Chino City Council
July 5, 2023

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2.38.020 - Establishment.

There is established a Chino community services , parks, and recreation commission with members, organizations, duties, and responsibilities as provided in this chapter.

2.38.030 - Membership—Appointment and term of office.

A. The membership of th e c ommunity services , parks, and recreation commission, as appointed by the mayor of the City of Chino, shall consist of seven me mbers representing a broad interest in recreation, human services, park planning, cultural arts, youth, and senior citizens. Six m embers shall be appointed by the mayor of the City of Chino with the approval of the city council and one member shall be appo inted by the six other commissioners (member at large). The appointment of the member at large is to be ratified by the city council.

B. In the event that a member appointed by the mayor of the City of Chino is required to take a temporary leave of absence, the mayor may appoint a temporary replacement with the approval of the city council. In the event that a member resigns or die s before the end of his or her term, or for any reason is unable to complete the term, the mayor may appoint a member to fill the vacant position with the approval of the city council.

C. In the event that a member appointed by the six other commissioner s (member at large) is required to take a temporary leave of absence, the other six members may appoint a temporary replacement. In the event that the member at large resigns or dies before the end of his or her term, or for any reason is unable to complete the term, the othe r six members may appoint a member to fill the vacant position. The appointment of the member at large is to be ratified by the city council.

D. All members of the community services, parks, and recreation commission appointed by the mayor of the City of Chino, as well as the at-large member, shall be residents of the City of Chino at the time of their appointment and throughout their terms of office.

2.38.040 - Terms of office.

There shall be seven community services, parks, and recreation commissioners who shall be appointed for four-year, staggered terms. Effective July 1, 2023, the terms shall be staggered as follows:

Three terms ending June 30, 2027, (three city appointees) One term ending June 30, 2024, (one city appointee)
Three terms ending June 30, 2025 (two city appointees one member at large appointed by majority vote of the six other commissioners). …

2.38.055 - Removal of members.

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Any member of the community services, parks, and recreation commission who was appointed by the mayor may be removed by the mayor at any time, with the approval of the city council. His or her successor may be appointed by the mayor with the approval of the city council and shall serve the remainder of the term of office.
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2.38.080 - Meetings.

The commu nity services , parks, and recreation commission shall conduct its affairs at regularly scheduled meetings, or at special meetings, in such a manner as is prescribed by law of the state of California. Regular meetings are to be held on the fourth Monday of each month.

2.38.090 - Staff assistance.

The director of community services , parks, and recreation or his/her designee, to the fullest extent pos sible, shall provide s uch staff assistance as the commission may require from time to time.

2.38.100 - Duties and responsibilities.

The community services , parks, and recreation commission is responsible to the city council for policy a dvice recommendat ions on the scope of city - sponsored community service, parks, and recreation activities. The commission is also to provide assistance with community services that are offered by the city which impact the use of school district facilities that are utilized for se rvice delivery. The duties and responsibilities of the community service s, parks, and recreation commission shall be as follows:

A. To encourage broad citizen participation in community services activity, which includes parks, recreation, human services, cultural arts, youth, and senior citizens;
B. To evaluate and weigh community value s in the develo pment of a community services program;
C. To conduct studies and make recommendations which promote and encourage high standards and increased opportunities in community service activities and programs that are in the best interests of the city, in accor dance with the city's general plan;
D. As directed by the city council, to review and make recommendations on the capital improvement program as it relates to park and open spac e needs, and future community services developments, and the c oordination of community services with other governmental agencies and volunteer organizations; E. To appoint and serve on committees, as necessary, to study and make policy recommendations on community services concerns, projects, and programs;
F. To promote cooperative use and make reco mmendations on the utilization of school district facilities for the purposes of conducting community service programs and projects;

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G. To conduct public m eetings where the community has the opportunity to provide input regarding community services programming.

2.38.110 - Compensation of members.

Each member of the community services , parks, and recreation commission shall be compensated for each commission meeting attended. The amount of the compensation shall be r ecommended by t he city manager and adopted i n the annual budget by the city council.

Section 3. Subsection B of Section 2.48.060 of the Chino Municipal Code is hereby amended as follows (additions in bold underline; deletions in bold strikethrough):

B. The director of emergency services shall designate the order of succession to that office, to ta ke effect in the event the director is unavailable to attend meetings and otherwise perform his duties during an emergency. Such order of succession shall be designated as follows:

1. Assistant city manager;

2. Police chief;

3. Director of public works;

4. Director of community development services;

5. Director of recreation and community services, parks, and recreation;

Section 4. Subsection A of Section 2.68.060 of the Chino Municipal Code is hereby amended as follows (additions in bold underline; deletions in bold strikethrough):

A. The "mobilehome park rent stabilization com mission" is hereby created.

The commission shall be comprised of three residents of the City of Chino including any existing membe r of the planning commission or community services, parks, and recreation commission. The members of the commission shall be a ppointed and removed by the city council by a majority vote of the city council. No member of the commission shall be or, at any time during the immediately five years, have been a park owner or mobilehome owner.

Section 5. Section 8.12.010 of the Chino Municipal C ode is hereby amen ded as follows (additions in bold underline; deletions in bold strikethrough):

8.12.010 - Intent.

The provisions of this chapter are intended to regulate the sale and use of fireworks and the prevention of fires thereby. They are, furth ermore, provided to ensure a community benefit from the revenues received. The fees in this chapter, along with the use o f the community services , parks, and recreat ion commission as a designated oversight committee, are for regulation purposes.

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Section 6. Subsection D of Section 8.12.030 of the Chino Municipal Code is hereby amended as follows (additions in bold underline; deletions in bold strikethrough):

D. At no time shall an organization be permitted to sublet a fireworks stand without first acquiring wri tten consent from the community services , parks, and recreation commission. A hearing d ate, to be scheduled by and w ith the community services , parks, and recreation commission, shall determine if subletting will result in a benefit to the community.

Permission from the commi ssion shall require that all subleased units be subject to the same terms and conditions as appl ied to any other qualifying organization.

Section 7. Subsections C and D of Section 8.12.040 of the Chino Municipal Code is hereby amended as follows (additions in bold underline; deletions in bold strikethrough):

C. Submit official board minutes detaili ng the intent and authorization to sell fireworks. Such notes shall detail what s ites, populations or projects will benefit a nd for what purposes. Minutes shall be attached to the application and shall be reviewed by the community services, parks, and recreation commission;
D. Include a copy of the organization's 501(c)3, or other official verification of nonprofit status on let terhead of the nonprofit organization . Agencies not possessing t he appropriate document ation of nonprofit status shall be required to s eek written authorization from the community services , parks, and recreation commission prior to a permit being issued an d prior to March 15th of each year. A hearing date, to be sc heduled by and with the com munity services , parks, and recreation commission, shall determine whether organizations without proof of nonprofit status ca n proceed with operating the stand. The hear ing date shall be coordinated between the applicant and the comm ission during the m onths of March and April;

Section 8. Subsection B of Section 8.12.060 of the Chino Municipal Code is hereby amended as follows (additions in bold underline; deletions in bold strikethrough):

B. All applying organizations shall be required to demonstrate how revenues received will benefit the community of C hino. Self -profit seeking organizations shall be prohibited f rom participating, unless special circumstances as observed and approved by the co mmunity services , parks, and recreation commission permit.

Section 9. Subsection A of Section 8.12.070 of the Chino Municipal Code is hereby amended as follows (additions in bold underline; deletions in bold strikethrough):

A. No entity other than the permittee organization shall operate the stand for which the retail permit is issued, unless permitted by the community services, parks, and recreation commission.

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Section 10. Section 8.12.135 of the Chino Municipal C ode is hereby amended as follows (additions in bold underline; deletions in bold strikethrough):

8.12.135 - Location of fireworks stands—Changes.

Any change in the proposed location for a fireworks stand set forth in an application for a retail permit must be approved by a committee appointed by the community services, parks, and recreation commission prior to the issuance of the permit. There shall be no changes in the location of a fireworks stand once a permit has been granted.

Section 11. Subsections A and B of Section 8.12.200 of the Chino Municipal Code is hereby amended as follows (additions in bold underline; deletions in bold strikethrough):

A. The community s ervices, parks, and recreation commission s hall investigate and conduct hearings regarding violations of this chapter, and any organization found in violation of this chapt er or proceeding without appropriate consent from the commiss ion shall be ineligible to obtain a permit for selling fireworks f or three years immediately following the violation, after which time they will be requir ed to participate in a permit lottery.

B. A retail permit may be revoked at any time by the tax and license collector or the community services , parks, and recreation commission if the organization does not comply with the permit requirements set forth in this chapter.

Section 12. Section 9.80.020 of the Chino Municipal C ode is hereby amended as follows (additions in bold underline; deletions in bold strikethrough):

9.80.020 - Definitions.

For purposes of this chapter, the following definitions shall apply:
"Law enforcement officer" means a polic e officer, code e nforcement officer, the director of commun ity servi ces, parks, and recreation or the director's designee.
"Minor" is any unemancipated person under the age of eighteen. "Parent" is any person having legal custody of a minor: (1) as a natur al or adoptive parent, (2) as a legal guardian, (3) as a pe rson who stands in loco parentis, or (4) as a person to whom legal or physical custody has been given by court order.
"Public place" means any place to which the public or a substantial group of pe rsons have access and includes, but is not limited to, comm on areas of schools, shopping centers, parking lots, parks, playgrounds, transportation facilities, theaters, restaura nts, shops, bowling al leys, taverns, cafes, arcades and similar areas that are open to the use of the public. "Public street" means a way or place, of whatever nature, open to the use of the public as a matter of right for purposes of vehicular travel or in the case of a sidewa lk thereof for pedestrian travel. "Street" includes, but is not limited to, alleys, the cartway of traffic lanes, th e curb, t he sidewalks whether paved or

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unpaved, and any grass plots or other grounds found within the legal right-of-way of a street.

Section 13. Subsection O of Section 10.24.080 of the Chino Municipal Code is hereby amended as follows (additions in bold underline; deletions in bold strikethrough):

O. All organized events shall have the written approval of the director of community services, parks, and recreation or his designee.

Section 14. Subsection F of Section 12.20.033 of the Chino Municipal Code is hereby amended as follows (additions in bold underline; deletions in bold strikethrough):

F. The provisi ons of this section may be waived for activi ties of a special recreational nature authorize d and/or supervised by the recreation and community services, parks, and recreation department.

Section 15. Section 12.20.040 of the Chino Municipal C ode is hereby amended as follows (additions in bold underline; deletions in bold strikethrough):

12.20.040 - Hours of operation.

Any person who remains in any city park between the hours of 10:00 p.m. and 6:00 a.m. of the following day, except for organ ized activiti es approved by the community services , parks, and recreation department, is guilty of a misdemeanor.

Section 16. Table 16.05-1 of Chapter 16.05 of the Chin o Municipal Code is hereby amended as follows with the re mainder of the table remaining unchanged (additions in bold underline; deletions in bold strikethrough):

Table 16.05-1—Sign Regulation Matrix
Classification
Type,
Number &
Location
Area Height Remarks

1. Signs Permitted in all Zoning Districts
- Central Avenue
Street Banner, Electronic
Message Board, and
Light Standard Banners

(1) Refer to the guidelines for
roadway promotions, regulated
by the Community Services,
Parks, and Recreation
Department, for these types of
signs.
- Sports Organization
Banners
One banner
per street
frontage.
150 SF
per
sign
face.

No
requirement.
(1) Banners for local youth
sports organizations are
permitted for the purpose of
advertising league sign-ups in
public parks.

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(2) The banner shall be
approved by the Community
Services, Parks, and
Recreation Department prior to
submitting a Temporary Sign
Permit application.
(3) Displays shall be limited to
60 calendar days per year.

Table 16.05-1—Sign Regulation Matrix
Classification Type, Number &
Location Area Height Remarks
Regional &
Community
Parks
One monument sign
per boundary street
frontage, located at
the street entrance or
intersection of
boundary streets.
75 SF
per
sign
face.
15 FT
(1) Signs shall identify the name of
the park, and may include an
electronic message board and
identification for tenants, sub-tenants
and/or franchisees within the park.
(2) Minimum 8-inch high letters shall
be provided for tenant identification.
(3) Electronic message boards shall
not contain any illumination that
changes intensity, nor shall the
display expose messages for less
than 4 second intervals or have
intervals between messages of less
than one second.
(4) Electronic message boards may
advertise public or private events,
businesses or services available on
and off the premises. Display content
shall be as determined appropriate by
the Director of Community Services,
Parks, and Recreation.
(5) Directional signs, pedestrian signs
and window signs shall comply with
the requirements of the CG & CS
zoning districts.
(6) Commercial tenants, sub-tenants
and franchisees shall comply with the
requirements of the CG & CS zoning
districts.

Section 17. Subsection C of Section 18.01.050 of the Chino Municipal Code is hereby amended as follows (additions in bold underline; deletions in bold strikethrough):

C. Common interest developm ents, as de fined in Section 1351 of the California Civil Code, shall be eligible to receive a credit, as determined by the director of community services, parks, and recreation pursuant to

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Section 18.01.120 against the amount of land required to be dedicated, or the amount of the fee in lieu of such d edication imposed by this chapter, for the value of private space within the de velopment which is usable for active recreational uses.

Section 18. Subsection D of Section 18.01.090 of the Chino Municipal Code is hereby amended as follows (additions in bold underline; deletions in bold strikethrough):

D. Fair market value of the la nd r equired t o be dedicated by this chapter shall be determined by a qualified real estate appraiser selected by the director o f community services , parks, and re creation for an annual appraisal of the median fair market value per acre of public parks of t hree acres or larger in residential areas within the city if such land were not used for or zoned for park or recreational p urposes. Such appraisal shall include basic infrastructure abutting the land, such as rough grading, installation of streets, curbs, gutters, str eet lighting, sidewalks, and installation of available trunk line utility connections, but exclude on -site and other off -site improvements. Such appr aisal shall be approved by resolution of the city council.

Section 19. Subsections A and B of Section 18.01.120 of the Chino Municipal Code is hereby amended as follows (additions in bold underline; deletions in bold strikethrough):

A. Any person requesting a credit against the dedication of land for park or recreational purposes or payment of f ees in lieu the reof required by Sections 18.01.050 through 18.01.100 of this chapter shall file a written application therefor with the city cler k no l ater than sixty days after issuance of the first certificate of occupancy for private open space within the dev elopment or subdivision which is usable for active recreational uses. The application shall contain a desc ription of the private open space within the development or subdivision which is usable for active recreational uses, the cost and value thereof , the amount of the in -lieu fees paid, the fair market value of land dedicated determined in accordance with Sec tion 18.01.090 of this chapter, t he amount of the credit sought, and all documents in support thereof. Upon the filing of said application, the city clerk shall refer the same to the director of community services, parks, and recreation, who shall prepare an analysis of the requested credi t and provide a recomm endation to the planning commission within sixty days of the filing of the application. Within thirty days of the receipt of the analysis and recommendation by the director of community services, parks, and recreation, the application shall be set for hearing before the planning commission for a determination on the request for a credit.

B. In or der to be eligible for a credit, a residential subdivision or other development must contain private open space that is usable for active recreational uses. Where private open space for park and recreational purposes is provided in such a proposed su bdivision or development and such space is to be privately owned and maintained by the future residents of such subdivision or development, partial credit on a square

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foot for square foot basis, up to an amount not to exceed fifty percent maybe given against the requirement of this chapter for land dedication and/or payment of fees in lieu thereof if the director of community services, parks, and recreation finds that it is in the public interest to do so and all the following standards are met:
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Section 20. Section 18.01.130 of the Chino Municipal C ode is hereby amended as follows (additions in bold underline; deletions in bold strikethrough):

18.01.130 - Credit for improvements and equipment.

If a subdivider or developer pr ovides park and/or recreational im provements to land dedicated for park or recreational purposes, with or without the payme nt of fees in lieu thereof, or a co mbination of both, as a condition to approval of a tentative tract map, tentative parcel map, or o ther residential development, pursuant to the requirements of Section 18.01.080, 18.01.090 or 18.01.100 of this chapter, in addition to such dedication of lan d or payment of fees, the value of such improv ements together with any equipment located thereon s hall be a credit against such dedication of land or payment of such fees otherwise required by this chapter. The amount of such credit shall be determined by the director of community services , parks, and recreation in accord ance with park improvement standards established by the city.

Section 21. Subsection B of Section 18.01.140 of the Chino Municipal Code is hereby amended as follows (additions in bold underline; deletions in bold strikethrough):

B. When dedication is requ ired, it shall be accomplishe d in accordance with the provisions of the subdivision map act as implemented by this chapter.

When fees are required, the same shall be deposited with the public works department prior to recordation of the final tract map. Op en space covenants for privat e park or recreational facilities sh all be approved by the city attorney and the director of community services , parks, an d recreation prior to approval of the final subdivision map by the city council, and shall be recorded simultaneously with such map.

Section 22. Section 18.01.150 of the Chino Municipal C ode i s hereby amended as follows (additions in bold underline; deletions in bold strikethrough):

18.01.150 - Appeal by council.

Any decision of the director of community se rvices, parks, and recreati on or planning commission authorized b y this chapter shall be final and conclusive unless appealed by the city council within sixty days of such decision.

Section 23. Severability. If any sec tion, s ubsection, sentence , clause, phrase, or portion of this Ordinance, or the applica tion thereof to any person or circumstances, is, for any reason, held invalid or unconstitutional by any court of competent jurisdiction, such invalidity or unconstitutionality shall not affect any other provision or appl ication, and to t his end the provisions of this ordinance are declared to be severable. The City Council hereby declares that it would have adopted this ordina nce and each section, subsection, sentence, clause, phrase,

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part or po rtion ther eof, i rrespective of t he fact that any one or more s ections, subs ections, sentences, clauses, phrases, parts or portions thereof be declared invalid or unconstitutional.

Section 24. Effective Date. This Ordinance shall b e in full force a nd effect thirty (30) days after its second reading and adoption.

Section 25. Certification. The City Cl erk of the City of Chino shall cert ify to the passage and adoption of this Ordinance and shall cause the same to be published in the Chino Champion, a new spaper of gener al circula tion, w ithin sa id City in accordance with the provisions of the Government Code.

ADOPTED THIS _____ DAY OF ______________ 2023.

By:

EUNICE M. ULLOA, MAYOR

ATTEST:

By:

NATALIE GONZAGA, CITY CLERK

STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO ) §

CITY OF CHINO )

I, Natalia Gon zaga, City Clerk of the C ity of Chino do he reby certify that the foregoing Ordinance of the City of Chino was duly adopt ed by said City Council at a regular m eeting held on the ____ day of __________ 2023 by the following vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

By:

NATALIE GONZAGA, CITY CLERK

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Revenue: Expenditure:

Transfer In: Transfer Out:

M E M O R A N D U M

CITY OF CHINO

DEVELOPMENT SERVICES DEPARTMENT

COUNCIL MEETING DATE: JULY 5, 2023

TO: LINDA REICH, CITY MANAGER

FROM: WARREN MORELION, AICP, INTERIM DIRECTOR OF DEVELOPMENT

SERVICES

SUBJECT: FINAL ACCEPTANCE OF PUBLIC IMPRO VEMENT - PARCEL MAP NO. 19889 (LIBERTY PROPERTY LIMITED PARTNERSHIP).

RECOMMENDATION
1) Accept public improvements as complete for PM 19889; 2) authorize release of the performance bond and initiate the warranty bond; and 3) authorize the City Manager t o execute the necessary documents on behalf of the City.

FISCAL IMPACT
There are sufficient funds included in the City’s Operating Budget to support the maintenance activities related to the improvements.

CITY OF CHINO MISSION / VISION / VALUES / STRATEGIC ISSUES:

The recommendation detailed above further the City’s values and strategic issues that serve as key pillars on which identified priorities, goals, and action plans are built, by fostering:
· Positive City Image

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BACKGROUND
On December 3, 2018, the City of Chino Planning Commission conditionally approved Tentative Tract Map No. 19889 (PL17 -0094), Eucalyptus Business Park Specific Plan Amendment PL17 - 0093, Site Approval PL17 -0121, and Special Conditional Use Permit PL17 -0092 submitted by Panattoni Development Company, Inc. (Panattoni Development) to subdivide 10.24 acres of land into two parcels to accommodate the construction of two industrial buildings, located at the southwest corner of Eucalyptus Avenue and Yorba Avenue (Exhibit A). In early 202 0, Liberty Property LP purchased the property from Panattoni Development and then designated Prologis as the developer of the project.

The conditions of approval required public improvements along the project frontage on Eucalyptus Avenue, Boulder Street, and Yorba Avenue. These public improvements include curb, gutter, sidewalk, curb ramps, signing & striping, crosswalks, drive approaches, street paving, parkway landscaping, sewer, recycled water, and domestic water improvements.

Additionally, the develope r was required to add a second eastbound left turn pocket and associated traffic signal modifications at the intersection of Chino Hills Parkway and Ramona Avenue to address mitigation measures identified in the project’s traffic study. The public improvements necessitated the execution of a Subdivision Improvement Agreement and posting securities that were initially approved by City Council on October 19, 2021, and then later approved on April 19, 2022 to correct certain errors that were found in the original documents.

Between February 2020 and December 2021, the project underwent various rounds of plan check review for the onsite and offsite improvements. Prologis (developer) received their first set of plan approvals for onsite grading in April 2021 and subsequently applied for an encroachment permit to start construction. The developer later received an encroachment permit in March 2022 to begin construction of offsite improvements along Yorba Avenue, Boulder Street, and Eucalyptus Avenue.

The design and construction of intersection improvements at Ramona Avenue and Chino Hills Parkway required the developer to coordinate and obtain approvals from multiple jurisdictions, consisting of the California Department of Transportation (Caltrans) and the Cities o f Chino and Chino Hills. The developer experienced delays in obtaining approvals from Caltrans to move forward with the improvements, which prompted them to request the issuance of a temporary certificate of occupancy (TCO) in April 2022. City staff denied the request due to the traffic impacts that may result at the intersection without the completion of the required improvements.

After further discussion and negotiations with the developer, City staff agreed to issue a limited TCO in June 2022 that only allowed the developer’s tenants to begin moving equipment into the buildings and allow setup, but not start full business operations. The developer obtained all necessary approvals from the various jurisdictions by September 2022 and completed the construction of intersection improvements by November 2022. City staff then subsequently issued final TCOs upon completion of the intersection improvements.

The developer completed the construction of offsite improvements along Yorba Avenue, Boulder Street, and Euc alyptus Avenue in August 2022. However, City staff determined that certain curb ramp and sidewalk improvements did not comply with accessibility requirements.

City staff then coordinated with the developer to rebuild the non -compliant portions of sidewalk and curb ramps, which were ultimately reconstructed in March 2023. Once the improvements were completed, staff initiated the punch list, final inspection, and project close -out process, which was completed by May 2023.

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ISSUES/ANALYSIS
The public improvements are complete and have been constructed to the satisfaction of the City Engineer. The public improvements that are being accepted by the City include: curb, gutter, sidewalk, curb ramps, drive approaches, crosswalks, street paving, landscaping, recycled water and domestic water improvements in/on Eucalyptus Avenue, Boulder Street, and Yorba Avenue as well as intersection improvements and traffic signal modifications at Chino Hills Parkway and Ramona Avenue.

These improvements were made to bring the pedest rian facilities up to standards. The improvements that are being accepted have been constructed to meet City and all applicable accessibility requirements.

All required development related fees have been paid and security for a one -year warranty period has been submitted. Under the warranty bond obligation, the developer will correct any defects found within one-year of City Council’s acceptance of the project.

With approval by City Council, the following maintenance obligations will commence:

Public Street Sweeping: By the City
Public Sidewalks By the City
Domestic Water: By the City
Recycled Water: By the City
Landscaping: By the property owner

Attachment: Exhibit A - Location Map
Exhibit B - Fully Executed Subdivision Improvement Agreement & Bonds

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Revenue: Expenditure: 3207100 - 48003 | 48005 | 48007 | 48009 - ST232 / 540

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M E M O R A N D U M

CITY OF CHINO

PUBLIC WORKS DEPARTMENT

COUNCIL MEETING DATE: JULY 5, 2023

TO: LINDA REICH, CITY MANAGER

FROM: AMER JAKHER, PUBLIC WORKS DIRECTOR

SUBJECT: AWARD OF CONSTRUCTION CONTRACT: KIMBALL AVENUE PRESERVE IMPROVEMENTS PROJECT (ST232).

RECOMMENDATION
1) Appropriate $2,234,516 from the Transportation Fund (320) with a backfill from the unappropriated reserves of the Bridges, Signals, and Thoroughfare Preserve Development Impact Fee Fund (260); 2) appropriate $1,216,812 from the unappropriated reserves of the Citywide Storm Drain Fund 540, with a corresponding reimbursement increase to the same project budget ST232; 3) increase the project budget for the Kimball Avenue Preserve Improvements Project ST232 by $3,500,000 for a new revised project budget of $4,556,240.94;4) ratify amendment to the Cooperative Agreement Pass Through, with the County of San Bernardino for the Kimball Avenue Drainage Improvements 4) award a construction contract in the amount of $2,959,540 to C.P. Construction Co., Inc., Upland, CA for Chino Preserve Street and Storm Drain Improvements at Kimball Avenue Project (ST232); 5) authorize expenditures of up to $295,954 for construction management, $147,977 for inspection costs, and $395,259 for construction contingency; and 6) authorize the City Manager to execute the necessary documents on behalf of the City.

FISCAL IMPACT
Requires two appropriations, the first; in the amount of $2,234,516 from the Transportation Fund (320) with a backfill from the unappropriated reserves of the Bridges, Signals, and Thoroughfare Preserve Development Impact Fee Fund (260) and the second; in the amount of $1,265,484 from the Citywide Storm Drain Fund 540, with a corresponding revenue reimbursement from the County of San Bernardino. Increase the project budget for Project ST232 by $3,500,000, for a revised project budget of $ 4,556,240.94. There is sufficient fund balance in Fund 260 for this purpose. Per San Bernardino County Contract No. 21 -276 and amendment, the City will be reimbursed for up to $1,2 16,812, which is the Storm Drain Improvement component of the project.

CITY OF CHINO MISSION / VISION / VALUES / STRATEGIC ISSUES:

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COUNCIL MEETING DATE: JULY 5, 2023
SUBJECT: AWARD OF CONSTRUCTION CONTRACT: KIMBALL AVENUE PRESERVE IMPROVEMENTS PROJECT (ST232)
PAGE 2

The recommendation detailed above further the City’s values and strategic issues that serve as key pillars on which identified priorities, goals, and action plans are built, by fostering:
• Positive City Image
• Responsible Long-Range Planning

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COUNCIL MEETING DATE: JULY 5, 2023
SUBJECT: AWARD OF CONSTRUCTION CONTRACT: KIMBALL AVENUE PRESERVE IMPROVEMENTS PROJECT (ST232)
PAGE 3

BACKGROUND

Kimball Street Improvements: This portion of the project is a master -planned facility that will complete the northern half of the westbound Kimball Avenue roadway improvements between Rincon Meadows Avenue and Main Street, in accordance with The Preserve Specific Plan and as included in the City's Development Impact Nexus and Calculation Report. This area of Kimball Avenue will be widened to accommodate two lanes of traffic. The widening will involve the relocation of five (5) SCE transmission poles and other utilities, relocation of an existing chain link fence, addition of a concrete curb to replace the existing asphalt berm, (2) catch basins to help drainage, and pavement improvements to the westbound lanes. This project involves joint efforts with SCE, San Bernardino Airport Divi sion, and other communication agencies. The Richland Communities development at the intersection of Kimball Avenue and Quality Way was required to design the ultimate improvements for this street segment per the conditions of approval under Master Site Approval (MSA 16-0457).

Kimball Storm Drain Improvements : The County of San Bernardino (County) and the City of Chino (City) are jointly participating in a project to complete drainage improvements along Kimball Avenue between Euclid Avenue and Quality Way to solve mutual drainage issues affecting Kimball Avenue and the Chino Airport. The project drainage improvements shall include, but are not limited to, the construction of a boxed underground culvert structure, which will connect the two existing basins loc ated north and south of Kimball Avenue, as required by the County Department of Airports. The City is designated as the lead agency for the preliminary engineering, design, survey, right of-way acquisition, utility relocation, and construction.

On January 19, 2021 City Council approved the Cooperative Agreement Pass Through with the County for the Kimball Avenue drainage improvements in the amount of $801,600, plus $88,160 for project contingencies for a total not to exceed $881,760. Upon completion and formal acceptance of the improvements by the City, the County will reimburse the City for the “actual costs” per the terms of the agreement.

ISSUES/ANALYSIS
On March 9, 2023, staff published a formal Notice Inviting Bids (IFB 20237001) via the City’s PlanetBids website and locally on March 11 and March 18, 2023, for Project ST232 - Kimball Ave. Preserve Improvements & Kimball Ave. Storm Drain Improvement Project. Although the projects have separate budgets, they were combined and advertised as a single pr oject to obtain better pricing. The estimated construction expenditure is shown on the tables below. On May 2, 2023, at 10:00 a.m., three (3) bids were received and opened, the following results include their bid costs:

Company Name City Street -
Phase 1
Street -
Phase 2
Storm
Drain
Alternate
Additive
TOTAL
C.P. Construction Co.,
Inc.

Upland, CA $1,357,980 $611,110 $973,450 $17,000 $2,959,540 H&H General
Contractors Inc
Highland, CA $1,542,539 $530,351 $995,138 $33,000 $3,101,028 Riverside Construction Riverside, CA $2,507,685 $499,525 $834,300 $25,000 $3,866,510

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Company, Inc.

The estimated project costs are itemized below:

Project Task Street - Phase 1 Street - Phase 2 Storm Drain Alternate Additive Budget Amount Construction $ 1,357,980 $ 611,110 $ 973,450 $ 17,000 $ 2,959,540 Construction
Management (10%)
$ 135,798 $ 61,111 $ 97,345 $ 1,700 $ 295,954
Inspection (5%) $ 67,899 $ 30,556 $ 48,672 $ 850 $ 147,977 Contingency (15%) $ 203,697 $ 91,667 - $ 2,550 $ 297,914 Contingency (10%) - - $ 97,345 - $ 97,345
Grand Total $ 1,765,374 $ 794,444 $ 1,216,812 $ 22,100 $ 3,798,730

Per Section 3.18 of the Cooperative Agreement with the County, the City shall receive written permission from the County if the bid amount for the storm drain exceeds 10% mor e than the original estimate prior to award of the construction contract. Since the bid amount exceeds the original estimate by more than 10%, the City has executed an amendment to the Cooperative Agreement drafted by the County for the new amount. Additionally, on June 27, 2023, the San Bernardino County Board of Supervisors approved the amendment.

As a result of a calculation error in bid schedule B of the bid documents, the bid amount from C.P. Construction Co., Inc. tabulated to a total of $3,136,815 ; however, the total bid amount entered was $2,959,540. C.P. Construction Co., Inc. has agreed to contract at the bid amount entry of $2,959,540. No bid protests have been received.

Therefore, the low bidder, C.P. Construction Co., Inc., Upland, CA is pro perly licensed and deemed to be the lowest responsible bidder with a base bid in the amount of $2,959,540. Staff is also requesting authorization to spend up to $295,954 for construction management costs, $147,977 for inspection costs, and $395,259 for con tingency costs. This brings the total potential project construction cost to $3,798,730. Additionally, staff is requesting an appropriation of $3,500,000 with a corresponding increase to Project No. ST232, for a revised project budget of $4,556,240.94

Attachment: ST232 - C.P. Construction - Agreement

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01225.0006/515653.2

Contract No.:

Approved:

AGREEMENT

“KIMBALL AVENUE PRESERVE IMPROVEMENTS PROJECT – ST232”

THIS AGREEMENT is made and entered into this 6TH day of June, 2023 by and between THE CITY OF CHINO, a municipal corporation, hereinafter called “City”, and C.P. Construction Co., Inc., hereinafter called “Contractor”.

WITNESSETH, that the parties hereto mutually agree as follows:

ARTICLE I: For and in consideration of the payments and agreements hereinafter mentioned to be made and performed by City, Contractor agrees to perform and complete all of the work for the project entitled “Kimball Avenue Preserve Improvements Project ” in a good and workmanlike manner in accordance with all plans and specifications therefor , to furnish at Contractor’s sole cost and expense all tools, equipment, labor, and materials necessary therefor, except such materials and equipment as are expressly stipulated to be furnished by City, and to do everything required by the Contract Documents.

ARTICLE II: Contractor shall be responsible for furnishing all labor, materials, equipment, tools, and services, furnishing and removing all plants, temporary structures, tools, and equipment, and doing everything required by this Agreement and by the Contract Documents. Contractor shall also be responsible for all losses and damages arising out of the performance of the Work, from the action of the elements, or from any unforeseen difficulties that may arise during the prosecution of the Work until its acceptance by City; for all risks of every description associated with the Work; and for all expenses resulting from the suspension or discontinuance of the Work.

City shall pay Contractor, and Contractor shall receive, for completing the Work in accordance with the requirements of the Contract Documents and in full compensation therefor, the price named in the Bid Proposal. Subject to any additions or deductions that may be made by change order or amendment, and any penalties or damages that may be assessed against Contractor, Contractor shall receive a total contract amount of Two Million Nine Hundred Fifty-Nine Thousand Five Hundred Forty Dollars and Zero Cents ($2,959,540.00) for completion of the contract work.

ARTICLE III: The City hereby employs said Contractor to perform the work according to the terms of this Agreement for the above-mentioned price(s), and agrees to pay the same at the time, in the manner, and upon the conditions stipulated in the Contract Documents; and the said parties for themselves, their he irs, executors, administrators, successors and assignees, do hereby agree to the full performance of the covenants herein contained.

ARTICLE IV: Contractor shall begin work within fifty-five (55) calendar days after receiving a Notice to Proceed from the City and the work shall be completed within one hundred and eighty (180) working days from the date on which the work was started. If the work is not completed within said time period, liquidated damages shall apply.

ARTICLE V: The Notice Inviting Bids, the Summary of Work, the Instructions to Bidders, the Bid Documents, the Required Post-Bid Documents, the General Provisions, the Special Provisions, the Technical Specifications, and all other drawing, plans, or specifications for the Work

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(collectively, “Contract Documents”) are hereby incorporated in to and made part of this Agreement.

ARTICLE VI: Contractor shall indemnify, defend with legal counsel approved by City, and hold harmless City, its officers, officials, employees and volunteers from and against all liability, loss, damage, expense, cost (including without limitation reasonable legal counsel fees, expert fees and all o ther costs and fees of litigation) of every nature arising out of or in connection with Contractor's negligence, recklessness or willful misconduct in the performance of work hereunder or its failure to comply with any of its obligations contained in this Agreement, except such loss or damage which is caused by the sole or active negligence or willful misconduct of the City. In instances where City is shown to have been actively negligent and where City’s active negligence accounts for only a percentage of the liability involved, the obligation of Contractor will be for that entire portion or percentage of liability not attributable to the active negligence of City. Should conflict of interest principles preclude a single legal counsel from representing bot h City and Contractor, or should City otherwise find Contractor’s legal counsel unacceptable, then Contractor shall reimburse the City its costs of defense, including without limitation reasonable attorneys’ fees, expert fees and all other costs and fees of litigation. The Contractor shall promptly pay any final judgment rendered against the City (and its officers, officials, employees and volunteers) with respect to claims determined by a trier of fact to have been the result of the Contractor’s negligent, reckless or wrongful performance. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California and will survive termination of this Agreement.

ARTICLE VII: No officer or employee of the City shall have any financial interest in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which affects his financial interest or the financial interest of any corpor ation, partnership or association in which he is interested, in violation of any State statute or regulation.

Similarly, Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.

ARTICLE VIII: This Agreement shall be interpreted, construed and governed both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of San Bernardino, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S.

District Court, venue shall lie exclusively in the Central District of California, in the County of San Bernardino, State of California.

ARTICLE IX: Waiver by any party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement.

Acceptance by City of any work or services by Contractor shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.

ARTICLE X: No officer or employee of the City shall be personally liable to the Contractor, or any

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successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.

ARTICLE XI: The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.

ARTICLE XII: In the course of its work under this Agreement, the Contractor, its agents and employees shall be bound by and comply with all applicable federal, state and local laws and requirements.

ARTICLE XIII: The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound.

[SIGNATURES ON FOLLOWING PAGE]

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IN WITNESS WHEREOF, the parties hereto have caused this contract to be executed on the day and year first above written.

Approved as to Form: Approved as to Content:

City Attorney Amer Jakher, P.E.,
Director of Public Works

C.P. Construction Co., Inc.

Dated: By:

(Signature)

Name:
(Please Type or Print Name)

Title:
(Please Type or Print Title)

CITY OF CHINO

Dated:

Linda Reich, City Manager

ATTEST:

Natalie Gonzaga, City Clerk

Date

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Revenue: Expenditure: 5207310-48007; 5307340-48007; 3207100- 48007; 5407360-48007

Transfer In: Transfer Out:

M E M O R A N D U M

CITY OF CHINO

PUBLIC WORKS DEPARTMENT

COUNCIL MEETING DATE: JULY 5, 2023

TO: LINDA REICH, CITY MANAGER

FROM: AMER JAKHER, PUBLIC WORKS DIRECTOR

SUBJECT: APPROVE THE PRE -QUALIFIED LIST AND VENDOR CAP FOR CAPITAL IMPROVEMENT PROJECT MANAGEMENT AND RELATED SERVICES.

RECOMMENDATION
1) Approve the pre -qualified list of firms to perform Capital Improvement Project Management and Related Services on an as -needed basis; 2) approve a Professional Services Agreement with EXP U.S. S ervices, Inc. for On -Call Civil Engineering Services for Public Works Capital Improvement Project Management and Related Services for a total contract amount not -to- exceed $250,000; 3) approve a Professional Services Agreement with Transtech Engineers, Inc., for On -Call Civil Engineering Services for Public Works Capital Improvement Project Management and Related Services for a total contract amount not -to-exceed $650,000; 4) approve a Professional Services Agreement with Z&K Consulting, Inc., for On -Call C ivil Engineering Services for Public Works Capital Improvement Project Management and Related Services for a total contract amount not-to-exceed $900,000; and 5) authorize the City Manager to execute the necessary documents on behalf of the City.

FISCAL IMPACT
Sufficient project funds are included in the Fiscal Year 2023 -2024 Capital Improvement Program.

CITY OF CHINO MISSION / VISION / VALUES / STRATEGIC ISSUES:

The recommendation detailed above further the City’s values and strategic issues that serve as key pillars on which identified priorities, goals, and action plans are built, by fostering:
• Positive City Image
• Responsible Long-Range Planning
• Public Service Excellence through Internal and External Partnerships

12.15 NEW BUSINESS
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COUNCIL MEETING DATE: JULY 5, 2023
SUBJECT: APPROVE THE PRE-QUALIFIED LIST AND VENDOR CAP FOR CAPITAL

IMPROVEMENT PROJECT MANAGEMENT AND RELATED SERVICES
PAGE 2

BACKGROUND
The City of Chino’s Public Works Engineering division is responsible for designing and constructing the City’s Capital Improvement Program (CIP) projects. The CIP projects vary in nature and complexity and include wa ter pipeline replacement, sewer line and street rehabilitation, transportation, traffic projects, etc. Due to the number of projects included in the CIP and limited staff, to allow for a continued high level of service for existing and future CIP projects, staff prepared a solicitation for On -Call services to augment the City’s Public Works project management resources based on the City’s project needs. On October 27, 2022, the City formally released a Request for Proposals (RFP) published on PlanetBids for On-Call Civil Engineering Services for Public Works CIP Projects.

ISSUES/ANALYSIS
On November 30, 2022, staff received thirty -one (31) proposals in response to the RFP. Staff conducted a thorough review and evaluation of the submitted proposals and ranked them based on the qualifications listed in the proposal, which include experience with similar tasks, approach to the work, references, and billing rates. Out of the thirty -one proposals submitted, the top three (3) proposals below were selected for the p re-qualified list and will be utilized by staff for specific projects during the current fiscal year engineering services, including project management, construction management, minor design, contract administration, bidding assistance, and associated services:

Pre-Qualified Firms Location
EXP U.S. Services, Inc. San Bernardino, CA
Transtech Engineers, Inc. Chino, CA
Z&K Consultants, Inc. San Bernardino, CA

The Public Works and Finance departments have thoroughly reviewed and evaluated all the proposals responsive to the City's various solicitations for CIP services and determined that the awards recommended are appropriate. Each pre-qualified firm offers expertise in different areas which may be matched to projects included in the CIP list. Staff reco mmends that City Council approve a Professional Services Agreement with EXP U.S. Services, Inc., in the amount of $250,000; approve a Professional Services Agreement with Transtech Engineers, Inc., in the amount of $650,000, and approve a Professional Serv ices Agreement with Z&K Consultants, Inc., in the amount of $900,000 for On-Call Civil Engineering Services for CIP Projects.

Attachments: Professional Services Agreement - EXP U.S. Services, Inc.

Professional Services Agreement - Transtech Engineers, Inc.

Professional Services Agreement - Z&K Consultants, Inc.

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Packet Pg. 596
Project Name/No.: On-Call Engineering Services for Contract No.: ______________ Capital Improvement Projects

Project Manager: PW/ M. Hindersinn Approved: ________________ 01225.0001/863604.2 (Long Form)

AGREEMENT FOR SERVICES

BETWEEN THE CITY OF CHINO AND
EXP U.S. SERVICES, INC.

THIS AGREEMENT FOR SERVICES (herein “Agreement”) is made and entered into this 1st day of July, 2023 (“Effective Date”) by and between the City of Chino, a California municipal corporation (“City”) and EXP U.S. Services, Inc. , an Illinois Corporation (“Consultant”). City and Consultant may be referred to individually as “Party” or collectively as “Parties.”

RECITALS
A. City has sought, by issuance of a Request for Proposals o r Invitation for Bids, the performance of the services defined and described particularly in Article 1 of this Agreement.

B. Consultant, following submission of a proposal or bid for the performance of the services defined and described particularly in Article 1 of this Agreement, was selected by the City to perform those services.

C. Pursuant to the City of Chino’s Municipal Code, City has authority to enter into and execute this Agreement.

D. The Parties desire to formalize the selection of Consultant for pe rformance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.

OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mu tual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows:

ARTICLE 1. SERVICES OF CONSULTANT

1.1 Scope of Services.

In compliance with all terms and conditions of this Agreement, the Consultant shall provide those services specified in the “Scope of Services ” attached hereto as Exhibit “A” and incorporated herein by this reference, which may be referred to herein as the “services” or “work” hereunder. As a material inducement to the City entering into this Agreement, Consultant represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the services required under this Agreement in a thorough, compete nt, and professional manner, and is experienced in performing the work and services contemplated herein. Consultant shall at all times faithfully, competently and to the best of its ability,

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experience and talent, perform all services described herein. Consultant covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be both of good quality as well as fit for the purpose intended. For purposes of this Agreement, th e ph rase “highest professional standards ” shall mean those standards of practice recognized by one or more first -class firms performing similar work under similar circumstances.

1.2 Consultant’s Proposal.

The Scope of Services shall include the scope of work included in Consultant’s proposal, which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern.

1.3 Compliance with Law.

Consultant shall keep itself informed concerning, and shall render all services hereunder in accordance with , all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental entity hav ing jurisdiction in effect at the time service is rendered.

1.4 California Labor Law.

If the Scope of Services includes any “public work” or “maintenance work,” as those terms are defined in California Labor Code Section 1720 et seq. and California Code of Regulations, Title 8, Section 16000 et seq. , and if the total compensation is $1,000 or more, Consultant shall pay prevailing wages for such work and comply with the requirements in California Labor Code section 1770 et seq. and 1810 et seq., and all other applicable laws, as they pertain to such work, including the following requirements:
(a) DIR Monitoring a nd Enforcement. The public work and/or maintenance work performed under this Agreement shall be subject to compliance monitoring and enforcement by the Department of Industrial Relati ons (“DIR”). Consultant shall post job site notices, as prescribed by regulation.
(b) Prevailing Wages . Consultant shall p ay prevailing wages to the exte nt required by Labor Code Section 1771. Pursuant to Labor Code Section 1773.2, copies of the prevailing rate of per diem wages are on file at City Hall and will be made available to any interested pa rty on request. By initiating any work under this Agree ment, Consultant acknowledges receipt of a copy of the DIR determination of the prevailing rate of per diem wages, and Consultant shall post a copy of the same at each job site where work is performed under this Agreement.
(c) Penalty for Failure to Pay Prevailing Wages . Consultant shall comply with and be bound by the provisions of Lab or Code Sections 1774 and 1775 concern ing the payment of prevailing rates of wages to workers and the pe nalties for failure to pay prevailin g wages. The Consultant shall, as a penalty to the City, forfeit two hundred dollars ($200) for each

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calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any public work done pursuant to this Agreement by Consultant or by any subcontractor. (d) Payroll Records . Consultant shall comp ly with and be bound by the provisions of Labor Code Section 1776, which require s Consultant and each subcontractor to:
keep accurate payroll records and verify such records in writing under penalty of perjury, as specified in Secti on 1776; certi fy and make such payroll records available for inspection as provided by Section 1776; and inform the City of the location of the records. (e) Apprentices. Consultant shall comply with and be bound by the provisions of Labor Code Sections 1777.5 , 1777.6, and 1777.7 and California Code of Regulations T itle 8, Section 200 et seq. concerning the empl oyment of apprentices on public works projects. Consultant shall be responsible for compliance with these aforementioned Sections for all apprenti ceable occupations. Prior to commencing work under this Agreement, Consultant shall provide City with a copy o f the information submitted to any a pplicable apprenticeship program. Within sixty (60) days after concluding work pursuant to this Agreement, Consultant and each of its subcontractors shall submit to the City a verified statement of the journeyman and apprentice hours performed under this Agreement. (f) Eight-Hour Work Day . Consultant acknowledges that eight (8) hours labor constitutes a legal day's work. Consultant shall comply with and be bou nd by Labor Code Section 1810.
(g) Penalties for Excess Hours . Consultant shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work excess hours. The Consultant shall, as a penalty to the City, forf eit twenty-five dollars ($25) for each worker employed in the perf ormance of this Agreement by the Consultant or by any subcontractor for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of t he provisions of Division 2, Pa rt 7, Chapter 1, Article 3 of the Labor Code.

Pursuant to Labor Code section 1815, work performed by employees of Consultant in excess of eight (8) hours per day, and forty (40) hours during any one week shall be permitt ed upon public work upon compensatio n for all hours worked in exce ss of 8 hours per day at not less than one and one-half (1½) times the basic rate of pay.
(h) Workers’ Compensation. California Labor Code Sections 1860 and 3700 provide that every employer wil l be required to secure the payment of compensation to its employees if it has employees. By exec uting this Agreement, and in accordance with the provisions of California Labor Code Section 1861, Consultant certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor C ode which require every employer to be insured against l iability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work o f this contract.”

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(i) Consultant’s Responsibility for Subcontractors. For every subcontractor who will perform work un der this Agreement, Consultant shall be responsible for such subcontractor's compliance with Division 2, Part 7, Chapte r 1 (comme ncing with Section 1720) of the California Labor Code, and shall make such compliance a requirement in any contract with any su bcontractor for work under this Agreement. Consultant shall be required to take all actions necessary to enfo rce such contractual provisions and ensure subcontractor's compliance, including without limitation, conducting a review of the certified payroll r ecords of the subcontractor on a periodic basis or upon becoming aware of the failure of the subcontractor to pay his or her work ers the specified prevailing rate of wages. Consultant shall diligently take corrective action to halt or rectify any such failure by any subcontractor.

1.5 Licenses, Permits, Fees and Assessments.

Consultant shall obtain a t its sole cost and expense such lic enses, permits and approvals as may be required by law for the performance of the services required by this Agreement.

Consultant shall have the sole obli gation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may b e imposed by law and arise from or are necessary for the Consultant’s performance of the services required by this Agreement, a nd shall indemnify, defend and hold harmless City , its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder.

1.6 Familiarity with Work.

By executing this Agreement, Consultant warrants that Consultant (i) has thoroughly investigated and considered th e scope of services to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the facilities, difficulties a nd restrictions attending p erformance of the services under this Agreement. If the services i nvolve work upon any site, Consultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the conditions there existi ng, prior to commencement o f services hereunder. Should the Consultant discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Consultant shall immediately inform the City of such fact and shall no t proceed except at Consultant’s risk until written instructions are received from the Project Manager.

1.7 Software and Computer Services.

If the Scope of Services includes the provision and/or installation of any software, computer system, or other computer technology, Consultant repr esents and warrants that it has inspected the City’s current infrastructure, equipment, computer system and software and that the software, computer system, or other computer technology provided and/or installed by Consultant und er this Agreement is compat ible, and shall be fully functional, with such infrastructure, equipment, computer system and software of the City. Consultant acknowledges that the City is relying on the representation by Consultant as a material consideration in entering into this Agreement.

1.8 Care of Work.

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The Consultant shall adopt reasonable met hods during the life of the Agreemen t to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other co mponents thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until accep tance of the work by City, except such losses or damages as may be caused by City’s own negligence.

1.9 Further Responsibilities of Parties.

Both parties agre e to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasona bly necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other.

1.10 Additional Services.

City shall have the right , subject to state law and the City’s Municipal Code, at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Project Manager to the Consultant, incorporating therein any adjustment in (i) the Contract Sum for the actual costs of the extra work , and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written app roval of the Consultant. Any increase in compensation for extra wo rk sh all require the approval of Cit y Council unless the City Council has previously authorized the City Manager to approve an increase in compensation and the amount of the increase does no t exceed such authorization. It is expressly understood by Consultant that the provisions of this Sect ion shall not apply to services specifically set forth in the Scope of Services. Consultant hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more cost ly or time consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor. City may in its sole and absolute d iscretion have similar work done by other contractors. No claims for an increase in the Contract Sum or time for performance shall be valid unless the procedures established in this Section are followed.

1.11 Special Requirements.

Additional terms and conditio ns of this Agreement, if an y, which are made a part hereof are set forth in the “Special Requ irements” attached hereto as Exhibit “B” and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit “B” and any other provisions of this Agreement, the provisions of Exhibit “B” shall govern.

ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.

2.1 Contract Sum.

Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the amounts specified in the “Schedule of Comp ensation” attached hereto a s Exhibit “C” and

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incorporated herein by this reference. The total compensation, including reimburseme nt for actual expenses, shall not exceed Two Hundred Fifty Thousand Dollars and Zero Cents ($250,000.00) (the “Contract Sum”), unless addit ional compensation is appr oved pursuant to Section 1.10.

2.2 Method of Compensation.

The method of compensation may include: (i) a lump sum payment upon completion; (ii) payment in accordance with specified tasks or the percentage of completion o f the services, less contract retentio n; (iii) payment for time and materials based upon the Consultant’s rat es as specified in the Schedule of Compensation, provided that (a) time estimates are provided for the performance of sub tasks , (b) contract reten tion is main tained, and (c) the Contract Sum is not exceeded; or (iv) such other methods as may be specified in the Schedule of Compensation.

2.3 Reimbursable Expenses.

Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Project Manager in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5, and only if specified in the Schedule of Compensation. The Contract Sum sh all include the attendance of Consultant at all project meetings reasonably deemed necessary by the City .

Coordination of the performance of the work with City is a critical component of the services. If Consultant is required to attend additional meetings to facilitate such coordination, Consultant shall not be entitled to any additional compensation for attending said meetings.

2.4 Invoices.

Each month Consultant shall furnish to City an original invoice for all work performed and expenses incurred during the preceding m onth in a form approved by City’s Director of Finance. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the Agreement . Consultant shall not invoice City for any duplicate services performed by more than one person.

All invoices shall be submitted by email to [email protected]. Each invoice is to include:
(a) Line items for all personnel describing the work performed, the number of hours worked, and the hourly rate.
(b) Line items for all materials and equipment properly charged to the Services.
(c) Line items for all oth er approved reimbursable expenses claimed, with supporting documentation.
(d) Line items for all approved subcontrac tor labor, s upplies, equipment, materials, and travel properly charged to the Services.

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(e) If this Agre ement requires prevailing wages, per Section 1.4 of the Agreement, all invoices shall include a copy of Consultant’s Certified Payroll and proof that Ce rtified Payr oll has been submitted to the DIR.

Consultant shall also submit a list of the prevailing wa ge ra tes for all employees and subcontractors providing services under this Agreement, as applicable, with Consultant’s first invoice. If these rates ch ange at any time during the term of th e Agreement, Consultant shall submit a new list of rates to the Ci ty with its first invoice following the effective date of the rate change.

City shall independently review each invoice submitted by the Consultant to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. Except as to any charges for work performed or expenses incurred by Consultant which are disputed by City, or as provided in Section 7.3, City will use i ts best efforts to cause Consultant to be paid within forty -five (45) days of receipt of Consultant’s correct and undisputed invoice; however, Consultant acknowledges and agrees that due to City warrant run procedures, the City cannot guarantee that paymen t will occur within this t ime period . In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission. Review and payment by City for any invoice provided by the Consul tant shall not constitute a waiver of any rights or remedies provided herein or any applicable law.

2.5 Waiver.

Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant.

2.6 Contingency of Funds.

Consultant acknowledges that funding or portions of funding for this Agreem ent may be contingent upon State bud get approval; receipt of funds from, and/or obligation of funds by the State of California to City; or inclusion of sufficient funding for the services he reunder in the budget approved by Chino City Council for each fisc al year covered by this Agreement. If such approval, funding or appropriations are not forthcoming, or are otherwise limited, City may immediately terminate or modify this Agreement without penalty.

ARTICLE 3. PERFORMANCE SCHEDULE

3.1 Time of Essence.

Time is of the essence in the performance of this Agreement.

3.2 Schedule of Performance.

Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall pe rform all services within the time period(s) established in the “Schedule of Performance ” attached hereto as Exhibit “D” and incorporated herein by this

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reference. When requested by the Consultant, extensions to the ti me period(s) specified in the Schedule of Performance may be approved in writing by the Project Manager but not exceeding one hundred eighty (180) days cumulatively.

3.3 Force Majeure.

The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of the publi c enemy, unu sually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots , str ikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Consultant shall within ten (10) days of the comm encement of such delay not ify the Project Manager in writing of the causes of the delay. The Project Manager shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Project Manager such delay is justified. The Project Manager ’s determination shall be final and conclusi ve upon the parties to this Agreement. In no event shall Consultant be entitled to recover damages against the City for any dela y in the performance of this Agreement, however caused, Consultant’s sole remedy being exten sion of the Agreement pursuant to this Section.

3.4 Term.

Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in ful l force and effect until c ompletion of the services , which shall be no later than June 30, 2024, except as otherwise provided i n the Schedule of Performance ( Exhibit “D”).

This Agreement may be renewed by a written amendment for up to an additional (2) two (1) year terms at the optio n of the City if the City is satisfied with the quality of service s performed by Consultant under this Agreement.

ARTICLE 4. COORDINATION OF WORK

4.1 Representatives and Personnel of Consultant.

The following principals of Consultant (“Principals”) are hereby designated as being the principals and representatives of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:

(Name) (Title)

(Name) (Title)
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement.

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Therefore, the foregoin g principals shall be resp onsible during the term of this Agreement for directing all activi ties of Consultant and devoting suff icient time to personally supervise the services hereunder. All personnel of Consultant, and any authorized agents , shall at all times be under the exclus ive direction and control of the Principals. For purposes of this Agreement, the foregoing Principals may not be replaced nor may their responsibilities be substantially reduced by Consultant without the express written approval of City. Additionally, Consultant shall utilize only competent personnel to perform services pursuant to this Agreement. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and subcontractors, if any, assigned to perform the s ervices required under this Agreement.

Consultant shall notify Cit y of any changes in Consultant’s sta ff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to and during any such performance.

4.2 Status of Consultant.

Consultant shall have no authority to bind City in any manne r, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. Consultant shall not at any time or in any ma nner represent that Consultant or any of Consultant’s officers, employees, or agents are in any manner officials, officers, employees or agents of City. Neither Consultant, nor any of Consultant’s officers, employees or agents, shall obtain any rights to r etirement, health care or any other benefits which may otherwise accrue to City ’s employees. Consultant expressly waives any cla im Consultant may have to any such rights.

4.3 Project Manager.

The Project Manager shall be Michele Hindersinn, Principal Engineer or any other person as may be designated by the Project Manager. It shall be the Consultant’s responsibility to assure that the Project Manager is kept informed of the progress of the performance of the services and the Consultant shall refer any decisions which mu st be made by City to the Project Manager.

Unless otherwise specified herein, any approval of City requir ed hereunder shall mean the approval of the Project Manager . The Project Manager shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement.

4.4 Independent Consultant.

Neither the City nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents o r employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selecti on, discharge, supervision or control of Consultant’s employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Consultant shall perform all services required herein as an independen t contractor of City an d shall remain at all time s as to City a wholly independent contractor with only such obliga tions as are consistent with that ro le. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed

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to be a partner of Consultant in its business or oth erwise or a joint venturer or a member of any joint enterprise with Consultant.

4.5 Prohibition Against Subcontracting or Assignment.

The experience, knowledg e, capability and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Consultant shall not contract with any other entit y to perform in whole o r in part the services required hereunder without the express written approval of the City. In ad dition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder sha ll include the transfer to any person or group of persons acting in concert of more than twenty five perc ent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unap proved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Consultant or any surety of Consultant of any liability hereunder without the express consent of City.

ARTICLE 5. INSURANCE AND INDEMNIFICATION

5.1 Insurance Coverages.

Without limiting Consultant’s indemnification of City, and prior to commencement of any services under this Agreement, Consultant sha ll obtain, provide and maintain at its own expense during the term of t his Agreement, policies of insu rance of the type and amounts described below and in a form satisfactory to City.
(a) General liability insurance. Consultant s hall maintain commercial g eneral liability insurance with coverage at least as broad as Insu rance Services Office form CG 00 01, in an amount not less than $ 1,000,000 per occurrence, $ 2,000,000 general aggregate, for bodily injury, personal injury, and pro perty damage. The policy m ust include contractual liability that has not been amended. Any e ndorsement restricting standard ISO “insured contract” language will not be accepted.
(b) Automobile liability insurance . Consultant shall ma intain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Services to be performed under this Agreement, inc luding coverage for any owned, hired, non - owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
(c) Professional liability (errors & omissions) insurance . Consultant shall maintain professional liability insurance that covers t he Services to be performe d in connection with this Agreement, in the minimum amount of $1,0 00,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of t his Agreement and Consultant agrees to maintain continuous coverage through a period no less than three (3) years after completion of the services required by this Agreement.

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(d) Workers’ compensation insurance . Consultant shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000).
(e) Subcontractors. Consultant shall includ e all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverage s for subcontractors shall include all of the requirements stated herein.
(f) Additional Insurance. Policies of such other insurance, as may be required in the Special Requirements in Exhibit “B”.

5.2 General Insurance Requirements.
(a) Proof of insurance . Co nsultant shall provide certificates of insurance to City as eviden ce of the insurance coverage require d herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificate s and endorsements must be approved by City’s Risk Manager prior to commencement of performance. Current certificat ion of insurance shall be kept on fi le with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of al l required insurance polic ies, at any time.
(b) Duration of coverage . Consultant shall proc ure a nd maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Services hereunder by Consultant, its agents, representatives, employees or subconsultants. (c) Primary/noncontributing. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herei n may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provisio n that such coverage shall also apply on a primary and non - contributory basis for the benefi t of City before the City’s own insu rance or self-insurance shall be called upon to protect it as a named insured.
(d) City’s rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these specification s or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. (e) Acceptable insurers. All insurance policies shall be issued by an insuranc e company currently aut horized by the Insurance C ommissioner to transact business of insurance or that is on the Li st of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VI (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise ap proved by the City’s Risk Manager.

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(f) Waiver of subrogation . All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive su brogation against City, it s elected or appointed officers, agents, officials, employees and volunteers or shall specifically all ow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery pr ior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
(g) Enforcement of contract p rovisions (non -estoppel). Consultant acknowledges and agrees that an y actual or alleged failure on the part of the City to inform Consultant of non -compliance with any re quirement imposes no additional obligations on the City nor does it waive any rights hereunder.
(h) Requirements not limiting . Requirements of specific co verage features or limits contained in this section are not intend ed as a limitation on coverage, limi ts or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not in tended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintai ns higher limits than t he minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. (i) Notice of cancel lation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is requi red) or nonrenewal of c overage for each required coverage.
(j) Additional insured status . General liability policie s sha ll provide or be endorsed to pr ovide that City and its officers, officials, employees, and agents, and volunteers shall be additional in sureds under such polic ies. This provision shall also apply to any excess/umbrella liability policies.
(k) Prohibition o f undisclosed coverage limitati ons. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. (l) Separation of insureds. A severability of interests provision must apply for all additional insureds ensuring that Consultant’s insurance shall apply separately to each insured against whom clai m is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions. (m) Pass through clause . Consultant agrees to ensure that its subconsultants , subcontractors, and any other party involved with the project who is brought onto or invol ved in the project by Consultant, pr ovide the same minimum insurance coverage and endorsements required of Consultant. Consultant agrees to m onitor and review all s uch coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements

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of t his section. Consultant agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the project will be submitted to City for review. (n) Agency’s right to revise specifications . The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consu ltant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Consultant, the City and Con sultant may renegotiate Consultant’s compensation.
(o) Self-insured retentions . Any self -insured retentio ns must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a d eductible. Self-insurance will not be considered to comply with these specifications unless approved by City.
(p) Timely notice of claims . Consultant sha ll give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
(q) Additional i nsurance. Consultant shall also procure and maintain, at its own c ost a nd expense, any additional kind s of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work.

5.3 Indemnification.

To the full extent perm itted by law, Consultant agrees to indemnify , defend and hold harmless the City, its officers, employe es and agents ( “Indemnified Parties”) against, and will hold and save them and each of them harmless from , any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or pro perty, losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein “claims or liabilities”) that may be asserted or claimed by any person, fi rm or entity arising out of or in connection with the negligent pe rformance of the work, operations or activities provided herein of Consultant, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Consultant is legally liable (“indemnitors”), or arising from Consultant’s or indemnitors’ reckless or willful mi sconduct, or arising from Consultant’s or indemnitors’ negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, and in connection therewith:
(a) Consultant will defend any action or actions filed in connectio n with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys’ fees incurred in connection therewith;
(b) Consultant will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activ ities of Consultant hereunder; and Consultant agrees to save and h old the City, its officers, agents, and employees harmless therefrom;

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(c) In the event the City, its officers, agents or employees is made a part y to any action or proceeding filed or prosecuted against Consultant for such damages or other claims arising out of or in connection with the negligen t performance of or failure to perform the work, operation or activities of Consultant hereunder, Consultant agrees to pay to th e City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys ’ fees.

Consultant shall incorporate simi lar indemnity agreements w ith its subcontra ctors and if it fails to do so Consultant shall be fully responsible to indemnify Cit y hereunder therefore, and failure of City to monitor compliance with these provisions shall not be a wai ver hereof. This indemnification includes claims or liabilities arising from any negligent or wrongful act, error o r omission, or reckless or willful m isconduct of Consultant in the performance of professional services hereunder. The provisions of this Sec tion do not apply to cl aims or liabilities occurr ing as a result of City ’s sole negligence or willful acts or omiss ions, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City ’s negligence, except that design professionals’ indemnity hereunder shall be limited to claims and liabilities arising out of the negligenc e, recklessness or willful misconduc t of the design professional . The indemnity obligation shall be binding on successors and assigns of Consultant and shall survive termination of this Agreement.

ARTICLE 6. RECORDS, REPORTS, AND RELEASE OF INFORMATION

6.1 Records.

Consultant shall keep, and require subco ntractors to keep, such ledgers , books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder (the “books and records”), as shall be necessary to perform the services required by this Agreement and enable the Project Manager to evaluate the performanc e of such services. Any and all such documents sh all be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Project Manager shall have full and free access to such books and records at all times during normal business ho urs of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the Cit y shall have access to such records in the event any audit is required. In the event of dissolution of Consultant’s business, custody of the books and records may be given to City, and access shall be provided by Consultant’s successor in interest. Notwithstanding the above, the Consultant shall fully cooperate with the City in providing access to the books and records if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act.

6.2 Reports.

Consultant shall pe riodically prepare and sub mit to the Project Manager such reports concerning the performance of the services required by this Ag reement as the Project Manager shall require. Consultant hereby acknowledges that the City is greatly con cerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Consultant

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agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease t he cost of the work or services contemplated herein or, if Consultant is providing design services, the cost of the project being designed, Consultant shall promptly notify the Project Manager of said fact, circumstance, technique or event and the estimated increased or decrease d cost related thereto and , if Consultant is providing design services, the estimated increased or decreased cost estimate for the project being designed.

6.3 Ownership of Documents.

All drawings, specifications, maps, designs, photograp hs, studies, surveys, d ata, notes, computer files, reports, records, documents and other materials (the “documents and materials”) prepared by Consultant, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Project Manager or upon the termination of this Agreement , and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reus e, or assignment of the do cuments and materials hereunder. Any use, reuse or assignment of s uch c ompleted documents for other pr ojects and/or use of uncompleted documents without specific written authorization by the Consultant will be at the City’s sole r isk and without liability to Consultant, and Consultant’s guarantee and warranties shall not extend to such use, re use or assign ment. Consultant may retain copies of such documents for its own use. Consultant shall have the right to use the concepts embodied therein.

All subcontractors shall provide for assignment to City of any documents or mate rials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resultin g therefrom. Moreover, Consultant with respect to any documents and materials that may qualify as “works made for h ire” as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed “works made for hire” for the City.

6.4 Confidentiality and Release of Information.
(a) All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior writ ten authorization from the Project Manager.
(b) Consultant, its officers, employees, agents or subcontractors, shall not, without prior writ ten authorization from the Project Manager or unl ess requested by the City Attorney, voluntarily provide documents, declarations, letters of support, t estimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered “voluntary” provided Consultant gives City notice of such court order or subpoena. (c) If Consultant, or any officer, employee, agent or subcontractor of Consultant, provides any information or w ork product in violation o f this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Consultant’s conduct.

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(d) Consultant shall promptly notify City should Consultant, its officers, employees, agents or subcontract ors be served with any summons, comp laint, subpoena, notice of deposition, request for documents, interrogatories, request for admiss ions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed there under. City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceed ing. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.

ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION

7.1 California Law.

This Agreement s hall be interpreted, construed and g overned both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute , claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of San Bernardino, State of California, or any other appropriate court in such county , and Consultant covenants and agrees to submit t o the personal jurisdiction of such court in the event of such act ion. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in the County of San Bernardino, State of California.

7.2 Disputes; Default.

In the event that Consultant is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, the City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in w hich Consultant may cure the default. This timeframe is presumptively thirty (30) days, but may be extend ed, though not reduced, if circumstances warrant. During the period of time that Consultant is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of the C ity to give notice of t he Consultant’s default sh all not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.

7.3 Retention of Funds.

Consultant hereby authorizes City to deduct from any amoun t payable to Consultant (whether or not arising o ut of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are ne cessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third par ties, by reason of Consultant’s acts or omissions in performing or failing to perform Consultant’s obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear

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to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obli gations of the Consultant to insure, indemnify, and protect City as elsewhere provided herein.

7.4 Waiver.

Waiver by any party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a w aiver of any subsequent breach or violation of an y provision of this Agreement.

Acceptance by City of any work or s ervices by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any r ight or remedy by a non -defaulting party on any d efault shall impair such right or remedy or be construed as a waiver. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.

7.5 Rights and Remedies are Cumulative.

Except with respect to rights and remedies ex pressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such ri ghts or remedies shall not preclude the exercise by it, at the same or different times, of a ny other rights or remedies for the same default or any other default by the other party.

7.6 Legal Action.

In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent wit h the purposes of this Agr eement. Notwithstanding any contrary provision herein, Consultant shall file a statutory claim pursuan t to Government Code Sections 905 et seq. and 910 et seq., in order to pursue a legal action under this Agreement.

7.7 Liquidated Damages.

Since the determin ation of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Consultant and its sureties sha ll be liable for and sh all pay to the City the sum of ____________________________________ ($___________) as li quidated damages for each working day of delay in the performance of any service required hereunder. The City may withhold from any monies payab le on account of servic es performed by the Consultant any accrued liquidated damages.

7.8 Termination Prior to Expiration of Term.

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This Section shall govern any termination of this Contract except as specifically provided in the following Section for terminati on for cause. The City reserves the right to term inate this Contract at any time, with or without cau se, upon thirty (30) days’ written notice to Consultant, except that where termination is due to the fault of the Consultant, the period of notice may be such shorter time as may be determined by the Project Manager . In addition, the Consultant reserves the right to ter minate this Contract at any time, wi th or without cause, upon sixty (60) days’ written notice to City, except that where termination is due t o the fault of the City, the period of notice may be such shorter time as the Consultant may determine. Upon receipt of any notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Project Manager. Except where the Consultant has initiated termination, the Consultant shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Project Manager thereafter in accordance with the Schedule of Compensation or such as may be approved by the Project Manager , ex cept as provided in Section 7.3. In the event the Consultant has initiated termination, the Consultant shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the term inating party need not provide the non -terminating party with the opportunity to cure pursuant to Section 7.2.

7.9 Termination for Default of Consultant.

If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for comp letion of the services required here under exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed the City as previously stated.

7.10 Attorneys’ Fees.

If either party to this Agreement is required to initiate or defe nd or made a party to a ny action or proceeding in any way connected with this Agreement, the prevaili ng party in su ch action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable at torney’s fees. Attorney’s fees shall include atto rney’s fees on any appeal, and in addition a party e ntitled to attorney’s fees shall be entitled to al l other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.

ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION

8.1 Non-liability of City Officers and Employees.

No officer or employee of the City shall be persona lly l iable to the Consultant, or any successor in interest, in the event of any default or breach by the City or for any amount which

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may bec ome due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.

8.2 Conflict of Interest.

Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any w ay hinder Consultant’s performance of services und er this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest sh all be employed by it as a n officer, employee, agent or sub contractor without the express wr itten consent of the Project Manager . Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of int erest with the interests of City in the performance of this Agreement.

No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision r elating to the Agreement which affects her/his financial interest or the financial interest of any corporatio n, partnership or association in which (s)he is, d irectly or indirectly, interested, in violation of any State statute or regulation. The Consultant warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.

8.3 Covenant Against Discrimination.

Consultant covenants that, by and for itself, its heirs, executors, assigns, and all p ersons claiming under o r through them, that there shall be no discrimination against or segregation o f, any person or gr oup of persons on account of ra ce, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class in the performance of this Agreement. Consultant shall take affirmative action to insure tha t applicants are employed and that e mployees are treated during employment without regard to their race, color, creed, religion, sex, gender, sexual orientation, marital status, national ori gin, ancestry or other protected class.

8.4 Unauthorized Aliens.

Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. , as amended, and in co nnection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized alien s for the performance of work and/or services covered by this Agreement, and should any liability or sanc tions be imposed agains t City for such use of unauthorized aliens, Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys ’ fees, incurred by City.

ARTICLE 9. MISCELLANEOUS PROVISIONS

9.1 Notices.

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Any notice, de mand, request, document, consent, approval, or commu nication eithe r party desires or is required to gi ve to the other party or any other person shall be in writing and either served personally or sent by pre paid, first-class mail, in the case of the City, to the City Manager and to the attention of the Project Manager (with her/his name and City title), City of Chino, 13220 Central Avenue, Chino, California 91710 and in the case of the Consultant, to the person(s) at the address de signated on the execution page of this Agreement. Either party may change its address by not ifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in sevent y-two (72) hours from the time of mailing if mailed as provided in this Section.

9.2 Interpretation.

The terms of this Agreement shall be construed in acc ordance with the meaning of the language used and shall not be construed for or against either party by r eason of the authorship of this Agreement or any other rule of construction which might otherwise apply.

9.3 Counterparts.

This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.

9.4 Integration; Amendment.

This Agreement including the attachments heret o is the entir e, co mplete and exclusive expression of the understanding of the parties. It is understood that there are no oral agreements between the parties hereto affecting th is Agreement and this Agre ement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid u nless made in writing and approved by the Consultant and by the Ci ty Co uncil. The parties agree that t his requirement for written modifications cannot be waived and that any attempted waiver shall be void.

9.5 Severability.

In the eve nt that any one or more of the phrases, sentences, clauses, paragraphs, or sections containe d in this Agreement shall be declare d invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such inval idity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragrap hs, or section s of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless t he invalid provision is so material that its inva lidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.

9.6 Warranty & Representation of Non-Collusion.

No official, officer, or employee of City has any financi al interest, direct or indirect, in this Agreement, nor shall any official, officer, or employee of C ity participat e in any decision relating to this A greement which may affect his/her financial interest or the financial interest of

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any corporation, partne rship, or association i n which (s)he is directly or indirectly interested, or in violation of any corporation, partnership, or association in which (s) he is directly or indirectly interested, or in violation of any State or municipal statute or regulation. The determination of “financial interest” shall be consistent with State law and shall not include i nterests found to be “remote” or “noninterests” pursuant to Government Code Sections 1091 or 1091.5 . Consultant warrants and represents that it has not pai d or given, and will no t pay or give, to any thir d party including, but not limited to, any City offi cial, officer, or employee, any money, considerati on, or other thing of value as a result or consequence of obtaining or being awarded any agreement.

Consultant further warrants and represents that (s)he/ it has not engaged in any act(s), omission(s), or ot her conduct or collusion that would result in the payment of any money, consideration, or other thing of value to any third party including, but not limite d to, any City official, officer, or employee, as a result of consequence of obtaining or being award ed any agreement. Consultant is aware of and under stands that any such act(s), omission(s) or other conduct resulting in such payment of money, considerati on, or other thing of v alue will render this Agreement void and of no force or effect.

Consultant’s Authorized Initials _______

9.7 Corporate Authority.

The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly or ganized and existing, ( ii) they are duly authoriz ed to execute and deliver this Agreement on behalf o f said party, (iii) by so executing this Agreement , such party is formally bound to the provisions of this Agreement, and (iv) th at entering into this Agre ement does not violate any provision of any other Agreement to which said party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties. [SIGNATURES ON FOLLOWING PAGE]

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written.

CITY:

CITY OF CHINO, a municipal corporation

Linda Reich, City Manager
ATTEST:

Natalie Gonzaga, City Clerk
APPROVED AS TO FORM: APPROVED AS TO CONTENT:

ALESHIRE & WYNDER, LLP
_____________________________ ____________________________________ Fred Galante, City Attorney Amer Jakher, P.E., Director of Public Works

CONSULTANT:

EXP U.S. SERVICES, INC.:

By:

Name:

Title:

By:

Name:

Title:

Address:

Two corpo rate officer signatures required when C onsultant is a corporation, with one signature required from each of the following groups: 1) Chairman o f the B oard, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer.

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01225.0001/863604.2 A-1
EXHIBIT “A”

I. Consultant will provide on -call Civil Engineering Services, as more fully detailed in Exhibit “A -1”. The Consultant has been selected to provide services of a certain nature which will be readily available for a fixed rate when needed. However, before any work is performed, the Consultant must provide a specific written proposal for any requested services and get written approval of the terms of the proposal from the City, as such process is more fully described h erein. Unless specifically defined, each category or type of work listed in Exhibit “A -1” shall be construed broadly to include all services customarily described under such category or type.

II. Work Request Procedure
A. Each task to be performed shall be set forth in a written request (“Request”) produced by the Project Manager with a description of the work to be performed, and the time desired for completion. All tasks shall be carried out in conformity with all provisions of this Agreement.

B. Following receipt of the Request, the Consultant shall prepare a “Task Proposal” that includes the following components:
1) a written description of the requested task (“Task Description”) including all components and subtasks, and including any clarifications of the descriptions provided in the Request:
2) the costs to perform the task (“Task Budget”)
3) an explanation of how the cost was determined; and
4) a schedule for completion of the task (“Task Completion Schedule”), including a final completion date (“Task Completion Date”).

C. Project Manager shall approve, modify, or reject the task Proposal in writing, and issue a Notice to Proceed when a written agreement has been reached on the Task Proposal.

D. The task shall be performed at a cost not exceeding the Task Budget.

III. Consultant acknowledges that City has no obligation to request work from Consultant under this Agreement. City may establish a rotation schedule with multiple consultants and may seek competing Task Proposals.

IV. In addition to the req uirements of Section 6.2, during performance of the Services, Consultant will keep the City appraised of the status of performance by delivering the following status reports:

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01225.0001/863604.2 A-2
A. Consultant shall provide to City a weekly written summary of progress on all approved Task Proposals for services lasting longer than one week.

V. All work product is subject to review and acceptance by the City, and must be revised by the Consultant without additional charge to the City until f ound satisfactory and accepted by City.

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01225.0001/863604.2 A1-1
EXHIBIT “A-1”

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01225.0001/863604.2 A1-2

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01225.0001/863604.2 A1-3

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01225.0001/863604.2 A1-4

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01225.0001/863604.2 A1-5

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01225.0001/863604.2 B-1
EXHIBIT “B”

SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
I. Section 7.7, Liquidated Damages, is hereby deleted in its entirety.

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01225.0001/863604.2 C1-1
EXHIBIT “C”

SCHEDULE OF COMPENSATION
I. Consultant shall be compensat ed for the services provided under this Agreement in accordance with the budget and rates provided in Exhibit “C-1”.

II. Within the budgeted amounts for each Task, and with the approva l of th e Project Manager, funds may be shifted from one Task subbudget to another so long as the Contract Sum is not exceeded per Section 2.1, unless Additional Services are approved per Section 1.10.

III. The City will compensate Consultant for the Services performed upon submission of a valid invoice, as described in Section 2.4.

IV. The total compe nsation for the Services shall not exceed the Contract Sum, as provided in Section 2.1 of this Agreement.

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01225.0001/863604.2 C1-1
EXHIBIT “C-1”

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01225.0001/863604.2 C1-2

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01225.0001/863604.2 D-1
EXHIBIT “D”

SCHEDULE OF PERFORMANCE
I. Consultant shall perform all services timely i n accordanc e w ith the following schedule:
*Finalized deadline dates will be contingent upon actualized project sc hedules, whic h shall be approved by the P roject Managers. C onsultant will coordinate wit h City and Project staff to ensure timely completion of services and adherence to approved task schedules.

II. The Project M anager may approve extensions for performance of the s ervices in accordance with Section 3.2.

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Project Name/No.: On-Call Civil Engineering Contract No.: ______________ & Associated Services (CIP)

Project Manager: PW/ M. Hindersinn Approved: ________________ (Long Form)

AGREEMENT FOR SERVICES

BETWEEN THE CITY OF CHINO AND
TRANSTECH ENGINEERS, INC.

THIS AGREEMENT FOR SERVICES (herein “Agreement”) is made and entered into this 1st day of July, 2023 (“Effective Date”) by and between the City of Chino, a California municipal corporation (“City”) and Transtech Engineers, Inc. , a California Corporation (“Consultant”). City and Consultant may be referred to individually as “Party” or collectively as “Parties.”

RECITALS
A. City has sought, by issuance of a Request for Proposals or Invitation for Bids, the performance of the services defined and described particularly in Article 1 of this Agreement.

B. Consultant, following submission of a proposal or bid for the performance of the services defined and described particularly in Article 1 of this Agreement, was selected by the City to perform those services.

C. Pursuant to the City of Chino’s Municipal Code, City has authority to enter into and execute this Agreement.

D. The Parties desire to formalize the selection of Consultant for per formance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.

OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the m utual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows:

ARTICLE 1. SERVICES OF CONSULTANT

1.1 Scope of Services.

In compliance with all terms and conditions of this Agreement, the Consultant shall provide those services specified in the “Scope of Services ” attached hereto as Exhibit “A” and incorporated herein by this reference, which may be referred to herein as the “services” or “work” hereunder. As a material inducement to the City entering into this Agreement, Consultant represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the services required under this Agreement in a thorough, compet ent, a nd professional manner, and is experienced in performing the work and services contemplated herein. Consultant shall at all times faithfully, competently and to the best of its ability,

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2 experience and talent, perform all services described herein. Consultant covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be both of good quality as well as fit for the purpose intended. For purposes of this Agreement, t he phr ase “highest professional standards ” shall mean those standards of practice recognized by one or more first -class firms performing similar work under similar circumstances.

1.2 Consultant’s Proposal.

The Scope of Services shall include the scope of work included in Consultant’s proposal, which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern.

1.3 Compliance with Law.

Consultant shall keep itself informed concerning, and shall render all services hereunder in accordance with , all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental entity ha ving jurisdiction in effect at the time service is rendered.

1.4 California Labor Law.

If the Scope of Services includes any “public work” or “maintenance work,” as those terms are defined in California Labor Code Section 1720 et seq. and California Code of Regulations, Title 8, Section 16000 et seq. , and if the total compensation is $1,000 or more, Consultant shall pay prevailing wages for such work and comply with the requirements in California Labor Code section 1770 et seq. and 1810 et seq., and all other applicable laws, as they pertain to such work, including the following requirements:
(a) DIR Monitoring a nd Enforcement. The public work and/or maintenance work performed under this Agreement shall be subject to compliance monitoring and enforcement by the Department of Industrial Relati ons (“DIR”). Consultant shall post job site notices, as prescribed by regulation.
(b) Prevailing Wages . Consultant shall p ay prevailing wages to the exte nt required by Labor Code Section 1771. Pursuant to Labor Code Section 17 73.2, copies of the prevailing rate of per diem wages are on file at City Hall and will be made available to any interested pa rty on request. By initiating any work under this Agree ment, Consultant acknowledges receipt of a copy of the DIR determination o f the prevailing rate of per diem wages, and Consultant shall post a copy of the same at each job site where work is performed under this Agreement.
(c) Penalty for Failure to Pay Prevailing Wages . Consultant shall comply with and be bound by the provisions o f Labo r Code Sections 1774 and 1775 concern ing the payment of prevailing rates of wages to workers and the pe nalties for failure to pay prevailin g wages. The Consultant shall, as a penalty to the City, forfeit two hundred dollars ($200) for each

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3 calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any public work done pursuant to this Agreement by Consultant or by any subcontractor. (d) Payroll Re cords. Consultant shall comp ly with and be bound by the provisions of Labor Code Section 1776, which require s Consultant and each subcontractor to:
keep accurate payroll records and verify such records in writing under penalty of perjury, as specified in Section 1776; certi fy and make such payroll records available for inspection as provided by Section 1776; and inform the City of the location of the records. (e) Apprentices. Consultant shall comply with and be bound by the provisions of Labor Code Sections 1 777.5, 1777.6, and 1777.7 and California Code of Regulations T itle 8, Section 200 et seq. concerning the empl oyment of apprentices on public works projects. Consultant shall be responsible for compliance with these aforementioned Sections for all apprenti ceable occupations. Prior to commencing work under this Agreement, Consultant shall provide City with a copy o f the information submitted to any a pplicable apprenticeship program. Within sixty (60) days after concluding work pursuant to this Agreement, Consultant and each of its subcontractors shall submit to the City a verified statement of the journeyman and apprentice hours performed under this Agreement. (f) Eight-Hour Work Day . Consultant acknowledges that eight (8) hours labor constitutes a legal day's wo rk. Consultant shall comply with and be bou nd by Labor Code Section 1810.
(g) Penalties for Excess Hours . Consultant shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work excess hours. The Consultant shall, as a penalty to the City, forf eit twenty-five dollars ($25) for each worker employed in the perf ormance of this Agreement by the Consultant or by any subcontractor for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of t he provisions of Division 2, Pa rt 7, Chapter 1, Article 3 of the Labor Code.

Pursuant to Labor Code section 1815, work performed by employees of Consultant in excess of eight (8) hours per day, and forty (40) hours during any one week shall be permitt ed upon public work upon compensation for all hours worked in exce ss of 8 hours per day at not less than one and one-half (1½) times the basic rate of pay.
(h) Workers’ Compensation. California Labor Code Sections 1860 and 3700 provide that every employer wil l be required to secure the payment of compensation to its employees if it has employees. By exec uting this Agreement, and in accordance with the provisions of California Labor Code Section 1861, Consultant certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor C ode which require every employer to be insured against l iability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work o f this contract.”

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4 (i) Consultant’s Responsibility for Subcontractors. For every subcontractor who will perform wo rk und er this Agreement, Consultant shall be responsible for such subcontractor's compliance with Division 2, Part 7, Chapte r 1 (comme ncing with Section 1720) of the California Labor Code, and shall make such compliance a requirement in any contract with any subcontractor for work under this Agreement. Consultant shall be required to take all actions necessary to enfo rce such contractual provisions and ensure subcontractor's compliance, including without limitation, conducting a review of the certified payr oll re cords of the subcontractor on a periodic basis or upon becoming aware of the failure of the subcontractor to pay his or her work ers the specified prevailing rate of wages. Consultant shall diligently take corrective action to halt or rectify any such failure by any subcontractor.

1.5 Licenses, Permits, Fees and Assessments.

Consultant shall obtain a t its sole cost and expense such lic enses, permits and approvals as may be required by law for the performance of the services required by this Agreement.

Consultant shall have the sole obli gation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may b e imposed by law and arise from or are necessary for the Consultant’s performance of the services required by this Agreeme nt, an d shall indemnify, defend and hold harmless City , its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder.

1.6 Familiarity with Work.

By executing thi s Agreement, Consultant warrants that Consultant (i) has thoroughly investigated and considered th e scope of services to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the facilities, difficult ies and restrictions attending p erformance of the services under this Agreement. If the services i nvolve work upon any site, Consultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the conditions there e xisting, prior to commencement o f services hereunder. Should the Consultant discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Consultant shall immediately inform the City of such fact and sha ll not proceed except at Consultant’s risk until written instructions are received from the Project Manager.

1.7 Software and Computer Services.

If the Scope of Services includes the provision and/or installation of any software, computer system, or other comp uter technology, Consultant repr esents and warrants that it has inspected the City’s current infrastructure, equipment, computer system and software and that the software, computer system, or other computer technology provided and/or installed by Consultant unde r this Agreement is compat ible, and shall be fully functional, with such infrastructure, equipment, computer system and software of the City. Consultant acknowledges that the City is relying on the representation by Consultant as a material consideration in entering into this Agreement.

1.8 Care of Work.

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5 The Consultant shall adopt reasonable met hods during the life of the Agreemen t to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or oth er com ponents thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until accep tance of the work by City, except such losses or damages as may be caused by City’s own negligence.

1.9 Further Responsibilities of Parties.

Both parties agre e to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be re asonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other.

1.10 Additional Services.

City shall have the right , subject to state law and the City’s Municipal Code, at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be under taken unless a written order is first given by the Project Manager to the Consultant, incorporating therein any adjustment in (i) the Contract Sum for the actual costs of the extra work , and/or (ii) the time to perform this Agreement, which said adjustment s are subject to the written app roval of the Consultant. Any increase in compensation for extra wo rk sh all require the approval of Cit y Council unless the City Council has previously authorized the City Manager to approve an increase in compensation and the amount of the increase does no t exceed such authorization. It is expressly understood by Consultant that the provisions of this Sect ion shall not apply to services specifically set forth in the Scope of Services. Consultant hereby acknowledges that it ac cepts the risk that the services to be provided pursuant to the Scope of Services may be more cost ly or time consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor. City may in its sole and absol ute di scretion have similar work done by other contractors. No claims for an increase in the Contract Sum or time for performance shall be valid unless the procedures established in this Section are followed.

1.11 Special Requirements.

Additional terms and con ditions of this Agreement, if an y, which are made a part hereof are set forth in the “Special Requ irements” attached hereto as Exhibit “B” and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit “B” and any other provisions of this Agreement, the provisions of Exhibit “B” shall govern.

ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.

2.1 Contract Sum.

Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the amounts specified in the “Schedule of Compensation” attached hereto a s Exhibit “C” and

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6 incorporated herein by this reference. The total compensation, including reimburseme nt for actual expenses, shall not exceed Six Hundred Fifty Thousand Dollars and Zero Cents ($650,000.00) (the “Contract Sum”), unless additional compensation is appr oved pursuant to Section 1.10.

2.2 Method of Compensation.

The method of compensation may include: (i) a lump sum payment upon completion; (ii) payment in accordance with specified tasks or the percentage of complet ion of the services, less contract retentio n; (iii) payment for time and materials based upon the Consultant’s rat es as specified in the Schedule of Compensation, provided that (a) time estimates are provided for the performance of sub tasks , (b) contract retention is maintained, and (c) the Contract Sum is not exceeded; or (iv) such other methods as may be specified in the Schedule of Compensation.

2.3 Reimbursable Expenses.

Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Project Manager in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5, and only if specified in the Schedule of Compensation. The Contract Sum shall in clude the attendance of Consultant at all project meetings reasonably deemed necessary by the City .

Coordination of the performance of the work with City is a critical component of the services. If Consultant is required to attend additional mee tings to fa cilitate such coordination, Consultant shall not be entitled to any additional compensation for attending said meetings.

2.4 Invoices.

Each month Consultant shall furnish to City an original invoice for all work performed and expenses incurred durin g the prece ding m onth in a form approved by City’s Director of Finance. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the Agreement . Consultant shall not invoice City for any duplicate services performed by more than one person.

All invoices shall be submitted by email to [email protected]. Each invoice is to include:
(a) Line items for all personnel describing the work performed, the number of hours worked, and the hourly rate.
(b) Line items for all materials and equipment properly charged to the Services.
(c) Line items for all oth er approved reimbursable expenses claimed, with supporting documentation.
(d) Line items for all approved subco ntractor la bor, s upplies, equipment, materials, and travel properly charged to the Services.

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7 (e) If this Agre ement requires prevailing wages, per Section 1.4 of the Agreement, all invoices shall include a copy of Consultant’s Certified Payroll and proof th at Certifie d Payr oll has been submitted to the DIR.

Consultant shall also submit a list of the prevailing wa ge ra tes for all employees and subcontractors providing services under this Agreement, as applicable, with Consultant’s first invoice. If these rat es change a t any time during the term of th e Agreement, Consultant shall submit a new list of rates to the Ci ty with its first invoice following the effective date of the rate change.

City shall independently review each invoice submitted by the Consultant to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. Except as to any charges for work performed or expenses incurred by Consultant which are disputed by City, or as provided in Section 7.3, City will use its best efforts to cause Consultant to be paid within forty -five (45) days of receipt of Consultant’s correct and undisputed invoice; however, Consultant acknowledges and agrees that due to City warrant run procedures, the City cannot guar antee that payment will occur within this t ime period . In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission. Review and payment by City for any invoice provided by the Consultant shall not constitute a waiver of any rights or remedies provided herein or any applicable law.

2.5 Waiver.

Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant.

2.6 Contingency of Funds.

Consultant acknowledges that funding or portions of funding for this Agreem ent may be contingent upon State bud get approval; receipt of funds from, and/or obligation of funds by the State of California to City; or inclusio n of suffic ient funding for the services he reunder in the budget approved by Chino City Council for each fisc al year covered by this Agreement. If such approval, funding or appropriations are not forthcoming, or are otherwise limited, City may immediately terminate or modify this Agreement without penalty.

ARTICLE 3. PERFORMANCE SCHEDULE

3.1 Time of Essence.

Time is of the essence in the performance of this Agreement.

3.2 Schedule of Performance.

Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall pe rform all services within the time period(s) established in the “Schedule of Performance ” attached hereto as Exhibit “D” and incorporated herein by this

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8 reference. When requested by the Consultant, extensions to t he time per iod(s) specified in the Schedule of Performance may be approved in writing by the Project Manager but not exceeding one hundred eighty (180) days cumulatively.

3.3 Force Majeure.

The time period(s) specified in the Schedule of Performance for perfor mance of th e services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots , str ikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Consultant shall within ten (10) days of th e comm encement of such delay not ify the Project Manager in writing of the causes of the delay. The Project Manager shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Project Manager such delay is justified. The Project Manager ’s determination shall be final and conclusi ve upon the parties to this Agreement. In no event shall Consultant be entitled to recover damages against the City for an y delay in the performance of this Agreement, however caused, Consultant’s sole remedy being exten sion of the Agreement pursuant to this Section.

3.4 Term.

Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in full force and effect until c ompletion of the services , which shall be no later than June 30, 2024, except as otherwise provided i n the Schedule of Performance ( Exhibit “D”).

This Agreement may be renewed by a written amendment for up to an additional (2) two (1) one year terms at the option of the City if the City is satisfied with the quality of service s performed by Consultant under this Agreement.

ARTICLE 4. COORDINATION OF WORK

4.1 Representatives and Personnel of Consultant.

The following principals of Consultant (“Principals”) are hereby designated as being the principals and representatives of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:

(Name) (Title)

(Name) (Title)
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement.

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9 Therefore, the foregoin g principals shall be resp onsible during the term of this Agreement for directing all activi ties of Consultant and devoting suff icient time to personally supervise the services hereunder. All personnel of Consultant, and any authoriz ed agents, shall at all times be under the exclus ive direction and control of the Principals. For purposes of this Agreement, the foregoing Principals may not be replaced nor may their responsibilities be substantially reduced by Consultant without the express written approval of City. Additionally, Consultant shall utilize only competent personnel to perform services pursuant to this Agreement. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and subcontractors, if any, assigned to perform the s ervices required under this Agreement.

Consultant shall notify Cit y of any changes in Consultant’s sta ff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to a nd during a ny such performance.

4.2 Status of Consultant.

Consultant shall have no authority to bind City in any manne r, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. Consultant shall not at any time or in any ma nner represent that Consultant or any of Consultant’s officers, employees, or agents are in any manner of ficials, of ficers, employees or agents of City. Neither Consultant, nor any of Consultant’s officers, employees or agents, shall obtain any rights to r etirement, health care or any other benefits which may otherwise accrue to City ’s employees. Consultant expressly waives any cla im Consultant may have to any such rights.

4.3 Project Manager.

The Project Manager shall be Michele Hindersinn, Principal Engineer, or any ot her person as may be designated by the Project Manager. It shall be the Consultant’s responsibility to assure that the Project M anager is kept informed of the progress of the performance of the services and the Consultant shall refer any decisions which mu st be made by City to the Project Manager. Unless otherwise specified herein, any approval of C ity required hereunder shall mean the approval of the Project Manager. The Project Manager shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement.

4.4 Independent Consultant.

Neither the City nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents o r employees, perform the services required herein, except as otherwise set forth herein. City s hall have n o voice in the selecti on, discharge, supervision or control of Consultant’s employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Consultant shall perform all services required herein as an independent contractor of City an d shall remain at all time s as to City a wholly independent contractor with only such obliga tions as are consistent with that ro le. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed

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10 to be a partner of Consultant in its business or oth erwise or a joint venturer or a member of any joint enterprise with Consultant.

4.5 Prohibition Against Subcontracting or Assignment.

The experience, knowledg e, capability and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Consultant shall not contract with any o ther entity to perform in whole o r in part the services required hereunder without the express written approval of the City. In ad dition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder sha ll include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unap proved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Consultant or any surety of Consultant of any liability hereunder without the express consent of City.

ARTICLE 5. INSURANCE AND INDEMNIFICATION

5.1 Insurance Coverages.

Without limiting Consultant’s indemnification of City, and prior to commen cement of any services under this Agreement, Consultant sha ll obtain, provide and maintain at its own expense during the term of t his Agreement, policies of insu rance of the type and amounts described below and in a form satisfactory to City.
(a) General liability insurance. Consultant s hall maintain commercial g eneral liability insurance with coverage at least as broad as Insu rance Services Office form CG 00 01, in an amount not less than $ 1,000,000 per occurrence, $ 2,000,000 general aggregate, for bodily injury, personal injury, and pro perty damage. The policy m ust include contractual liability that has not been amended. Any e ndorsement restricting standard ISO “insured contract” language will not be accepted.
(b) Automobile liability insurance . Consultan t shall mai ntain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Services to be performed under this Agre ement, including coverage for any owned, hired, non - owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
(c) Professional liability (errors & omissions) insurance . Consultant shall maintain professional liability insurance that covers t he Services to be performe d in connection with this Agreement, in the minimum amount of $1,0 00,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three (3) years after completion of the services required by this Agreement.

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11 (d) Workers’ compensation insurance . Consultant shall maintain Workers ’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000).
(e) Subcontractors. Consultant shall includ e all subcontractors as insureds under its policies or shall furnish separate certificates and certified e ndorsements for each subcontractor. All coverage s for subcontractors shall include all of the requirements stated herein.
(f) Additional Insurance. Policies of such other insurance, as may be required in the Special Requirements in Exhibit “B”.

5.2 General Insurance Requirements.
(a) Proof of insurance . Co nsultant shall provide certificates of insurance to City as eviden ce of the insurance coverage require d herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance c ertificates and endorsements must be approved by City’s Risk Manager prior to commencement of performance. Current certificat ion of insurance shall be kept on fi le with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of al l required insurance polic ies, at any time.
(b) Duration of coverage . Consultant shall proc ure a nd maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Services hereunder by Consultant, its agents, representatives, employees or subconsultants. (c) Primary/noncontributing. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herei n may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provisio n that such coverage shall also apply on a primary and non - contributory basis for the benefi t of City before the City’s own insu rance or self-insurance shall be called upon to protect it as a named insured.
(d) City’s rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these specification s or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. (e) Acceptable insurers. All insurance policies shall be issued by a n insurance company currently aut horized by the Insurance C ommissioner to transact business of insurance or that is on the Li st of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VI (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise ap proved by the City’s Risk Manager.

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12 (f) Waiver of subrogation . All insurance coverage maintained or procured pursuant to this agreem ent shall b e endorsed to waive su brogation against City, it s elected or appointed officers, agents, officials, employees and volunteers or shall specifically all ow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery pr ior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
(g) Enforcement of contract p rovisions (non-estoppel). Consultant acknowledges and agrees that an y actual or alleged failure on the part of the City to inform Consultant of non -compliance with any re quirement imposes no additional obligations on the City nor does it waive any rights hereunder.
(h) Requirements not limiting . Requirements of specific co verage features or limits contained in this section are not intend ed as a limitation on coverage, limi ts or other requirements, or a waiver of any coverage normally provided by any insurance. Speci fic reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not in tended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consulta nt maintains higher limits than t he minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. (i) Notice of cancel lation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notic e is requir ed) or nonrenewal of c overage for each required coverage.
(j) Additional insured status . General liability policie s sha ll provide or be endorsed to pr ovide that City and its officers, officials, employees, and agents, and volunteers shall be add itional ins ureds under such polic ies. This provision shall also apply to any excess/umbrella liability policies.
(k) Prohibition o f undisclosed coverage limitati ons. None of the coverages required herein will be in compliance with these requirements if the y include a ny limiting endorsement of any kind that has not been first submitted to City and approved of in writing. (l) Separation of insureds. A severability of interests provision must apply for all additional insureds ensuring that Consultant’s insurance shall apply separately to each insured against whom clai m is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions. (m) Pass through clause . Consultant agrees to ensure t hat its subconsultants , subcontractors, and any other party involved with the project who is brought onto or invol ved in the project by Consultant, pr ovide the same minimum insurance coverage and endorsements required of Consultant. Consultant a grees to monitor and review all s uch coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements

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13 of t his section. Consultant agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the project will be submitted to City for review. (n) Agency’s right to revise specifications . The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Consultant, the City and Con sultant may renegotiate Consultant’s compensation.
(o) Self-insured retentions . Any self -insured retention s must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a d eductible. Self-insurance will not be considered to comply with these specifications unless approved by City.
(p) Timely notice of claims . Consultant sha ll give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant’s performance under this Agreement, and that involve or may involve coverage und er any of t he required liability policies.
(q) Additional i nsurance. Consultant shall also procure and maintain, at its own c ost a nd expense, any additional kind s of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work.

5.3 Indemnification.

To the full extent perm itted by law, Consultant agrees to indemnify , defend and hold harmless the City, its officers, employe es and agents ( “Indemnified Parties”) against, and will hold and save them and each of them har mless from, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or pro perty, losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein “claims or liabilities”) that may be asserted or claimed by any person, fi rm or entity arising out of or in connection with the negligent pe rformance of the work, operations or activities provided herein of Consultant, its officers, employees, agents, subcontractors, or invitees, o r any individual or entity for which Consultant is legally liable (“indemnitors”), or arising from Consultant’s or indemnitors’ reckless or willful mi sconduct, or arising from Consultant’s or indemnitors’ negligent performance of or failure to p erform any term, provision, covenant or condition of this Agreement, and in connection therewith:
(a) Consultant will defend any action or actions filed in connectio n with any of said claims or liabilities and will pay all costs and expenses, including legal c osts and attorneys’ fees incurred in connection therewith;
(b) Consultant will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performa nce of or f ailure to perform such work, operations or activ ities of Consultant hereunder; and Consultant agrees to save and h old the City, its officers, agents, and employees harmless therefrom;

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14 (c) In the event the City, its officers, agents or employees is m ade a party to any action or proceeding filed or prosecuted against Consultant for such damages or other claims arising out of or in connection with the negligen t performance of or failure to perform the work, operation or activities of Consultant hereunder, Consultant agrees to pay to th e City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys ’ fees.

Consultant shall incorporate simi lar indemnity agreements w ith its subcontra ctors and if it fails to do so Consultant shall be fully responsible to indemnify Cit y hereunder therefore, and failure of City to monitor compliance with these provisions shall no t be a waiv er hereof. This indemnification includes claims or liabilities arising from any negligent or wrongful act, error o r omission, or reckless or willful m isconduct of Consultant in the performance of professional services hereunder. The provisions of this Section do not apply to cl aims or liabilities occurr ing as a result of City ’s sole negligence or willful acts or omiss ions, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City ’s negligence, except that design professionals’ indemnity hereunder shall be limited to claims and liabilities arising out of the negligenc e, recklessness or willful misconduc t of the design professional . The indemnity obligation shall be binding on successors and assig ns of Consultant and shall survive termination of this Agreement.

ARTICLE 6. RECORDS, REPORTS, AND RELEASE OF INFORMATION

6.1 Records.

Consultant shall keep, and require subco ntractors to keep, such ledgers , books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder (the “books and records”), as shall be necessary to perform the services required by this Agreement and enable the Project Manager to evaluate the performance of such services. Any and all such documents sh all be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Project Manager shall have full and free access to such books and records at all times during normal business ho urs of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, a nd the City shall have access to such records in the event any audit is required. In the event of dissolution of Consultant’s business, custody of the books and records may be given to City, and access shall be provided by Consultant’s successor in interes t. Notwithstanding the above, the Consultant shall fully cooperate with the City in providing access to the books and records if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act.

6.2 Reports.

Consultant shall pe riodically prepare and sub mit to the Project Manager such reports concerning the performance of the services required by this Ag reement as the Project Manager shall require. Consultant hereby acknowledges that the City is g reatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Consultant

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15 agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Consultant is providing design services, the cost of the project being designed, Consultant shall promptly notify the Project Manager of said fact, circumstance, technique or event and th e estimated increased or decrease d cost related thereto and , if Consultant is providing design services, the estimated increased or decreased cost estimate for the project being designed.

6.3 Ownership of Documents.

All drawings, specifications, maps, designs, photographs, studies, surveys, d ata, notes, computer files, reports, records, documents and other materials (the “documents and materials”) prepared by Consultant, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Project Manager or upon the termination of this Agreement , and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its f ull rights of ownership use, reus e, or assignment of the do cuments and materials hereunder. Any use, reuse or assignment of s uch c ompleted documents for other pr ojects and/or use of uncompleted documents without specific written authorization by the Consultant will be at the City’s sole r isk and without liability to Consultant, and Consultant’s guarantee and warranties shall not extend to such use, re use or assign ment. Consultant may retain copies of such documents for its own use. Consultant shall have the right to use the concepts embodied therein.

All subcontractors shall provide for assignment to City of any documents or mate rials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damage s resulting therefrom. Moreover, Consultant with respect to any documents and materials that may qualify as “works made for h ire” as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed “works made for hire” for the City.

6.4 Confidentiality and Release of Information.
(a) All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior writ ten authorization from the Project Manager.
(b) Consultant, its officers, employees, agents or subcontractors, shall not, without prior writt en authorization from the Project Manager or unl ess requested by the City Attorney, voluntarily provide documents, declarations, letters of support, t estimony at depositions, response to interrogatories or other information concerning the work p erformed under this Agreement. Response to a subpoena or court order shall not be considered “voluntary” provided Consultant gives City notice of such court order or subpoena. (c) If Consultant, or any officer, employee, agent or subcontractor of Consultant, provides any information or w ork product in violation o f this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Consultant’s conduct.

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16 (d) Consultant shall promptly notify City should Consultant, its officers, employees, agents or subcontract ors be served with any summons, comp laint, subpoena, notice of deposition, request for documents, interrogatories, request for admi ssions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed there under. City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or simil ar proceedi ng. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.

ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION

7.1 California Law.

This Agreement s hall be interpreted, construed and g overned both as to validity and to performance of the parties in accordance with the laws of th e State of California. Legal actions concerning any dispute , claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of San Bernardino, State of California, or any other appropriate court in s uch county, and Consultant covenants and agrees to submit t o the personal jurisdiction of such court in the event of such act ion. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in the County of San Bernardino, State of California.

7.2 Disputes; Default.

In the event that Consultant is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date o f default. Instead, the City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in w hich Consultant may cure the default. This timeframe is presumptively thirty (30) days, but may be extende d, though not reduced, if circumstances warrant. During the period of time that Consultant is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City m ay, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of the Ci ty to give notice of t he Consultant’s default sh all not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.

7.3 Retention of Funds.

Consultant hereby authorizes City to deduct from any amount payable to Consultant (whether or not arising o ut of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are ne cessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all a mounts for which City may be liable to third par ties, by reason of Consultant’s acts or omissions in performing or failing to perform Consultant’s obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear

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17 to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover s uch claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obli gations of the Consultant to insure, indemnify, and protect City as elsewhere provided herein.

7.4 Waiver.

Waiver by any party to this Agreement o f any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a wa iver of any subsequent breach or violation of an y provision of this Agreement.

Acceptance by City of any work or s ervices by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non -defaulting party on any d efault shall impair such right or remedy or be construed as a waiver. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.

7.5 Rights and Remedies are Cumulative.

Except with respect to rights and remedies ex pressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by eithe r party of one or more of such ri ghts or remedies shall not preclude the exercise by it, at the same or different times, of a ny other rights or remedies for the same default or any other default by the other party.

7.6 Legal Action.

In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtai n any other remedy consistent with the purposes of this Agr eement. Notwithstanding any contrary provision herein, Consultant shall file a statutory claim pursuan t to Government Code Sections 905 et seq. and 910 et seq., in order to pursue a legal action under this Agreement.

7.7 Liquidated Damages.

Since the determin ation of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Consultant and its su reties shall be liable for and sh all pay to the City the sum of ____________________________________ ($___________) as li quidated damages for each working day of delay in the performance of any service required hereunder . The City may withhold from any mo nies payabl e on account of servic es performed by the Consultant any accrued liquidated damages.

7.8 Termination Prior to Expiration of Term.

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18 This Section shall govern any termination of this Contract except as specifically provided in the following Section for termination for cause. The City reserves the right to term inate this Contract at any time, with or without cau se, upon thirty (30) days’ written notice to Consultant, except that where termination is due to the fault of the Consultant, the period of notic e may be such shorter time as may be determined by the Project Manager . In addition, the Consultant reserves the right to ter minate this Contract at any time, wi th or without cause, upon sixty (60) days’ written notice to City, except that where terminatio n is due to the fault of the City, the period of notice may be such shorter time as the Consultant may determine. Upon receipt of any notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Project Manager. Except where the Consultant has initiated termination, the Consultant shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Project Manager thereafter in accordance with the Schedule of Compensation or such as may be approved by the Project Manager , ex cept as provided in Section 7.3. In the event the Consultant has initiated termination, the Consultant shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the term inating party need not provide the non -terminating party with the opportunity to cure pursuant to Section 7.2.

7.9 Termination for Default of Consultant.

If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for comp letion of the services required here under exceeds the compensation herein stipulated (provided that the City shall use reasonable e fforts to m itigate such damages), and City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed the City as previously stated.

7.10 Attorneys’ Fees.

If either party to this Agreement is required to initia te or defen d or made a party to a ny action or proceeding in any way connected with this Agreement, the prevaili ng party in su ch action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to rea sonable attorney’s fees. Attorney’s fees shall include atto rney’s fees on any appeal, and in addition a party e ntitled to attorney’s fees shall be entitled to al l other reasonable costs for investigating such action, taking depositions and discovery and al l other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.

ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION

8.1 Non-liability of City Officers and Employees.

No officer or employee of the City shall be persona lly l iable to the Consultant, or any successor in interest, in the event of any default or breach by the City or for any amount whi ch

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19 may beco me due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.

8.2 Conflict of Interest.

Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any w ay hinder Consultant’s performance of services und er this Agreement. Consultant further covenants that in the performance of this Agreement, no p erson having any such interest sh all be employed by it as a n officer, employee, agent or sub contractor without the express wr itten consent of the Project Manager . Consultant agrees to at all times avoid conflicts of interest or the appearance of any confli cts of interest with the interests of City in the performance of this Agreement.

No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which affects her/his financial interest or the financial interest of any corporatio n, partnership or association in which (s)he is, d irectly or indirectly, interested, in violation of any State statute or regulation. The Consultant warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.

8.3 Covenant Against Discrimination.

Consultant covenants that, by and for itself, its heirs, executors, assigns, and all pe rsons claiming under o r through them, that there shall be no discrimination against or segregation o f, any person or gr oup of persons on account of ra ce, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class in the performance of this Agreement. Consultant shall take affirmative action to insure tha t applicants are employed and that e mployees are treated during employment without regard to their race, color, creed, religion, se x, gender, sexual orientation, marital status, national ori gin, ancestry or other protected class.

8.4 Unauthorized Aliens.

Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. , as amended, and in co nnection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized alien s for the performance of work and/or services covered by this Agreement, and should any liabili ty or sanct ions be imposed agains t City for such use of unauthorized aliens, Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys ’ fees, incurred by City.

ARTICLE 9. MISCELLANEOUS PROVISIONS

9.1 Notices.

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20 Any notice, de mand, request, document, consent, approval, or commu nication eithe r party desires or is required to gi ve to the other party or any other person shall be in writing and either served personally or s ent by prep aid, first-class mail, in the case of the City, to the City Manager and to the attention of the Project Manager (with her/his name and City title), City of Chino, 13220 Central Avenue, Chino, California 91710 and in the case of the Consultant, to the person(s) at the address de signated on the execution page of this Agreement. Either party may change its address by not ifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section.

9.2 Interpretation.

The terms of this Agreement shall be construed in acc ordance with the meaning of the language used and shall not be construed for or against either party by re ason of the authorship of this Agreement or any other rule of construction which might otherwise apply.

9.3 Counterparts.

This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.

9.4 Integration; Amendment.

This Agreement including the attachments heret o is the entir e, co mplete and exclusive expression of the understanding of the parties. It is understood that there are no oral agreements between the parti es hereto affecting th is Agreement and this Agre ement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid u nless made in writing and approved by the Consultant and by the Ci ty Co uncil. The parties agree that t his requirement for written modifications cannot be waived and that any attempted waiver shall be void.

9.5 Severability.

In the eve nt that any one or more of the phrases, sentences, clauses, paragraphs, or sections containe d in this Agreement shall be declare d invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragrap hs, or section s of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunde r unless th e invalid provision is so material that its inva lidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.

9.6 Warranty & Representation of Non-Collusion.

No official, officer, or employee of City has a ny financial interest, direct or indirect, in this Agreement, nor shall any official, officer, or employee of C ity participat e in any decision relating to this A greement which may affect his/her financial interest or the financial interest of

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21 any corporation, partnership, or association i n which (s)he is directly or indirectly interested, or in violation of any corporation, partnership, or association in which (s) he is directly or indirectly interested, or in violation of any State or municipal statute or r egulation. The determination of “financial interest” shall be consistent with State law and shall not include i nterests found to be “remote” or “noninterests” pursuant to Government Code Sections 1091 or 1091.5 . Consultant warrants and represents that it h as not paid or given, and will no t pay or give, to any thir d party including, but not limited to, any City offi cial, officer, or employee, any money, considerati on, or other thing of value as a result or consequence of obtaining or being awarded any agreem ent.

Consultant further warrants and represents that (s)he/ it has not engaged in any act(s), omission(s), or ot her conduct or collusion that would result in the payment of any money, consideration, or other thing of value to any third party including, but not limited to, any City official, officer, or employee, as a result of consequence of obtaining or being award ed any agreement. Consultant is aware of and under stands that any such act(s), omission(s) or other conduct resulting in such payment of money, c onsideration, or other thing of v alue will render this Agreement void and of no force or effect.

Consultant’s Authorized Initials _______

9.7 Corporate Authority.

The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly org anized and existing, ( ii) they are duly authoriz ed to execute and deliver this Agreement on behalf o f said party, (iii) by so executing this Agreement , such party is formally bound to the provisions of this Agreement, and (iv) th at entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties. [SIGNATURES ON FOLLOWING PAGE]

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22 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written.

CITY:

CITY OF CHINO, a municipal corporation

Linda Reich, City Manager
ATTEST:

Natalie Gonzaga, City Clerk
APPROVED AS TO FORM: APPROVED AS TO CONTENT:

ALESHIRE & WYNDER, LLP
_____________________________ ____________________________________ Fred Galante, City Attorney Amer Jakher, P.E., Director of Public Works

CONSULTANT:

TRANSTECH ENGINEERS, INC.:

By:

Name:

Title:

By:

Name:

Title:

Address:

Two corporate officer signatures required when C onsultant is a corporation, with one signature required from each of the following groups: 1) Chairman o f the B oard, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer.

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A1-1
EXHIBIT “A”

SCOPE OF SERVICES
I. Consultant will provide on-call Civil Engineering Services, as more fully detailed in Exhibit “A-1”. The Consultant has been selected to provid e services of a certain nature which will be readily available for a fixed rate when needed. However, before any work is performed, the Consultant must provide a specific written proposal for any requested services and get written approval of the ter ms of the p roposal from the City, as such process is more f ully described herein. Unless specifically defined, each category or type of work listed in Exhibit “A-1” shall be construed b roadly to include all services customarily described under such category or type.

II. Work Request Procedure
A. Each t ask to b e performed shall be set forth in a written request ( “Request”) produced by the Project Manager with a description of the work to be performed, and the time des ired for completion. All tasks shall be carried out in conformity with all provisions of this Agreement.

B. Following receipt of the Request, the Consultant shall prepare a “Task Proposal” that includes the following components:
(A) a written description of the requested task (“Task Description”) including all components and subtasks, and including any cla rifications of the descriptions provided in the Request:
(B) the costs to perform the task (“Task Budget”)
(C) an explanation of how the cost was determined; and
(D) a schedule for completion of the task ( “Task Completion Schedule”), including a final completion date (“Task Completion Date”).

C. Project Manager shall approve, modify, or reject the task Proposal in writing, a nd issue a Notice to Proceed when a written agreement has been reached on the Task Proposal.

D. The task shall be performed at a cost not exceeding the Task Budget.

III. Consultant acknowledges that City has no obligation to request work from Consultant un der this Agreement. City may establish a rotation schedule with multiple consultants and may seek competing Task Proposals.

IV. In addition t o the re quirements of Section 6.2, during performance of the Services, Consultant will kee p the City appraised of the status of performance by delivering the following status reports:

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A1-2
A. Consultant shall provide to City a weekly written summary of progress on all approved Task Proposals for services lasting longer than one week.

V. All work product is subject to review and acceptance by the City , and must be revised by the Consultant without additional charge to the City until found satisfactory and accepted by City.

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A1-1
EXHIBIT “A-1”

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A1-2

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A1-3

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B - 1
EXHIBIT “B”

SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)

I. Section 7.7, Liquidated Damages, is hereby deleted in its entirety.

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C - 1
EXHIBIT “C”

SCHEDULE OF COMPENSATION
I. Consultant shall be compensated for the services provided under this Agreement in accordance with the budget and rates provided in Exhibit “C-1”.

II. Within the budgeted amounts f or each Task, and with the approva l of th e Project Manager, funds may be shifted from one Task sub budget to another so long as the Contract Sum is not exceeded per Section 2.1, unless Additional Services are approved per Section 1.10.

III. The City will compensate Consultant for the Services performed upon submission of a valid invoice, as described in Section 2.4.

IV. The total compe nsation for the Services shall not exceed the Contract Sum, as provided in Section 2.1 of this Agreement.

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C1-1
EXHIBIT “C-1”

TRANSTECH ENGINEERS, INC.

S C H E D U L E O F H O U R L Y R A T E S
F i x e d r a t e s f o r 3 y e a r d u r a t i o n s t a r t i n g J u l y 1 , 2 0 2 3 a n d e n d i n g J u n e 3 0 , 2 0 2 6 Rates are average, negotiable and can be modified to establish a fee for each assignment based on the specific project’s scop e, when such projects are identified by the City.

ENGINEERING CONSTRUCTION MANAGEMENT BUILDING & SAFETY Field Technician $74 Labor Compliance Analyst $137 Permit Technician $74 Engineering Technician $95 Funds Coordinator $137 Plan Check Technician/Analyst $84 Assistant CAD Drafter $110 Utility Coordinator $152 Building Inspector $100 Senior CAD Drafter $131 Office Engineer $142 Senior Inspector $121 Associate Designer $142 Construction Inspector $131 Plans Examiner/Checker $131 Senior Designer $152 Senior Construction Inspector $147 Plan Check Engineer $152 Design Project Manager $184 Construction Manager $173 Deputy Building Official $152 Assistant Engineer $116 Resident Engineer $184 Building Official $168 Staff/Associate Civil Engineer $142 PUBLIC WORKS INSPECTION PLANNING Senior Civil Engineer $184 Public Works Inspector $131 Community Development Technician $79 Traffic Analyst Technician $105 Senior Public Works Inspector $147 Planning Technician $79 Associate Traffic Analyst $116 Supervising PW Inspector $158 Assistant Planner $116 Senior Traffic Analyst $152 SURVEY AND MAPPING Associate Planner $131 Professional Transportation Planner $173 Survey Analyst $131 Senior Planner $152 Traffic Engineer Technician $100 Senior Survey Analyst $142 Planning Manager $163 Associate Traffic Engineer $142 2-Man Survey Crew $310 ADMINISTRATIVE STAFF Traffic Engineer $168 Survey & Mapping Specialist $173 Administrative/Clerical $74 Senior Traffic Engineer $184 Licensed Land Surveyor $194 Project Accountant $89 Project Manager $184 FUNDING & GRANT WRITING
Senior Project Manager $194 Funds Analyst $121
Deputy City Engineer $163 Senior Funds Analyst $142
City Engineer $184 Graphic & Rendering Designer $126 Principal Engineer $205 Grant Writer $152
Funds & Grant Project Manager $173

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D-1
EXHIBIT “D”

SCHEDULE OF PERFORMANCE
I. Consultant shall perform all Services and deliver all work produ cts timely in accordance with the following schedule.
*Finalized deadline dates will be contingent upon actualized construction and assigned project sc hedules, which shall be approved by the Project Manag ers. Consultant will coordinate with City and Project staff to ensure timely completion of services and adherence to approved task schedules.

II. The Project M anager may approve extensions for performa nce of the s ervices in accordance with Section 3.2.

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Project Name/No.: On-Call Engineering Services for Contract No.: ______________ Capital Improvement Projects

Project Manager: CIP/M. Hindersinn Approved: _________________ 01225.0001/863604.2 (Long Form)

AGREEMENT FOR SERVICES

BETWEEN THE CITY OF CHINO AND
Z&K CONSULTANTS, INC.

THIS AGREEMENT FOR SERVICES (herein “Agreement”) is made and entered into this 1st day of July, 2023 (“Effective Date”) by and between the City of Chino, a California municipal corporation (“City”) and Z&K Consultants, Inc. , a California Corporation (“Consultant”). City and Consultant may be referred to individually as “Party” or collectively as “Parties.”

RECITALS
A. City has sought, by issuance of a Request for Proposals o r Invitation for Bids, the performance of the services defined and described particularly in Article 1 of this Agreement.

B. Consultant, following submission of a proposal or bid for the performance of the services defined and described particularly in Article 1 of this Agreement, was selected by the City to perform those services.

C. Pursuant to the City of Chino’s Municipal Code, City has authority to enter into and execute this Agreement.

D. The Parties desire to formalize the selection of Consultant for per formance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.

OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mu tual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows:

ARTICLE 1. SERVICES OF CONSULTANT

1.1 Scope of Services.

In compliance with all terms and conditions of this Agreement, the Consultant shall provide those services specified in the “Scope of Services ” attached hereto as Exhibit “A” and incorporated herein by this reference, which may be referred to herein as the “services” or “work” hereunder. As a material inducement to the City entering into this Agreement, Consultant represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the services required under this Agreement in a thorough, compete nt, a nd professional manner, and is experienced in performing the work and services contemplated herein. Consultant shall at all times faithfully, competently and to the best of its ability,

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01225.0001/863604.2 2
experience and talent, perform all services described herein. Consultant covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be both of good quality as well as fit for the purpose intended. For purposes of this Agreement, th e phr ase “highest professional standards ” shall mean those standards of practice recognized by one or more first -class firms performing similar work under similar circumstances.

1.2 Consultant’s Proposal.

The Scope of Services shall include the scope of work included in Consultant’s proposal, which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern.

1.3 Compliance with Law.

Consultant shall keep itself informed concerning, and shall render all services hereunder in accordance with , all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental entity hav ing jurisdiction in effect at the time service is rendered.

1.4 California Labor Law.

If the Scope of Services includes any “public work” or “maintenance work,” as those terms are defined in California Labor Code Section 1720 et seq. and California Code of Regulations, Ti tle 8, Section 16000 et seq. , and if the total compensation is $1,000 or more, Consultant shall pay prevailing wages for such work and comply with the requirements in California Labor Code section 1770 et seq. and 1810 et seq., and all other applicable laws, as they pertain to such work, including the following requirements:
(a) DIR Monitoring a nd Enforcement. The public work and/or maintenance work performed under this Agreement shall be subject to compliance monitoring and enforcement by the Department of I ndustrial Relations (“DIR”). Consultant shall post job site notices, as prescribed by regulation.
(b) Prevailing Wages . Consultant shall p ay prevailing wages to the exte nt required by Labor Code Section 1771. Pursuant to Labor Code Section 1773.2, copies of the prevailing rate of per diem wages are on file at City Hall and will be made available to any interested pa rty on request. By initiating any work under this Agree ment, Consultant acknowledges receipt of a copy of the DIR determination of the prevailing rate of per diem wages, and Consultant shall post a copy of the same at each job site where work is performed under this Agreement.
(c) Penalty for Failure to Pay Prevailing Wages . Consultant shall comply with and be bound by the provisions of Labo r Code Se ctions 1774 and 1775 concern ing the payment of prevailing rates of wages to workers and the pe nalties for failure to pay prevailin g wages. The Consultant shall, as a penalty to the City, forfeit two hundred dollars ($200) for each

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calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any public work done pursuant to this Agreement by Consultant or by any subcontractor. (d) Payroll Records . Consultant shall comp ly with and be bound by the provisions of Labor Code Section 1776, which require s Consultant and each subcontractor to:
keep accurate payroll records and verify such records in writing under penalty of perjury, as specified in Sectio n 1776; c ertify and make such payroll records available for inspection as provided by Section 1776; and inform the City of the location of the records. (e) Apprentices. Consultant shall comply with and be bound by the provisions of Labor Code Sections 1777.5, 1777.6, and 1777.7 and California Code of Regulations T itle 8, Section 200 et seq. concerning the empl oyment of apprentices on public works projects. Consultant shall be responsible for compliance with these aforementioned Sections for all apprenti ceable occupations. Prior to commencing work under this Agreement, Consultant shall provide City with a copy o f the information submitted to any a pplicable apprenticeship program. Within sixty (60) days after concluding work pursuant to this Agreement, Consultant and each of its subcontractors shall submit to the City a verified statement of the journeyman and apprentice hours performed under this Agreement. (f) Eight-Hour Work Day . Consultant acknowledges that eight (8) hours labor constitutes a legal day's work. Consultant shall comply with and be bou nd by Labor Code Section 1810.
(g) Penalties for Excess Hours . Consultant shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work excess hours. The Consultant shall, as a penalty to the City, forf eit twenty-five dollars ($25) for each worker employed in the perf ormance of this Agreement by the Consultant or by any subcontractor for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of t he provisions of Division 2, Pa rt 7, Chapter 1, Article 3 of the Labor Code.

Pursuant to Labor Code section 1815, work performed by employees of Consultant in excess of eight (8) hours per day, and forty (40) hours during any one week shall be permitt ed upon public work upon compensatio n for all hours worked in exce ss of 8 hours per day at not less than one and one-half (1½) times the basic rate of pay.
(h) Workers’ Compensation. California Labor Code Sections 1860 and 3700 provide that every employer wil l be required to secure the payment of compensation to its employees if it has employees. By exec uting this Agreement, and in accordance with the provisions of California Labor Code Section 1861, Consultant certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor C ode which require every employer to be insured against l iability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work o f this contract.”

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(i) Consultant’s Responsibility for Subcontractors. For every subcontractor who will perform work und er this A greement, Consultant shall be responsible for such subcontractor's compliance with Division 2, Part 7, Chapte r 1 (comme ncing with Section 1720) of the California Labor Code, and shall make such compliance a requirement in any contract with any sub contractor for work under this Agreement. Consultant shall be required to take all actions necessary to enfo rce such contractual provisions and ensure subcontractor's compliance, including without limitation, conducting a review of the certified payroll re cords of the subcontractor on a periodic basis or upon becoming aware of the failure of the subcontractor to pay his or her work ers the specified prevailing rate of wages. Consultant shall diligently take corrective action to halt or rectify any such failure by any subcontractor.

1.5 Licenses, Permits, Fees and Assessments.

Consultant shall obtain a t its sole cost and expense such lic enses, permits and approvals as may be required by law for the performance of the services required by this Agreement.

Consultant shall h ave the sole obli gation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may b e imposed by law and arise from or are necessary for the Consultant’s performance of the services required by this Agreement, an d shall indemnify, defend and hold harmless City , its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder.

1.6 Familiarity with Work.

By executing this Agreement, Consultant warrants that Consultant (i) has thoroughly investigated and considered th e scope of services to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the facilities, difficulties an d restrictions attending p erformance of the services under this Agreement. If the services i nvolve work upon any site, Consultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the conditions there existin g, prior to commencement o f services hereunder. Should the Consultant discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Consultant shall immediately inform the City of such fact and shall not proceed except at Consultant’s risk until written instructions are received from the Project Manager.

1.7 Software and Computer Services.

If the Scope of Services includes the provision and/or installation of any software, computer system, or other computer t echnology, Consultant repr esents and warrants that it has inspected the City’s current infrastructure, equipment, computer system and software and that the software, computer system, or other computer technology provided and/or installed by Consultant unde r this Ag reement is compat ible, and shall be fully functional, with such infrastructure, equipment, computer system and software of the City. Consultant acknowledges that the City is relying on the representation by Consultant as a material consideration in entering into this Agreement.

1.8 Care of Work.

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The Consultant shall adopt reasonable met hods during the life of the Agreemen t to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other com ponents t hereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until accep tance of the work by City, except such losses or damages as may be caused by City’s own negligence.

1.9 Further Responsibilities of Parties.

Both parties agre e to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonab ly necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other.

1.10 Additional Services.

City shall have the right , subject to state law and the City’s Municipal Code, at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Project Manager to the Consultant, incorporating therein any adjustment in (i) the Contract Sum for the actual costs of the extra work , and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written app roval of the Consultant. Any increase in compensation for extra wo rk sh all require the approval of Cit y Council unless the City Council has previously authorized the City Manager to approve an increase in compensation and the amount of the increase does not exceed such authorization. It is expressly understood by Consultant that the provisions of this Sect ion shall not apply to services specifically set forth in the Scope of Services. Consultant hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more cost ly or time consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor. City may in its sole and absolute di scretion have similar work done by other contractors. No claims for an increase in the Contract Sum or time for performance shall be valid unless the procedures established in this Section are followed.

1.11 Special Requirements.

Additional terms and condition s of this Agreement, if any, which are made a part hereof are set forth in the “Special Requ irements” attached hereto as Exhibit “B” and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit “B” and any other provisions of this Agreement, the provisions of Exhibit “B” shall govern.

ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.

2.1 Contract Sum.

Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the amounts specified in the “Schedule of Compe nsation” attached hereto a s Exhibit “C” and

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incorporated herein by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed Nine Hundred Million Dollars and Zero Cents ($900,000.00) (the “Contract Sum ”), unless additional compensation is approved pursuant to Section 1.10.

2.2 Method of Compensation.

The method of compensation may include: (i) a lump sum payment upon completion; (ii) payment in accordance with specified tasks or the percentage of completion of the services, less contract retention; (iii) payment for time and materials based upon the Consultant ’s rates as specified in the Schedule of Compensation, provided that (a) time estimates are provided for the performance of sub tasks, (b) contract retention is maintained, and (c) the Contract Sum is not exceeded; or (iv) such other methods as may be specified in the Schedule of Compensation.

2.3 Reimbursable Expenses.

Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Project Manager in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5, and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by the City.

Coordination of the performance of the work with City is a critical component of the services. If Consultant is required to attend additional meetings to facilitate such coordination, Consultant shall not be entitled to any additional compensation for attending said meetings.

2.4 Invoices.

Each month Consultant shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month in a form approved by City ’s Director of Finance. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the Agreement. Consultant shall not invoice City for any duplicate services performed by more than one person.

All invoices shall be submitted by email to [email protected]. Each invoice is to include:
(a) Line items for all personnel describing the work performed, the number of hours worked, and the hourly rate.
(b) Line items for all materials and equipment properly charged to the Services.
(c) Line items for all other approved reimbursable expenses claimed, with supporting documentation.
(d) Line items for all approved subcontractor labor, supplies, equipment, materials, and travel properly charged to the Services.

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(e) If this Agre ement requires prevailing wages, per Section 1.4 of the Agreement, all invoices shall include a copy of Consultant’s Certified Payroll and proof that Certi fied Pa yroll has been submitted to the DIR.

Consultant shall also submit a list of the prevailing wa ge ra tes for all employees and subcontractors providing services under this Agreement, as applicable, with Consultant’s first invoice. If these rates chang e at an y time during the term of th e Agreement, Consultant shall submit a new list of rates to the Ci ty with its first invoice following the effective date of the rate change.

City shall independently review each invoice submitted by the Consultant to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. Except as to any charges for work performed or expenses incurred by Consultant which are disputed by City, or as provided in Section 7.3, City will use its best efforts to cause Consultant to be paid within forty -five (45) days of receipt of Consultant’s correct and undisputed invoice; however, Consultant acknowledges and agrees that due to City warrant run procedures, the City cannot guarantee th at paym ent will occur within this t ime period . In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission. Review and payment by City for any invoice provided by t he Cons ultant shall not constitute a waiver of any rights or remedies provided herein or any applicable law.

2.5 Waiver.

Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant.

2.6 Contingency of Funds.

Consultant acknowledges that funding or portions of funding for this Agreem ent may be contingent upon State bud get approval; receipt of funds from, and/or obligation of funds by the State of California to City; or inclusion of suf ficient funding for the services he reunder in the budget approved by Chino City Council for each fisc al year covered by this Agreement. If such approval, funding or appropriations are not forthcoming, or are otherwise limited, City may immediately terminate or modify this Agreement without penalty.

ARTICLE 3. PERFORMANCE SCHEDULE

3.1 Time of Essence.

Time is of the essence in the performance of this Agreement.

3.2 Schedule of Performance.

Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall pe rform all services within the time period(s) established in the “Schedule of Performance ” attached hereto as Exhibit “D” and incorporated herein by this

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reference. When requested by the Consultant, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Project Manager but not exceeding one hundred eighty (180) days cumulatively.

3.3 Force Majeure.

The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of the public e nemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots , str ikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Consultant shall within ten (10) days of the co mmencement of such delay not ify the Project Manager in writing of the causes of the delay. The Project Manager shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay wh en and if in the judgment of the Project Manager such delay is justified. The Project Manager ’s determination shall be final and conclusi ve upon the parties to this Agreement. In no event shall Consultant be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Consultant’s sole remedy being exten sion of the Agreement pursuant to this Section.

3.4 Term.

Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in f ull force and effect until c ompletion of the services , which shall be no later than June 30, 2024, except as otherwise provided i n the Schedule of Performance ( Exhibit “D”).

This Agreement may be renewed by a written amendment for up to an additional (2) Two (1) year terms at the option of the City if the City is satisfied with the quality of service s performed by Consultant under this Agreement.

ARTICLE 4. COORDINATION OF WORK

4.1 Representatives and Personnel of Consultant.

The following principals of Consultant (“Principals”) are hereby designated as being the principals and representatives of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:

(Name) (Title)

(Name) (Title)
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement.

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Therefore, the fore going principals shall be resp onsible during the term of this Agreement for directing all activi ties of Consultant and devoting suff icient time to personally supervise the services hereunder. All personnel of Consultant, and any authorized agents, s hall at all times be under the exclus ive direction and control of the Principals. For purposes of this Agreement, the foregoing Principals may not be replaced nor may their responsibilities be substantially reduced by Consultant without the express written approval of City. Additionally, Consultant shall utilize only competent personnel to perform services pursuant to this Agreement. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and subcontractors, if any, assigned to perform the s ervices required under this Agreement.

Consultant shall notify Cit y of any changes in Consultant’s sta ff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to and during an y such performance.

4.2 Status of Consultant.

Consultant shall have no authority to bind City in any manne r, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. Consultant shall not at any time or in any ma nner represent that Consultant or any of Consultant’s officers, employees, or agents are in any manner officials, off icers, employees or agents of City. Neither Consultant, nor any of Consultant’s officers, employees or agents, shall obtain any rights to r etirement, health care or any other benefits which may otherwise accrue to City ’s employees. Consultant expressly waives any claim Consultant may have to any such rights.

4.3 Project Manager.

The Project Manager shall be Michele Hindersinn, Principal Engineer, or any ot her person as may be designated by the Project Manager. It shall be the Consultant’s responsibility to assure that the Project M anager is kept informed of the progress of the performance of the services and the Consultant shall refer any decisions which mu st be made by City to the Project Manager. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Project Manager. The Project Manager shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement.

4.4 Independent Consultant.

Neither the City nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents o r employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selecti on, discharge, supervision or control of Consultant’s employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Consultant shall perform all services required herein as an independent contractor of City an d shall remain at all time s as to City a wholly independent contractor with only such obliga tions as are consistent with that ro le. Consultant shall not at any time or in any manner represent that it or any of its agents or employees a re agents or employees of City. City shall not in any way or for any purpose become or be deemed

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to be a partner of Consultant in its business or oth erwise or a joint venturer or a member of any joint enterprise with Consultant.

4.5 Prohibition Against Subcontracting or Assignment.

The experience, knowledg e, capability and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Consultant shall not contract with any other entity to perform in whole o r in part the services required hereunder without the express written approval of the City. In ad dition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder sha ll include the transfer to any person or group of persons acting in concert of more than twenty five percen t (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unap proved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer sh all release the Consultant or any surety of Consultant of any liability hereunder without the express consent of City.

ARTICLE 5. INSURANCE AND INDEMNIFICATION

5.1 Insurance Coverages.

Without limiting Consultant’s indemnification of City, and prior to commencement of any servi ces under this Agreement, Consultant sha ll obtain, provide and maintain at its own expense during the term of t his Agreement, policies of insu rance of the type and amounts described below and in a form satisfactory to City.
(a) General liability in surance. Consultant s hall maintain commercial g eneral liability insurance with coverage at least as broad as Insu rance Services Office form CG 00 01, in an amount not less than $ 1,000,000 per occurrence, $ 2,000,000 general aggregate, for bodily injury, personal injury, and pro perty damage. The policy m ust include contractual liability that has not been amended. Any e ndorsement restricting standard ISO “insured contract” language will not be accepted.
(b) Automobile liability insurance . Consultant shall main tain au tomobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Services to be performed under this Agreement, inclu ding coverage for any owned, hired, non - owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
(c) Professional liability (errors & omissions) insurance . Consultant shall maintain professional liability in surance that covers t he Services to be performe d in connection with this Agreement, in the minimum amount of $1,0 00,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of thi s Agreement and Consultant agrees to maintain continuous coverage through a period no less than three (3) years after completion of the services required by this Agreement.

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(d) Workers’ compensation insurance . Consultant shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000).
(e) Subcontractors. Consultant shall includ e all subcontractors as insureds under its policies or shall furnish separate certificates and certified en dorsements for each subcontractor. All coverage s for subcontractors shall include all of the requirements stated herein.
(f) Additional Insurance. Policies of such other insurance, as may be required in the Special Requirements in Exhibit “B”.

5.2 General Insurance Requirements.
(a) Proof of insurance . Co nsultant shall provide certificates of insurance to City as eviden ce of the insurance coverage require d herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and end orsements must be approved by City’s Risk Manager prior to commencement of performance. Current certificat ion of insurance shall be kept on fi le with City at all times during the term of this Agreement. City reserves the right to require complete, c ertified copies of al l required insurance polic ies, at any time.
(b) Duration of coverage . Consultant shall proc ure a nd maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Services hereunder by Consultant, its agents, representatives, employees or subconsultants. (c) Primary/noncontributing. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herei n may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provisio n that such coverage shall also apply on a primary and non - contributory basis for the benefi t of City before the City’s own insu rance or self-insurance shall be called upon to protect it as a named insured.
(d) City’s rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these specification s or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. (e) Acceptable insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance C ommissioner to transact business of insurance or that is on the Li st of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VI (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise ap proved by the City’s Risk Manager.

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(f) Waiver of subrogation . All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive su brogation against City, it s elected or appointed officers, agents, officials, employees and volunteers or shall specifically all ow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
(g) Enforcement of contract p rovisions (non -estoppel). Co nsultant acknowledges and agrees that an y actual or alleged failure on the part of the City to inform Consultant of non -compliance with any re quirement imposes no additional obligations on the City nor does it waive any rights hereunder.
(h) Requirements not limiting. Requirements of specific co verage features or limits contained in this section are not intend ed as a limitation on coverage, limi ts or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not in tended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than t he minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. (i) Notice of cancel lation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is require d) or n onrenewal of c overage for each required coverage.
(j) Additional insured status . General liability policie s sha ll provide or be endorsed to pr ovide that City and its officers, officials, employees, and agents, and volunteers shall be additional insu reds un der such polic ies. This provision shall also apply to any excess/umbrella liability policies.
(k) Prohibition o f undisclosed coverage limitati ons. None of the coverages required herein will be in compliance with these requirements if they include an y limit ing endorsement of any kind that has not been first submitted to City and approved of in writing. (l) Separation of insureds. A severability of interests provision must apply for all additional insureds ensuring that Consultant’s insurance shall apply separately to each insured against whom clai m is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions. (m) Pass through clause . Consultant agrees to ensure th at its subconsultants, subcontractors, and any other party involved with the project who is brought onto or invol ved in the project by Consultant, pr ovide the same minimum insurance coverage and endorsements required of Consultant. Consultant agrees to mon itor and review all s uch coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements

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of t his section. Consultant agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the project will be submitted to City for review. (n) Agency’s right to revise specifications . The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consult ant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Consultant, the City and Con sultant may renegotiate Consultant’s compensation.
(o) Self-insured retentions . Any self -insured retentions must b e declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a d eductible. Self-insurance will not be considered to comply with these specifications unless approved by City.
(p) Timely notice of claims . Consultant sha ll give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant’s performance under this Agreement, and that involve or may involve coverage under any of th e requi red liability policies.
(q) Additional i nsurance. Consultant shall also procure and maintain, at its own c ost a nd expense, any additional kind s of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work.

5.3 Indemnification.

To the full extent perm itted by law, Consultant agrees to indemnify , defend and hold harmless the City, its officers, employe es and agents ( “Indemnified Parties”) against, and will hold and save them and each of them harmless from, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or pro perty, losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein “claims or liabilities”) that may be asserted or claimed by any person, fi rm or entity arising out of or in connection with the negligent pe rformance of the work, operations or activities provided herein of Consultant, its officers, employees, agents, subcontractors, or invitees, or any in dividual or entity for which Consultant is legally liable (“indemnitors”), or arising from Consultant’s or indemnitors’ reckless or willful mi sconduct, or arising from Consultant’s or indemnitors’ negligent performance of or failure to perform any t erm, provision, covenant or condition of this Agreement, and in connection therewith:
(a) Consultant will defend any action or actions filed in connectio n with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys’ fees incurred in connection therewith;
(b) Consultant will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or fa ilure t o perform such work, operations or activ ities of Consultant hereunder; and Consultant agrees to save and h old the City, its officers, agents, and employees harmless therefrom;

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(c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Consultant for such damages or other claims arising out of or in connection with the negligen t performance of or failure to perform the work, operation or activities of Consultant hereunder, Consultant agrees to pay to th e City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys ’ fees.

Consultant shall incorporate similar indemnity agreements w ith its subcontra ctors and if it fails to do so Consultant shall be fully responsible to indemnify Cit y hereunder therefore, and failure of City to monitor compliance with these provisions shall not be a waive r hereof. This indemnification includes claims or liabilities arising from any negligent or wrongful act, error o r omission, or reckless or willful m isconduct of Consultant in the performance of professional services hereunder. The provisions of this Secti on do not apply to cl aims or liabilities occurr ing as a result of City ’s sole negligence or willful acts or omiss ions, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City ’s negligence, except that design professionals’ indemnity hereunder shall be limited to claims and liabilities arising out of the negligenc e, recklessness or willful misconduc t of the design professional . The indemnity obligation shall be binding on successors and assigns of Consultant and shall survive termination of this Agreement.

ARTICLE 6. RECORDS, REPORTS, AND RELEASE OF INFORMATION

6.1 Records.

Consultant shall keep, and require subco ntractors to keep, such ledgers , books of accounts, invoices, vouchers, canceled checks, reports, studies o r other documents relating to the disbursements charged to City and services performed hereunder (the “books and records”), as shall be necessary to perform the services required by this Agreement and enable the Project Manager to evaluate the performance of such services. Any and all such documents sh all be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Project Manager shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. In the event of dissolution of Consultant’s business, custody of the books and records may be given to City, and access shall be provided by Consultant’s successor in interest. Notwithstanding the above, the Consultant shall fully cooperate with the City in providing access to the books and records if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act.

6.2 Reports.

Consultant shall pe riodically prepare and sub mit to the Project Manager such reports concerning the performance of the services required by this Ag reement as the Project Manager shall require. Consultant hereby acknowledges that the City is greatly conce rned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Consultant

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agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Consultant is providing design services, the cost of the project being designed, Consultant shall promptly notify the Project Manager of said fact, circumstance, technique or event and the estimated increased or decrease d cost related thereto and , if Consultant is providing design services, the estimated increased or decreased cost estimate for the project being designed.

6.3 Ownership of Documents.

All drawings, specifications, maps, designs, photographs , studi es, surveys, d ata, notes, computer files, reports, records, documents and other materials (the “documents and materials”) prepared by Consultant, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Project Manager or upon the termination of this Agreement , and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights o f owner ship use, reus e, or assignment of the do cuments and materials hereunder. Any use, reuse or assignment of s uch c ompleted documents for other pr ojects and/or use of uncompleted documents without specific written authorization by the Consultant will be at the City’s sole r isk and without liability to Consultant, and Consultant’s guarantee and warranties shall not extend to such use, re use or assign ment. Consultant may retain copies of such documents for its own use. Consultant shall have the right to use the concepts embodied therein.

All subcontractors shall provide for assignment to City of any documents or mate rials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom. Moreover, Consultant with respect to any documents and materials that may qualify as “works made for h ire” as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed “works made for hire” for the City.

6.4 Confidentiality and Release of Information.
(a) All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior writ ten authorization from the Project Manager.
(b) Consultant, its officers, employees, agents or subcontractors, shall not, without prior writte n autho rization from the Project Manager or unl ess requested by the City Attorney, voluntarily provide documents, declarations, letters of support, t estimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered “voluntary” provided Consultant gives City notice of such court order or subpoena. (c) If Consultant, or any officer, employee, agent or subcontractor of Consultant, provides any information or w ork product in violation o f this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Consultant’s conduct.

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(d) Consultant shall promptly notify City should Consultant, its officers, employees, agents or subcontract ors be served with any summons, comp laint, subpoena, notice of deposition, request for documents, interrogatories, request for admiss ions or o ther discovery request, court order or subpoena from any party regarding this Agreement and the work performed there under. City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceedin g. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.

ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION

7.1 California Law.

This Agreement s hall be interpreted, construed and g overned both as to validity and to performance of the parties in accordance with the laws of the State of C alifornia. Legal actions concerning any dispute , claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of San Bernardino, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit t o the personal jurisdiction of such court in the event of such act ion. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in the County of San Bernardino, State of California.

7.2 Disputes; Default.

In the event that Consultant is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, the City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in w hich Consultant may cure the default. This timeframe is presumptively thirty (30) days, but may be extended , thoug h not reduced, if circumstances warrant. During the period of time that Consultant is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its s ole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of the Cit y to gi ve notice of t he Consultant’s default sh all not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.

7.3 Retention of Funds.

Consultant hereby authorizes City to deduct from any amount payable to Consultant (whether or not arising o ut of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are ne cessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all am ounts for which City may be liable to third par ties, by reason of Consultant’s acts or omissions in performing or failing to perform Consultant’s obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear

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to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover su ch claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obli gations of the Consultant to insure, indemnify, and protect City as elsewhere provided herein.

7.4 Waiver.

Waiver by any party to this Agreement of any te rm, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a wai ver of any subsequent breach or violation of an y provision of this Agreement.

Acceptance by City of any work or s ervices by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any rig ht or remedy by a non -defaulting party on any d efault shall impair such right or remedy or be construed as a waiver. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.

7.5 Rights and Remedies are Cumulative.

Except with respect to rights and remedies ex pressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or m ore of such ri ghts or remedies shall not preclude the exercise by it, at the same or different times, of a ny other rights or remedies for the same default or any other default by the other party.

7.6 Legal Action.

In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agr eement. Notwithstanding any contrary provision herein, Consultant shall file a statutory claim pursuan t to Government Code Sections 905 et seq. and 910 et seq., in order to pursue a legal action under this Agreement.

7.7 Liquidated Damages.

Since the determin ation of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Consultant and its sureties shall be liable for and sh all pay to the City the sum of ____________________________________ ($___________) as liquidated damages for each working day of delay in the performance of any service required hereunder. The City may withhold from any monies payable on acc ount of servic es performed by the Consultant any accrued liquidated damages.

7.8 Termination Prior to Expiration of Term.

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This Section shall govern any termination of this Contract except as specifically provided in the following Section for termination for cause. The City reserves the right to term inate this Contract at any time, with or without cau se, upon thirty (30) days’ written notice to Consultant, except that where termination is due to the fault of the Consultant, the period of notice may be such short er time as may be determined by the Project Manager . In addition, the Consultant reserves the right to ter minate this Contract at any time, wi th or without cause, upon sixty (60) days’ written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Consultant may determine. Upon receipt of any notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Project Manager. Except where the Consultant has initiated termination, the Consultant shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Project Manager thereafter in accordance with the Schedule of Compensation or such as may be approved by the Project Manager , ex cept as provided in Section 7.3. In the event the Consultant has initiated termination, the Consultant shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the term inating party need not provide the non -terminating party with the opportunity to cure pursuant to Section 7.2.

7.9 Termination for Default of Consultant.

If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for comp letion of the services required here under exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mi tigate such damages), and City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed the City as previously stated.

7.10 Attorneys’ Fees.

If either party to this Agreement is required to initiate or defend or made a party to a ny action or proceeding in any way connected with this Agreement, the prevaili ng party in su ch action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable atto rney’s fees. Attorney’s fees shall include atto rney’s fees on any appeal, and in addition a party e ntitled to attorney’s fees shall be entitled to al l other reasonable costs for investigating such action, taking depositions and discovery and all other necessary c osts the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.

ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION

8.1 Non-liability of City Officers and Employees.

No officer or employee of the City shall be persona lly l iable to the Consultant, or any successor in interest, in the event of any default or breach by the City or for any amount which

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may becom e due t o the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.

8.2 Conflict of Interest.

Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any w ay hinder Consultant’s performance of services und er this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as a n officer, employee, agent or sub contractor without the express wr itten consent of the Project Manager . Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of inter est with the interests of City in the performance of this Agreement.

No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision r elating to the Agreement which affects her/his financial interest or the financial interest of any corporatio n, partnership or association in which (s)he is, d irectly or indirectly, interested, in violation of any State statute or regulation. The Consultant warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.

8.3 Covenant Against Discrimination.

Consultant covenants that, by and for itself, its heirs, executors, assigns, and all per sons claiming under o r through them, that there shall be no discrimination against or segregation o f, any person or gr oup of persons on account of ra ce, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class in the performance of this Agreement. Consultant shall take affirmative action to insure tha t applicants are employed and that e mployees are treated during employment without regard to their race, color, creed, religion, sex, gender, s exual o rientation, marital status, national ori gin, ancestry or other protected class.

8.4 Unauthorized Aliens.

Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. , as amen ded, and in co nnection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized alien s for the performance of work and/or services covered by this Agreement, and should any liability or sancti ons be imposed agains t City for such use of unauthorized aliens, Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys ’ fees, incurred by City.

ARTICLE 9. MISCELLANEOUS PROVISIONS

9.1 Notices.

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Any notice, de mand, request, document, consent, approval, or commu nication eithe r party desires or is required to gi ve to the other party or any other person shall be in writing and either served personally or sent by prepa id, first-class mail, in the case of the City, to the City Manager and to the attention of the Project Manager (with her/his name and City title), City of Chino, 13220 Central Avenue, Chino, California 91710 and in the case of the Consultant, to the person(s) at the address de signated on the execution page of this Agreement. Either party may change its address by not ifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy -two (72) hours from the time of mailing if mailed as provided in this Section.

9.2 Interpretation.

The terms of this Agreement shall be construed in acc ordance with the meaning of the language used and shall not be construed for or against either party by rea son of the authorship of this Agreement or any other rule of construction which might otherwise apply.

9.3 Counterparts.

This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.

9.4 Integration; Amendment.

This Agreement including the attachments heret o is the entir e, co mplete and exclusive expression of the understanding of the parties. It is understood that there are no oral agreements between the parties hereto affecting th is Agreement and this Agre ement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid u nless made in writing and approved by the Consultant and by the Ci ty Co uncil. The parties agree that t his requirement for written modifications cannot be waived and that any attempted waiver shall be void.

9.5 Severability.

In the eve nt that any one or more of the phrases, sentences, clauses, paragraphs, or sections containe d in this Agreement shall be declare d invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalid ity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragrap hs, or section s of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its inva lidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.

9.6 Warranty & Representation of Non-Collusion.

No official, officer, or employee of City has any financial interest, direct or indirect, in this Agreement, nor shall any official, officer, or employee of C ity participat e in any decision relating to this A greement which may affect his/her financial interest or the financial interest of

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any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any corporation, partnership, or association in which (s) he is directly or indirectly interested, or in violation of any State or municipal statute or regulation. The determination of “financial interest” shall be consistent with State law and shall not include i nterests found to be “remote” or “noninterests” pursuant to Government Code Sections 1091 or 1091.5 . Consultant warrants and represents that it has not paid or given, and will no t pay or give, to any thir d party including, but not limited to, any City offi cial, officer, or employee, any money, considerati on, or other thing of value as a result or consequence of obtaining or being awarded any agreement.

Consultant fur ther warrants and represents that (s)he/ it has not engaged in any act(s), omission(s), or ot her conduct or collusion that would result in the payment of any money, consideration, or other thing of value to any third party including, but not limited to, any City official, officer, or employee, as a result of consequence of obtaining or being award ed any agreement. Consultant is aware of and under stands that any such act(s), omission(s) or other conduct resulting in such payment of money, consideration , or ot her thing of v alue will render this Agreement void and of no force or effect.

Consultant’s Authorized Initials _______

9.7 Corporate Authority.

The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly orga nized a nd existing, ( ii) they are duly authoriz ed to execute and deliver this Agreement on behalf o f said party, (iii) by so executing this Agreement , such party is formally bound to the provisions of this Agreement, and (iv) th at entering into this Agreem ent does not violate any provision of any other Agreement to which said party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties. [SIGNATURES ON FOLLOWING PAGE]

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written.

CITY:

CITY OF CHINO, a municipal corporation

Linda Reich, City Manager
ATTEST:

Natalie Gonzaga, City Clerk
APPROVED AS TO FORM: APPROVED AS TO CONTENT:

ALESHIRE & WYNDER, LLP
_____________________________ ____________________________________ Fred Galante, City Attorney Amer Jakher, P.E., Director of Public Works

CONSULTANT:

Z&K CONSULTANTS, INC.:

By:

Name:

Title:

By:

Name:

Title:

Address:

Two corporate of ficer signatu res re quired when C onsultant is a corporation, with one signature required from each of the following groups: 1) Chairman o f the B oard, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer.

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01225.0001/863604.2 A-1
EXHIBIT “A”

SCOPE OF SERVICES
I. Consultant will provide on-call Civil Engineering Services, as more fully detailed in Exhibit “A-1”. The Consultant has been selected to provid e services of a certain nature which will be readily available for a fixed rate when needed. However, before any work is performed, the Consultant must provide a specific written proposal for any requested services and get written approval of the ter ms of the p roposal from the City, as such process is more f ully described herein. Unless specifically defined, each category or type of work listed in Exhibit “A-1” shall be construed b roadly to include all services customarily described under such category or type.

II. Work Request Procedure
A. Each t ask to be performed shall be set forth in a written request ( “Request”) produced by the Project Manager with a description of the work to be performed, and the time des ired for completion. All tasks shall be carried out in conformity with all provisions of this Agreement.

B. Following receipt of the Request, the Consultant shall prepare a “Task Proposal” that includes the following components:
1) a written description of the requested task (“Task Description”) including all components and subtasks, and including any clarifications of the descriptions provided in the Request:
2) the costs to perform the task (“Task Budget”)
3) an explanation of how the cost was determined; and
4) a schedule for completion of the task ( “Task Completion Schedule”), including a final completion date (“Task Completion Date”).

C. Project Manager shall approve, modify, or reject the task Proposal in writing, a nd issue a Notice to Proceed when a written agreement has been reached on the Task Proposal.

D. The task shall be performed at a cost not exceeding the Task Budget.

III. Consultant acknowledges that City has no obligation to request work from Consultant un der this Agreement. City may establish a rotation schedule with multiple consultants and may seek competing Task Proposals.

IV. In addition t o the requirements of Section 6.2, during performance of the Services, Consultant will kee p the City appraised of the status of performance by delivering the following status reports:

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01225.0001/863604.2 A-2
A. Consultant shall provide to City a weekly written summary of progress on all approved Task Proposals for services lasting longer than one week.

V. All work product is subject to review and acceptance by the City , and must be revised by the Consultant without additional charge to the City until found satisfactory and accepted by City.

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01225.0001/863604.2 A1-1
EXHIBIT “A-1”

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01225.0001/863604.2 A1-2

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01225.0001/863604.2 A1-3

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01225.0001/863604.2 A1-4

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01225.0001/863604.2 B-1
EXHIBIT “B”

SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
I. Section 7.7, Liquidated Damages, is hereby deleted in its entirety.

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01225.0001/863604.2 C-1
EXHIBIT “C”

SCHEDULE OF COMPENSATION
I. Consultant shall be compensated for the services provided under this Agreement in accordance with the budget and rates provided in Exhibit “C-1”.

II. Within the budgeted amounts for each Task, and with the approva l of th e Project Manager, funds may be shifted from one Task subbudget to another so long as the Contract Sum is not exceeded per Section 2.1, unless Additional Services are approved per Section 1.10.

III. The City will compensate Consultant for the Services performed upon submission of a valid invoice, as described in Section 2.4.

IV. The total compe nsation for the Services shall not exceed the Contract Sum, as provided in Section 2.1 of this Agreement.

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01225.0001/863604.2 C1-1
EXHIBIT “C-1”

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01225.0001/863604.2 D-1
EXHIBIT “D”

SCHEDULE OF PERFORMANCE
I. Consultant shall perform all services timely i n accordance w ith the following schedule:
*Finalized deadline dates will be contingent upon actualized project sc hedules, whic h shall be approved by the P roject Managers. C onsultant will coordinate wit h City and Project staff to ensure timely completion of services and adherence to approved task schedules.

II. The Project M anager may approve extensions for performance of the s ervices in accordance with Section 3.2.

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Revenue: Expenditure:

Transfer In: Transfer Out:

M E M O R A N D U M

CITY OF CHINO

ADMINISTRATION DEPARTMENT

COUNCIL MEETING DATE: JULY 5, 2023

TO: LINDA REICH, CITY MANAGER

FROM: EUNICE M. ULLOA, MAYOR

SUBJECT: APPOINTMENT OF COMMUNITY SERVICES COMMISSIONERS.

RECOMMENDATION
Approve the a ppointment of Robert Martinez, Julissa Montenegro -Olivas and Patricia Pereda Arlt to the Community Services Commission for a four -year term ending June 30, 2027 , and Jamie Aviles for a term ending June 30, 2024.

FISCAL IMPACT
There is no fiscal impact.

CITY OF CHINO MISSION / VISION / VALUES / STRATEGIC ISSUES The recommendation detailed above furthers the City’s values and strategic issues that serve as key pillars on which identified priorities, goals, and action plans are built, by fostering:

• Positive City Image
• Superior Customer Service

13.16 MAYOR AND COUNCIL REPORTS
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COUNCIL MEETING DATE: JULY 5, 2023
SUBJECT: APPOINTMENT OF COMMUNITY SERVICES COMMISSIONERS PAGE 2

BACKGROUND
The Community Services Commission is a seven -member commission, which acts in an advisory capacity to the City Council and the Community Services Department on issues that will contribute to improving the quality of life in Chino. These issues are focused in the areas of Recreation, Human Services, Parks, and Open Space.

Pursuant to Section 2.38.30 of the Chino Municipal six Community Services Commission members are appointed by the Mayor and ratified by the City Council; and one at-large member appointed by the six remaining Commissioners and ratified by the City Council.

ISSUES/ANALYSIS
The City Clerk’s office solicited applications for the vacancies on the Community Services Commission due to the following:
• Commissioner Robert Martinez term ending June 30, 2023 • Commissioner Julissa Montenegro-Olivas term ending June 30, 2023 • Commissioner Jamie Harwood term ending June 30, 2023
• Commissioner Brenda Strong vacancy as of her resignation on April 30, 2023 for a term ending June 30, 2024
The application period closed on May 12, 2023 and a total of 16 applications were received, including applications from Commissioners Robert Martinez and Julissa Montenegro -Olivas seeking re -appointment. Mayor Ulloa and Mayor Pr o Tem Comstock interviewed all 15 applicants (one withdrew) which resulted in the following recommended appointments:
• Commissioner Robert Martinez re-appointment for a term ending June 30, 2027 • Commissioner Julissa Montenegro-Olivas re-appointment for a term ending June 30, 2027
• Patricia Pereda Arlt for a term ending June 30, 2027 (Commissioner Jamie Harwood did not apply to seek reappointment)
• Jamie Aviles for a term ending June 30, 2024
Pursuant to Chino Municipal Code (CMC) Section 2.38.30 appointments to the Commission are made by the Mayor with approval of the City Council.

13.16 MAYOR AND COUNCIL REPORTS
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Revenue: Expenditure: 1002000-43300-N2034

Transfer In: Transfer Out:

M E M O R A N D U M

CITY OF CHINO

ADMINISTRATION DEPARTMENT

COUNCIL MEETING DATE: JULY 5, 2023

TO: MAYOR AND CITY COUNCIL MEMBERS, CITY OF CHINO

FROM: CURTIS BURTON, COUNCIL MEMBER

SUBJECT: COMMUNITY SUPPORT CONTRIBUTION.

RECOMMENDATION
Approve community support fund contributions: to the American Cancer Society ($250), Chino Neighborhood House ($1,000), and Rancho Del Chino Rotary Club ($250).

FISCAL IMPACT
Sufficient funds have been included in the Fiscal Year 2023-24 Operating Budget.

CITY OF CHINO MISSION / VISION / VALUES / STRATEGIC ISSUES:

The recommendation detailed above further the City’s values and strategic issues that serve as key pillars on which identified priorities, goals, and action plans are built, by fostering:
• Positive City Image
• Exemplary Leadership
• Public Service Excellence through Internal and External Partnerships

13.18 MAYOR AND COUNCIL REPORTS
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COUNCIL MEETING DATE: JULY 5, 2023
SUBJECT: COMMUNITY SUPPORT CONTRIBUTION
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BACKGROUND
The City of Chino is fortunate to have multiple non -profits and community gro ups dedicated to serving the public and preserving Chino’s unique history. To assist in their ongoing efforts, the City Council from time to time, authorizes expenditures from the City’s community support fund.

These expenditures serve a valid public purpose by helping to continue the outstanding services that these organizations provide to our community.

ISSUES/ANALYSIS
To continue this tradition, Council Member Burton recommends that the City Council approve the following contributions:
• American Cancer S ociety - $250: A leading cancer -fighting organization that provides research and advocacy and offers patient support to ensure that everyone has an opportunity to prevent, detect, treat, and survive cancer. • Chino Neighborhood House - $1,000: Offers low to moderate income families food and resources.
• Rancho Del Chino Rotary Club - $250: Offers fun community events with proceeds earmarked to support community goals and initiatives.

By approving these contributions, these groups will be better equipped to pro vide services to our community. Therefore, as proposed by Council Member Burton, staff recommends that the City Council approve the community support contributions to the American Cancer Society, Chino Neighborhood House, and Rancho Del Chino Rotary Club.

13.18 MAYOR AND COUNCIL REPORTS
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