. Auditor's Annual Financial Report for the Fiscal Year Ended June 30, 2020
RECEIVE AND FILE THE AUDITOR’S ANNUAL FINANCIAL REPORT AND
RELATED DOCUMENTS FOR THE FISCAL YEAR ENDED JUNE 30, 2020.
D. PUBLIC COMMENT
James Timony, Foundation of Grand Terrace extended an invitation to the City Council
to attend the Veterans Wall of Freedom monument at Veteran’s Freedom Park on
Monday, May 31, 2021 at 11:00 a.m. Mr. Timony also wanted to publicly honor Cindy
Grande and Sally Holt for their time, dedication, and sacrifice in supporting the City of
Grand Terrace.
E. PUBLIC HEARINGS - NONE
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Minutes Grand Terrace City Council May 25, 2021
City of Grand Terrace Page 3
F. UNFINISHED BUSINESS - NONE
G. NEW BUSINESS
8. Amendment No. 6 to Extend the Library Lease Agreement with the County of San
Bernardino
G. Harold Duffey, City Manager gave the PowerPoint presentation for this item.
1. APPROVE AMENDMENT NO. 6, IN SUBSTANTIALLY THE FORM AS
ATTACHED, DUE TO THE COUNTY'S EXERCISE OF THE FIRST OF TWO
EXISTING THREE-YEAR EXTENSION OPTIONS, EXTENDING THE TERM OF
THE LEASE FROM JULY 1, 2021 THROUGH JUNE 30, 2024.
2. AUTHORIZE THE CITY MANAGER TO EXECUTE AMENDMENT NO. 6.
RESULT: APPROVED [UNANIMOUS]
MOVER: Doug Wilson, Council Member
SECONDER: Jeff Allen, Council Member
AYES: McNaboe, Hussey, Robles, Wilson, Allen
9. Public Convenience or Necessity Finding for Grocery Outlet Located at 22441 Barton
Road Proposing to Replace an Existing Type 20 Off-Sale Beer and Wine License with a
Type 21- Off-Sale General License
Haide Aguirre, Associate Planner gave the PowerPoint presentation for this item.
1. MAKE A POSITIVE FINDING OF PUBLIC CONVENIENCE OR NECESSITY FOR
A TYPE 21 OFF-SALE GENERAL LICENSE FOR GROCERY OUTLET MARKET
LOCATED AT 22441 BARTON ROAD; AND
2. DIRECT STAFF TO ISSUE THE PROPOSED PUBLIC CONVENIENCE OR
NECESSITY LETTER (IN SUBSTANTIALLY THE FORM ATTACHED) TO THE
CALIFORNIA DEPARTMENT OF ALCOHOL BEVERAGE CONTROL IN
SUPPORT OF GROCERY OUTLET'S TYPE 21 OFF-SALE GENERAL LICENSE
RESULT: APPROVED [UNANIMOUS]
MOVER: Jeff Allen, Council Member
SECONDER: Sylvia Robles, Council Member
AYES: McNaboe, Hussey, Robles, Wilson, Allen
10. Consideration of Resolutions Initiating Proceedings to Levy & Increase (As Previously
Authorized by Property Owners) Annual Assessments for Fiscal Year 2021-2022 for the
City of Grand Terrace Landscape & Lighting Assessment District 89-1 (“District”);
Preliminarily Approving the Related Engineer’s Report; and Declaring the City Council’s
Intention to Conduct a Public Hearing on June 22, 2021, and to Levy, Increase (As
Previously Authorized by Property Owners), and Collect Annual Assessments Related
Thereto
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Minutes Grand Terrace City Council May 25, 2021
City of Grand Terrace Page 4
Shanita Tillman, Management Analyst gave the PowerPoint presentation for this item.
1. ADOPT A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GRAND
TERRACE, CALIFORNIA, PURSUANT TO THE LANDSCAPING AND LIGHTING
ACT OF 1972, INITIATING PROCEEDINGS TO LEVY AND INCREASE (AS
PREVIOUSLY AUTHORIZED BY PROPERTY OWNERS) ANNUAL
ASSESSMENTS FOR THE 2021-2022 FISCAL YEAR FOR THE CITY OF GRAND
TERRACE LANDSCAPING AND LIGHTING ASSESSMENT DISTRICT NO. 89-1
AND ORDERING THE ENGINEER TO PREPARE AND FILE A REPORT IN
ACCORDANCE WITH ARTICLE IV OF CHAPTER 1 OF SAID ACT; AND
2. ADOPT A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GRAND
TERRACE, CALIFORNIA, GIVING PRELIMINARY APPROVAL OF THE
ENGINEERS REPORT FOR LANDSCAPING AND LIGHTING ASSESSMENT
DISTRICT NO. 89-1, AND THE LEVY, INCREASE (AS PREVIOUSLY
AUTHORIZED BY PROPERTY OWNERS), AND COLLECTION OF ANNUAL
ASSESSMENTS RELATED THERETO FOR FISCAL YEAR 2021-2022; AND
3. ADOPT A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GRAND
TERRACE, CALIFORNIA, DECLARING ITS INTENTION TO CONDUCT A PUBLIC
HEARING ON JUNE 22, 2021, ON LANDSCAPING AND LIGHTING
ASSESSMENT DISTRICT NO. 89-1, AND INTENTION TO LEVY, INCREASE (AS
PREVIOUSLY AUTHORIZED BY PROPERTY OWNERS), AND COLLECT
ANNUAL ASSESSMENTS RELATED THERETO FOR FISCAL YEAR 2021-2022
RESULT: APPROVED [UNANIMOUS]
MOVER: Jeff Allen, Council Member
SECONDER: Bill Hussey, Mayor Pro Tem
AYES: McNaboe, Hussey, Robles, Wilson, Allen
11. Approval and Adoption of the Amended City of Grand Terrace Council Procedures and
the Censure Policy for City Commissions, Boards, and Committees
Adrian Guerra, City Attorney gave the presentation for this item.
Debra Thomas, City Clerk suggested to the City Council that the PowerPoint
presentations be included at the end of the agenda packet for ease of reference when
viewing offline and will work with Granicus to include internal hyperlinks to those
PowerPoints located at the end of the agenda packet.
1. APPROVE AND ADOPT THE AMENDED CITY OF GRAND TERRACE COUNCIL
PROCEDURES IN SUBSTANTIALLY THE FORM AS ATTACHED.
2. APPROVE AND ADOPT A CENSURE POLICY FOR CITY COMMISSIONS,
BOARDS, AND COMMITTEES IN SUBSTANTIALLY THE FORM AS ATTACHED
AND DIRECT THE CITY STAFF TO INTEGRATE THE SAME INTO ANY
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Minutes Grand Terrace City Council May 25, 2021
City of Grand Terrace Page 5
POLICIES AND PROCEDURES FOR EACH CITY COMMISSION, BOARD, AND
COMMITTEE AS MAY BE REQUIRED.
RESULT: APPROVED [UNANIMOUS]
MOVER: Doug Wilson, Council Member
SECONDER: Bill Hussey, Mayor Pro Tem
AYES: McNaboe, Hussey, Robles, Wilson, Allen
H. REQUESTS FOR FUTURE AGENDA ITEMS BY CITY COUNCIL - NONE
I. CITY COUNCIL COMMUNICATIONS
Council Member Jeff Allen
Council Member Jeff Allen commented on the following events:
• May 20, 2021 – Grand Terrace High School Senior Parade
• May 22, 2021 – Household Hazardous Waste Event
• May 27, 2021 – Budget in the Park at Veteran’s Freedom Park
• May 31, 2021 – Veteran’s Wall of Freedom at Veteran’s Freedom Park
Council Member Doug Wilson
On May 4-6, 2021, Council Member Doug Wilson attended the California Joint Powers
Insurance Authority Governance Leadership Virtual Academy and discussed the
following:
• Risk Management
• Ethics
• Goal Setting
• Working Together
• Social Media
• Panels
• Poll Questions
• Participated in Breakout Sessions
To view meeting materials, please click here.
On May 6, 2021, Council Member Doug Wilson attended the Southern California
Association Governments General Assembly Meeting and discussed the following:
• Budget Adoption
• Racial Equity Early Action Plan
• Minutes
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Minutes Grand Terrace City Council May 25, 2021
City of Grand Terrace Page 6
• Additional Stipend Payment
• SCAG Regional Transportation Plan
• Protection Glass for SCAG Staff at Administrative Offices
• SCAG’s Regional Travel
To view meeting materials, please click here.
On May 20, 2021, Council Member Doug Wilson attended the San Bernardino Valley
Municipal Water District Advisory Committee’s Special Meeting and discussed the
following:
• Consider Support of the 2020 Upper Santa Ana River Watershed – Integrated
Regional Water Management Plan to be Combined with the Regional Water
Shortage Contingency Plan.
To view meeting agenda, please click here.
To view meeting materials, please click here.
Council Member Sylvia Robles
Council Member Sylvia Robles commented on the following:
• May 20, 2021 – Grand Terrace High School Senior Parade
Mayor Pro Tem Bill Hussey
Mayor Pro Tem Bill Hussey commented on the following:
• May 20, 2021 – Grand Terrace High School Senior Parade
• May 22, 2021 – Household Hazardous Waste
• Homelessness in the Inland Empire
• Cars Running Red Lights in the City and Pedestrian Safety
• Rise in Catalytic Converter Thefts
Mayor Darcy McNaboe
Mayor Darcy McNaboe commented on the following:
• Thanked Staff for all of their hard work.
• May 31, 2021 – Veteran’s Wall of Freedom at Veteran’s Freedom Park
J. CITY MANAGER COMMUNICATIONS
G. Harold Duffey gave the PowerPoint presentation for this item.
K. RECESS TO CLOSED SESSION
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Minutes Grand Terrace City Council May 25, 2021
City of Grand Terrace Page 7
Mayor McNaboe recessed the regular meeting of the City Council at 6:50 p.m.
CLOSED SESSION
1. CONFERENCE WITH LABOR NEGOTIATORS, pursuant to Government Code Section
54957.6
Agency Designated Representatives: G. Harold Duffey, City Manager
Adrian R. Guerra, City Attorney
Colin Tanner, Deputy City Attorney
Employee Organization: Teamsters Local 1932
Unrepresented Employees: City Manager, Assistant City Manager,
City Clerk, Director of Public Works,
Director of Planning & Development
Services, Management Analyst (Two
Positions), Principal Accountant,
Assistant Planner
2. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION pursuant to
Government Code Section 54956.9(a)
Case Name: Sunny Days, LLC v. City of Grand Terrace
Case No.: CIV SB 2107692
3. CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION
Significant exposure to litigation pursuant to Government Code Section
54956.9(b): One Potential Case
RECONVENE TO OPEN SESSION
Mayor McNaboe reconvened the regular meeting of the City Council at 7:33 p.m.
REPORT OUT OF CLOSED SESSION
Agenda Item No. K.1 – Mayor McNaboe announced there was nothing to report on this
item and direction was provided to staff.
Agenda Item No. K.2 – Mayor McNaboe announced there was nothing to report on this
item and direction was provided to staff.
Agenda Item No. K.3 – Mayor McNaboe announced there was nothing to report on this
item and direction was provided to staff.
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Minutes Grand Terrace City Council May 25, 2021
City of Grand Terrace Page 8
L. ADJOURN
Mayor Darcy McNaboe adjourned the Regular Meeting of the City Council at 7:35 p.m.
The Next Regular City Council Meeting will be held on Tuesday, June 8, 2021 at 6:00
p.m.
_________________________________
Darcy McNaboe, Mayor
_________________________________
Debra L. Thomas, City Clerk
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AGENDA REPORT
MEETING DATE: June 8, 2021 Council Item
TITLE: Approval of a Settlement Agreement & Release of All Claims
Entered into Between the City of Grand Terrace, CSG EV,
LLC, and Margaret L. Miller, and a Related Easement
Amendment
PRESENTED BY: Adrian Guerra, City Attorney
RECOMMENDATION: 1. Approve the Settlement Agreement & Release of All
Claims Entered into Between the City of Grand Terrace,
CSG EV, LLC, and Margaret L. Miller; and
2. Approve the Easement Amendment, which amends
access easements between the City and Margaret L. Miller
related to the Settlement Agreement; and
3. Authorize the Mayor to sign the above documents,
subject to City Attorney approval as to form.
2030 VISION STATEMENT:
This staff report supports Goal #4 "Develop and Implement Successful Partnerships" by
working with the community members to bring services to the City.
BACKGROUND:
The property underlying Grand Terrace City Hall property (“City Property”) is located
next to 22797 Barton Road, Grand Terrace, CA 92313 (“Miller Property”), which is
owned by Margaret Miller. In 1983, an easement (Document No. 83-300503) was
recorded over the City Property, which permitted the prior property owner of the Miller
Property access to the property currently owned by Ms. Miller (“Miller Access
Easement”). In turn, the prior owner of the Miller Property granted the City an easement
allowing access over the Miller Property (“City Access Easement”). As a result, the City
and prior owner of Miller Property now have a common driveway that both can use.
In 2019, the City contracted with CSG EV, LLC (“Carbon Solutions”) to build electric
vehicle charging stations, including related appurtenances, at City Hall. However, during
construction of the electric vehicle charging stations, Margaret Miller alleged that
Carbon Solutions’ subcontractor SigTel blocked her ability to access the Miller Property.
Further, it is alleged that Carbon Solutions improperly installed electric utility lines in
violation of the City Access Easement (the electric utility lines are now owned by
Southern California Edison). She makes these allegations in her letter dated March 3,
2020, which is attached to this report as Attachment 1.
C.3
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This item was presented to the City Council at its meeting of March 10, 2020, and the
City Council provided direction to staff and the City Attorney’s Office. Since then, the
City Manager and the City Attorney’s office have been in negotiations with Ms. Miller
and her attorney.
The proposed Settlement Agreement & Release of All Claims Entered into Between the
City of Grand Terrace, CSG EV, LLC, and Margaret L. Miller (“Settlement Agreement”)
is the result of those negotiations and is included with this report as Attachment 2.
DISCUSSION:
As stated above, Ms. Miller originally demanded as follows:
1. The City must pay Ms. Miller $5,000 to reimburse her for property damage and
related legal fees and costs.
2. The City agrees to amend both the City Access Easement and the Miller Access
Easement so that the City is responsible for maintenance, repairs, and
improvements; the City will indemnify Ms. Miller in relation to the performance of
any work by any contractor or subcontractor; the City must post “no parking”
signs over the easement areas, and enforce the parking signs (including against
City employees); and the City is to provide reasonable notice to Ms. Miller of any
possible interruption to her access over the easement areas.
In turn, Ms. Miller will grant Southern California Edison the necessary utility easements
so that their electric utility lines may remain on her property.
After negotiations, the City, Carbon Solutions (as the contractor), and Ms. Miller have
reached the following terms (as memorialized in the Settlement Agreement):
• The City and Miller agree to approve an amendment to the City Access
Easement and Miller Access Easement that requires the City maintain both
access easements; that the City indemnify Ms. Miller as provided in the
amendment; that the City will reasonably enforce and post signs stating that no
parking is permitted in the easement areas; and that Ms. Miller will execute a
utility easement in favor of Southern California Edison. This easement
amendment is included with this report as Attachment 3.
• Carbon Solutions has already paid $5,000 to Ms. Miller to reimburse her for
property damage and related legal fees and costs. Ms. Miller agrees that this
payment covers her costs as provided in Item 1 above. Documentation of this
payment is provided in Attachment 4.
• Ms. Miller will grant an easement to Southern California Edison (“SCE”) for the
location of electric utility lines. Note that the SCE easement does not require City
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Council approval but is part of the Settlement Agreement. This proposed SCE
easement is included with this report as Attachment 5.
• Ms. Miller expressly does not disclaim any potential claims under Civil Code
Section 1542, which states: “A general release does not extend to claims that the
creditor or releasing party does not know or suspect to exist in his or her favor at
the time of executing the release and that, if known by him or her, would have
materially affected his or her settlement with the debtor or released party.” As a
standard proposal, the City Attorney proposed that this section to be waived by
Ms. Miller, but she did not agree.
The City Council is therefore recommended to approve the Settlement Agreement, the
Easement Amendment, and authorize the Mayor to sign such documents subject to the
City Attorney approval as to form.
FISCAL IMPACT:
None
ATTACHMENTS:
• Attachment 1 - Miller Letter (PDF)
• Attachment 2 - Proposed Settlement Agreement (DOC)
• Attachment 3 - Exhibit A - Miller Requested Amendment (REV)(DOCX)
• Attachment 4 - Exhibit B (Documentation of Payments to Miller) to the Settlement
Agreement (PDF)
• Attachment 5 - Exhibit C (Edison Easement) to the Settlement Agreement (PDF)
APPROVALS:
Adrian Guerra Completed 06/04/2021 10:52 AM
Finance Completed 06/04/2021 12:46 PM
City Attorney Completed 06/04/2021 1:24 PM
City Manager Completed 06/04/2021 4:21 PM
City Council Pending 06/08/2021 6:00 PM
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C.3.a
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01247.0003/635424.15
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City of Grand Terrace CSG EV LLC Margaret Miller Initials
-1-
SETTLEMENT AGREEMENT & RELEASE OF ALL CLAIMS ENTERED INTO
BETWEEN THE CITY OF GRAND TERRACE, CSG EV, LLC, AND MARGARET L.
MILLER
This SETTLEMENT AGREEMENT & RELEASE OF ALL CLAIMS ENTERED INTO
BETWEEN THE CITY OF GRAND TERRACE, CSG EV, LLC, AND MARGARET L.
MILLER (“Agreement”) is entered into on ________________, 2021, by and between the City
of Grand Terrace, a municipal corporation (“City”), CSG EV, LLC, a Delaware limited liability
company (“CSG”), and Margaret L. Miller (“Miller”), (collectively “Parties”), to resolve fully
and finally all disputes between the Parties arising out of, or related to, all claims raised by
Miller against City and CSG in Miller’s letter dated March 3, 2020, (“March 3, 2020, Letter”).
The Effective Date of this Agreement shall be the date of the last Party signature.
RECITALS
WHEREAS, the City’s City Hall property is located at 22795 Barton Road, Grand
Terrace, CA 92313 (“City Property”); and
WHEREAS, Miller is the owner of the property located at 22797 Barton Road, Grand
Terrace, CA 92313 (“Miller Property”); and
WHEREAS, the Miller Property and City Property are adjacent to the other; and
WHEREAS, an easement (Document No. 83-300503) has been recorded over City
Property permitting Miller ingress into and egress out of the Miller Property over 11 feet of the
easterly line of the City Property (“Miller Access Easement”); and
WHEREAS, an easement (Document No. 83-300504) has been recorded over the Miller
Property permitting City ingress into and egress out of City Property over 10 feet of the westerly
line of the Miller Property (“City Access Easement”); and
WHEREAS, the City contracted with CSG to build certain improvements that include,
but is not limited to, electric vehicle charging stations and appurtenances (“CSG Agreement”);
and
WHEREAS, in the March 3, 2020, Letter, Miller alleges that the City has not adhered to
the Miller Access Easement by impeding Miller’s use of the Miller Access Easement and,
further, alleges that the City and CSG has improperly entered the City Access Easement in
violation of the terms and conditions of the City Access Easement for the purpose of
constructing electric vehicle charging stations and appurtenances pursuant to the CSG
Agreement, and, consequently, Miller claimed that she has suffered financial injury of $5,000.00
(“Claims”); and
WHEREAS, following discussions between City, CSG, and Miller, the Parties have
C.3.b
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agreed on terms in compromise of the issues raised in the Claims and the March 3, 2020, Letter;
and
WHEREAS, the Parties wish to memorialize their understanding regarding resolution of
the Claims and the March 3, 2020, Letter.
AGREEMENT
NOW, THEREFORE, for full and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, and based upon the foregoing recitals and the terms, conditions,
covenants, and agreements contained herein, the Parties agree as follows:
1. Settlement.
a. Settlement Amount.
i) Miller acknowledges and agrees that, on July 24, 2020, in
order to resolve the Claims pursuant to this Agreement,
CSG sent payment by way of a check to Miller in the
amount of FIVE THOUSAND DOLLARS AND ZERO
CENTS ($5,000.00) in relation to Miller’s financial
hardship under the Claims and such check was successfully
deposited by Miller on July 31, 2020 (“Settlement
Payment”). Therefore, Miller agrees that the Settlement
Payment is incorporated herein as part of the settlement and
resolution of the Claims.
ii) Documentation of CSG’s payment of the Settlement
Payment to Miller is attached hereto in Exhibit B of this
Agreement, and Miller agrees that Exhibit B of this
Agreement shall constitute sufficient evidence and
documentation that Miller has been paid the Settlement
Payment.
b. Utility Easement. No later than June 1, 2021, Miller shall execute and
record a utility easement over the Miller Property in favor of Southern California
Edison Company in the form as provided in Exhibit C of this Agreement, provided
by Southern California Edison Company.
c. Amendment to City Access Easement and Miller Access Easement.
City and Miller agree to execute and record amendments to the City Access Easement
and the Miller Access Easement as necessary to address concerns raised in the March
3, 2020 Letter relating to indemnification and parking, in the form as provided in
C.3.b
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City of Grand Terrace CSG EV LLC Margaret Miller Initials
-3-
Exhibit A (2) of this Agreement.
2. General Release. For valuable consideration, the receipt and adequacy of which
are hereby acknowledged, Miller does hereby release and forever discharge the City and CSG,
and each of their current and former elected and appointed public officials, officers, employees
and agents, and including, but not limited to, each of their associates, predecessors, successors,
heirs, assignees, agents, directors, officers, employees, representatives, elected or appointed
public officials, attorneys, and all persons acting by, through, under or in concert with them, or
any of them (“Releasees”), of and from any and all manner of action or actions, cause or causes
of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims,
demands, damages, loss, costs or expenses, of any nature whatsoever, known or unknown, fixed
or contingent (“Claims”), which Miller now has or may hereafter have against City or CSG, any
Claims constituting, arising out of, based upon, or relating solely to the Claims or the March 3,
2020, Letter.
3. Discovery of Different or Additional Facts. The Parties acknowledge that they
may hereafter discover facts different from or in addition to those that they now know or believe
to be true with respect to the claims, demands, causes of action, obligations, damages, and
liabilities of any nature whatsoever that are the subject of the Release set forth in Paragraph 4 of
this Agreement, and expressly agree to assume the risk of the possible discovery of additional or
different facts, and the Parties agree that this Agreement shall be and remain effective in all
respects regardless of such additional or different facts related to the Abatement.
4. Release of Unknown Claims. The Release set forth above in Paragraph 2 of this
Agreement is a release of all known claims, demands, causes of action, obligations, damages,
and liabilities of any nature whatsoever that are described in the Release and is intended to
encompass all known and unknown, foreseen and unforeseen claims that Miller may have arising
out of or relating to the Claims or March 3, 2020, Letter, and except for any claims that may
arise from the terms of this Agreement.
Note: Upon the advice of legal counsel, Miller expressly does not agree to waive and
relinquish any future discoverable rights.
5. No Other Pending Actions. Miller represents that she has not filed any
complaint(s), cross-complaint(s) and/or charge(s) against the City, CSG, or Releasees, arising
out of or relating to the Claims or the March 3, 2020, Letter, with any local, state or federal
agency or court; and that if any such agency or court assumes jurisdiction of any complaint or
charge against the City, CSG, Releasees, or their predecessors, successors, heirs, assigns,
employees, shareholders, officers, directors, agents, attorneys, subsidiaries, divisions or affiliated
corporations or organizations, whether previously or hereafter affiliated in any manner, on behalf
of Miller, whenever filed, that Miller will request such agency or court to withdraw and dismiss
the matter forthwith.
C.3.b
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City of Grand Terrace CSG EV LLC Margaret Miller Initials
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6. Non-Admission of Liability. The Parties acknowledge and agree that this
Agreement is a settlement of claims. Neither the fact that the Parties have settled nor the terms
of this Agreement shall be construed in any manner as an admission of any liability by any party
hereto, or any of its employees, or an affiliated person(s) or entity/ies, including the City’s or
CSG’s attorneys, all of whom have consistently taken the position that they have no liability
whatsoever.
7. No Assignment of Claims. The Parties warrant that they have made no
assignment, and will make no assignment, of any claim, cause of action, right of action or any
right of any kind whatsoever, embodied in any of the claims and allegations referred to herein,
and that no other person or entity of any kind had or has any interest in any of the demands,
obligations, actions, causes of action, debts, liabilities, rights, contracts, damages, attorneys' fees,
costs, expenses, losses or claims referred to herein.
8. Successors and Assigns. This Agreement, and all the terms and provisions
hereof, shall be binding upon and shall inure to the benefit of the Parties and their respective
heirs, legal representatives, successors and assigns.
9. Knowing and Voluntary. This Agreement is an important legal document and in
all respects has been voluntarily and knowingly executed by the Parties hereto. The Parties
specifically represent that, prior to signing this Agreement, they have been provided a reasonable
period of time within which to consider whether to accept this Agreement, including whether to
retain legal counsel to assist them in understanding all terms in the Agreement. The Parties
further represent that they have each carefully read and fully understand all of the provisions of
this Agreement, and that they are voluntarily, knowingly, and without coercion entering into this
Agreement based upon their own judgment, and upon advice of their legal counsel, if retained.
10. Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall be considered an original but all of which shall constitute one agreement.
11. Enforcement Costs. Should any legal action be required to enforce the terms of
this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and costs in
addition to any other relief to which that party may be entitled.
12. Injunctive Relief for Breach. The Parties acknowledge and agree that any
material violation of this Agreement is likely to result in immediate and irreparable harm for
which monetary damages are likely to be inadequate. Accordingly, the Parties consent to
injunctive and other appropriate equitable relief upon the institution of proceedings therefore by
any other party in order to protect the rights of the Parties under this Agreement. Such relief shall
be in addition to any other relief to which the Parties may be entitled at law or in equity.
13. Severability. Should any portion, word, clause, phrase, sentence or paragraph of
this Agreement be declared void or unenforceable, such portion shall be considered independent
C.3.b
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and severable from the remainder, the validity of which shall remain unaffected.
14. Waiver. Failure to insist on compliance with any term, covenant or condition
contained in this Agreement shall not be deemed a waiver of that term, covenant or condition,
nor shall any waiver or relinquishment of any right or power contained in this Agreement at any
one time or more times be deemed a waiver or relinquishment of any right or power at any other
time or times.
15. Governing Law; Venue. This Agreement is made and entered into in the State
of California, and shall in all respects be interpreted, enforced and governed under the laws of
said State without giving effect to conflicts of laws principles. Any action to enforcement,
invalidate, or interpret any provision of this Agreement shall be brought in San Bernardino
County Superior Court or the United States District Court for the Central District of California.
16. Entire Agreement. This Agreement constitutes the entire agreement between the
Parties who have executed it and supersedes any and all other agreements, understandings,
negotiations, or discussions, either oral or in writing, express or implied between the Parties to
this Agreement. The Parties to this Agreement each acknowledge that no representations,
inducements, promises, agreements, or warranties, oral or otherwise, have been made by them,
or anyone acting on their behalf, which are not embodied in this Agreement, that they have not
executed this Agreement in reliance on any such representation, inducement, promise, agreement
or warranty, and that no representation, inducement, promise, agreement or warranty not
contained in this Agreement, including, but not limited to, any purported supplements,
modifications, waivers, or terminations of this Agreement shall be valid or binding, unless
executed in writing by all of the Parties to this Agreement. The terms of this Agreement govern
the reading, interpretation, and construction of this Agreement only.
17. Mutual Drafting. The Parties agree that this Agreement is the product of mutual
negotiations between the Parties, such that any provision of this Agreement that may require
judicial interpretation shall not be construed more strictly against either Party.
18. Modifications. Any alteration, change, or modification of or to this Agreement
shall be made by written instrument executed by each party hereto in order to become effective.
19. Authority to Sign. The persons executing this Agreement on behalf 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 and to bind that party,
(iii) by so executing this Agreement, such party is formally bound to the provisions of this
Agreement, and (iv) the entering into this Agreement does not violate any provision of any other
agreement to which said party is bound.
[SIGNATURE PAGE FOLLOWS]
C.3.b
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IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement
and Release of All Claims, on the dates set forth below.
“MILLER”
Dated: ____________, 2021 Margaret L. Miller, an individual
By: ______________________________________
Margaret L. Miller
“CSG”
Dated: ____________, 2021 CSG EV, LLC, a Delaware limited liability
company
By: ______________________________________
Name:
Title:
“CITY”
Dated: ____________, 2021 CITY OF GRAND TERRACE, a municipal
corporation
__________________________________________
Darcy McNaboe, Mayor
ATTEST FOR CITY
__________________________________________
Debra Thomas, City Clerk
APPROVED AS TO FORM FOR CITY:
Dated: _____________, 2021 ALESHIRE & WYNDER, LLP
By: ______________________________________
Adrian R. Guerra, Esq.
City Attorney
C.3.b
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Exhibit A (2)
Amendment to City Access Easement and Miller Access Easement
C.3.b
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Exhibit B
Settlement Payment Documentation
C.3.b
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Exhibit C
Form of Utility Easement
C.3.b
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Exhibit A (2)
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Grand Terrace
22795 Barton Road
Grand Terrace, CA 92313
Attention: City Manager
Recorder’s Use Only
APNs: 0276-202-76-0-000 & 0276-202-82-000 Exempt from filing/recording fees per Govt. Code
§27383
FIRST AMENDMENT TO EASEMENT FOR INGRESS AND EGRESS
THIS FIRST AMENDMENT TO EASEMENT FOR INGRESS AND EGRESS (the
“Amendment”) is executed as of the day of ______, 2021 between the CITY OF GRAND
TERRACE, a municipal corporation (“City”) and MARGARET L. MILLER, a married woman
as her sole and separate property (“Miller”).
RECITALS
A. Whereas, the City is the owner of record of certain real property and the City Hall
located thereon at the property identified as APN 0276-202-82-0000 (“City Property”),
commonly known as 22795 Barton Road, Grand Terrace, CA 92313, and legally described as
follows:
ASSESSORS MAP NO 1 OF R W A GODREYS SUB COM AT
INTERSECTION SELY LI BARTON RD AND N LI PALM AVE TH E ALG
SD N LI PALM AVE 1256.42 FT TH N 00 DEG 02 MIN 00 SECONDS E
145.00 FT TO TRUE POB TH CONT N 00 DEG 02 MIN 00 SECONDS E
229.55 FT M/L TO SE COR PAR 2 PM 10439 TH S 89 DEG 26 MIN 30
SECONDS W ALG S LI SD PAR 2 218.59 FT M/L T SW COR SD PAR 2 TH N
OO DEG 02 MIN 00 SECONDS E 259.93 FT M/L TO SELY LI BARTON RD
(60 FT WIDE) TH SWLY ALG SD SELY LI 119.05 FT TH S 00 DEG 02 MIN
00 SECONDS W 316.67 FT TH N 89 DEG 27 MIN 10 SECONDS E 158.59 FT
TH S 00 DEG 02 MIN 00 SECONDS W 140.00 FT TH N 89 DEG 27 MIN 10
SECONDS E 79.29 FT TH N 00 DEG 02 MIN 00 SECONDS E 10.00 FT TH N
89 DEG 27 MIN 10 SECONDS E 79.29 FT TO TRUE POB
B. Whereas, Miller is the owner of record of certain real property and commercial
premises thereon identified as APN 0276-202-76-0-000 (“Miller Property”), commonly known
as 22797 Barton Road, Grand Terrace, CA 92313, and legally described as follows:
PARCEL 1 OF PARCEL MAP NO. 10439, IN THE CITY OF GRAND
TERRACE, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA,
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01247.0003/636378.9
AS PER PLAT RECORDED IN BOOK 123, PAGE(S) 1 AND 2 OF PARCEL
MAPS, RECORDS OF SAID COUNTY
C. Whereas, on December 21, 1983, a grant deed was recorded in the Official
Records of San Bernardino County as Instrument Number 83-300503 wherein the City granted
the Miller Property an easement for ingress and egress over the following portion of the City
Property (“Easement Over City Property”):
A strip of land 11 feet in width, the Easterly line thereof being described as
follows:
Commencing at the intersection of the South line of Barton Road (formerly
Redlands-Riverside Road), as established by Deed to the County of San
Bernardino recorded May 18, 1932 in Book 795, Page 89 of Official Records of
said County, with the West line of Preston Street (formerly Stevenson Street) as
said street was established by Deed to the County of San Bernardino recorded in
Book 270 of Deeds, Page 213, Records of said County; thence Southwesterly
415.82 feet, more or less, along the said South line of Barton Road to the
Northwest corner of that certain parcel of land conveyed to Leslie H. Henson et
ux by Deed recorded June 6, 1958 in Book 4525, Page 167, Official Records of
said County, thence South 0° 02' 00" West 259.93 feet; thence North 89" 26' 30"
East 118.59 feet, thence South 0° 02' 00" West 77 feet; thence South 89° 26 1 30"
West 218.59 feet to the True Point of Beginning, said point being the Southwest
corner of that certain parcel of land conveyed to Zampese and DeBenedet, a
partnership, by Deed recorded April 2, 1964 in Book 6120, Page 230, Official
Records of said County; thence North 0' 02' 00" East along the Westerly line of
the land so conveyed to Zampese & DeBenedet to the said South line of Barton
Road.
D. Whereas, on December 21, 1983, a grant deed was recorded in the Official
Records of San Bernardino County as Instrument Number 83-300504 wherein the owner of the
Miller Property granted to the City an easement for ingress and egress, which the City
reconstructed a road on such easement and has maintained such easement, over the following
portion of the Miller Property (“Easement Over Miller Property”):
A strip of land 10 feet in width, the westerly line thereof being described as
follows:
Commencing at the intersection of the South line of Barton Road (formerly
Redlands-Riverside Road), as established by Deed to the County of San
Bernardino recorded May 18, 1932 in Book 795, Page 89 of Official Records of
said County, with the West line of Preston Street (formerly Stevenson Street) as
said street was established by Deed to the County of San Bernardino recorded in
Book 270 of Deeds, Page 213, Records of said County, thence southwesterly
415.82 feet, more or less, along the said South line of Barton Road to the
Northwest corner of that certain parcel of land conveyed to Leslie H. Henson et
ux by Deed recorded June 6, 1958 in Book 4525, page 167, Official Records of
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01247.0003/636378.9
said County, thence South 0° 02' 00" West 259.93 feet, thence North 89° 26‘30"
East 118.59 feet, thence South 0° 02’ 00' West 77 feet, thence South 89"’ 26‘30"
West 218.59 feet to the True Point of Beginning, said point being the Southwest
corner of that certain parcel of land conveyed to Zampese and DeBenedet, a
partnership, by Deed recorded April 2, 1964 in Book 6120. Page 230, Official
Records of said County; thence North 0° 02’ 00" East along the Westerly line of
the land so conveyed to Zampese & De Benedetto the said South line of Barton
Road.
E. Whereas, City of Grand Terrace has requested that Miller execute a utility
easement in favor of Southern California Edison.
F. Whereas, City and Miller desire to amend the Easement Over Miller Property and
Easement Over City Property (collectively, the “Easements”).
NOW, THEREFORE, the City and Miller, for valuable consideration, the receipt of
which is hereby acknowledged, consent and agree to amend the Easements as follows:
1. Maintenance. City of Grand Terrace shall be responsible for all maintenance,
repairs and improvements on the Easements. City of Grand Terrace shall maintain the Easements
to the same maintenance and construction standards as the parking lot of the City of Grand
Terrace City Hall.
2. Indemnification.
2.1 To the full extent permitted by law, City agrees to indemnify, defend and
hold harmless Miller against, and will hold and save her harmless from, any and all actions,
either judicial, administrative, arbitration or regulatory claims, damages to persons or property,
losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or threatened
(for the purposes of Section 1, “Maintenance”) that may be asserted or claimed by any person,
firm or entity arising out of or in connection with the active or passive negligent performance of
any work, operations or activities occurring within the (“Easement Over Miller Property”) by
City, its officers, employees, agents, subcontractors, invitees, or any individual or entity for
which City is legally liable, or arising from City’s reckless or willful misconduct, or arising from
City’s negligent performance of or failure to perform any term, provision, covenant or condition
of this Amendment, except claims or liabilities occurring as a result of Miller’s sole negligence
or willful acts or omissions.
3. City shall reasonably post and enforce no parking on the Easements. Said no
parking restrictions shall reasonably apply with equal force to the public and City, including its
employees, agents, and independent contractors.
4. Miller shall concurrently execute a utility easement in favor of Southern
California Edison.
5. This Amendment shall be binding on the successors and assigns of the parties.
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01247.0003/636378.9
6. Except as specifically amended hereby, all terms and conditions of the Easements
shall remain in full force and effect. In the event of any conflict between the terms and
conditions of this Amendment and the terms and conditions of the Easements, the terms and
conditions of this Amendment shall control.
Date: ___________________
City of Grand Terrace, a California
corporation
____________________________________
____________________________________
Darcy McNaboe, Mayor Margaret Miller, a married woman as her sole
and separate property
ATTEST:
____________________________________
Debra Thomas, City Clerk
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01247.0003/636378.9
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
On __________, 2021 before me, ________________, personally appeared ________________, proved to me on
the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
C.3.c
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RECORDING REQUESTED BY
WHEN RECORDED MAIL TO
SOUTHERN CALIFORNIA EDISON COMPANY
2 INNOVATION WAY, 2nd FLOOR
POMONA, CA 91768
Attn: Title and Real Estate Services
Mail Tax Statements to: N/A
SCE Doc.No.
GRANT OF
EASEMENT
DOCUMENTARY TRANSFER TAX $ NONE
VALUE AND CONSIDERATION LESS THAN $100.00)
DISTRICT
Redlands
SERVICE ORDER
TD1583879
SERIAL NO.MAP SIZE
_____________________SCE Company
SIG. OF DECLARANT OR AGENT DETERMINING TAX FIRM NAME
FIM 195-2209-5
APN 0276-202-76
APPROVED:
VEGETATION &LAND MANAGEMENT/ LAW DEPARTMENT (M.A.R.)
BY
SLS/CG
DATE
04/16/2021
MARGARET L. MILLER, a married woman as her sole and separate property
hereby grants to SOUTHERN CALIFORNIA EDISON COMPANY, a corporation, its successors and assigns (hereinafter referred
uct,
inspect and remove at any time and from time to time underground electrical supply systems and communication systems
including above-ground enclosures, markers and concrete pads and other appurtenant fixtures and equipment necessary or useful
for distributing electrical energy and for transmitting intelligence, data and/or communications (eg. through fiber optic cable), in,
on, over, under, across and along that certain real property in the County of San Bernardino, State of California, described as
follows (Easement Area ):
THE EASTERLY 6.00 FEET OF THE WESTERLY 10.00 FEET OF THE SOUTHERLY 115.00 FEET TOGETHER
WITH THE WESTERLY 4.00 FEET OF THE NORTHERLY 9.00 FEET OF THE SOUTHERLY 115.00 FEET OF
PARCEL 1 OF PARCEL MAP NO. 10439, AS PER MAP FILED IN BOOK 123, PAGES 1 AND 2 OF PARCEL
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
The Grantee shall not locate any above-ground fixtures or equipment in, on, over, under, across and along the Easement
s
access over the Easement Area.
It is understood and agreed that the above description is approximate only, it being the intention of the Grantor(s) to grant
an easement for said systems as constructed. The centerline of the easement shall be coincidental with the centerline of said
systems as constructed in, on, over, under, across, and along the Grantor(s) property.
This legal description was prepared pursuant to Sec. 8730(c) of the Business & Professions Code.
Grantor further grants, bargains, sells and conveys unto the Grantee the right of assignment, in whole or in part, to others,
without limitation, and the right to apportion or divide in whatever manner Grantee deems desirable, any one or more, or all, of the
easements and rights, including but not limited to all rights of access and ingress and egress granted to the Grantee by this Grant of
Easement.
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2 DSE801907053
TD1583879
Grantor agrees for himself, his heirs and assigns, not to erect, place or maintain, nor to permit the erection, placement or
maintenance of any building, planter boxes, earth fill or other structures except walls and fences on the above described real
property. The Grantee, and its contractors, agents and employees, shall have the right to trim or cut tree roots as may endanger or
interfere with said systems and shall have free access to said systems and every part thereof, at all times, for the purpose of
exercising the rights herein granted; provided, however, that in making any excavation on said property of the Grantor, the Grantee
shall make the same in such a manner as will cause the least injury to the surface of the ground around such excavation, and shall
replace the earth so removed by it and restore the surface of the ground to as near the same condition as it was prior to such
excavation as is practicable.
EXECUTED this _____ day of _______________________, 20____.
GRANTOR
MARGARET L. MILLER, a married woman as her sole
and separate property
____________________________________
Margaret L. Miller
A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document
to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of )
On _______________________ before me, , a Notary Public, personally appeared
, who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _______________________________(Seal)
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AGENDA REPORT
MEETING DATE: June 8, 2021 Council Item
TITLE: April 1, 2021 Planning Commission Meeting Minutes and
April 8, 2021 Parks & Recreation Advisory Committee
Meeting Minutes
PRESENTED BY: Debra Thomas, City Clerk
RECOMMENDATION: Receive and file.
2030 VISION STATEMENT:
This staff report supports Goal #5, Engage in Proactive Communication.
BACKGROUND:
Beginning with the November 14, 2017 City Council meeting, the City Clerk was
directed by the City Manager to provide Council with a copy of the Planning
Commission, Historical & Cultural Activities Committee and Volunteer Emergency
Operations Committee minutes to keep Council up-to-date on those
Commission/Committee activities and on January 16, 2018, the City Manager requested
that the Parks & Recreation Advisory minutes be included in the
Committee/Commission Report.
DISCUSSION:
On May 10, 2021, the Planning Commission held a Special Meeting and approved its
April 1, 2021 Regular Meeting minutes. The minutes for this meeting are included as an
attachment to this report. The Planning Commission’s next Regular Meeting is
scheduled for June 3, 2021.
On May 13, 2021, the Parks & Recreation Advisory Committee held its Regular Meeting
and approved its April 8, 2021 Regular Meeting minutes. The minutes for this meeting
are included as an attachment to this report. The Parks & Recreation Advisory
Committee’s next Regular Meeting is scheduled for June 10, 2021.
Historical & Cultural Advisory Committee – Nothing to Report.
FISCAL IMPACT:
None.
ATTACHMENTS:
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• 04-01-2021 - PC Minutes (PDF)
• 04-08-2021 P&R Minutes (PDF)
APPROVALS:
Debra Thomas Completed 06/02/2021 4:19 PM
City Attorney Completed 06/03/2021 12:00 PM
Finance Completed 06/04/2021 12:42 PM
City Manager Completed 06/04/2021 1:08 PM
City Council Pending 06/08/2021 6:00 PM
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AGENDA REPORT
MEETING DATE: June 8, 2021 Council Item
TITLE: Award and Approve the Purchase and Installation of a
Ductless Split Air Conditioner Which Replaces the Current
Inoperable System for the City Hall Computer Server Room
to Honeywell in the Amount of $5,697.53
PRESENTED BY: Steven Weiss, Planning & Development Services Director
RECOMMENDATION: 1. Award the purchase and installation of a ductless split air
conditioner which replaces the current inoperable system for
the City Hall Computer Server Room to Honeywell in the
amount of $5,697.53
2. Approve the quotation prepared by Honeywell
(Attachment 1) and authorize the City Manager to
prepare/execute the quotation, City purchase order, and
other documents (as necessary) subject to City Attorney
approval as to form, in order to carry out the work
2030 VISION STATEMENT:
This staff report supports Goal #2 "Maintain Public Safety" by investing in critical
improvements to infrastructure.
Discussion:
The City’s computer server room located in City Hall is a vital area with an independent
cooling system. The cooling system is a ductless, separate system that must run
continuously as the computer servers require a colder environment with a highly
dependable separate air conditioner. Replacing the system is the only option. As a
short-term emergency measure, a portable air conditioner is currently servicing the
computer server room. Staff solicited quotes from three air conditioning and heating
companies to replace or fix the inoperable ductless air conditioner as illustrated below.
Proposer Location Amount
Honeywell La Palma $5,697.53
Loma Linda Heat & Air Rancho Cucamonga $6,206.01
ACCO Glendale
No Quote
Submitted
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Staff is recommending the City Council follow the adopted procedures for this purchase
per GTMC 3.24.070 and 3.26.030. Since the City of Grand Terrace already purchased
the City’s main system from Honeywell with CARES Act funding in an amount more
than $10,000 during this fiscal year, this item is being presented to the City Council in
the interest of transparency because the recommendation is to purchase with the same
company, Honeywell, during the same fiscal year (FY 2020-21)
CITY PURCHASING REQUIREMENTS:
GTMC 3.24.070(A) provides that purchases under $10,000.0 shall, whenever possible,
be based on at least three informal quotations and shall be awarded to the vendor
submitting the lowest responsible quotation; solicit quotations from prospective vendors
by written request, electronic mail or by telephone; and require written quotations to be
submitted to the using department, which shall keep a record of all open-market orders
and quotes for a period of one year after the submission of quotes. Further, GTMC
3.26.030(B)(1) provides in relevant part that “Public projects or maintenance work of
$60,000.00 or less may be performed by negotiated contract, or by purchase order.
Except for performance by employees, by force account, at least three quotes shall be
sought when it is in the best interest of the City …”
Based upon the forgoing and as stated above, City staff sought 3 quotations to carry out
this work and was only able to obtain 2 quotations to replace the inoperable system.
Based upon review of the 2 quotations, Honeywell’s quote is the lowest responsible
quote.
Accordingly, Staff recommends that the City Council (1) Award the purchase and
installation of a ductless split air conditioner which replaces the current inoperable
system to Honeywell for a maximum total cost of $5,697.53; and (2) Approve the
quotation prepared by Honeywell (Attachment 1) and authorize the City Manager to
prepare/execute the quotation, City purchase order, and other documents (as
necessary) subject to City Attorney approval as to form, in order to carry out the work.
FISCAL IMPACT:
There are sufficient funds in the approved FY 2020-21 Maintenance Fund to cover this
expenditure.
ATTACHMENTS:
• Honeywell - Grand Terrace Ductless Split (PDF)
• Loma Linda Heat and Air Conditioning (PDF)
APPROVALS:
Steven Weiss Completed 06/03/2021 8:25 PM
City Attorney Completed 06/04/2021 10:36 AM
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Finance Completed 06/04/2021 3:58 PM
City Manager Completed 06/04/2021 4:29 PM
City Council Pending 06/08/2021 6:00 PM
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Honeywell Field Firm Quotation QS#
Customer:Date:
Address:Phone:
Job Location:Fax:
Attention:Service Rep Name:
Email: Service Rep Signature:
Service Rep Fax:
Work to be Performed:
2,816.00$
-$
2,836.53$
45.00$
Date:
Customer Approval (All quotations must be approved and authorized by customer, in advance, before work can be started)
Company Name:
Billing Address:
By:X
(Authorized Name) PRINT (Signature)
Tel. No.Date:
P.O. No.OR
Credit Card type Name on Credit Card
Credit Card number Expiration on Credit Card
For immediate repair, sign authorization and return copy to Service Rep, for delayed authorization fax signed copy to:
Instructions:
(714) 242-6865
May 20, 2021
Honeywell reserves the right to progress bill.
No additional clarification and exclusions.
Work to be done during normal business hours.
All for the sum of:5,697.53$
Sales/Use tax have NOT been included and will be billed separately.
TERMS AND CONDITIONS OF SALE: Honeywell will perform the work quoted above in accordance with its Standard Terms and Conditions, incorporated by reference
and available upon request. Terms of payment: 10 days from receipt of invoice. All projects with duration longer than 30 days will be invoiced monthly based on
progress of the work. This pricing is conditioned on the work being governed exclusively by terms and conditions listed within; any additional and/or different terms may
require additional cost to the quote or Honeywell’s withdrawal of our offer to perform this work.
Applicable Taxes Extra
City Hall (Ductless Split Replacement)-
062021DR05
City of Grand Terrace May 20, 2021
0 -
Subcontract & Misc.:
Additional clarifications / exclusions
Steven Weiss Dave Ryan
Steven Weiss <sweiss@grandterrace-ca.gov>
(714) 242-6865
Recover existing refrigerant charge as per AQMD Guidelines. Remove existing condenser and indoor fan cassett,
leaving lineset. Provide and install new high efficiancy SEER 17 matching volume condenser and indoor cassett
type indoor unit. We will charge, start and check operation. We will adjust refrigerant charge for optimum
performance. This replacement is much more cost effective to operate and maintain due to the simple design of
this system. In the event of future problems, this unit it is much faster to troubleshoot and less costly to repair.
This new unit will save energy due to the fact that there is a dedicated system for the computer room. The City
will be able to shut down the larger HVAC unit that serves serves both the server room and office area at night.
Vehicle:
Materials:
Labor:
All price quotations valid for 30 days
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6.2 THE WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE, AND Honeywell EXPRESSLY DISCLAIMS AND Customer EXPRESSLY WAIVES ALL OTHER WARRANTIES, WHETHER WRITTEN OR ORAL,
IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF WORKMANSHIP, CONSTRUCTION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO
THE SERVICES, EQUIPMENT, AND MATERIALS PROVIDED HEREUNDER. Honeywell SHALL NOT BE LIABLE FOR ANY PROPERTY DAMAGE, PERSONAL INJURY, LOSS OF INCOME, EMOTIONAL DISTRESS,
DEATH, LOSS OF USE, LOSS OF VALUE, ADVERSE HEALTH EFFECT OR ANY SPECIAL, INCIDENTAL, INDIRECT, SPECULATIVE, REMOTE, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, ARISING
FROM, OR RELATING TO, THIS LIMITED WARRANTY OR ITS BREACH.
6.3 Honeywell makes no representation or warranty, express, implied or otherwise, regarding Hazardous Substances or Mold. Honeywell shall have no duty, obligation or liability, all of which Customer expressly waives, for any damage or claim,
whether known or unknown, including but not limited to property damage, personal injury, loss of income, emotional distress, death, loss of use, loss of value, adverse health effect or any special, consequential, punitive, exemplary or other damages,
regardless of whether such damages may be caused by or otherwise associated with defects in the Services, in whole or in part due to or arising from any investigation, testing, analysis, monitoring, cleaning, removal, disposal, abatement, remediation,
decontamination, repair, replacement, relocation, loss of use of building, or equipment and systems, or personal injury, death or disease in any way associated with Hazardous Substances or Mold.
7. INDEMNITY
Honeywell agrees to indemnify and hold Customer and its agents and employees harmless from all claims for bodily injury and property damages to the extent such claims result from or arise under Honeywell’s negligent actions or willful misconduct in
its performance of the Work required under this Agreement, provided that such indemnity obligation is valid only to the extent (i) Customer gives Honeywell immediate notice in writing of any such claims and permits Honeywell, through counsel of its
choice and Honeywell’s sole cost and expense, to answer the claims and defend any related suit and (ii) Customer gives Honeywell all needed information, assistance and authority, at Honeywell’s expense, to enable Honeywell to defend such suit.
Honeywell shall not be responsible for any settlement without its written consent. Honeywell shall not be liable for loss or damage caused by the negligence of Customer or any other party or such party’s employees or agents. This obligation shall survive
termination of this Agreement. Notwithstanding the foregoing, Customer agrees that Honeywell will not be responsible for any damages caused by Mold or any other fungus or biological material or agent, including but not limited to property damage,
personal injury, loss of income, emotional distress, death, loss of use, loss of value, adverse health effect or any special, consequential, punitive, exemplary or other damages, regardless of whether such damages may be caused by or otherwise associated
with defects in the Services.
5.3 If any such materials, situations or conditions, whether disclosed or not, are in fact discovered by Honeywell or others and provide an unsafe condition for the performance of the work or Services, the discovery of the condition shall constitute a
cause beyond Honeywell’s reasonable control and Honeywell shall have the right to cease the work or Services until the area has been made safe by Customer or Customer’s representative, at Customer’s expense. Honeywell shall have the right to
terminate this Agreement if Customer has not fully remediated the unsafe condition within sixty (60) days of discovery.
5.4 Customer represents that Customer has not retained Honeywell to discover, inspect, investigate, identify, prevent or remediate Hazardous Substances or Mold or conditions caused by Hazardous Substances or Mold.
5.5 TO THE FULLEST EXTENT ALLOWED BY LAW, Customer SHALL INDEMNIFY AND HOLD Honeywell HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS AND COSTS OF WHATEVER NATURE,
INCLUDING BUT NOT LIMITED TO, CONSULTANTS’ AND ATTORNEYS’ FEES, DAMAGES FOR BODILY INJURY AND PROPERTY DAMAGE, FINES, PENALTIES, CLEANUP COSTS AND COSTS ASSOCIATED
WITH DELAY OR WORK STOPPAGE, THAT IN ANY WAY RESULTS FROM OR ARISES UNDER THE BREACH OF THE REPRESENTATIONS AND WARRANTIES IN THIS SECTION, THE EXISTENCE OF MOLD OR
A HAZARDOUS SUBSTANCE AT A SITE, OR THE OCCURRENCE OR EXISTENCE OF THE SITUATIONS OR CONDITIONS DESCRIBED IN THIS SECTION, WHETHER OR NOT Customer PROVIDES Honeywell
ADVANCE NOTICE OF THE EXISTENCE OR OCCURRENCE AND REGARDLESS OF WHEN THE HAZARDOUS SUBSTANCE OR OCCURRENCE IS DISCOVERED OR OCCURS. THIS INDEMNIFICATION SHALL
SURVIVE TERMINATION OF THIS AGREEMENT FOR WHATEVER REASON.
6. WARRANTY AND LIMITATION OF LIABILITY
6.1 Honeywell will replace or repair any product Honeywell provides under this Agreement that fails within the warranty period (one) 1 year because of defective workmanship or materials, except to the extent the failure results from Customer
negligence, or from fire, lightning, water damage, or any other cause beyond the control of Honeywell. This warranty applies to all products Honeywell provides under this Agreement, whether or not manufactured by Honeywell. The warranty is
effective as of the date of Customer acceptance of the product or the date Customer begins beneficial use of the product, whichever occurs first.
Honeywell will not issue coverage on a per project basis.
4.2 Prior to the commencement of the Contract, Honeywell will furnish evidence of said insurance coverage in the form of a Memorandum of Insurance which is accessible at: http://honeywell.com/sites/moi/ . All insurance required in this
Article will be written by companies with a rating of no less than “A-, XII” by A.M. Best or equivalent rating agency. Honeywell will endeavor to provide a thirty (30) day notice of cancellation or non-renewal to the Customer. In the event that a
self-insured program is implemented, Honeywell will provide adequate proof of financial responsibility.
5. HAZARDOUS SUBSTANCES, MOLD AND UNSAFE WORKING CONDITIONS
5.1 Customer has not observed or received notice from any source (formal or informal) of (a) Hazardous Substances or Mold, either airborne or on or within the walls, floors, ceilings, heating, ventilation and air conditioning systems, plumbing
systems, structure, and other components of the Site, or within furniture, fixtures, equipment, containers or pipelines in a Site; or (b) conditions that, to Customer’s knowledge, might cause or promote accumulation, concentration, growth or
dispersion of Hazardous Substances or Mold on or within such locations.
5.2 Honeywell is not responsible for determining whether the Covered Equipment or the temperature, humidity and ventilation settings used by Customer, are appropriate for Customer and the Site except as specifically provided in an attached
Work Scope Document.
4.1 Honeywell shall, at its own expense, carry and maintain in force at all times from the effective date of the Contract through final completion of the work the following insurance. It is agreed, however, that Honeywell has the right to insure or self-
insure any of the insurance coverages listed below:
(a) Commercial General Liability Insurance to include contractual liability, products/completed operations liability with a combined single limit of USD $2,000,000 per occurrence. Such policy will be written on an occurrence form basis;
(b) If automobiles are used in the execution of the Contract, Automobile Liability Insurance with a minimum combined single limit of USD $2,000,000 per occurrence. Coverage will include all owned, leased, non-owned and hired vehicles.
(c) Where applicable, “All Risk” Property Insurance, including Builder’s Risk insurance, for physical damage to property which is assumed in the Contract.
(d) Workers’ Compensation Insurance Coverage A - Statutory limits and Coverage B-Employer’s Liability Insurance with limits of USD $1,000,000 for bodily injury each accident or disease.
2.2 Tax-Related Cooperation. CUSTOMER agrees to execute any documents and to provide additional reasonable cooperation to HONEYWELL related to HONEYWELL tax filings under Internal Revenue Code Section 179D. HONEYWELL will be
designated the sole Section 179D beneficiary.
3. PROPRIETARY INFORMATION
3.1 All proprietary information (as defined herein) obtained by Customer from Honeywell in connection with this Agreement shall remain the property of Honeywell, and Customer shall not divulge such information to any third party without prior written
consent of Honeywell. As used herein, the term "proprietary information" shall mean written information (or oral information reduced to writing), or information in machine-readable form, including but not limited to software supplied to Customer
hereunder which Honeywell deems proprietary or confidential and characterizes as proprietary at the time of disclosure to Customer by marking or labeling the same "Proprietary, “Confidential”, or “Sensitive”. The Customer shall incur no obligations
hereunder with respect to proprietary information which: (a) was in the Customer’s possession or was known to the Customer prior to its receipt from Honeywell; (b) is independently developed by the Customer without the utilization of such confidential
information of Honeywell; (c) is or becomes public knowledge through no fault of the Customer; (d) is or becomes available to the Customer from a source other than Honeywell; (e) is or becomes available on an unrestricted basis to a third party from
Honeywell or from someone acting under its control; (f) is received by Customer after notification to Honeywell that the Customer will not accept any further information.
3.2 Customer agrees that Honeywell may use nonproprietary information pertaining to the Agreement, and the work performed under the Agreement, for press releases, case studies, data analysis, promotional purposes, and other similar documents or
statements to be publicly released, as long as Honeywell submits any such document or statement to Customer for its approval, which shall not be unreasonably withheld.
4. INSURANCE OBLIGATIONS
General Terms and Conditions
1. WORKING HOURS
Unless otherwise stated, all labor and services under this Agreement will be performed during the hours of 8:00 a.m. - 4:30 p.m. local time Monday through Friday, excluding federal holidays. If for any reason Customer requests Honeywell to furnish any
such labor or services outside of the hours of 8:00 a.m. - 4:30 p.m. local time Monday through Friday (or on federal holidays), any overtime or other additional expense occasioned thereby, such as repairs or material costs not included in this Agreement,
shall be billed to and paid by Customer.
2. TAXES
2.1 Customer agrees to pay the amount of any new or increased taxes or governmental charges upon labor or the production, shipment, sale, installation, or use of equipment or software which become effective after the date of this Agreement. If Customer
claims any such taxes do not apply to transactions covered by this Agreement, Customer shall provide Honeywell with a tax exemption certificate acceptable to the applicable taxing authorities.
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Delivery of equipment not agreed on the face hereof to be installed by or with the assistance of Honeywell shall be F.O.B. at Honeywell’s factory, warehouse, or office selected by Honeywell. Delivery of equipment agreed on the face hereof to be
installed by or with the assistance of Honeywell shall be C.I.F. at site of installation.
18. DAMAGE OR LOSS
Honeywell shall not be liable for damage to or loss of equipment and software after delivery to destination determined by this Agreement or any applicable prime contract. If thereafter, and prior to payment in full to Honeywell by Customer, any
such equipment or software is damaged or destroyed by any cause whatsoever, other than by the fault of Honeywell, the Customer agrees promptly to pay or reimburse Honeywell for such loss.
Suspension of work - If Honeywell, having performed work per Agreement requirements, does not receive payment within thirty (30) days after submission of a Honeywell invoice, Honeywell may suspend work until Customer provides remedy.
16. WORK BY OTHERS
16.1 Unless otherwise indicated, the following items are to be furnished and installed by others: electric wiring and accessories, all in-line devices (including but not limited to flow tubes, hand valves, orifice plates, orifice flanges, etc.), pipe and
pipe penetrations including flanges for mounting pressure and level transmitters, temperature sensors, vacuum breakers, gauge glasses, water columns, equipment foundations, riggings, steam tracings, and all other items and work of like nature.
Automatic valve bodies and dampers furnished by Honeywell are to be installed by others.
16.2 Services Honeywell will provide under this Agreement specifically exclude professional services which constitute the practice of architecture or engineering unless specifically set forth in the Scope of Work. Customer or Owner will specify
all performance and design criteria that Honeywell will follow in performing Work under this Agreement. If professional design services or certifications by a design professional related to systems, materials, or equipment is required, such services
and certifications are the responsibility of others. To the fullest extent permitted by law, Customer shall indemnify and hold harmless Honeywell and its agents and employees from and against any and all claims, damages, losses and expenses,
including but not limited to attorneys’ fees, that in any way result from or arise under breach of the representations in this Section 16. This indemnification shall survive termination of this Agreement for whatever reason. Nothing in this Section 16
shall be construed to require that Customer indemnify and hold harmless Honeywell from claims and costs resulting from Honeywell’s negligent actions or willful misconduct.
17. DELIVERY
14.5 Customer may not assign its rights or delegate its obligations under this Agreement, in whole or in part, without the prior written consent of Honeywell. Honeywell may assign its right to receive payment to a third party.
15. TERMS OF PAYMENT
Subject to Honeywell’s approval of Customer’s credit, payment terms are as follows:
Progress Payments - Honeywell will invoice at least monthly for all materials delivered to the job site or to an off-site storage facility and for all installation, labor, and services performed, both on and off the job site. Customer agrees to pay the
full amounts invoiced, less retainage, upon receipt of the invoice at the address specified by the Customer. Invoices not paid within thirty (30) days of the invoice date are past due and accrue interest from the invoice date to the date of payment at
the rate of one percent (1%) per month, compounded monthly, or the highest legal rate then allowed.
Retainage - Customer shall not withhold, as retainage, a greater percentage than is withheld from Customer under a prime contract, if applicable. Customer shall pay all retainage to Honeywell within 30 days after Honeywell's work is substantially
complete.
14. Miscellaneous
14.1 This Agreement represents the entire Agreement between Customer and Honeywell for the Work described herein and supersedes all prior negotiations, representations or Agreements between the Parties related to the work described herein.
14.2 None of the provisions of this Agreement shall be modified, altered, changed or voided by any subsequent Purchase Order or other document unilaterally issued by Customer that relates to the subject matter of this Agreement. This Agreement
may be amended only by written instrument signed by both Parties.
14.3 This Agreement shall be governed by the law of the State where the work is to be performed.
14.4 Any provision or part of this Agreement held to be void or unenforceable under any laws or regulations shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon Honeywell and Customer, who agree
that this Agreement shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision.
All software provided in connection with this Agreement shall be licensed and not sold. The end user of the software will be required to sign a license agreement with provisions limiting use of the software to the equipment provided under these
specifications, limiting copying, preserving confidentiality, and prohibiting transfer to a third party. Licenses of this type are standard for computer-based equipment of the type covered by this Agreement. Customer shall be expected to grant
Honeywell access to the end user for purposes of obtaining the necessary software license.
12. DISPUTE RESOLUTION
With the exception of any controversy or claim arising out of or related to the installation, monitoring, and/or maintenance of fire and/or security systems, the Parties agree that any controversy or claim between Honeywell and Customer arising out
of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in a neutral venue, conducted in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. Any award rendered by the
arbitrator shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. Any controversy or claim arising out of or related to the installation, monitoring, and/or maintenance of
systems associated with security and/or the detection of, and/or reduction of risk of loss associated with fire shall be resolved in a court of competent jurisdiction.
13. ACCEPTANCE OF THE CONTRACT
This proposal and the pages attached shall become an Agreement upon signature above by Honeywell and Customer. The terms and conditions are expressly limited to the provisions hereof, including Honeywell’s General Terms and Conditions
attached hereto, notwithstanding receipt of, or acknowledgment by, Honeywell of any purchase order, specification, or other document issued by Customer. Any additional or different terms set forth or referenced in Customer’s purchase order are
hereby objected to by Honeywell and shall be deemed a material alteration of these terms and shall not be a part of any resulting order.
10.1 Honeywell shall, at its expense, defend or, at its option, settle any suit that may be instituted against Customer for alleged infringement of any United States patents related to the hardware or software manufactured and provided by Honeywell
under this Agreement (“the equipment”), provided that a) such alleged infringement consists only in the use of such equipment by itself and not as part of, or in combination with, any other devices, parts or software not provided by Honeywell
hereunder, b) Customer gives Honeywell immediate notice in writing of any such suit and permits Honeywell, through counsel of its choice, to answer the charge of infringement and defend such suit, and c) Customer gives Honeywell all needed
information, assistance and authority, at Honeywell’s expense, to enable Honeywell to defend such suit.
10.2 If such a suit has occurred, or in Honeywell’s opinion is likely to occur, Honeywell may, at its election and expense: a) obtain for Customer the right to continue using such equipment; b) replace, correct or modify it so that it is not infringing;
or if neither a) or b) is feasible, then c) remove such equipment and grant Customer a credit therefore, as depreciated.
10.3 In the case of a final award of damages in any such suit, Honeywell will pay such award. Honeywell shall not, however, be responsible for any settlement made without its written consent.
10.4 THIS ARTICLE STATES Honeywell’s TOTAL LIABILITY AND Customer’s SOLE REMEDY FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT BY THE HARDWARE MANUFACTURED
AND PROVIDED BY Honeywell HEREUNDER.
11. SOFTWARE LICENSE
8.1 IN NO EVENT SHALL Honeywell BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, SPECULATIVE, REMOTE, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER ARISING
OUT OF OR AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, MOLD, MOISTURE, INDOOR AIR QUALITY, OR OTHERWISE, ARISING
FROM, RELATING TO, OR CONNECTED WITH THE SERVICES, EQUIPMENT, MATERIALS, OR ANY GOODS PROVIDED HEREUNDER.
8.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IF A PORTION OF THE SERVICES INVOLVES THE INSTALLATION AND/OR MAINTENANCE OF SYSTEMS ASSOCIATED WITH
SECURITY AND/OR THE DETECTION OF AND/OR REDUCTION OF RISK OF LOSS ASSOCIATED WITH FIRE, Honeywell’s TOTAL LIABILITY ARISING OUT OF OR AS A RESULT OF ITS PERFORMANCE
UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF THIS AGREEMENT.
9. EXCUSABLE DELAYS
Honeywell shall not be liable for damages caused by delay or interruption in Services due to fire, flood, corrosive substances in the air, strike, lockout, dispute with workmen, inability to obtain material or services, commotion, war, acts of God, the
presence of Hazardous Substances or Mold, or any other cause beyond Honeywell’s reasonable control. Should any part of the system or any Equipment be damaged by fire, water, lightning, acts of God, the presence of Hazardous Substances or
Mold, third parties, or any other cause beyond the control of Honeywell, any repairs or replacement shall be paid for by Customer. In the event of any such delay, date of shipment or performance shall be extended by a period equal to the time lost
by reason of such delay, and Honeywell shall be entitled to recover from Customer its reasonable costs, overhead, and profit arising from such delay.
10. Patent Indemnity
8. LIMITATION OF LIABILITY
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22.3 “Covered Equipment” means the equipment covered by the Services to be performed by Honeywell under this Agreement, and is limited to the equipment included in the respective work scope attachments.
21. ACCEPTANCE OF THE WORK
Upon receipt of notice by Honeywell that the Work is ready for final inspection and acceptance, Customer will make such final inspection and issue acceptance within three (3) business days. Acceptance will be in a form provided by Honeywell,
stating that to the best of Customer’s knowledge, information and belief, and on the basis of Customer’s on-site visits and inspections, the Work has been fully completed in accordance with the terms and conditions of this Agreement. If Customer
finds the Work unacceptable due to non-compliance with a material element of this Agreement, which non-compliance is due solely to the fault of Honeywell, Customer will notify Honeywell in writing within the three (3) business days setting
forth the specific reasons for non-acceptance. Customer agrees that failure to inspect and/or failure to issue proper notice of non-acceptance within three (3) business days shall constitute final acceptance of the Work under this Agreement.
Customer further agrees that partial or beneficial use of the Work by Customer or Owner prior to final inspection and acceptance will constitute acceptance of the Work under this Agreement. To the fullest extent permitted by law, Customer shall
indemnify and hold harmless Honeywell and its agents and employees from and against any and all claims, damages, losses and expenses, including but not limited to attorneys’ fees, that in any way result from or arise under breach of the
representations in this Section 21. This indemnification shall survive termination of this Agreement for whatever reason. Nothing in this Section 21 shall be construed to require that Customer indemnify and hold harmless Honeywell from claims
and costs resulting from Honeywell’s negligent actions or willful misconduct.
22. DEFINITIONS
22.1 “Hazardous substance” includes all of the following, and any by-product of or from any of the following, whether naturally occurring or manufactured, in quantities, conditions or concentrations that have, are alleged to have, or are believed to
have an adverse effect on human health, habitability of a Site, or the environment: (a) any dangerous, hazardous or toxic pollutant, contaminant, chemical, material or substance defined as hazardous or toxic or as a pollutant or contaminant under
state or federal law, and (b) any petroleum product, nuclear fuel or material, carcinogen, asbestos, urea formaldehyde, foamed-in-place insulation, polychlorinated biphenyl (PCBs), and (c) any other chemical or biological material or organism, that
has, is alleged to have, or is believed to have an adverse effect on human health, habitability of a Site, or the environment.
22.2 “Mold” means any type or form of fungus or biological material or agent, including mold, mildew, moisture, yeast and mushrooms, and any mycotoxins, spores, scents, or by-products produced or released by any of the foregoing. This
includes any related or any such conditions caused by third parties.
19.2 By Honeywell. Honeywell may terminate this Agreement for cause (including, but not limited to, Customer’s failure to make payments as agreed herein) after giving Customer written notice of its intent to terminate. If, within seven (7) days
following receipt of such notice, Customer fails to make the payments then due, or otherwise fails to cure or perform its obligations, Honeywell may, by written notice to Customer, terminate this Agreement and recover from Customer payment for
Work executed and for losses sustained for materials, tools, construction equipment and machinery, including but not limited to, reasonable overhead, profit and applicable damages.
20. Changes in the Work
20.1 A Change Order is a written order signed by Customer and Honeywell authorizing a change in the Work or adjustment in the price or a change to the schedule.
20.2 Customer may request Honeywell to submit proposals for changes in the Work, subject to acceptance by Honeywell. If Customer chooses to proceed, such changes in the Work will be authorized by a Change Order. Unless otherwise
specifically agreed to in writing by both parties, if Honeywell submits a proposal pursuant to such request but Customer chooses not to proceed, Customer shall issue a Change Order to reimburse Honeywell for any and all costs incurred in
preparing the proposal.
20.3 Honeywell may make a written request to Customer to modify this Agreement based on the receipt of, or the discovery of, information that that Honeywell believes will cause a change to the scope, price, schedule, level of performance, or
other facet of the Agreement. Honeywell will submit its request to Customer within a reasonable time after receipt of, or the discovery of, information that Honeywell believes will cause a change to the scope, price, schedule, level of performance,
or other facet of the Agreement. This request shall be submitted by Honeywell before proceeding to execute the Work, except in an emergency endangering life or property, in which case Honeywell shall have the authority to act, in its discretion,
to prevent threatened damage, injury or loss. Honeywell’s request will include information necessary to substantiate the effect of the change and any impacts to the Work, including any change in schedule or contract price. If Honeywell’s request is
acceptable to Customer, Customer will issue a Change Order consistent therewith. If Customer and Honeywell cannot agree on the amount of the adjustment in the Price, or the Schedule, it shall be determined pursuant to the Dispute Resolution
article of this Agreement. Any change in the Price or the Schedule resulting from such claim shall be authorized by Change Order.
19. TERMINATION
19.1 By Customer. Customer may terminate this Agreement for cause if Honeywell defaults in the performance of any material term of this Agreement, or fails or neglects to carry forward the Work in accordance with this Agreement, after giving
Honeywell written notice of its intent to terminate. If Honeywell has not, within seven (7) business days after receipt of such notice, acted to remedy and make good such deficiencies, Customer may terminate this Agreement and take possession of
the site together with all materials thereon, and move to complete the Work itself expediently. Upon request of Honeywell, Customer will furnish to Honeywell a detailed accounting of the costs incurred by Customer in finishing the Work. If the
unpaid balance of the contract price exceeds the expense of finishing the Work, the excess shall be paid to Honeywell, but if the expense exceeds the unpaid balance, Honeywell shall pay the difference to Customer.
C.5.a
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PROPOSALDate 4/29/2021
Proposal Submitted to:
CITY OF GRAND TERRACE
22795 Barton Rd
Grand Terrace, CA 92313
Site Installation:
Loma Linda Heat and Air Conditioning Inc.
Sales Rep
Miles
Phone(909) 792-1882
Fax (909) 307-1209
Customer Phone
909-283-5086 cell
ACCEPTANCE OF PROPOSAL
The above prices, specifications and conditions are satisfactory and are hereby accepted. My signature
below indicates that Loma Linda Heat & Air Conditioning is authorized to do the work as specified.
NOTE: This proposal may be withdrawn if not accepted within 30 days.
All material is guaranteed to be specified. All work to be completed in a workmanlike manner according to standard practices. Any
alteration or deviation from above specifications involving extra costs will be executed only upon written orders, and will become
an extra charge over and above estimate. All agreements contingent upon strikes, accidents or delays beyond control. Owner to
carry fire, tornado and other necessary insurance. Our workers are fully covered by Workman's Compensation Insurance.
Signature_________________
______
Date_________________
Date_________________
Signature_______________________
PO Box 11609
San Bernardino, CA 92423
CEO Miles Volsch. License #825214
Specifications & Estimates Total
Removal and replacement of Fujitsu Ductless split for a new modern unit. Install new
Air handler model#ARU18RGLX with Fujitsu condenser model#AOU18RGLX , and
Fujitsu grill for cassettes model#UTG-GCGF, with Fujitsu circle flow Cassette Grill
model #UTG-LCGVCB and labor. Haul away and disposal of old equipment.
(If paid by credit card price is increased by 5%: $6,516.31)6,206.01
Page 2
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AGENDA REPORT
MEETING DATE: June 8, 2021 Council Item
TITLE: Historical & Cultural Activities Committee Members
Resignations and Authorization to Continue Posting Notice
of Vacancy
PRESENTED BY: Debra Thomas, City Clerk
RECOMMENDATION: Accept the Resignations of Historical & Cultural Activities
Committee Members Frances Carter, Martha Monteon,
Rochelle Rosenkild, Martina Boentaran and Lynn Smith,
Direct the City Clerk to Prepare and Send a Letter of
Appreciation on Behalf of the City Council, and Direct the
City Clerk to Post Notice of Vacancy
2030 VISION STATEMENT
This action supports Our Mission: To preserve and protect our community and its
exceptional quality of life through thoughtful planning, within the constraints of fiscally
responsible government.
BACKGROUND:
The Historical & Cultural Activities Committee is a seven-member Committee appointed
by the Mayor, subject to City Council approval, and serves four-year terms at the
pleasure of the City Council (Municipal Code Chapter 2.16). The terms alternate so that
every two years at least two appointments are set to expire.
The following Committee Members submitted their resignations effective immediately:
Vice-Chair Frances Carter submitted her telephone call resignation on May 18, 2021.
Committee Member Rochelle Rosenkild submitted her written resignation on May 18,
2021.
Committee Member Martina Boentaran submitted her written resignation on May 18,
2021.
Committee Member Lynn Smith submitted her written resignation on May 18, 2021.
Secretary Martha Monteon submitted her written resignation on May 19, 2021.
The Table below depicts the composition and terms of the Committee:
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Name Appointed Re-Appointed Term Ends
Chair Ann Petta* 05/15/1980 06/26/2020 06/30/2024
Vice Chair Frances Carter** 09/27/2001 07/01/2018 06/30/2022
Treasurer Shirley Hogue* 07/02/2018 -- 06/30/2022
Secretary Martha Monteon*** 01/10/2012 06/26/2018 06/30/2022
Member Rochelle Rosenkild** 09/12/1996 06/18/2018 06/30/2022
Member Martina Boentaran** 07/11/2013 06/30/2020 06/30/2024
Member Lynn Smith** 02/25/2020 06/30/2020 06/30/2024
* Resignation effective April 27, 2021.
**Resignation effective May 18, 2021.
***Resignation effective May 19, 2021.
DISCUSSION:
Pursuant to Government Code section 54974(a), “[w]henever an unscheduled vacancy
occurs in any board, commission, or committee for which the legislative body has the
appointing power, whether due to resignation, death, termination, or other causes, a
special vacancy notice shall be posted in the office of the clerk of the local agency, on
either the local agency’s Internet Web site or at the library designated pursuant to
Section 54973, and in other places as directed by the legislative body, not earlier than
20 days before or not later than 20 days after the vacancy occurs. Final appointment to
the board, commission, or committee shall not be made by the legislative body for at
least 10 working days after the posting of the notice in the clerk’s office.”
With the resignation of Mrs. Carter, Ms. Rosenkild, Ms. Boentaran, Mrs. Smith, and Mrs.
Monteon, the Historical & Cultural Activities Committee will have seven (7) regular
member vacancies. After acceptance of the remaining committee members’
resignations by the City Council, staff recommends that the City Council direct the City
Clerk to prepare and send a letter of appreciation to the committee members.
Additionally, the City clerk posted and published a notice of vacancy, pursuant to
Government Code Section 54974, when Mrs. Petta and Mrs. Hogue previously
resigned. The published and posted notice of vacancy was to run between May 14,
2021 through June 11, 2021. The City Clerk has received two (2) applications from Ms.
Franky’e Byma and Ms. Renae Walker who wish to serve on the committee by which a
member of City Council can choose to select one of these applicant’s as its appointee at
this time. The City Clerk requests that City Council authorize continued posting and
publishing notices of vacancies to allow additional time for recruitment.
G.6
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Upon receipt of additional applications, staff would provide the applications for City
Council review at its June 22, 2021 City Council meeting. At that meeting applications
have been received, subject to the City Council’s approval, appointees will be selected,
and the Mayor shall appoint new committee members.
FISCAL IMPACT:
There would be no fiscal impact created by this action.
ATTACHMENTS:
• Application for Citizen Service - Frank'e Byma_Redacted (PDF)
• Application for Citizen Service - Renae Walker_Redacted (PDF)
APPROVALS:
Debra Thomas Completed 06/04/2021 5:03 PM
City Attorney Completed 06/04/2021 5:04 PM
Finance Completed 06/04/2021 5:04 PM
City Manager Completed 06/04/2021 5:04 PM
City Council Pending 06/08/2021 6:00 PM
G.6
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CITY OF GRAND TERRACE ~/Jyop 2 2021
APPLICATION FOR CITIZEN SERVICE '17'-yclEJ?.~~lvD r,,.
S!)p .c:;bb. -P"'R~A~cs .. ,eNr
Complete and submit to the City Clerk's Department
Applying as a member of the His-loci ca I ~ Cu J.Jw.&\ C.,m,rfrH-et.
Name ~twk e 8jma.
Address
Contact Phone Number
Email
Occupation ornc e Mn.oaaec
Education .Some Calle3e
Are there any workday evenings you could not meet? ( )Yes (X) No. If yes, please list them.
Why are you interested in this appointment? I \o\lc: \.\jsJor~ a.ad bow it -\ies
IJS al~e;\b& Jha;:e Vllio don·+ sh~ l-ti51Jc~ (1re doomeo) to
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What do you consider to be your major qualifications?
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I ye a\So Cha.red a £,..\ll cz.,.,1en.\s '10 811 c c:.~. I be\'te'1e...-
+'ne'/ Were .Q,,r~ Succa£+t
References
1. H<'. Dutfcy
2. Mrs. Mc. Nrll:oe.
3. Mr. ttussey
Please attach a written statement containing any additional information you feel would be
useful to the City Council.
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CITY OF GRAND TERRACE
APPLICATION FOR CITIZEN SERVICE
Complete and submit to the City Clerk's Department
Applying as a member of the ±b >fov1LA I ~ ~I TI1VV\ ( ~V}/1fV1 ,· ftt
Name [QV1l1,l ~ \~
Address
ContactPhoneNumber
Email
Occupation ~ J+;{
Education ______________________ _
( ) No. If yes. please list them.
References
1. ~~; Ti~ovi~ ~Oj .202 7 ~0<6 2.=:h ~ ,,]; ~ -~el rs 0/05 · 7 3 / · l.f--cPi&'
3. bf 10 ·VI P6f!2 CJoCj -'(t55 · c:;f 0 2-
Please attach a written statement containing any additional information you feel would be
useful to the City Council.
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June 1, 2021
Re: Historical and Cultural Committee Nominee Consideration
To whom it may concern:
I, Renae Walker, am honored to considered for this position. I have been a member of this community
that I love since 2003, directly and indirectly since 1981 when my extended family first moved here.
In my time here I have become a board member of the Grand Terrace Community Soccer Club since
2008 serving in many various positions and am currently the Secretary, as board member of The
Foundation of Grand Terrace as The Community Events Chair since 2019, and current board member on
Grand Terrace Little League as well as being on the Planning Committee to Grand Terrace Community
Day since 2017.
Being a part of the community I believe in so much, is a delight and driving force in all my activities in
the City. I am excited to see what this new committee will hold for myself and the City of Grand Terrace.
Thank you for your consideration,
Renae Walker
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AGENDA REPORT
MEETING DATE: June 8, 2021 Council Item
TITLE: Amendment No. 8 to the Waste Disposal Agreement
Between the City of Grand Terrace and the County of San
Bernardino
PRESENTED BY: G. Harold Duffey, City Manager
RECOMMENDATION: 1) Adopt a RESOLUTION OF THE CITY OF GRAND
TERRACE, CALIFORNIA, ADOPTING AMENDMENT NO.
8, TO THE WASTE DISPOSAL AGREEMENT BETWEEN
THE COUNTY OF SAN BERNARDINO AND THE CITY OF
GRAND TERRACE; and
2) Authorize the Mayor to Sign the Amendment No. 8
subject to City Attorney approval as to form.
2030 VISION STATEMENT:
This staff report supports Goal #4, Work Collaboratively with Community Groups, Private
and Public Sector Agencies to Facilitate the Delivery of Services Benefitting Youth,
Seniors & Our Community.
BACKGROUND:
In 1998 the City of Grand Terrace entered into a Waste Disposal Agreement (WDA)
with the County of San Bernardino (County), obligating the City to deliver all
controllable waste to the San Timoteo Landfill for 15 years and obligating the
County to provide capacity for that waste at the lowest tipping fee rate. A total of 15
cities in the County became signatories to identical agreements.
The Original WDA has been amended several times to extend the term of the
Agreement; increase allowable tonnage and revise the rates. The most recent
amendment was Amendment No. 7, approved by the City Council in 2016 to change
the expiration term of the WDAs to June 30, 2021, allow for a reduction in the WDA
rate (from $39.38 to $37 per ton), require the County to hold an annual meeting to
discuss the financial statement for the County landfill system, and include language
for sharing the net revenue of In-County Non-WDA waste generated based on the
revenue sharing formula in Section 8.4 of Amendment No. 7.
DISCUSSION:
As the result of a recent meeting with the County of San Bernardino’s Department of
Public Works Staff and other WDA cities, there has been a mutual agreement on
behalf of all parties to recommend amending the current WDA contract to terminate on
June 30, 2026. Proposed Amendment No. 8 would extend the existing contract
G.7
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termination date of June 30, 2021 to June 30, 2026. The amendment identifies an
extension of time, fee and method for fee adjustments. The proposed tonnage rate
included in the amendment is $38.00 per ton. The rate is a reduction from the current
fee per ton of $39.12.
County staff has requested that the 15 cities/towns present the WDA Amendment
No. 8 to each respective Council for review and approval. Amendment No. 8 shall
be effective if and only when all 15 cities/towns have each adopted and executed
said amendment and such amendment has been adopted and executed by the
County on or before June 30, 2021.
FISCAL IMPACT:
A positive fiscal impact could be realized, as County provides WDA cities with a lower
disposal rate per ton for their guaranteed waste. The County will also share revenue
gained from additional tonnage (economy of scale) from In-County Non-WDA cities that
pay a higher rate per ton. The more tons landfilled, the lower the incremental costs. The
County will share revenue gained from additional waste disposed at a lower incremental
cost.
ATTACHMENTS:
• 2021-xx CC Reso - SB County Waste Amend #8 (DOCX)
• Original SBCOWDA - 1998 (PDF)
• AGR-PW-Waste 6-22-21 Grand Terrace WDA Amend 8 (PDF)
APPROVALS:
G. Harold Duffey Completed 06/04/2021 10:31 AM
Finance Completed 06/04/2021 3:57 PM
City Attorney Completed 06/04/2021 4:19 PM
City Manager Completed 06/04/2021 7:31 PM
City Council Pending 06/08/2021 6:00 PM
G.7
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RESOLUTION 2021-xx
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF GRAND TERRACE, CALIFORNIA ADOPTING
AMENDMENT NO. 8 TO THE WASTE DISPOSAL
AGREEMENT BETWEEN THE COUNTY OF SAN
BERNARDINO AND THE CITY OF GRAND TERRACE.
RECITALS
WHEREAS, on February 24, 1998 the City of Grand Terrace (“City”) and the
County of San Bernardino (“County”) entered into a Waste Disposal Agreement
(“WDA”); and
WHEREAS, in April 2016, fifteen (15) WDA cities met and determined it was
in their best interest to change the termination date of the Agreement to expire on
June 30, 2021; and
WHEREAS, on May 24, 2016, the City Council approved Amendment No. 7,
extending the termination date of the WDA to June 30, 2021; and
WHEREAS, in connection with the on-going administration of the WDA, the
Parties have determined it is in their best interest to change the termination date of the
Agreement to end on June 30, 2026; and
WHEREAS, this change in the termination date will assist both the City and the
County in planning for future fiscal years’ budgeting of solid waste disposal services and
costs; and
WHEREAS, the parties have determined it is in their best interests to apply
the $38.00 per ton rate for the term of the WDA.
NOW THEREFORE, BE IT RESOLVED THAT CITY COUNCIL OF THE CITY
OF GRAND TERRACE DOES RESOLVE, DETERMINE, FIND AND ORDER AS
FOLLOWS:
Section 1. The City Council finds that all of the above recitals are true and
correct and are incorporated herein by reference.
Section 2. The City Council hereby approves Amendment No. 8 of the Waste
Disposal Agreement between the County of San Bernardino and the City of Grand
Terrace, as attached hereto as Exhibit A, and authorizes the Mayor the amendment
subject to City Attorney approval as to form.
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PASSED, APPROVED AND ADOPTED by the City Council of the City of Grand
Terrace, California, at a regular meeting held on the 8th day of June 2021.
_____________________________
Darcy McNaboe, Mayor
ATTEST:
_____________________________
Debra L. Thomas
City Clerk
APPROVED AS TO FORM:
_____________________________
Adrian R. Guerra
City Attorney
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Exhibit A
(Waste Delivery Agreement – Amendment No. 8)
G.7.a
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Record of Action of the Board of Supervisors
AGREEMENT NO. 98-107
APPROVED BOARD OF SUPERVISORS
COUNTY OF SAN BERNARDINO
ABSENT -t.:- AYE -1 COND
1 fl ‘i-- 2 -,1 3..p ck
PROAT, C
f.)
"nu. fir DATED : Feb a 24,
MOTION
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ITEM 048
REPORT/RECOMMENDATION TO THE BOARD OF SUPERVISORS
OF SAN BERNARDINO COUNTY, CALIFORNIA
AND RECORD OF ACTION
Agree. 98-107
February 24, 1998
FROM: GERRY NEWCOMBE, Contract Administrator
Public Services Group, Waste System Division
SUBJECT: WASTE DELIVERY AGREEMENT BETWEEN THE COUNTY AND THE CITY OF
GRAND TERRACE
RECOMMENDATION: Approve 15 year Waste Delivery Agreement (WDA) with the City of Grand
Terrace for use of the County landfill system.
BACKGROUND INFORMATION: On November 4, 1997, the Board approved a standard WDA and
directed staff to present the agreement for approval to the cities and return any signed agreements to
the Board for final approval. The Grand Terrace City Council approved the WDA on January 15,
1998, and it is now being presented to the Board for final approval.
Approval of the recommendation will execute the WDA whereby the City of Grand- Terrace is
obligated to deliver all of its controllable waste to the Colton Landfill for 15 years, and the County is
obligated to provide capacity for that waste at the Contract Rate.
When WDA's representing 60 percent of the system tonnage of 1,390,000 tons (less the
unincorporated tonnage which will be controlled by the County through franchise agreements) have
been executed, it will be necessary to modify the compensation provisions in NORCAL's contract.
Staff has met with NORCAL and reached agreement on the rationale for a revised compensation
program that is consistent with the controls placed on the contract rate contained in the WDA's. The
WSD will present the modified compensation program for Board consideration when the 60 percent
threshold is within reach. Prior to reaching that threshold, the system can continue to function with
the existing compensation program in place.
REVIEW BY OTHERS: This item has been reviewed by Deputy County Counsel Robert L. Jocks on
February 5, 1998.
FINANCIAL IMPACT: This action will have no impact on the General Fund. The difference between
the budgeted $33/ton tip fee and the $28.50/ton Contract Rate will reduce revenue in the FY 1997/98
Solid Waste Enterprise Fund. This reduction will be offset by a combination of expenditure reductions
and new revenue sources.
SUPERVISORIAL DISTRICT(S): All
PRESENTER: Gerry Newcombe
Rev 07/97
cc: WSD--Newcombe w/agreement
City of Grand Terrace w/agree.
c/o WSD
Auditor w/agreement
Contract Compliance w/agree.
EHS-Pamella Bennett
Co. Counsel-Jocks w/agree.
Risk Management
PSG
File w/agreement
mll
G.7.b
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County of San Bernardino
F A S
CONTRACT TRANSMITTAL
FOR COUNTY USE ONLY
w
2
xl
X New
_ Change
Cancel
Vendor Code
Cr
Dept. Contract Number
98-107
County Department Dept. Orgn.
PSG-Waste System Division
Contractor's License No.
County
Gerry
Department Contract Representative Ph. Ext.
Newcombe 1R6-8703
Amount of Contract
Fund Dept. Organization Appr. Obj/Rev Source Activity GRC/PROJ/JOB Number
Commodity Code Estimated Payment Total by Fiscal Year
FY Amount I/O FY Amount I/D
Project Name
15 Year Waste
Delivery Agreement
CONTRACTOR
Birth Date Federal ID No. or Social Security No
Contractor's Representative Thomas J. Schwab. City Manager
Address 22795 Barton Road, Grand Terrace CA 92313 Phone (909) 824-6621
Nature of Contract: (Briefly describe the general terms of the contract)
A 15 year Waste Delivery Agreement between the County and the City of Grand Terrace
for use of the County landfill system, February 24, 1998 to December 31, 2012.
City of Grand Terrace
(Attach this transmittal to all contracts not prepared on the "Standard Contract" form.)
Approved as to Legal Form
lb' See Agreement - Page 31
County Counsel
Date
Reviewed as to Affirmative Action
Reviewed for Processing
Agency Administrator/CAO
Date
Date
02-12294-000 Rev. 11/90
G.7.b
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EXECUTION COPY
WASTE DISPOSAL AGREEMENT
Between
THE COUNTY OF SAN BERNARDINO, CALIFORNIA
and
THE CITY OF GRAND TERRACE
Dated: February 24, 1998
County Authorization Date:
February 24, 1998
County Notice Address:
Gerry Newcombe, Contract Administrator
Waste System Division
222 W. Hospitality Lane, 2nd Floor
San Bernardino, California 92415-0017
City Authorization Date:
/*January , 1998
City Notice Address:
Thomas Schwab, City Manager
City of Grand Terrace
22795 Barton Road
Grand Terrace, CA 92313
G.7.b
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TABLE OF CONTENTS
Page
RECITALS 1
ARTICLE I DEFINITIONS AND INTERPRETATION 3
SECTION 1.1. DEFINITIONS 3
SECTION 1.2. INTERPRETATION 8
ARTICLE II REPRESENTATIONS AND WARRANTIES 10
SECTION 2.1. REPRESENTATIONS AND WARRANTIES OF THE CITY 1 0
SECTION 2.2. REPRESENTATIONS AND WARRANTIES OF THE COUNTY 10
ARTICLE III DELIVERY AND ACCEPTANCE OF WASTE
AND PROVISION OF DISPOSAL SERVICE 12
SECTION 3.1. DELIVERY OF WASTE 12
SECTION 3.2. PROVISION OF DISPOSAL SERVICES BY THE COUNTY 16
SECTION 3.3. COUNTY RIGHT TO REFUSE WASTE 17
SECTION 3.4. MISCELLANEOUS OPERATIONAL MATTERS 18
SECTION 3.5. OTHER USERS OF THE DISPOSAL SYSTEM 18
SECTION 3.6. COUNTY PROVISION OF WASTE DIVERSION SERVICES 19
ARTICLE IV CONTRACT RATE 20
SECTION 4.1. CHARGING AND SECURING PAYMENT OF CONTRACT RATE 20
SECTION 4.2. CONTRACT RATE 20
SECTION 4.3. RESPONSIBILITY FOR PAYMENT OF THE CONTRACT 22
SECTION 4.4. BILLING OF THE CONTRACT RATE 23
SECTION 4.5. SOLID WASTE DISPOSAL FEE OPTION 23
ARTICLE V BREACH, ENFORCEMENT AND TERMINATION 24
SECTION 5.1. BREACH: REMEDIES 24
SECTION 5.2. CITY CONVENIENCE TERMINATION 24
SECTION 5.3. TERMINATION 24
SECTION 5.4. NO WAIVERS 25
SECTION 5.5 DAMAGES 25
SECTION 5.6. FORUM FOR DISPUTE RESOLUTION 25
ARTICLE VI TERM 26
SECTION 6.1. EFFECTIVE DATE AND TERM 26
ARTICLE VII GENERAL PROVISIONS 27
SECTION 7.1. OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM 27
SECTION 7.2. UNCONTROLLABLE CIRCUMSTANCES GENERALLY 27
SECTION 7.3. INDEMNIFICATION 27
SECTION 7.4. RELATIONSHIP OF THE PARTIES 28
SECTION 7.5. LIMITED RECOURSE 28
SECTION 7.6. PRE-EXISTING RIGHTS AND LIABILITIES 29
SECTION 7.7. NO VESTED RIGHTS 29
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SECTION 7.8. LIABILITY FOR COLLECTION, TRANSPORTATION
AND PROCESSING 29
SECTION 7.9. NO CONSEOUENTIAL OR PUNITIVE DAMAGES 29
SECTION 7.10. AMENDMENTS 29
SECTION 7.11. NOTICE OF LITIGATION 29
SECTION 7.12. FURTHER ASSURANCES 29
SECTION 7.13. ASSIGNMENT OF AGREEMENT 29
SECTION 7.14. INTEREST ON OVERDUE OBLIGATIONS 29
SECTION 7.15. BINDING EFFECT 30
SECTION 7.16. NOTICES 30
APPENDIX 1 DESIGNATED DISPOSAL FACILITY
APPENDIX 2 FORM OF HAULER ACKNOWLEDGMENT [delete depending on city]
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WASTE DISPOSAL AGREEMENT
THIS WASTE DISPOSAL AGREEMENT is made and dated as of the date indicated on the
cover page hereof between the County of San Bernardino, a political subdivision of the State of California
(the "County"), and the City designated on the cover page of this Agreement, a general law or charter city
and political subdivision of the State of California (the "City").
RECITALS
The County owns, manages and operates a sanitary landfill system for the disposal of
municipal solid waste generated in the unincorporated area within the County and which it has made
available for the disposal of municipal solid waste generated within cities located within the County (the
"Disposal System"). The Disposal System currently includes 12 active landfills and is expected to consist
of five active landfills upon implementation of the Solid Waste Partnership Strategy and Implementation
Plan.
The Disposal System is used for the disposal of municipal solid waste which is not
composted, reused, recycled, transformed or otherwise diverted from landfill disposal, pursuant to the
California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code).
The Act, which mandates the diversion of 50% of waste from landfill disposal by 2000, has already reduced
the volume of waste delivered to the landfills.
The County wishes to enter into an agreement with the City to accept all of the City's
municipal solid waste in the Disposal System for the term and subject to the provisions of this Agreement,
and the City desires to use all legal and contractual powers it possesses to deliver or cause to be delivered
the municipal solid waste generated within its boundaries to the Disposal System for the term of and subject
to the provisions of this Agreement.
The City, in the exercise of its police power and its powers under the Act, either (i) has
entered into a franchise or other agreement with or issued permits or licenses to one or more private haulers
for the collection and disposal of municipal solid waste generated within the City or (ii) collects municipal
solid waste generated within the City in City owned and operated collection vehicles.
The City has determined that the execution of this Agreement by the City will serve the
public health, safety and welfare of the City by providing greater disposal rate stability, more predictable
and reliable long-term disposal service, and the continuation of sound environmental management.
The County has determined that the execution by the County of this Agreement will serve
the public health, safety and welfare by providing a more stable, predictable and reliable supply of municipal
solid waste and the resulting service payment revenue to the Disposal System, thereby enabling the County
to plan, manage, operate and finance improvements to the Disposal System on a more prudent and sound
long term, businesslike basis.
Official action approving this Agreement and determining it to be in the public interest and
authorizing its execution and delivery was duly taken by the County on the County authorization date
indicated on the cover page hereof.
Official action approving this Agreement and determining it to be in the public interest and
authorizing its execution and delivery was duly taken by the City on the City authorization date indicated
on the cover page hereof.
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It is, therefore, agreed as follows:
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ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. DEFINITIONS. As used in this Agreement, the following terms shall have
the meanings set forth below.
"Acceptable Waste" means all garbage, refuse, rubbish and other materials and substances
discarded or rejected as being spent, useless, worthless or in excess to the owners at the time of such discard
or rejection and which are normally disposed of by or collected from residential (single family and multi-
family), commercial, industrial, governmental and institutional establishments which are acceptable at Class
III landfills under Applicable Law (including, without limitation, the Legal Entitlements for each facility).
"Act" means the California Integrated Waste Management Act of 1989 (Division 30 of the
California Public Resources Code), as amended, supplemented, superseded and replaced from time to time.
"Agreement" means this Waste Disposal Agreement between the County and the City as the
same may be amended or modified from time to time in accordance herewith.
"Appendix" means an appendix to this Agreement, as the same may be amended or modified
from time to time in accordance with the terms hereof.
"Applicable Law" means the Act, the San Bernardino County Code, CERCLA, RCRA,
CEQA, any Legal Entitlement and any federal or state rule, regulation, requirement, guideline, permit,
action, determination or order of any Governmental Body having jurisdiction, applicable from time to time
to the siting, design, permitting, acquisition, construction, equipping, financing, ownership, possession,
operation or maintenance of the Disposal System, the transfer, handling, transportation and disposal of
Acceptable Waste, Unacceptable Waste, or any other transaction or matter contemplated hereby (including
any of the foregoing which concern health, safety, fire, environmental protection, mitigation monitoring
plans and building codes.).
"Board" means the California Integrated Waste Management Board.
"CEQA" means the California Environmental Quality Act, codified at Cal. Pub. Res. Code
Section 21000 et seq. (West 1996) as amended or superseded, and the regulations promulgated thereunder.
"CERCLA" means the Comprehensive Environmental Responsibility Compensation and
Liability Act, 42 U.S.C.A. Section 9601 et seq. (West 1995 & Supp. 1996), as amended or superseded, and
the regulations promulgated thereunder.
"Change in Law" means any of the following events or conditions which has a material and
adverse effect on the performance by the parties of their respective obligations under this Agreement (except
for payment obligations), or on the siting, design, permitting, acquisition, construction, equipping, financing,
ownership, possession, operation or maintenance of the Disposal System or other matters to which
Applicable Law applies:
(1) the enactment, adoption, promulgation, issuance, material modification or written
change in administrative or judicial interpretation on or after the Commencement Date of any
Applicable Law (other than Applicable Law enacted by the County);
3
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(2)the order or judgment of any Governmental Body (other than the County), on or
after the Commencement Date, to the extent such order or judgment is not the result of willful or
negligent action, error or omission or lack of reasonable diligence of the County or of the City,
whichever is asserting the occurrence of a Change in Law; provided, however, that the contesting
in good faith or the good faith decision not to contest any such order or judgment shall not constitute
or be construed as such a willful or negligent action, error or omission or lack of reasonable
diligence; or
(3)the denial of an application for, delay in the review, issuance or renewal of, or
suspension, termination, interruption, imposition of a new or more stringent condition in connection
with the issuance, renewal or failure of issuance or renewal on or after the Commencement Date of
any Legal Entitlement to the extent that such denial, delay, suspension, termination, interruption,
imposition or failure materially and adversely interferes with the performance of this Agreement,
if and to the extent that such denial, delay, suspension, termination, interruption, imposition or
failure is not the result of willful or negligent action, error or omission or a lack of reasonable
diligence of the County or of the City, whichever is asserting the occurrence of a Change in Law;
provided, however that the contesting in good faith or the good faith decision not to contest any such
denial, delay, suspension, termination, interruption, imposition or failure shall not be construed as
such a willful or negligent action, error or omission or lack of reasonable diligence.
"Change in Law" shall not include actions taken by Governmental Bodies to enforce requirements of
Applicable Law.
"City" means, as applicable, the city designated on the cover page of this Agreement and
party to this Agreement.
"City Acceptable Waste" means all Acceptable Waste which was originally discarded by
the first generator thereof within the geographical limits of the City, and Residue from the foregoing (or
Tonnage equivalencies of such Residues, as and to the extent provided in subsection 3.1(C) hereof).
"Contract Date" means the date of delivery of this Agreement as executed by the parties
hereto.
"Contract Rate" has the meaning specified in Section 4.2 hereof.
"Contract Year" means the fiscal year commencing on July 1 in any year and ending on June
30 of the following year.
"Controllable Waste" means all City Acceptable Waste with respect to which the City has
the legal or contractual ability to determine the disposal location therefor and which is:
(1)Non-Diverted City Acceptable Waste;
(2)not generated from the operations of the Governmental Bodies which, under
Applicable Law, have the independent power to arrange for the disposal of the waste they generate
(such as school districts and State correctional facilities);
(3)not Residue excluded from the Waste Delivery Covenant pursuant to Section
3.1(C);
(4)not inert materials, construction and demolition debris, green waste and other
materials which can be disposed at landfills other than Class III landfills; and
(5)collected and hauled by Franchise Haulers.
4
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"County" means the County of San Bernardino, a political subdivision of the State of
California and party to this Agreement.
"County Waste Management Enterprise Fund" means the waste management enterprise fund
established and managed by the County pursuant to Section 25261 of the Government Code separate from
its other funds and accounts for receipts and disbursements in connection with the Disposal System.
"County-wide Recycling Services" has the meaning set forth in subsection 3.6(A) hereof.
"Designated Disposal Facility" means the sanitary landfill or other facility operated by or
for the County as part of the Disposal System which is designated in Appendix 1 hereto as the disposal
location for Controllable Waste delivered to the County pursuant hereto as of the Commencement Date, or
such other additional, alternate or replacement sanitary landfills or other disposal facilities as may be
designated by the County as the Designated Disposal Facility (subject to the approval of the City) in
accordance with Section 3.2 hereof.
"Disposal Agreements" means each of the waste disposal agreements entered into between
the County and any city within the County in accordance herewith.
"Disposal Services" means the solid waste disposal services to be provided by the County
pursuant to the Service Covenant and otherwise hereunder.
"Disposal System" means all sanitary landfills and other solid waste transfer, transportation,
storage, handling, processing and disposal facilities, now or at any time owned, leased, managed, operated
by or under contract to the County for the acceptance, handling, processing and disposal of Acceptable Waste
delivered by or on behalf of the City under this Agreement, including the Designated Disposal Facilities
listed on Appendix 1 and any expansion thereof, all as more particularly described in the Solid Waste
Partnership Strategy and Implementation Plan.
"Disposal System Component" means any landfill, facility, structure, work, equipment, site
or other real or personal property constituting a component part of the Disposal System.
"Diverted City Acceptable Waste" means any otherwise Controllable Waste which is
separated from Acceptable Waste by the generator thereof or by processing and which is "diverted" within
the meaning of Section 40180 of the Public Resources Code.
"Franchise Hauler" means any hauler or collector who provides Acceptable Waste collection
services within the City pursuant to, or under authority granted by, a contract, franchise or other agreement
with the City. The term Franchise Hauler includes the City itself if Acceptable Waste collection and
transportation services are provided directly by City operated municipal collection service.
"Governmental Body" means any federal, State, county, city or regional legislative,
executive, judicial or other governmental board, agency, authority, committee, administration, court or other
body, or any officer thereof acting within the scope of his or her authority.
"Hazardous Substance" has the meaning given such term in the Resource Conservation and
Recovery Act, 42 U.S.C. 6901 et seq., CERCLA, and all future amendments to either of them or as defined
by California statute or by the California Environmental Protection Agency or the California Integrated
Waste Management Board, or any of them.
5
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"Hazardous Waste" means (a) any waste which by reason of its quality, concentration,
composition or physical, chemical or infectious characteristics may do either of the following: cause, or
significantly contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating
reversible, illness, or pose a substantial threat or potential hazard to human health or the environment, or any
waste which is defined or regulated as a hazardous waste, toxic substance, hazardous chemical substance or
mixture, or asbestos under Applicable Law, as amended from time to time including, but not limited to: (1)
the Resource Conservation and Recovery Act and the regulations contained in 40 CFR Parts 260-281; (2)
the Toxic Substances Control Act (15 U.S.C. Sections 2601 et seq.) and the regulations contained in 40 CFR
Parts 761-766; (3) the California Health and Safety Code, Section 25117 (West 1992 & Supp. 1996); (4) the
California Public Resources Code, Section 40141 (West 1996); (5) CERCLA and regulations promulgated
thereunder and (6) future additional or substitute Applicable Law pertaining to the identification, treatment,
storage or disposal of toxic substances or hazardous wastes; or (b) radioactive materials which are source,
special nuclear or by-product material as defined by the Atomic Energy Act of 1954 (42 U.S.C. Section 2011
et sea.) and the regulations contained in 10 CFR Part 40.
"Imported Acceptable Waste" means Acceptable Waste that is generated outside of the
geographical boundaries of the County and delivered to the Disposal System.
"In-County Processing Facility" means any Processing Facility located within the
geographical boundaries of the County, whether owned and/or operated by the County, any city, or private
operator.
"Independent Haulers" means those waste collection/hauler companies primarily engaged
as a principal business in the collection and transportation of municipal solid waste generated in the County
of San Bernardino and not under a franchise or other contract with a city in the County.
"Term" has the meaning specified in Section 6.1(A) hereof.
"Legal Entitlement" means all permits, licenses, approvals, authorizations, consents and
entitlements of whatever kind and however described which are required under Applicable Law to be
obtained or maintained by any person with respect to the Disposal System or the performance of any
obligation under this Agreement or the matters covered hereby.
"Legal Proceeding" means every action, suit, litigation, arbitration, administrative
proceeding, and other legal or equitable proceeding having a bearing upon this Agreement.
"Loss-and-Expense" means any and all loss, liability, obligation, damage, delay, penalty,
judgment, deposit, cost, expense, claim, demand, charge, tax, or expense, including all fees and costs.
"Out-of-County Processing Facility" means a Processing Facility located outside the
geographical boundaries of the County.
"Non-Diverted City Acceptable Waste" means all City Acceptable Waste other than Diverted
City Acceptable Waste.
"Overdue Rate" means the post-judgment rate of interest specified by the laws of the State.
"Processing Facility" means any materials recovery facility, composting facility,
intermediate processing center, recycling center, incinerator or other waste management facility to which
City Acceptable Waste is delivered for processing prior to disposal.
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"Prohibited Medical Waste" means any medical or infectious waste prohibited or restricted
under Applicable Law from being received by or disposed at the Disposal System.
"Qualified Household Hazardous Waste" means waste materials determined by the Board,
the Department of Health Services, the State Water Resources Control Board, or the Air Resources Board
to be:
(1)Of a nature that they must be listed as hazardous in State statutes and regulations;
(2)Toxic/ignitable/corrosive/reactive; and
(3)Carcinogenic/mutagenic/teratogenic;
which are discarded from households as opposed to businesses. Qualified Household Hazardous Waste shall
not include Unacceptable Waste.
"Residue" means any material remaining from the processing in permitted solid waste
facilities or other facilities, by any means and to any extent, of City Acceptable Waste or Diverted City
Acceptable Waste.
"Resource Conservation and Recovery Act" or "RCRA" means the Resource Conservation
and Recovery Act, 42 U.S.C.A. Section 6901 et seq. (West 1983 & Supp 1989), as amended and superseded.
"Self-Hauled Waste" means City Acceptable Waste collected and hauled by Self-Haulers.
"Self-Hauler" means any person not engaged commercially in waste haulage who collects
and hauls Acceptable Waste generated from residential or business activities conducted by such person.
"Service Covenant" means the covenants and agreements of the County set forth in Sections
3.2 and 3.3 hereof.
"State" means the State of California.
"Term" shall mean the Term of this Agreement specified in Section 6.1.
"Ton" means a "short ton" of 2,000 pounds.
"Transfer Station" means any transfer station or other waste handling or management facility
to which solid waste collected for the City is delivered for transfer, processing or transformation before
disposal in the Disposal System.
"Unacceptable Waste" means Hazardous Waste; Hazardous Substances; Prohibited Medical
Waste; Qualified Household Hazardous Waste separated from Acceptable Waste (or otherwise identified
by the County in loads otherwise containing Acceptable Waste); explosives, ordnance, highly flammable
substances, and noxious materials and lead-acid batteries (except if delivered in minimal quantities); drums
and closed containers; liquid waste, oil, human wastes; machinery and equipment from commercial or
industrial sources, such as hardened gears, shafts, motor vehicles or major components thereof, agricultural
equipment, trailers, marine vessels and steel cable; hot loads; and any waste which the Disposal System is
prohibited from receiving under Applicable Law.
"Uncontrollable Circumstance" means any act, event or condition affecting the Disposal
System, the County, the City, or any of their Franchise Haulers, contractors or suppliers to the extent that
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it materially and adversely affects the ability of either party to perform any obligation under the Agreement
(except for payment obligations), if such act, event or condition is beyond the reasonable control and is not
also the result of the willful or negligent act, error or omission or failure to exercise reasonable diligence on
the part of the party relying thereon as justification for not performing an obligation or complying with any
condition required of such party under the Agreement; provided, however, that the contesting in good faith
or the good faith decision not to contest such action or inaction shall not be construed as willful or negligent
action or a lack of reasonable diligence of either party. Examples of Uncontrollable Circumstances are:
(1)an act of God, landslide, lightning, earthquake, fire, explosion, flood, sabotage or similar
occurrence, acts of a public enemy, extortion, war, blockade or insurrection, riot or civil disturbance;
and
(2)a Change in Law.
It is specifically understood that none of the following acts or conditions shall constitute Uncontrollable
Circumstances: (a) general economic conditions, interest or inflation rates, currency fluctuations or changes
in the cost of fuel, the availability of commodities, supplies or equipment; (b) changes in the financial
condition of the County, the City or any Subcontractor affecting their ability to perform their obligations;
(c) the consequences of errors, neglect or omissions by the County, the City, or any Subcontractor of any tier
in the performance of their obligations hereunder; (d) union work rules, requirements or demands which have
the effect of increasing the number of employees employed in connection with the Disposal System or
otherwise increase the cost to the County of operating and maintaining the Disposal System or providing the
Disposal Services; (e) strikes, work stoppages or other labor disputes or disturbances occurring with respect
to any activity performed or to be performed by the City or the County or any of the City's or County's
Subcontractors in connection with the Disposal System or the Disposal Services; (1) any failure of any
Subcontractor to furnish labor, materials, service or equipment for any reason (other than an Uncontrollable
Circumstance); (g) equipment failure; (h) any impact of minimum wage law, prevailing wage law, customs
or practices on the County's construction or operating costs; or (i) changing conditions in the local, regional,
or national waste disposal market.
"Unincorporated Area" means those portions of the County which are not contained within
the jurisdictional boundaries of incorporated cities.
"Waste Disposal Covenant" means the covenants and agreements of the City set forth in
Section 3.1 hereof.
SECTION 1.2. INTERPRETATION. In this Agreement, unless the context otherwise
requires:
(A)References Hereto. The terms "hereby", "hereof', "herein", "hereunder" and any similar
terms are references to this Agreement, and the term "hereafter" means after, and the term "heretofore"
means before, the Contract Date.
(B)Gender and Plurality. Words of the masculine gender mean and include correlative
words of the feminine and neuter genders and words importing the singular number mean and include the
plural number and vice versa.
(C)Persons. Words importing persons include firms, companies, associations, general
partnerships, limited partnerships, trusts, business trusts, corporations and other legal entities, including
public bodies, as well as individuals.
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(D)Headings. The table of contents and any headings preceding the text of the Articles,
Sections and subsections of this Agreement shall be solely for convenience of reference and shall not
constitute a part of this Agreement, nor shall they affect its meaning, construction or effect.
(E)Entire Agreement. This Agreement contains the entire agreement between the parties
hereto with respect to the transactions contemplated by this Agreement and, except as expressly provided
otherwise herein, nothing in this Agreement is intended to confer on haulers or any other person other than
the parties hereto and their respective permitted successors and assigns hereunder any rights or remedies
under or by reason of this Agreement.
(F)Counterparts. This Agreement may be executed in any number of original counterparts.
All such counterparts shall constitute but one and the same Agreement.
(G)Applicable Law. This Agreement shall be governed by and construed in accordance
with the Applicable Laws of the State of California.
(H)Accounting Terms. All accounting terms used but not specifically defined herein shall
be construed in accordance with, all accounting determinations hereunder to be made shall be prepared in
accordance with generally acceptable accounting principles applied on a consistent basis.
(I)Severability. If any clause, provision, subsection, Section or Article of this Agreement
shall be ruled invalid by any court of jurisdiction, then the parties shall: (1) promptly meet and negotiate a
substitute for such clause, provision, subsection, Section or Article which shall, to the greatest extent legally
permissible, effect the intent of the parties therein; (2) if necessary or desirable to accomplish item (1) above,
apply to the court having declared such invalidity for a judicial construction of the invalidated portion of this
Agreement; and (3) negotiate such changes in, substitutions for or additions to the remaining provisions of
this Agreement as may be necessary in addition to and in conjunction with items (1) and (2) above to effect
the intent of the parties in the invalid provision. The invalidity of such clause, provision, subsection, Section
or Article shall not affect any of the remaining provisions hereof, and this Agreement shall be construed and
enforced as if such invalid portion did not exist, unless such invalidity frustrates the underlying primary
purpose of the Agreement.
(J)Integration. This Agreement contains the entire agreement between the parties with
respect to the transactions contemplated hereby. This Agreement shall completely and fully supersede all
prior understandings and agreements between the Parties with respect to such transactions.
(K)Recitals. The recitals to this Agreement are not intended to bind the parties hereto. In
the event of a conflict between the recitals and the operative provisions of this Agreement, the operative
provisions shall prevail. The recitals shall not be used to interpret the provisions of the Agreement.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.1. REPRESENTATIONS AND WARRANTIES OF THE CITY. The City
represents and warrants that:
(A)Existence. The City is a general law or charter city validly existing under the
Constitution and laws of the State.
(B)Due Authorization. The City has duly authorized the execution and delivery of this
Agreement, and this Agreement has been duly executed and delivered by the City.
(C)No Conflict. Neither the execution nor the delivery by the City of this Agreement nor
the performance by the City of its obligations hereunder nor the consummation by the City of the
transactions contemplated hereby (1) conflicts with, violates or results in a breach of any Applicable Law
or (2) conflicts with, violates or results in a breach of any term or conditions of any contract, agreement,
franchise, judgment, instrument or decree to which the City is a party or by which the City or any of its
properties or assets are bound, or constitutes a default under any such contract, franchise, judgment, decree,
agreement or instrument.
(D)No Litigation. There is no action, suit or other proceeding, at law or equity, before or
by any court or Governmental Body pending or, to the City's best knowledge, threatened against the City in
which an unfavorable decision, ruling or finding which would materially and adversely affect the validity
of or enforceability of this Agreement or any other agreement or instrument to be entered into by the City
in connection with the transactions contemplated hereby, or which would materially and adversely affect the
performance by the City of its obligations hereunder or under any such other agreement or instrument.
SECTION 2.2. REPRESENTATIONS AND WARRANTIES OF THE COUNTY. The
County represents and warrants that:
(A)Existence. The County is a political subdivision of the State of California validly
existing under the Constitution and laws of the State.
(B)Due Authorization. The County has duly authorized the execution and delivery of this
Agreement, and this Agreement has been duly executed and delivered by the County.
(C)No Conflict. Neither the execution nor the delivery by the County of this Agreement
nor the performance by the County of its obligations hereunder nor the consummation by the County of the
transactions contemplated hereby (1) conflicts with, violates or results in a breach of any Applicable Law
or (2) conflicts with, violates or results in a breach of any term or conditions of any contract, agreement,
franchise, judgment, instrument or decree to which the County is a party or by which the County or any of
its properties or assets are bound, or constitutes a default under any such contract, franchise, judgment,
decree, agreement or instrument.
(D)No Litigation. There is no action, suit or other proceeding, at law or equity, before or
by any court or Governmental Body pending or, to the County's best knowledge, threatened against the
County in which an unfavorable decision, ruling or finding which would materially and adversely affect the
validity of or enforceability of this Agreement or any other agreement or instrument to be entered into by
the County in connection with the transactions contemplated hereby, or which would materially and
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adversely affect the performance by the County of its obligations hereunder or under any such other
agreement or instrument.
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ARTICLE III
DELIVERY AND ACCEPTANCE OF WASTE
AND PROVISION OF DISPOSAL SERVICE
SECTION 3.1. DELIVERY OF WASTE. (A) Waste Disposal Covenant. Subject to the occurrence
of the Commencement Date and throughout the Term of this Agreement, the City shall exercise all legal and
contractual power and authority which it may possess from time to time to deliver or cause the delivery of
all Controllable Waste to the Disposal System in accordance herewith beginning on January 1, 1998.
(B) Diverted City Acceptable Waste. The parties hereto acknowledge the responsibility
of the City to meet the recycling and landfill diversion goals contained in the Act. Nothing in this
Agreement is intended or shall be interpreted to prohibit or impair the ability of the City to meet or exceed
such responsibilities, or to restrict the right of the residents, businesses or organizations in the City to
practice source separation, source reduction, recycling, composting or other materials recovery activities,
or to restrict the right of the City to conduct, sponsor, encourage or require such activities in any form. No
reduction in the amount of Controllable Waste generated in the City and delivered to the Disposal System
by or on behalf of the City which may result from any such source separation or recycling program (whether
or not such program meets or exceeds the diversion requirements of the Act) shall cause the City any liability
hereunder and shall not constitute a breach of this Agreement.
[SECTION TO BE USED IF ALL WASTE CURRENTLY STAYS WITHIN COUNTY]
(C) Waste Delivered to Transfer Station or Processing Facilities. Subject to the provisions of
this Section, all Residue from any processing of Controllable Waste by materials recovery, composting,
recycling or other means, performed at In-County Processing Facilities or Out-of-County Processing
Facilities shall constitute Controllable Waste and be subject to the Waste Disposal Covenant. The County
specifically acknowledges that the City shall have the right to deliver or cause the delivery of City
Acceptable Waste to Out-of-County Processing Facilities, and that the City is not obligated to require that
Residue from such Out-of-County Processing Facilities be delivered to the Disposal System, after final
processing or re-processing of such Residue as long as such Residue from Out-of-County Processing
Facilities does not exceed, in any Contract Year, the lesser of (i) 40% of the amount of City Acceptable
Waste delivered to such Out-of-County Processing Facility in such Contract Year or (ii) 2% of the total
amount of Controllable Waste generated in the City during such Contract Year. To the extent that Residue
from the processing of Controllable Waste exceeds the amount specified in the preceding sentence, the City
shall exercise all legal and contractual authority which it may possess from time to time to require that such
excess Residue be delivered to the Disposal System, and shall include a requirement to that effect in any
contracts, agreements or other arrangements for processing at Out-of-County Processing Facilities which
it enters into or amends after the Contract Date. Where City Acceptable Waste is processed at an In-County
or Out-of-County Processing Facility which concurrently processes other Acceptable Waste in a manner
which produces commingled residue which cannot be traced to a geographic source, generic residues from
such Processing Facility in Tonnage equal to the residues that would have been produced had City
Acceptable Waste only been processed at the facility shall constitute Controllable Waste and be subject to
the Waste Disposal Covenant (subject to the exclusion from Controllable Waste of the amounts of Residue
from Out-of-County Processing Facilities specified in this Section 3.1(C).) Such generic residues shall be
delivered to the Disposal System regularly, in approximately the same frequency as deliveries of City
Acceptable Waste to the Processing Facility. (In making any determination of Residue attributable to the
City, the City may rely on the reports or certifications of the owner or operator of the Transfer Station or
Processing Facility.)
[FOLLOWING SECTION TO BE USED IF WASTE CURRENTLY PROCESSED OUT-OF-
COUNTY]
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(C) Waste Delivered to Transfer Station or Processing Facilities. Subject to the provisions of
this Section, all Residue from any processing of Controllable Waste by materials recovery, composting,
recycling or other means, performed at In-County Processing Facilities or Out-of-County Processing
Facilities shall constitute Controllable Waste and be subject to the Waste Disposal Covenant. The County
acknowledges that a portion of Controllable Waste, (i) the subject of a franchise, contract or other agreement
which provides for the processing of such portion of Controllable Waste at an Out-of-County Processing
Facility and (ii) was, as of July 1, 1997, and is, as of the Contract Date being actually delivered to an Out-of
County Processing Facility pursuant to such franchise, contract or other agreement. With respect to the
portion of Controllable Waste which is subject to the franchise, contract or other agreement described in this
Section the City is not obligated to require that Residue from such Out-of-County Processing Facilities be
delivered to the Disposal System, after final processing or re-processing of such Residue as long as such
Residue from Out-of-County Processing Facilities does not exceed, in any Contract Year, the lesser of (i)
40% of the amount of City Acceptable Waste delivered to such Out-of-County Processing Facility in such
Contract Year or (ii) 7% of the total amount of Controllable Waste generated in the City during such
Contract Year. However, the City agrees that upon the expiration date of such franchise, contract or
agreement (as such expiration date exists as of the Contract Date, without any renewal, amendment or
modification thereof) the City will not be obligated to require that Residue from such Out-of-County
Processing Facilities be delivered to the Disposal System, after final processing or re-processing of such
Residue as long as such Residue from Out-of-County Processing Facilities does not exceed, in any Contract
Year, the lesser of (i) 40% of the amount of City Acceptable Waste delivered to such Out-of-County
Processing Facility in such Contract Year or (ii) 2% of the total amount of Controllable Waste generated in
the City during such Contract Year To the extent that Residue from the processing of Controllable Waste
exceeds the amount specified in this Section, the City shall exercise all legal and contractual authority which
it may possess from to time to time to require that such excess Residue be delivered to the Disposal System,
and shall include a requirement to that effect in any contracts, agreements or other arrangements for
processing at Out-of-County Processing Facilities which it enters into or amends after the Contract Date.
Where City Acceptable Waste is processed at an In-County or Out-of-County Processing Facility which
concurrently processes other Acceptable Waste in a manner which produces commingled residue which
cannot be traced to a geographic source, generic residues from such Processing Facility in Tonnage equal
to the residues that would have been produced had City Acceptable Waste only been processed at the facility
shall constitute Controllable Waste and be subject to the Waste Disposal Covenant (subject to the exclusion
from Controllable Waste of the amounts of Residue from Out-of-County Processing Facilities specified this
Section 3.1(C).) Such generic residues shall be delivered to the Disposal System regularly, in approximately
the same frequency as deliveries of City Acceptable Waste to the Processing Facility. (In making any
determination of Residue attributable to the City, the City may rely on the reports or certifications of the
owner or operator of the Transfer Station or Processing Facility.)
(D) Power to Obligate Waste Disposal and Comply with this Agreement. On or before
January 1, 1998, (i) any City franchise, contract, lease, or other agreement which is lawfully in effect relating
to or affecting Controllable Waste shall provide, or shall have been amended to provide, that the City shall
have the right without material restriction on and after the January 1, 1998 to direct the delivery of all
Controllable Waste to a disposal location selected by the City (whether or not such Controllable Waste is
delivered to a transfer station as an intermediate step prior to landfill disposal) and otherwise to comply with
its obligations under this Agreement with respect to Controllable Waste and Franchise Haulers, (ii) the City
shall designate the Designated Disposal Site as the disposal location pursuant to such franchise, contract,
lease or other agreement and (iii) the City's Franchise Hauler shall execute the Hauler Acknowledgment
attached hereto as Appendix 2, pursuant to which the Franchise Hauler acknowledges the City's execution
of this Agreement, and agrees to comply with the Waste Disposal Covenant. Throughout the Term of this
Agreement the City (a) shall not enter into any franchise, contract, lease, agreement or obligation, issue any
permit, license or approval, or adopt any ordinance, resolution or law which is materially inconsistent with
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the requirements of the Waste Disposal Covenant, and (b) shall maintain non-exclusive or exclusive
franchises or other contractual arrangements (or collection through City owned and operated collection
services) over any City Acceptable Waste which, as of the Contract Date, is subject to non-exclusive or
exclusive franchise or other contractual arrangements. The City agrees that the County shall be a third party
beneficiary of the obligation of Franchise Haulers to deliver Controllable Waste to the Disposal System, and
may directly enforce such obligation through any legal or means available; provided, however, that such
designation of the County as a third party beneficiary does not relieve the City of its obligations hereunder
to enforce the waste delivery obligation of the Franchise Haulers. The City shall notify in writing each
Franchise Hauler of the County's third party beneficiary rights.
(E)Waste Flow Enforcement. The City, in cooperation with the County, shall establish,
implement, carry out and enforce a waste flow enforcement program which is sufficient to assure the
delivery of all Controllable Waste to the Disposal System pursuant to and in accordance with the Waste
Disposal Covenant for disposal at the times and in the manner provided herein. The waste flow enforcement
program shall consist of amending City franchises with all Franchise Haulers, to the extent required by this
Section, and shall include in addition, to the extent necessary and appropriate in the circumstances to assure
compliance with the Waste Disposal Covenant, but shall not be limited to: (1) licensing or permitting
Franchise Haulers, upon the condition of compliance with the Waste Disposal Covenant, (2) providing for
and taking appropriate enforcement action under any such franchise, license, or permit, such as but not
limited to the suspension, revocation and termination of collection rights and privileges, the imposition of
fines or collection of damages, and the exercise of injunctive relief against non-complying Franchise Haulers
and (3) causing any Transfer Station to which Controllable Waste is delivered for processing to deliver
certification, under the penalty of perjury, of the amounts of Controllable Waste received and Residue
remaining from processing at such Transfer Station. The City acknowledges and agrees that in the event of
a breach of the Waste Disposal Covenant by the City, the City shall pay the County an amount equal to 100%
multiplied by the Contract Rate in effect at the time of such breach multiplied by the number of tons of
Controllable Waste which were not delivered to the Disposal System as a result of the failure of the City to
comply with the Waste Disposal Covenant. The parties recognize that if the City fails to meet its obligations
hereunder, the County will suffer damages and that it is and will be impracticable and extremely difficult
to ascertain and determine the exact amount of such damages. Therefore, the parties agree that the damages
specified above represent a reasonable estimate of the amount of such damages, considering all of the
circumstances existing on the date hereto, including the relationship of the sums to the range of harm to the
County that reasonably could be anticipated and anticipation that proof of actual damages would be costly
or inconvenient. In signing this Agreement, each party specifically confirms the accuracy of the statements
made above and the fact that each party had ample opportunity to consult with legal counsel and obtain an
explanation of this liquidated damage provision at the time that this Agreement was made.
(F)Legal Challenges to Franchise System. The City shall use its best efforts to
preserve, protect and defend (by diligent pursuit of claims through the trial court level) its right to exercise
and comply with the Waste Disposal Covenant against any challenge thereto, legal or otherwise (including
any lawsuits against the City or the County, whether as plaintiff or defendant), by a Franchise Hauler or any
other person, based upon breach of contract, violation of law or any other legal theory. The City shall bear
the cost and expense of any such Legal Proceeding or other challenge. In the event any such Legal
Proceeding relating to the Waste Disposal Covenant or the City's exercise thereof establishes in a final
determination that such covenant or exercise thereof is void, unlawful or unenforceable, or if any Franchise
Hauler fails to deliver Controllable Waste to the Disposal System in breach of its franchise with the City on
the grounds that a judicial determination made by any court or other Applicable Law has rendered its
obligation to deliver Controllable Waste to the Disposal System void, unlawful or unenforceable on any legal
grounds, with the result that actual waste deliveries of the City's Controllable Waste to the Disposal System
in any Contract Year fall below 93% of the amount of the City's Controllable Waste delivered to the
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Disposal System during the preceding Contract Year, the County shall be entitled to terminate this
Agreement upon 60 days prior written notice to the City. Such right of the County to terminate must be
exercised within one year of the end of the Contract Year during which the delivery shortfalls described in
this Section giving rise to the right to terminate occurred. Upon any termination by the County pursuant to
the provisions of this Section, the obligations of the County pursuant to Section 7.3 hereof shall not apply
to any Loss-and-Expense of the City which may arise from deliveries of waste to the Disposal System after
such date of termination.
(G)Franchise Haulers. The City shall compile and provide the County with the
following information concerning all Franchise Haulers: name, address and phone number; identification
number; area of collection and transportation; and franchise and permit terms.
(H)Waste Information System. The City shall cooperate with the County in collecting
information and otherwise monitoring Franchise Haulers in order to assure compliance with this Agreement.
Such information may include, to the extent practicable, data pertaining to Controllable Waste collected,
transported, stored, processed and disposed of Diverted City Acceptable Waste collected, transported,
stored, processed and marketed or disposed of; Franchise Haulers' franchise, permit or license terms,
collection areas, transportation routes and compliance with Applicable Law; and all other information which
may reasonably be required by the County in connection with this Agreement.
(I)City Actions Affecting County. The City agrees not to conduct any disposal services
for Controllable Waste to be provided in competition with the Disposal Services provided by the County
hereunder, and not to take or omit to take any action with respect to Controllable Waste or its collection,
transportation, transfer, storage, treatment or disposal that may materially and adversely affect the County's
ability to achieve such timely compliance. The County acknowledges that development by the City (or
cooperation by the City in connection with the private development of) any materials recovery facility or
transfer station located within or without the City shall not violate the provisions of this section as long as
the ultimate disposal site for any Controllable Waste (or Residue therefrom) which is delivered to such
materials recovery facility or transfer station is the Disposal System. Notwithstanding the foregoing, the City
shall not be required to (i) approve or deny any permit or license or grant or refuse to grant any approval
while exercising its police powers or (ii) waive, modify or otherwise limit in any manner the City's land use
authority.
No Right of Waste Substitution. Nothing in this Agreement shall authorize or entitle
the City to deliver or cause the delivery to the Disposal System of Acceptable Waste originating from or
generated outside the jurisdiction of the City, nor obligate the County to receive or dispose of any such
Acceptable Waste. The City shall not assign in whole or in part its right to deliver or cause to be delivered
Controllable Waste to the County hereunder, and shall not permit any Acceptable Waste originating from
or generated outside the jurisdiction of the City to be substituted for Controllable Waste for any purpose
hereunder.
(K) Annexations and Restructuring. It is the intention of the parties that this Agreement
and the obligations and rights of the City hereunder, including particularly the Waste Disposal Covenant and
the Contract Rate, shall, to the extent permitted by Applicable Law (and subject to any rights of waste
haulers operating in such areas prior to such annexation ), extend to any territory annexed by the City (or any
territory with respect to which the City assumes solid waste management responsibility from a sanitary
district or other public entity) and shall bind any successor or restructured Governmental Body which shall
assume or succeed to the rights of the City under Applicable Law.
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SECTION 3.2. PROVISION OF DISPOSAL SERVICES BY THE COUNTY. (A) Service
Covenant. Commencing January 1, 1998, the County shall provide or cause the provision of the service of
(1) receiving and disposing of all Controllable Waste at the Designated Disposal Facility, (2) disposing in
accordance with subsection 3.2(C) hereof of Controllable Waste which, at any time and for any reason, is
in excess of the disposal capacity of the Designated Disposal Facility, and (3) in accordance with subsection
3.3(C) hereof, disposing of Unacceptable Waste inadvertently accepted at the Designated Disposal Facility.
The County shall do and perform all acts and things which may be necessary or desirable in connection with
its covenants in this subsection, including without limitation all planning, development, administration,
implementation, construction, operation, maintenance, management, financing and contract work related
thereto or undertaken in connection therewith. The County shall exercise all reasonable efforts to minimize
the costs incurred in complying with the Service Covenant consistent with its responsibilities hereunder and
under this Agreement, Applicable Law and prudent solid waste management practice and environmental
considerations, so as to enable the County to provide the services hereunder at the Contract Rate.
(B) Temporary Unavailability of Designated Disposal Facility: Provision of Transfer
Capacity. The County shall immediately advise the City and Franchise Hauler by telephone and facsimile
of any situation, event or circumstance which results in the partial or complete inability of the County to
receive Controllable Waste at the Designated Disposal Facility, its effect on the County's ability to perform
its obligations hereunder, and the County's best estimate of the probable duration. The County shall confirm
such advice in writing within 24 hours of the occurrence of any such inability. The County shall use its best
efforts to resume normal operation of the Designated Disposal Facility as soon as possible in accordance
with subsection 3.2(C) hereof. In the event that, at any time during the term hereof, the County is unable to
accept City Acceptable Waste for disposal at any particular Designated Disposal Facility for a period in
excess of 14 consecutive days, it shall nonetheless provide sufficient transfer capacity at such Designated
Disposal Facility, and shall accept for transfer and disposal City Acceptable Waste at such Designated
Disposal Facility for the Contract Rate. In the event that the County cannot provide such transfer capacity,
it shall be obligated to accept such City Acceptable Waste at another facility within the Disposal System and
to reimburse the City for any increased transportation cost (including without limitation, equipment rental
costs, overtime and increased fuel costs resulting from the unavailability of the Designated Disposal Facility)
incurred by the City or the Franchise Haulers in transporting City Acceptable Waste to another disposal
facility within the Disposal System. In the event that the County cannot provide disposal capacity at another
facility within the Disposal System, it shall be obligated to reimburse the City for (i) any increased
transportation cost (including without limitation, equipment rental costs, overtime and increased fuel costs
resulting from the unavailability of the Designated Disposal Facility) incurred by the City or the Franchise
Haulers in transporting City Acceptable Waste to any other disposal facility used by the City or Franchise
Hauler and (ii) the amount, if any, by which the tipping fee at the alternative facility utilized by the City or
Franchise Hauler (because of the unavailability of any facility within the Disposal System) exceeds the then
current Contract Rate. The invoice shall include reasonable substantiation of the amount invoiced.
(C) Termination by County in Certain Circumstances. In the event that the Designated Disposal
Facility becomes unavailable pursuant to Section 3.2(B) for a period exceeding 14 days, the County shall
have the right to terminate this Agreement pursuant to this Section. The County may exercise such right by
providing 10 days prior written notice thereof to the City. In the event that the County exercises such right,
the County shall be obligated to pay the City an amount equal to (i) any aggregate increased transportation
cost (including without limitation, equipment rental costs, overtime and increased fuel costs resulting from
the unavailability of the Designated Disposal Facility) reasonably expected to be incurred by the City or the
Franchise Haulers in transporting City Acceptable Waste to any other disposal facility used by the City or
Franchise Hauler for a period of one year following the date of termination and (ii) the aggregate amount,
if any, by which the tipping fee at the alternative facility utilized by the City or Franchise Hauler (because
of the unavailability of any facility within the Disposal System) is reasonably expected to exceed the then
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current Contract Rate for a period of one year following the date of termination. Such amounts shall be
payable by the County within 60 days of the date of termination.
(D)Change in Designated Disposal Facility by Mutual Consent. The Designated
Disposal Facility has been initially designated in Appendix I hereto. The Designated Disposal Facility may
be changed, and other Designated Disposal Facilities added, at any time with the mutual consent of the
parties.
(E)Change in Designated Disposal Facility at City Request. In the event the City
wishes to change the Designated Disposal Facility to another Disposal System Component, the City shall
provide written notice and the reasons therefor to the County, and shall indicate whether the requested
change is permanent or temporary. The County shall consider any such request in good faith and provide
a response to the City within 14 days, taking into account the reasons for the request, the County's
obligations to other cities which have executed Disposal Agreements, the requirements of Applicable Law,
and the implications of any such change for the Disposal System as a whole. The County shall honor any
such request to the extent commercially practicable based on such considerations and the overall interests
of the Disposal System.
(F)Annual Notification of Remaining Disposal Capacity. At the end of each Contract
Year, the City shall advise the County in writing as to the expected delivery levels of Controllable Waste
during the next Contract Year, and the County shall submit to the City a statement specifying (1) the amount
of disposal capacity at the Designated Disposal Facility expected to be available for use by the City during
the next Contract Year; (2) the aggregate amount of Disposal System capacity expected to be available for
use by the cities which have executed Disposal Agreements during the remaining Term of this Agreement;
and (3) any plans the County may have with respect to redesignating the Designated Disposal Facility,
increasing or decreasing the number of cities using the Designated Disposal Facility, or curtailing or
expanding the use of the Designated Disposal Facility. The annual notification to be provided by the County
pursuant to this Section shall also describe the status of any permits required with respect to the Designated
Disposal Facility, including a description of (i) any permit revisions expected to be proposed by the County;
and (ii) any abatement orders or other permit compliance or enforcement actions taken or proposed by
Governmental Bodies.
SECTION 3.3. COUNTY RIGHT TO REFUSE WASTE. (A) Right of Refusal.
Notwithstanding any other provision hereof, the County may refuse delivery of:
(1)Unacceptable Waste; and
(2)Controllable Waste delivered at hours other than those provided in the facility
operating permit.
(B)Identification of Unacceptable Waste. The County shall have the right (but not the duty
or the obligation) to inspect the vehicles of all Franchise Haulers delivering material to the Disposal System,
and may require that the Franchise Hauler remove any Unacceptable Waste from such vehicle before it is
unloaded. If the County determines that it is impractical to separate Controllable Waste from Unacceptable
Waste in any vehicle, or if the Franchise Hauler delivering such waste is unwilling to make such separation,
or if any vehicle is carrying waste which may spill or leak, then the County may reject the entire vehicle, and
the County shall require that the Franchise Hauler shall forthwith remove or cause the removal of the entire
delivery from the Disposal System.
(C)Hazardous Waste and Hazardous Substances. The parties acknowledge that the
Disposal System has not been designed or permitted, and is not intended to be used in any manner or to any
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extent, for the handling, transportation, storage or disposal of Hazardous Waste or Hazardous Substances.
Neither the County nor the City shall countenance or knowingly permit the delivery of Hazardous Waste or
Hazardous Substances to the Disposal System.
(D)Disposal of Unacceptable Waste and Hazardous Waste. If Unacceptable Waste or
Hazardous Waste is discovered in a vehicle at any landfill within the Disposal System, the driver of the
vehicle will not be permitted to discharge the load. If a vehicle is observed unloading Unacceptable Waste
or Hazardous Waste in the tipping area of a landfill within the Disposal System County personnel will use
reasonable efforts to assure that such material has been characterized, properly secured and its disposition
resolved. The return or reloading on to the delivery vehicle of any Hazardous Waste, Prohibited Medical
Waste or other waste requiring handling or transportation shall be conducted in accordance with Applicable
Law. Whenever Hazardous Waste is detected at any landfill within the Disposal System, the County shall
take immediate action in accordance with Applicable Law. In addition, if the County inadvertently accepts
Unacceptable Waste, it shall have the right to pursue any remedies which it may against the person
delivering such Unacceptable Waste to recoup the cost of handling and properly disposing of such
Unacceptable Waste.
(E)Environmental Insurance. Prior to the Contract Date, the County will obtain
insurance for potential CERCLA or other environmental liability of the Disposal System, in an amount equal
to $10,000,000 with deductibles of: (i) $1,000,000 for events giving rise to coverage which events occurred
prior to October 1, 1995 and (ii) $250,000 for events giving rise to coverage which events occurred on or
after October 1, 1995. The County shall maintain comparable insurance throughout the term hereof so long
as commercially available on reasonable terms, as determined in the reasonable discretion of the County risk
manager. The County shall notify the City in the event that the County does not maintain the insurance
described in this Section.
SECTION 3.4. MISCELLANEOUS OPERATIONAL MATTERS. (A) Permit Revisions
or Stipulated Orders. The County shall provide the City with any application of the County to revise the
Legal Entitlements for the Designated Disposal Facility (or any draft or final stipulated notice and order
relating to the Designated Disposal Facility which may be under consideration by the local enforcement
agency with jurisdiction over the Designated Disposal Facility). Such applications shall be provided to the
City concurrently with its submittal to the appropriate regulatory agency.
(B) Scales and Weighing. The County shall operate and maintain permanent scales at the
Disposal System in compliance with Applicable Law. The County shall weigh all vehicles delivering
Controllable Waste by or on behalf of the City (whether or not the County accepts such waste) and prepare
a daily weight record with regard to such delivery. (In the event that scales are temporarily unavailable, the
County shall reasonably estimate the weight of Controllable Waste delivered by volume.)
SECTION 3.5. OTHER USERS OF THE DISPOSAL SYSTEM. (A) Generally. The
County shall have the right to enter into waste disposal agreements with other cities in the County, Sanitary
Districts, Transfer Stations or Independent Haulers; provided, however, that in no event shall such
agreements have terms and provisions more favorable than the terms and provisions of this Agreement
(including but not limited to the Contract Rate and availability of disposal capacity) unless the County has
first offered the City such more favorable contract (or amendments to this Agreement).
(B) Receipt of Imported Acceptable Waste on a Contract Basis. The County shall have
the right to enter into a contract or other agreement with any municipal or private non-County entity for the
delivery of Imported Acceptable Waste on terms and conditions that the County determines to be necessary
to ensure and enhance the viability of the Disposal System for the benefit of the County and the cities which
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have executed Disposal Agreements. The County shall not enter into any such arrangements if such
arrangements would materially and adversely affect the ability of the County to receive and dispose of
Acceptable Waste from the cities which have executed Disposal Agreements in accordance with the Disposal
Agreements throughout the Term thereof. Any such agreements shall provide that, in the event there is
insufficient capacity at the Designated Disposal Facility for both Controllable Waste and Imported
Acceptable Waste, Controllable Waste shall have priority with respect to existing capacity.
SECTION 3.6. COUNTY PROVISION OF WASTE DIVERSION SERVICES.
(A) County-Wide Recycling Services. This Agreement does not require the County to provide for any source
reduction, materials recovery, recycling, composting, or other waste diversion services by the County nor
any payment therefor by the City, by Franchise Haulers or by ratepayers; provided, however, any County-
Wide Recycling Services, or recycling services provided at any Designated Disposal Facility (such as
providing drop boxes for wood waste, green waste or other recyclable materials delivered to such Designated
Disposal Facility), may be funded through the County Waste Management Enterprise Fund. Any such
recycling services may be expanded, contracted or modified by the County at any time in its sole discretion.
(B) Separate City-County Diversion Service Agreements. Nothing in this Agreement
is intended to limit the right of the County to enter into a separate agreement with the City or any other
person to provide source reduction, materials recovery, recycling, composting or other waste diversion
services. Any such program conducted by the County, whether in participation with the City, any other of
the cities which have executed Disposal Agreements, other cities, Sanitary Districts, Transfer Stations,
Independent Haulers, Unincorporated Area or non-County entity, shall be operated, managed and accounted
for as a program separate and distinct from the Disposal Services program contemplated by the Disposal
Agreements and shall not be funded through the general revenues of the Disposal System.
(C) Diversion Programs in Unincorporated Areas. To the extent the County implements
diversion or other related programs in the Unincorporated Area of the County, the cost of such diversion
programs shall be paid by the residences and businesses receiving the benefit of such diversion programs,
and shall not be payable from the revenues of the Disposal System.
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ARTICLE IV
CONTRACT RATE
SECTION 4.1. CHARGING AND SECURING PAYMENT OF CONTRACT RATE. The
City acknowledges that the County shall have the right to charge and collect a Contract Rate for the
acceptance and disposal of Controllable Waste delivered to the System by any Franchise Hauler. The
Contract Rate shall be calculated and established, and may be modified, as provided in Section 4.2 hereof.
In addition, the City acknowledges that the County shall have the right to establish as part of the operating
rules and regulations reasonable measures to secure the payment of all Contract Rates. Notwithstanding
Section 4.2(A), the County shall have the right to impose special charges for the receipt of hard to handle
materials, such as bulky materials, construction and demolition debris, tires and sludge. Such special charges
shall be calculated to reflect the reasonable incremental costs to the County of accepting such hard to handle
materials.
SECTION 4.2. CONTRACT RATE. (A) Generally. Effective January 1, 1998, the
Contract Rate payable by each Franchise Hauler shall be $28.50 per ton, subject to potential adjustment
necessary to reflect the circumstances set forth below:
(i)increased costs incurred by the County (in excess of available insurance proceeds)
due to the occurrence of one or more Uncontrollable Circumstances, including Changes in Law; and
(ii)escalation during the Term of this Agreement calculated in accordance with Section
4.2 (B).
Prior to adjusting the Contract Rate as a result of any of the circumstances described in
Section 4.2(A)(i), the County shall utilize the following remedy: reduce the costs of operating the Disposal
System to the extent practicable.
Any adjustments to the Contract Rate permitted by this Section 4.2(A)(i) shall be calculated
by the County to reflect the actual costs or expenses of addressing the circumstance or circumstances
pursuant to which the adjustment is authorized, and shall also reflect, where applicable, the then remaining
capacity in the Disposal System. Such adjustment may not reflect circumstances other than the circumstances
described in Section 4.2(A)(i).
(B) Calculation of Escalation. For purposes of Section 4.2(A)(ii), the Contract Rate shall be
adjusted in accordance with the formula described in this Section each July 1 during the term hereof,
commencing July 1, 1999. The adjustment shall be calculated in accordance with the following formula:
Contract Rate = Fixed Portion + [Escalating Portion x Index]
Where,
Fixed Portion = $10.87
Escalating Portion = $17.63
Index = Price Index, which shall be determined in accordance with the
following formula
I .7[PPI I/PP12]+.3[EI I/EI2]
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PPII The Producer Price Index, Industrial Commodities, as published by
the United States Department of Labor Statistics in the publication
Producer Price Indices, Table 6, for the month of February in the
year the adjustment is being made (e.g., the first adjustment will
use the February, 1999 value)
PPI, = Producer Price Index, Industrial Commodities for the month of
February, 1998
ET, = Employment Cost Index, Compensation, Private Industry Workers,
as published by the United States Department of Labor Statistics
in the publication Monthly Labor Review, Table 22 for the last
quarter of the year preceding the year the adjustment is being made
(e.g., the first adjustment will use the last quarter, 1998 value)
EI2 = Employment Cost Index, Compensation, Private Industry Workers
established for the last quarter of 1997
If the Employment Cost Index or Producer Price Index are no longer published, or are otherwise
unavailable, then the Cost of Living Adjustment shall be determined by using standard official statistics
measuring changes to, respectively, labor costs and cost of materials, as the parties shall mutually agree.
(C) Procedure for Rate Adjustments. In the event the County determines that it is
entitled to an adjustment of the Contract Rate pursuant to Section 4.2(A)(i), it shall utilize the procedures
described in this Section 4.2(C). The County shall be required to provide the City with at least 60 days prior
written notice of the adjustment, which notice shall identify the specific event(s) or circumstances which
require the adjustment. The notice shall also specify the earliest date on which the County Board of
Supervisors shall consider the proposed adjustment. At least 45 days prior to such meeting of the Board of
Supervisors, the County shall provide the City with a report which shall contain the following information:
a description of the specific event(s) or circumstances which require the adjustment; a description (including
cost estimates) of any activities (which may include, but not be limited to capital improvements to the
Disposal System) required in order to remedy such event or circumstance; certification by the County that
it has implemented the remedy described in Section 4.2 prior to requiring the rate adjustment; and a
description of the methodology used by the County to calculate the adjustment to the Contract Rate
(hereinafter the "County Report"). In the event the City disputes the adjustment, it shall provide the County
with a written description of the reason for the dispute at least 10 days prior to the meeting of the Board of
Supervisors identified in the initial notice of the County (hereinafter the "City Report"). The City Report
shall be provided to the Board of Supervisors for consideration at such meeting in connection with the
proposed rate adjustment. At any time from and after the date that the County provides the City with the
County Report, upon the request of either party, the City and County shall meet and confer in good faith to
resolve any dispute that may arise regarding the proposed adjustment to the Contract Rate. In the event the
Board of Supervisors approves all or a portion of the proposed rate adjustment, such rate adjustment shall
become effective on the date identified in the initial notice sent by the County, but subject to potential
reimbursement pursuant to Section 4.2(D).
(D) Challenges to Rate Adjustment. In the event that the City challenges a Rate Adjustment
made pursuant to Section 4.2(A) and a court of applicable jurisdiction determines that any portion of the
County's adjusted Contract Rate was improperly imposed, the County shall, within 30 days of the date of
the statement of decision, reimburse to the City the amount improperly imposed, together with interest
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calculated at the Overdue Rate. Such reimbursement may be made in the form of a reduction in the Contract
Rate for a future period reasonably calculated to provide full reimbursement of the amounts described above.
SECTION 4.3. RESPONSIBILITY FOR PAYMENT OF THE CONTRACT. (A) Payment
by City. In the event and to the extent (1) the City uses municipai collection forces directly for the haulage
of Controllable Waste to the Disposal System or (2) the City uses non-municipal Franchise Haulers for
collection but nonetheless elects to pay the Contract Rate from City revenues, the City shall have direct
responsibility for payment of the Contract Rate, and shall take all such budgetary, appropriation and other
action as may be necessary to provide for the timely payment of the Contract Rate. Such action may include,
depending upon the means authorized by the City to provide for such payment, the levy and collection of
general or special taxes, the imposition of benefit assessments, or the collection of user fees, generator
charges or other similar impositions for municipal solid waste disposal. The City shall use best efforts in
accordance with Applicable Law to levy and impose all such taxes, assessments, fees or charges, and will
take all steps, actions and proceedings for the enforcement, collection and payment of all such amounts
which shall become delinquent, to the full extent permitted by Applicable Law. To the extent provided in
Section 7.5 hereof, the obligation of the City for such Contract Rate or Transfer Rates shall be limited to
amounts in the City's Solid Waste Enterprise Fund. From the Commencement Date to the date of expiration
or termination of this Agreement, the obligation of the City to pay the Contract Rate or Transfer Rate, to the
extent the City rather than Franchise Haulers is responsible directly for payment and provided that the
Service Covenant has been complied with, shall be absolute and unconditional and shall not be subject to
delay or diminution by reason of set-off, abatement, counterclaim, existence of a dispute or otherwise. The
obligation of the City hereunder shall be limited in all circumstances to amounts available in any enterprise
fund created by the City for solid waste management purposes, and there shall be no recourse hereunder
against the City's general fund or other funds not related to solid waste management purposes for amounts
owed by the City hereunder.
(B)Payment by Franchise Haulers. With respect to Controllable Waste delivered by
Franchise Haulers other than City municipal collection forces, the obligation to pay the Contract Rate shall
rest with such Franchise Haulers and not with the City and, unless the City has agreed with the County to
be responsible for Franchise Hauler payments, the City shall not be financially responsible for any delay or
failure by such Franchise Hauler to pay the Contract Rate or any portion thereof when due. In the event of
any such failure, the County and the City shall cooperate with each other and use their best efforts to obtain
timely payment. Such efforts by the County may include, as appropriate, requiring cash payments for
disposal rights from such Franchise Hauler and bringing a legal proceeding for payment and damages. Such
efforts by the City shall include, as appropriate, legal proceedings to suspend, revoke or terminate the
Franchise Hauler's franchise, permit or license rights.
(C)Disputes. If the City or the Franchise Hauler disputes any amount billed by the
County in any Billing Statement, the City or the Franchise Hauler shall nonetheless pay undisputed amounts
identified on such Billing Statement and shall provide the County with written objection within 30 days of
the receipt of such Billing Statement indicating the amount that is being disputed and providing all reasons
then known to the City or the Franchise Hauler for any objection to or disagreement with such amount. The
County shall then respond to such written objection (providing additional documentation substantiating the
amount disputed if applicable) within 30 days of receipt of the written objection. If the City or the Franchise
Hauler and the County are not able to resolve such dispute within 30 days after the County's response, either
party may pursue appropriate legal remedies. In addition, in the event of nonpayment by the City or
Franchise Hauler, as applicable, the County shall have the right to discontinue any credit arrangements it
may have had with the City or Franchise Hauler, and require cash payment for subsequent deliveries.
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SECTION 4.4. BILLING OF THE CONTRACT RATE. The County shall continue to bill
Contract Rate after January 1, 1998, in the same manner as it has customarily billed tipping fees. Subject to
the other provisions of this Agreement, the County shall have the right to modify or amend such manner of
billing on reasonable notice to affected parties.
SECTION 4.5. SOLID WASTE DISPOSAL FEE OPTION. Notwithstanding the other
provisions of this Article IV, City shall have the option to adopt the following procedure:
City agrees that it or its Franchise Hauler will pay the then current Solid Waste Disposal Fee (which Fee is,
at this time, set forth in Section 16.0222 of the County Code), as same may be amended from time to time,
relative to the City's Controllable Waste delivered to the Disposal System. In turn, the City will receive a
monthly payment from the County equal to the product of: the City's Controllable Waste delivered to the
Disposal System for the month in question multiplied by the difference between the then current Solid
Waste Disposal Fee and the then current Contract Rate (as the Contract Rate is determined under the
provisions of this Agreement). City acknowledges that the County shall have the right to establish as part
of the operating rules and regulations reasonable measures to secure the payment of all Solid Waste Disposal
Fees. Further, all references to "Contract Rate" in Sections 4.3 and 4.4 shall be deemed to refer to the Solid
Waste Disposal Fee.
City shall elect the option set forth in this Section 4.5 by notifying the County of such election as provided
in Section 7.16. The election shall be effective on the first day of the second month following receipt of the
notice by County.
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ARTICLE V
BREACH, ENFORCEMENT AND TERMINATION
SECTION 5.1. BREACH: REMEDIES. The parties acknowledge that the money damages
provided hereunder may not be adequate to compensate either party for the other party's nonperformance.
The parties agree that in the event either party breaches any obligation under this Agreement or any
representation made by either party hereunder is untrue in any material respect, the other party shall have
the right to take any action at law or in equity (including actions for injunctive relief, mandamus and specific
performance) it may have to enforce the payment of any amounts due or the performance of any obligations
to be performed hereunder. Neither party shall have the right to terminate this Agreement except as provided
in Section 3.1(F), Section 3.2(C), Section 5.2 and Section 5.3 hereof or as otherwise provided in this
Agreement.
SECTION 5.2. CITY CONVENIENCE TERMINATION. The City shall have the right to
terminate this Agreement in its sole discretion, for its convenience and without cause at any time during the
Term hereof upon 90 days' written notice to the County. If the City exercises its rights to terminate the
Agreement pursuant to this Section, the City shall pay the County a termination fee equal to (x) $14.25
multiplied by (y) the amount of Controllable Waste delivered to the Disposal System during the prior
Contract Year multiplied by (z) remaining term of the Waste Disposal Agreement, stated in years (assuming
such termination for convenience did not occur). Upon any termination by the City pursuant to the provisions
of this Section, the obligations of the County pursuant to Section 7.3 hereof shall not survive such
termination, notwithstanding Section 6.1(B).
SECTION 5.3. TERMINATION. (A) By City. Except as expressly provided herein, the
City shall have no right to terminate this Agreement for cause except in the event of the repeated failure or
refusal by the County substantially to perform any material obligation under this Agreement unless such
failure or refusal is excused by an Uncontrollable Circumstance; except that no such failure or refusal shall
give the City the right to terminate this Agreement for cause under this subsection unless:
(1)The City has given prior written notice to the County stating that a specified failure
or refusal to perform exists which will, unless corrected, constitute a material breach of this
Agreement on the part of the County and which will, in its opinion, give the City the right to
terminate this Agreement for cause under this subsection unless such breach is corrected within a
reasonable period of time, and
(2)The County has neither challenged in an appropriate forum (in accordance with
Section 5.6) the City's conclusion that such failure or refusal to perform has occurred or constitutes
a material breach of this Agreement nor corrected or diligently taken steps to correct such breach
within a reasonable period of time not more than 90 days from the date of the notice given pursuant
to clause (1) of this subsection (but if the County shall have diligently taken steps to correct such
breach within such reasonable period of time, the same shall not constitute a breach giving rise to
the right of termination for as long as the County is continuing to take such steps to correct such
breach).
(B) By County. Except as expressly provided herein, the County shall have no right to
terminate this Agreement for cause except in the event of the repeated failure or refusal by the City
substantially to perform any material obligation under this Agreement unless such failure or refusal is
excused by an Uncontrollable Circumstance; except that no such failure or refusal shall give the County the
right to terminate this Agreement for cause under this subsection unless:
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(1)The County has given prior written notice to the City stating that a specified failure
or refusal to perform exists which will, unless corrected, constitute a material breach of this
Agreement on the part of the City and which will, in its opinion, give the County right to terminate
this Agreement for cause under this subsection unless such breach is corrected within a reasonable
period of time, and
(2)The City has neither challenged in an appropriate forum (in accordance with Section
5.6 the County's conclusion that such failure or refusal to perform has occurred or constitutes a
material breach of this Agreement nor corrected or diligently taken steps to correct such breach
within a reasonable period of time not more than 90 days from the date of the notice given pursuant
to clause (1) of this subsection (but if the City shall have diligently taken steps to correct such breach
within such reasonable period of time, the same shall not constitute a breach giving rise to the right
of termination for as long as the City is continuing to take such steps to correct such breach).
SECTION 5.4. NO WAIVERS. No action of the County or the City pursuant to this
Agreement (including, but not limited to, any investigation or payment), and no failure to act, shall constitute
a waiver by either party of the other party's compliance with any term or provision of this Agreement. No
course of dealing or delay by the County or the City in exercising any right, power or remedy under this
Agreement shall operate as a waiver thereof or otherwise prejudice such party's rights, powers and remedies.
No single or partial exercise of (or failure to exercise) any right, power or remedy of the County or the City
under this Agreement shall preclude any other or further exercise thereof of the exercise of any other right,
power or remedy.
SECTION 5.5 DAMAGES. (A) City. In the event that the City terminates the Agreement
pursuant to Section 5.3(A), the County shall be obligated to pay to the City as damages the amount by which
the City's reasonably expected cost of transporting and disposing of City Acceptable Waste (for a period
commencing on the date of termination and ending one year after such date of termination) exceeds the
aggregate Contract Rate that would have been payable with respect to such City Acceptable Waste had the
County met its obligations hereunder and the Agreement had not been terminated.
(B) County. In the event that the County terminates the Agreement pursuant to Section 5.3(B), the
City shall pay the County as damages an amount equal to the Contract Rate in effect at the time of such
termination multiplied by the number of tons of City Acceptable Waste delivered to the Disposal System
during the preceding twelve months.
SECTION 5.6. FORUM FOR DISPUTE RESOLUTION. It is the express intention of the
parties that all legal actions and proceedings related to this Agreement or to the Disposal System or to any
rights or any relationship between the parties arising therefrom shall be solely and exclusively initiated and
maintained in courts of the State of California having appropriate jurisdiction.
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ARTICLE VI
TERM
SECTION 6.1. EFFECTIVE DATE AND TERM. (A) Term. This Agreement shall become
effective, shall be in full force and effect and shall be legally binding upon the City and the County from the
Contract Date and shall continue in full force and effect until the fifteenth anniversary of the Contract Date,
unless earlier terminated in accordance with its terms.
(B) Survival; Accrued Rights. The rights and obligations of the parties hereto pursuant to
Sections 3.1(E), 5.1, 5.3, 5.5, 7.2, 7.3, 7.5, 7.7, 7.8, 7.9, and 7.10 hereof shall survive the termination or
expiration of this Agreement, and no such termination or expiration shall limit or otherwise affect the
respective rights and obligations of the parties hereto accrued prior to the date of such termination or
expiration provided, however, that Section 7.3 shall not survive if the termination of the Waste Disposal
Agreement is due to the occurrence of an Event of Default on the part of the City. At the end of the Term
of this Agreement, all other obligations of the parties shall terminate.
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ARTICLE VII
GENERAL PROVISIONS
SECTION 7.1. OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM. The
County, at its cost and expense through the County Solid Waste Enterprise Fund, shall at all times operate,
or cause to be operated, the Disposal System in accordance with Applicable Law and the operating rules and
regulations of the County.
SECTION 7.2. UNCONTROLLABLE CIRCUMSTANCES GENERALLY.
(A) Performance Excused. Except as otherwise specifically provided in this Agreement, neither the County
nor the City shall be liable to the other for any failure or delay in the performance of any obligation under
this Agreement (other than any payment at the time due and owing) to the extent such failure or delay is due
to the occurrence of an Uncontrollable Circumstance.
(B)Notice. Mitigation. The party experiencing an Uncontrollable Circumstance shall
notify the other party by telecommunication or telephone and in writing, on or promptly after the date the
party experiencing such Uncontrollable Circumstance first knew of the commencement thereof, followed
within 15 days by a written description of (1) the Uncontrollable Circumstance and the cause thereof (to the
extent known), (2) the date the Uncontrollable Circumstance began and the cause thereof, its estimated
duration, the estimated time during which the performance of such party's obligations hereunder will be
delayed, (3) the estimated amount, if any, by which the Contract Rate may need to be adjusted as a result of
such Uncontrollable Circumstance, (4) its estimated impact on the other obligations of such party under this
Agreement and (5) potential mitigating actions which might be taken by the County or City and any areas
where costs might be reduced and the approximate amount of such cost reductions. Each party shall provide
prompt written notice of the cessation of such Uncontrollable Circumstance. Whenever such act, event or
condition shall occur, the party claiming to be adversely affected thereby shall, as promptly as reasonably
possible, use its best efforts to eliminate the cause therefor, reduce costs and resume performance under this
Agreement. In addition, with respect to Changes in Law, the County shall diligently contest any such
changes the imposition of which would have a material adverse impact on the Disposal System. While the
delay continues, the County or City shall give notice to the other party, before the first day of each
succeeding month, updating the information previously submitted.
(C)Impact on Contract Rate. If and to the extent that Uncontrollable Circumstances
interfere with, delay or increase the cost to the County of meeting its obligations hereunder and providing
Disposal Services to the cities which have executed Disposal Agreements in accordance herewith, the County
shall be entitled to an increase in the Contract Rate as provided in Section 4.2 herein or an extension in the
schedule for performance equal to the amount of the increased cost or the time lost as a result thereof. The
proceeds of any insurance available to meet any such increased cost shall be applied to such purpose prior
to any determination of cost increases payable under this subsection. Any cost reductions achieved through
the mitigating measures undertaken by the County pursuant to subsection 7.2(B) hereof upon the occurrence
of an Uncontrollable Circumstance shall be reflected in a reduction of the amount by which the Contract Rate
would have otherwise been increased or shall serve to reduce the Contract Rate to reflect such mitigation
measures, as applicable.
SECTION 7.3. INDEMNIFICATION. The County shall indemnify, defend with competent
counsel reasonably selected by the County, protect and hold harmless City, its officers, employees and
assigns from and against all Loss-and-Expense, including natural resources damages, injuries, costs,
response, assessment, remediation and removal costs, losses, demands, debts, liens, liabilities, causes of
action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses (including
but not limited to attorneys' and expert witness fees and costs incurred in connection with defending against
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any of the foregoing or in enforcing this indemnity) of any kind whatsoever paid, incurred or suffered by,
or asserted against, City or its officers or employees arising from or attributable to any repair, cleanup or
detoxification, or preparation and implementation of any removal, remedial, response, closure or other plan
(regardless of whether undertaken due to governmental action) or replacement or restoration of natural
resources arising from or related to Hazardous Substance or Hazardous Wastes or petroleum products at any
place where County transfers, stores or disposes of municipal solid waste pursuant to this agreement, or the
County's activities pursuant to this Agreement which result in a release or threatened release of Hazardous
Substances or Hazardous Wastes or petroleum products into the environment. The foregoing indemnity is
intended to operate as an agreement pursuant to but not limited to Section 107(e) of the Comprehensive
Environmental Response, Compensation and liability Act ("CERCLA"). 42 U.S.C. Section 9607(e), and
California Health and Safety Code Section 25364, to defend, protect, hold harmless and indemnify City from
liability. This indemnity shall not apply to willful, deliberate or grossly negligent delivery by the City of
Hazardous Substances or Hazardous Waste to the Disposal System. This indemnity shall also not apply with
respect to (i) vehicle accidents or other waste delivery activities or (ii) to any Hazardous Substances,
Hazardous Waste, petroleum product or other Unacceptable Waste not accepted for disposal in the Disposal
System. The City agrees that the County may provide counsel to jointly represent itself, the City and any and
all other parties who disposed of waste in the Disposal System. The City hereby agrees to waive, in writing,
any conflict, actual or apparent, created by the joint representation of such parties pursuant to this indemnity.
The City also hereby agrees to cooperate fully and completely with the County and with counsel provided
by the County in resolving any legal matter that arises pursuant to this indemnity. The City further agrees
that the County has complete discretion in the conduct of any matter to which this indemnity applies, and
may resolve or settle such matters to which this indemnity applies in its sole discretion without the
permission or approval of the City. The County agrees that it will not bring any action against the City
claiming or alleging that the City has any responsibility for matters, actions or liabilities within the scope
of the indemnity provided above.
SECTION 7.4. RELATIONSHIP OF THE PARTIES. Neither party to this Agreement shall
have any responsibility whatsoever with respect to services provided or contractual obligations or liabilities
assumed by the other party hereto, whether accrued, absolute, contingent or otherwise, or whether due or to
become due. The County is an independent contractor of the City and nothing in this Agreement shall be
deemed to constitute either party a partner, agent or legal representative of the other party or to create any
fiduciary relationship between the parties.
SECTION 7.5. LIMITED RECOURSE. (A) To the City. Except in the event the City has
not established or maintained a City Solid Waste Enterprise Fund, no recourse shall be had to the general
funds or general credit of the City for the payment of any amount due the County hereunder, or the
performance of any obligation incurred hereunder, including any Loss-and-Expense of any nature arising
from the performance or non-performance of the City's obligations hereunder. The sole recourse of the
County for all such amounts shall be to the funds held in any such Solid Waste Enterprise Fund. All amounts
held in any City Solid Waste Enterprise Fund shall be held for the uses permitted and required thereby, and
no such amounts shall constitute property of the County. The City shall make adequate provision in the
administration of any City Solid Waste Enterprise Fund for the payment of any amount or the performance
of any obligation which may be due hereunder.
(B) To the County. No recourse shall be had to the general funds or general credit of
the County for the payment of any amount due the City hereunder, or the performance of any obligation
incurred hereunder, including any Loss-and-Expense of any nature arising from the performance or non-
performance of the County's obligations hereunder. The sole recourse of the City for all such amounts shall
be to the funds held in the County Solid Waste Enterprise Fund in accordance with the terms of this
Agreement. All amounts held in the County Solid Waste Enterprise Fund shall be held for the uses permitted
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and required thereby, and no such amounts shall constitute property of the City. The County shall make
adequate provision in the administration of the County Solid Waste Enterprise Fund for the payment of any
amount or the performance of any obligation which may be due hereunder.
SECTION 7.6. PRE-EXISTING RIGHTS AND LIABILITIES. Except as specifically set
forth herein, nothing in this Agreement is intended to affect, release, waive or modify any rights, obligations
or liabilities which any party hereto may have to or against the other party as of the Contract Date relating
to the disposal of waste in the Disposal System or any other related matter.
SECTION 7.7. NO VESTED RIGHTS. The City shall not acquire any vested property,
license or other rights in the Disposal System by reason of this Agreement.
SECTION 7.8. LIABILITY FOR COLLECTION. TRANSPORTATION AND
PROCESSING. Any liability incurred by the City as a result of collecting Acceptable Waste or processing
it for diversion from landfill, or as a result of causing, franchising, permitting, licensing, authorizing or
arranging any of the foregoing, shall be its sole liability, except as expressly otherwise provided herein.
SECTION 7.9. NO CONSEQUENTIAL OR PUNITIVE DAMAGES. In no event shall
either party hereto be liable to the other or obligated in any manner to pay to the other any special, incidental,
consequential, punitive or similar damages based upon claims arising out of or in connection with the
performance or non-performance of its obligations or otherwise under this Agreement, or the material
inaccuracy of any representation made in this Agreement, whether such claims are based upon contract, tort,
negligence, warranty or other legal theory.
SECTION 7.10. AMENDMENTS. Neither this Agreement nor any provision hereof may
be changed, modified, amended or waived except by written agreement duly authorized and executed by both
parties.
SECTION 7.11. NOTICE OF LITIGATION. Each party shall deliver written notice to the
other of any Legal Proceeding to which it is a party and which questions the validity or enforceability of this
Agreement executed by the City or the County or any Legal Entitlement issued in connection herewith.
SECTION 7.12. FURTHER ASSURANCES. At any and all times the City and the County
so far as may be authorized by law shall pass, make, do, execute, acknowledge and deliver any and every
such further resolutions, acts, deeds, conveyances, instruments, assignments, transfers and assurances as may
be necessary or reasonably requested by the other in order to give full effect to this Agreement.
SECTION 7.13. ASSIGNMENT OF AGREEMENT. Neither this Agreement nor any of
the rights or obligations hereunder may be assigned by either party hereto without the prior written consent
of the other party, which may be withheld in the other party's sole discretion. Notwithstanding the foregoing,
that either party may assign this Agreement to another successor public entity, subject to the reasonable
consent of the other party. In such circumstances the party not requesting the assignment shall have the right
to demand assurances of the financial, technical and legal ability of the proposed assignee to undertake the
responsibilities and obligations of the assigning party.
SECTION 7.14. INTEREST ON OVERDUE OBLIGATIONS. Except as otherwise
provided herein, all amounts due hereunder, whether as damages, credits, revenue or reimbursements, that
are not paid when due shall bear interest at the Overdue Rate on the amount outstanding from time to time,
on the basis of a 365-day year, counting the actual number of days elapsed, and all such interest accrued at
any time shall, to the extent permitted by Applicable Law, be deemed added to the amount due, as accrued.
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SECTION 7.15. BINDING EFFECT. This Agreement shall bind and inure to the benefit
of the parties hereto and any successor or assignee acquiring an interest hereunder consistent with the
provisions of Section 7.13 hereof.
SECTION 7.16. NOTICES. Any notice or communication required or permitted hereunder
shall be in writing and sufficiently given if delivered in person or sent by certified or registered mail, postage
prepaid, to the notice address of the respective parties set forth on the cover page of this Agreement.
Changes in the respective addresses to which such notices may be directed may be made from time to time
by any party by notice to the other party.
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By
an, B d of Supervisors
Date FEB 2 4 1998 '
Date January 22, 1998
sors
, California
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized officers or representatives as of the day and year first above written.
COUNTY OF SAN BERNARDINO
SIGNED AND CERTIFIED THAT A COPY OF
THIS CONTRACT HAS BEEN DELIVERED TO
THE CHAIRMAN OF THE BOARD
Date FEB 2 4 1998
98-107
Byrn R. Matteson, Mayor
Ci y of Grand Terrace
APPROVED AS TO FORM:
COUNTY COUNSEL
SAN B RDING COQ Y, CALIFORNIA
Date 02
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APPENDIX 1
DESIGNATED DISPOSAL FACILITY
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DESIGNATED DISPOSAL FACILITY
The designated disposal facility for the City of Grand Terrace is the Colton Sanitary Landfill.
G.7.b
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AMENDMENT NO. 8 TO THE WASTE DISPOSAL AGREEMENT
On February 24, 1998, the City of Grand Terrace (“City”) and the County of San Bernardino (“County”) entered into a Waste Disposal Agreement (“WDA”). The parties hereby amend the WDA, on the Effective Date as
provided herein, by their respective execution of this agreement (hereinafter “Amendment’). Recitals A. The parties have previously entered into the following amendments to the WDA. Amendment No. 1 to the WDA was to correct the designated disposal facilities for the City. Amendment No. 2 was to implement the “Article 19 Solid Waste” component of the County’s waste management system and define the City’s share of that revenue. Amendment No. 3 was to increase the annual maximum limits of “Article 19 Solid Waste” in the County landfill system. Amendment No. 4 allowed the County to charge the fee of $10.00 per ton (prorated) for identified controllable waste of the City (e.g., roll off container trucks and other County/City vehicles such as pickups and dump trucks) and have such waste subject to being processed in the recycling program. Amendment No. 5 allowed the County to calculate the annual cost of living adjustment earlier in the calendar year. Amendment No. 6 extended the end date of the WDA to June 30, 2016. Amendment No. 7 extended the term of the WDA to June 30, 2021, applied an annual fixed
WDA renewal discount adjustment of $0.82 per ton for the term of the WDA, and allowed the County to enter into agreements to accept in-County waste from non-WDA users of the Disposal System at a rate lower than the WDA Contract Rate in exchange for sharing the net revenue generated from those
agreements. B. In connection with the ongoing administration of the WDA, the parties have determined it is now in their best interests to change the termination date to June 30, 2026. C. This change in the termination date will assist both the City and the County in planning for future fiscal years’ budgeting of solid waste disposal services and costs. D. The parties have determined it is in their best interests to reset the WDA Contract Rate to $38.00 per ton,
effective July 1, 2021, adjusted annually according to the WDA. NOW THEREFORE, in consideration of the forgoing recitals and the following covenants and promises the Parties agree as follows:
1. Amended Section 4.2 CONTRACT RATE. (A) Generally. This section is amended in its entirety to read: SECTION 4.2. CONTRACT RATE. (A) Generally. Effective July 1, 2021, the Contract Rate payable by each Franchise Hauler shall be $38.00 per ton, subject to potential adjustment necessary to reflect the circumstances set forth below: (i) increased costs incurred by the County (in excess of available insurance proceeds) due to the occurrence of one or more Uncontrollable Circumstances, including Changes in Law; and (ii) escalation during the Term of this Agreement calculated in accordance with Section
4.2(B). Prior to adjusting the Contract Rate as a result of any of the circumstances described in Section
4.2(A)(i), the County shall utilize the following remedy: reduce the costs of operating the Disposal System to the extent practicable.
Any adjustments to the Contract Rate permitted by Section 4.2(A)(i) shall be calculated by the County to reflect the actual costs or expenses of addressing the circumstance or circumstances pursuant
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to which the adjustment is authorized, and shall also reflect, where applicable, the then remaining capacity in the Disposal System. Such adjustment may not reflect circumstances other than the
circumstances described in Section 4.2(A)(i). 2. Amended Section 4.2. CONTRACT RATE. (B) Calculation of Escalation. This section is amended in its
entirety to read: SECTION 4.2. CONTRACT RATE. (B) Calculation of Escalation. For purposes of Section 4.2(A)(ii), the Contract Rate shall be adjusted in accordance with the formula described in this Section each July 1 during the term hereof, commencing July 1, 2022. The adjustment shall be calculated in accordance with the following formula: Contract Rate = Fixed Portion + [Escalating Portion x Index] Where, Fixed Portion = $10.87 Escalating Portion = $27.13
Index = Price Index, which shall be determined in accordance with the following formula:
I = .7[PPI1/PPI2] +.3[EI1/EI2] PPI1 = The Producer Price Index, Industrial Commodities Commodity Data, as published at the
United States Department of Labor, Bureau of Labor Statistics web site, Series ID WPU03 thru 15 for the month of September in the year prior to the year for which the adjustment is being made (e.g., the adjustment effective July 1, 2011 will use the September 2010 value) PPI2 = Producer Price Index, Industrial Commodities Commodity Data for the month of September, 1997 EI1 = Employment Cost Index, Total Compensation, Private Industry All Workers, as published at the United States Department of Labor, Bureau of Labor Statistics web site, Series ID: CIU2010000000000I for the last quarter of the year preceding the year for which the
adjustment is being made (e.g., the adjustment effective July 1, 2011 will use the third quarter, 2010 value)
EI2 = Employment Cost Index, Compensation, Private Industry All Workers, as published at the United States Department of Labor, Bureau of Labor Statistics web site, Table 3, established for the third quarter of 1997.
Effective July 1, 2022, and each July 1 thereafter during the term of the Agreement, the Contract Rate adjustment will be calculated as provided above, except that an annual fixed WDA renewal discount adjustment of $0.82 per ton will be applied after the annual Cost of Living Adjustment (COLA) adjustment. If at any time either the Employment Cost Index or the Producer Price Index is no longer
published, or are otherwise unavailable, then the COLA shall be determined by using standard official statistics measuring changes to, respectively, labor costs and cost of materials, as the parties shall mutually agree. 3. Amended Section 6.1 EFFECTIVE DATE AND TERM. (A) Term. This section is amended in its entirety to read:
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SECTION 6.1. EFFECTIVE DATE AND TERM. (A) Term. This Agreement shall become effective, shall be in full force and effect and shall be legally binding upon the City and the County from the Contract
Date and shall continue in full force and effect until June 30, 2026, unless earlier terminated in accordance with its terms.
4. Effective Date. This Amendment shall be effective if and only when all fifteen cities/towns listed on Exhibit A have each adopted and executed a counterpart of this Amendment No. 8 (the amendment number may differ for each city/town listed on Exhibit A) and such amendment has been adopted and executed by the County on or before June 30, 2021. In all events, the conditions in the forgoing sentence shall occur otherwise this Amendment No. 8 shall be null and void and without any effect whatsoever. 5. This Amendment may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such counterparts shall together constitute one and the same Amendment. The parties shall be entitled to sign and transmit an electronic signature of this Amendment (whether by facsimile, PDF or other email transmission), which signature shall be binding on the party whose name is contained therein. Each party providing an electronic signature agrees to promptly execute and deliver to the other party an original signed Amendment upon request. 6. No other amendments. Except as modified in this Amendment (or in any prior Amendment(s)) all other
terms and conditions of the WDA, including without limit those contained in any prior Amendment, shall remain in full force and effect. /
/ / /
/ / / / / / / / / / /
/ / /
/ / /
/ / / / / / / / / / /
/ / /
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized officers or representatives as of the day and year first above written.
Approved as to Legal Form Reviewed for Contract Compliance Reviewed/Approved by Department
Jolena Grider, Deputy County Counsel Andy Silao, P.E. Brendon Biggs, Director
Date Date Date
COUNTY OF SAN BERNARDINO City of Grand Terrace (Print or type name of corporation, company, contractor, etc.)
By
Curt Hagman, Chairman, Board of Supervisors (Authorized signature - sign in blue ink)
Dated:
Name
SIGNED AND CERTIFIED THAT A COPY OF THIS (Print or type name of person signing contract)
DOCUMENT HAS BEEN DELIVERED TO THE CHAIRMAN OF THE BOARD Title
Lynna Monell Clerk of the Board of Supervisors of the County of San Bernardino
(Print or Type)
By Dated:
Deputy Address
22795 Barton Road
Grand Terrace, CA 92313
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EXHIBIT A
CITIES/TOWNS WITH A WASTE DELIVERY AGREEMENT WITH THE COUNTY OF SAN BERNARDINO OFFERED THIS AMENDMENT JUNE 2021
FOR AN AGREEMENT END DATE OF JUNE 30, 2026
1. ADELANTO 2. APPLE VALLEY
3. BARSTOW
4. BIG BEAR LAKE 5. COLTON 6. FONTANA 7. GRAND TERRACE
8. HESPERIA
9. HIGHLAND 10. LOMA LINDA 11. RIALTO 12. TWENTYNINE PALMS
13. VICTORVILLE 14. YUCAIPA 15. YUCCA VALLEY
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AGENDA REPORT
MEETING DATE: June 8, 2021 Council Item
TITLE: Introduction of the FY2021-22 Proposed Budget
PRESENTED BY: Terry Shea, Interim Finance Director
RECOMMENDATION: 1. Review the Proposed Budget for Fiscal Year 2021-22; and
2. Begin budget deliberations for the Proposed Budget for
Fiscal Year 2021-22 on June 15, 2021.
2030 VISION STATEMENT:
This staff report supports City Council Goal #1 “Ensure our Fiscal Viability” through the
continuous monitoring of revenue receipts and expenditure disbursements against
approved budget appropriations.
BACKGROUND:
In prior years, staff has submitted, for City Council’s review and approval, the proposed
budget for the upcoming year. Once approved, this document has served as the City’s
financial plan for the following year and acts as the basis for budgetary control.
For Fiscal Year (FY) 2020-21, City Council approved a one-year budget, with any
adjustments submitted for the FY2020-21 budget, during the current year.
The City moved towards multi-year budgeting prior to the FY 2020-21 but shifted back
to the annual budget process due to the COVID-19 (novel coronavirus) pandemic, staff
thought it prudent and recommended to City Council that the City return to a one-year
budget process as it is difficult to project any revenues during this uncertainty. It is the
City’s hope that when this crisis is over and the City can resume its regular business
activities, staff will return to the submittal of a two-year budget for City Council review
and approval.
The shift back to an annual budget allows the City to:
1. Improve financial management.
2. Greater flexibility to respond to our confusing and uncertain environment.
3. Greater ability to shift resources because of service level demands and
4. Quickly Reallocation and redeploy resources.
DISCUSSION:
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The initial financial forecasts from state economic development forecasters lead many
cities to believe that over $7,000,000,000 would be withdrew out of local economies.
Grand Terrace, like many other cities across the state and nation prepared to
experience a significant fiscal crisis. However, all local economies are not the same
and alternative to brick-and-mortar retail sales proved to be a viable option for
Americans.
Grand Terrace’s existing economic infrastructure was uniquely positioned to weather
the economic challenges of COVID-19. The strengths and weaknesses in the City’s
Revenue and Expenditures for FY 2020-21 are clearly defined:
Strengths Weaknesses
Revenue Sales Taxes
Franchise Fees
License Fees
Redevelopment Property
Tax Trust Fund
Expenses Salary
Benefits
Professional Services
Utilities
Unfunded Accrued Liability
The major revenues in the City of Grand Terrace increased during COVID-19, primarily
because of consumer demand at food and drug stores. In addition, demand for building
and construction supplies remained brisk. Retail sales, along with license fees and
collection of franchise fees, are projected to lead to a positive outcome for FY 2020-21.
The weakness in FY 2020-21 economic positions stems from a state appellate court
case ( City of Chula Vista v. Sandoval, et al) which redistributes property tax in a
manner which reduces the City’s annual property tax allocation by approximately
$600,000 annually, as long as the City continues to holds Redevelopment Agency
(RDA) Assets or operates the RDA replacement agency (Successor Agency).
GENERAL FUND
FISCAL YEAR 2020-21
Table 1 reflects the FY2020-21 Year-End Revenue and Expenditure projections.
Table 1
City of Grand Terrace
FY 2020-21 General Fund Revenue and Expenditure Report
2020-21 2020-21
Adj Budget
05-21-21
Projections
06-08-2021
Revenues
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City of Grand Terrace
FY 2020-21 General Fund Revenue and Expenditure Report
2020-21 2020-21
Adj Budget
05-21-21
Projections
06-08-2021
Property Tax $2,082,593 $2,257,080
Residual Receipts - RPTTF $1,798,163 $1,483,046
Proceeds from Sale of
Property $0 $0
Franchise Fees $445,000 $620,000
Licenses, Fees & Permits $329,090 $363,330
Sales Tax $750,000 $970,000
Intergovernmental
Revenue/Grants $20,000 $30,549
Charges for Services $100,300 $125,311
Fines & Forfeitures $70,000 $64,806
Miscellaneous $0 ($5,004)
Use of Money & Property $67,500 $34,260
Wastewater Receipts $318,349 $318,349
Transfers In $0 $0
Residual Receipts - Sr Ctr $0 $0
Gas Tax $0 $0
Total Revenues $5,980,995 $6,260,727
Salaries $1,094,006 $1,084,765
Benefits $1,118,326 $965,636
Materials & Supplies $190,956 $186,446
Professional/Cont. Services $3,573,740 $3,618,510
Equipment $0 $0
Lease of Facility/Equipment $19,323 $17,514
Utilities $143,858 $162,009
Overhead Cost Allocation ($81,950) ($81,950)
Capital Projects $213,419 $113,402
Debt Service $0 $0
Transfers Out $139,750 $113,300
Total Expenditures $6,411,428 $6,179,632
Revenues $5,980,995 $6,260,727
Expenditures
($6,411,42
8)
($6,179,63
2)
Use of Fund Balance ($430,433) $81,095
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FISCAL YEAR 2021-22
The City continues to receive optimistic sales tax projections that build on the success
from prior and current year sales tax growth. Staff continues to meet with our property
and sales tax consultants (HdL) to monitor quarterly sales tax trends. The strengths
and weaknesses in the FY 2021-22 budget are transparent, which requires strategies to
capitalize on the strengths and overcome the weaknesses.
Strengths Weaknesses
Revenue Sales Taxes
Franchise Fees
License Fees (Development)
Property Tax Growth
Liquidation of Assets
Expenses Salary
Benefits
Professional Services
Utilities
Revenues:
1. Sales Tax projections: HdL projected higher sales tax revenues for FY2021-22 in
the amount of $988,000 and
2. Property Tax projections: Were provided by HdL as if the Successor Agency has
been dissolved with no RPTTF funds being received; and
3. Included in General Fund revenues is $1,770,000 for the sale of two properties
located at 22582 City Center Court and 22273 Barton Road.
Expenditures:
1. The General Fund must absorb the Child Care’s portion of the unfunded accrued
liability (UAL), plus the annual increase added by CalPERS to the UAL. The total
UAL for FY2021-22 which includes the Child Care’s portion is $523,523.
2. For the Sheriff’s Department the City Council approved a Contract extension with a
2.777% increase at its May 11, 2021 Council Meeting. The Contract amount is
$2,269,316 but staff budgeted it at $2,353,940 to be more in line with the prior year
increases. The increase is $145,948.
3. General Fund Maintenance of Effort: The City receives Measure “I” funds (1/2 cent
sales tax collected throughout San Bernardino County for transportation
improvements - $248k) and Road Maintenance and Rehabilitation Program
(RMRP) funds ($239k) into the RMRA Fund for use on local street and road
systems. The term “Maintenance of Effort” (MOE) generally refers to
a requirement placed upon state and federally funded grant programs that requires
local cities and counties to maintain general fund spending for streets and roads
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either through a certain percentage or formula, which may include the local
agency’s history of past spending on street rehabilitation and/or maintenance.
4. The FY2021-22 Budget includes the addition of five full-time employees, one part-
time position and two interns.
Table 2 summarizes the FY2021-22 Proposed Budget:
City of Grand Terrace
FY 2021-22 Proposed General Fund Revenue and Expenditure Report
2021-22
Proposed
06-08-2021
Revenues
Property Tax $3,989,040
Residual Receipts - RPTTF $176,900
Proceeds from Sale of Property $1,798,700
Franchise Fees $620,000
Licenses, Fees & Permits $490,500
Sales Tax $988,000
Intergovernmental Revenue/Grants $31,220
Charges for Services $141,100
Fines & Forfeitures $66,300
Miscellaneous $0
Use of Money & Property $34,660
Wastewater Receipts $318,349
Transfers In $0
Residual Receipts - Sr Ctr $0
Gas Tax $0
Total Revenues $8,654,269
Expenditures by Department
Salaries $1,552,512
Benefits $1,149,757
Materials & Supplies $224,770
Professional/Contractual Services $3,662,458
Equipment $0
Lease of Facility/Equipment $19,600
Utilities $176,448
Overhead Cost Allocation ($84,950)
Capital Projects $0
Debt Service $0
Transfers Out $105,000
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City of Grand Terrace
FY 2021-22 Proposed General Fund Revenue and Expenditure Report
2021-22
Proposed
06-08-2021
Total Expenditures $6,805,595
Revenues $8,654,269
Expenditures ($6,805,595)
Fund Balance $1,848,674
While the revenue and expenses of FY 2021-22 significantly exceed those in the prior
year, staff’s goal is to return to pre-COVID-19 staffing levels to ensure we can operate
and maintain city facilities that allow residents to fully utilize the assets of the
community. The projected Fund Balance is equal to or more than the revenue received
from the liquidation of assets, this is consistent with the City Council’s policy to not fund
ongoing expenses with one-time revenue.
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CITY-WIDE PROPOSED FY2021-22 BUDGET
The total Proposed Budget for FY2021-22 is $10,267,918 in revenues and $9,175,136
in expenditures.
The City’s Proposed Budget, which is presented for City Council’s review and
consideration,
• Supports the City’s mission, vision, core values and goals by preserving and
protecting the community and its exceptional quality of life; and
PROPOSED BUDGET BY FUND FY 2021-22
The next two tables show the Citywide Proposed Revenues and Expenditure budgets
by fund:
Table 3 (Proposed Revenues)
City of Grand Terrace
FY 2021-22 Proposed Revenue Summary by Fund
2019-20 2019-20 2020-21 2020-21 2020-21
Fun
d Type
Adjusted
Budget
Actuals Adjusted
Budget
Year-End
Projections
Proposed
Budget
GENERAL FUNDS
10 GENERAL FUND $5,977,197 $6,480,870 $5,980,995 $6,260,727 $8,654,269
61
COMMUNITY BENEFITS
FUND $20,000 $20,377 $20,000 $10,094 $20,000
62 LIGHT UP GRAND TERRACE $10,000 $13,006 $10,000 $5,535 $10,000
63
GT ILLEGAL FIREWORKS
ENFORCEMENT $500 $6 $0 $1 $250
64 PUBLIC SAFETY FUND $0 $326 $0 $105 $0
69 COMMUNITY DAY FUND $0 $0 $0 $0 $0
68
40TH YEAR BIRTHDAY
CELEBRATION FND $39,300 $22,947 $8 $0 $0
70
EQUIP REPLACEMENT
RESERVE FUND $0 $15 $0 $4 $0
DEVELOPMENT IMPACT
FEES (DIF)
11 STREET FUND $48,000 $92,272 $48,000 $6,827 $88,000
12 STORM DRAIN FUND $13,250 $4,231 $13,250 $935 $800
13 PARK FUND $69,400 $2,254 $69,400 $304 $800
19 FACILITIES FUND $20,000 $36,675 $20,000 $3,016 $20,600
SPECIAL REVENUE FUNDS
14 SLESF (AB3229 COPS) $156,330 $157,324 $100,050 $157,161 $160,000
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City of Grand Terrace
FY 2021-22 Proposed Revenue Summary by Fund
2019-20 2019-20 2020-21 2020-21 2020-21
Fun
d Type
Adjusted
Budget
Actuals Adjusted
Budget
Year-End
Projections
Proposed
Budget
15
AIR QUALITY IMPROVEMENT
FUND $58,000 $12,255 $58,000 $15,877 $15,500
16 GAS TAX FUND $610,600 $636,402 $650,800 $599,028 $614,200
17 TRAFFIC SAFETY FUND $6,000 $5,314 $6,000 $3,903 $4,000
20 MEASURE "I" FUND $193,000 $254,068 $193,000 $255,833 $248,600
25 SPRING MOUNTAIN RANCH $3,000 $223,598 $3,000 $2,326 $53,000
26
LNDSCP & LGTG
ASSESSMENT DIST $19,440 $46,483 $47,648 $48,522 $57,325
67
PUBLIC, EDUCATIONAL &
GOVT ACCESS $21,500 $23,180 $21,500 $17,637 $19,300
76
EIFD - ENHANCED INFRAST
FIN DIST $0 $0 $0 $0 $0
90
COVID-19 FEMA
REIMBURSEMENT FUND 30,300 $0 $153,425 $153,425 $0
ENTERPRISE FUND
21
WASTEWATER DISPOSAL
FUND $10,000 $38,590 $10,000 $2,021 $4,000
GRANT FUNDS
22
CDBG - COMM DEV BLOCK
GRANT $47,876 $33,982 $47,876 $35,020 $69,934
65
SENIOR BUS PROGRAM
FUND $54,566 $57,611 $37,450 $20,789 $118,340
66 CAL RECYCLE GRANT $5,000 $1,073 $5,000 $5,023 $0
73
ACTIVE TRANSPORTATION
PRGRM FUND $100,000 $0 $100,000 $0 $0
74
HIGHWAY SAFETY IMPROV
PROGRAM $510,000 $0 $185,000 $36,200 $44,000
77
SO CAL INCENTIVE PROJ
(SCIP) GRANT $185,000 $178,900 $0 $0 $0
SUCCESSOR AGENCY
31 S/A RDA REVENUE FUND $2,065,200 $292,285 $2,065,200 $301,438 $0
32
S/A CAPITAL PROJECTS
FUND $33,100 $11,113 $33,100 $0 $0
33 S/A DEBT SERVICE FUND $2,032,100 $18,282,143 $2,032,100 $0 $0
36
2011 TABS A & B BOND
PROCEEDS $0 $79,832 $0 $615 $0
CAPITAL PROJECT FUNDS
45 CIP - COMMERCE WAY $0 $12,628 $0 $0 $0
46
CAPITAL IMPROVEMENTS -
STREETS $543,400 $139,177 $445,000 $144 $0
47
CAP.PRJ. BARTON/COLTON
BRIDGE $0 $1,186 $0 $0 $0
48 CAPITAL PROJECTS FUND $0 $1,971 $0 $0 $0
49
CAPITAL PROJECTS FUND-
PARKS $100,000 $102,946 $100,000 $796 $0
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City of Grand Terrace
FY 2021-22 Proposed Revenue Summary by Fund
2019-20 2019-20 2020-21 2020-21 2020-21
Fun
d Type
Adjusted
Budget
Actuals Adjusted
Budget
Year-End
Projections
Proposed
Budget
52 HOUSING AUTHORITY $50,000 $14,206 $50,000 $7,186 $65,000
95
DOG PARK ENDOWMENT
FUND $0 $0 $0 $115 $0
$13,032,059 $27,279,246 $12,506,802 $7,337,139
$10,1267,91
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Table 4 (Proposed Expenditures)
City of Grand Terrace
FY 2021-22 Proposed Expense Summary by Fund
2019-20 2019-20 2020-21 2020-21 2020-21
Fund Type
Adjusted
Budget
Actuals Adjusted
Budget
Year-End
Projections
Proposed
Budget
GENERAL FUNDS
10 GENERAL FUND $6,273,121 $6,106,120 $6,411,428 $6,179,632 $6,805,595
61
COMMUNITY BENEFITS
FUND $15,000 $7,997 $10,000 $1,385 $20,000
62 LIGHT UP GRAND TERRACE $10,000 $13,535 $10,000 $5,915 $10,000
63
GT ILLEGAL FIREWORKS
ENFORCEMENT $500 $236 $250 $0 $250
64 PUBLIC SAFETY FUND $0 $0 $0 $0 $0
69 COMMUNITY DAY FUND $0 $0 $0 $0 $0
68
40TH YEAR BIRTHDAY
CELEBRATION FND $0 $0 $0 $18 $0
70
EQUIP REPLACEMENT
RESERVE FUND $0 $0 $0 $0 $0
DEVELOPMENT IMPACT
FEES (DIF)
11 STREET FUND $445,000 $40,457 $0 $0 $0
12 STORM DRAIN FUND $50,000 $0 $0 $0 $0
13 PARK FUND $100,000 $100,000 $0 $0 $0
19 FACILITIES FUND $100,000 $0 $60,425 $60,425 $0
SPECIAL REVENUE FUNDS
14 SLESF (AB3229 COPS) $156,350 $157,274 $150,000 $150,000 $160,000
15
AIR QUALITY IMPROVEMENT
FUND $58,000 $54,353 $13,000 $5,000 $13,000
16 GAS TAX FUND $607,880 $527,925 $558,000 $431,984 $722,075
17 TRAFFIC SAFETY FUND $0 $0 $4,000 $0 $4,000
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City of Grand Terrace
FY 2021-22 Proposed Expense Summary by Fund
2019-20 2019-20 2020-21 2020-21 2020-21
Fund Type
Adjusted
Budget
Actuals Adjusted
Budget
Year-End
Projections
Proposed
Budget
20 MEASURE "I" FUND $193,000 $28,432 $250,000 $53,090 $119,272
25 SPRING MOUNTAIN RANCH $0 $7,200 $50,000 $5,720 $50,000
26
LNDSCP & LGTG
ASSESSMENT DIST $19,440 $16,183 $48,584 $16,139 $66,009
67
PUBLIC, EDUCATIONAL &
GOVT ACCESS $21,500 $0 $21,500 $62 $21,500
76
EIFD - ENHANCED INFRAST
FIN DIST $0 $8,100 $5,000 $5,000 $0
90
COVID-19 FEMA
REIMBURSEMENT FUND $0 $4,725 $0 $0 $0
ENTERPRISE FUND
21
WASTEWATER DISPOSAL
FUND $10,000 $88,570 $7,000 $0 $0
GRANT FUNDS
22
CDBG - COMM DEV BLOCK
GRANT $58,592 $53,725 $69,934 $30,638 $69,934
65
SENIOR BUS PROGRAM
FUND $54,566 $67,316 $159,915 $63,075 $121,067
66 CAL RECYCLE GRANT $5,000 $937 $5,000 $0 $0
73
ACTIVE TRANSPORTATION
PRGRM FUND $99,810 $0 $0 $0 $0
74
HIGHWAY SAFETY IMPROV
PROGRAM $509,690 $21,685 $497,064 $417,508 $44,000
77
SO CAL INCENTIVE PROJ
(SCIP) GRANT $185,000 $185,000 $0 $0 $0
SUCCESSOR AGENCY
31 S/A RDA REVENUE FUND $2,065,200 $1,527,676 $301,438 $0 $0
32
S/A CAPITAL PROJECTS
FUND $33,100 $11,113 $18,000 $5,928 $0
33 S/A DEBT SERVICE FUND $2,032,100 $918,552 $283,438 $281,106 $0
36
2011 TABS A & B BOND
PROCEEDS $320,000 $16,941,138 $0 $6,670 $0
CAPITAL PROJECT FUNDS
45 CIP - COMMERCE WAY $875,977 $36,384 $839,594 $65 $839,594
46
CAPITAL IMPROVEMENTS -
STREETS $568,400 $139,986 $427,040 $0 $0
47
CAP.PRJ. BARTON/COLTON
BRIDGE $0 $2,650 $0 $13,418 $0
48 CAPITAL PROJECTS FUND $0 $1,186 $0 $0 $0
49
CAPITAL PROJECTS FUND-
PARKS $253,087 $13,495 $89,592 $13,145 $89,592
52 HOUSING AUTHORITY $28,320 $26,829 $118,950 $21,725 $19,248
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City of Grand Terrace
FY 2021-22 Proposed Expense Summary by Fund
2019-20 2019-20 2020-21 2020-21 2020-21
Fund Type
Adjusted
Budget
Actuals Adjusted
Budget
Year-End
Projections
Proposed
Budget
95
DOG PARK ENDOWMENT
FUND $0 $0 $0 $0 $0
$15,148,633 $27,108,779 $10,409,152 $8,397,583 $9,175,136
Budget Schedule
The proposed schedule leading to adoption of the FY2021-22 is as follows:
Table 5
Description Date
Budget Introduction Tuesday, June 8th
Budget Deliberations by Department and Fund Tuesday, June 15th
Budget Adoption Tuesday, June 22nd
FISCAL IMPACT:
Fiscal impacts of the FY2021-22 Proposed Budget are identified in the FY2021-22
Proposed Budget Summary (which is being made available in the City Clerk’s office).
APPROVALS:
Debra Thomas Completed 06/04/2021 3:59 PM
Finance Completed 06/04/2021 3:59 PM
City Attorney Completed 06/04/2021 4:34 PM
City Manager Completed 06/04/2021 11:32 PM
City Council Pending 06/08/2021 6:00 PM
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