9.2 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
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 hereto is the entire, complete and exclusive expression of the understanding of the parties. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Consultant and by the City Council. The parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void.
9.5 Severability.
In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.
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 City participate in any decision relating to this Agreement which may affect his/her financial interest or the financial interest of 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 348
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“financial interest” shall be consistent with State law and shall not include interests 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 not pay or give, to any third party including, but not limited to, any City official, officer, or employee, any money, consideration, 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 other 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 awarded any agreement. Consultant is aware of and understands that any such act(s), omission(s) or other conduct resulting in such payment of money, consideration, or other thing of value 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 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) 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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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 Hye Jin Lee, PE, Director of Public Works
CONSULTANT:
LEIGHTON CONSULTING, 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 of the Board, 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 perform the Services described in Consultant’s Proposal, attached hereto as Exhibit A-1.
II. 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”
SCOPE OF WORK
Our scope of services during construction will be to provide third party geotechnical observation and testing services in accordance with the City of Chino Quality Assurance Program and Standard Specifications for Public Works Construction (“Green Book”). Our services will consist of the following:
Attending a Pre -Construction Meetings: If requested, we will attend a pre -construction meeting (either in -person or via phone conference) with representatives of the contractor and construction management to establish site access restrictions, points of contact, protocol for scheduling our services, and distribution lists for test results.
Mix Design Reviews : If requested, we will review Hot Mix Asphalt (HMA) and Portland Cement Concrete (PCC) mix design submittals and present a letter documenting our review in accordance with project specifications and/or City protocol.
Geotechnical Observation and Testing: We will provide part -time geotechnical observation and testing for subgrade preparation. Field (in -situ) dry density and moisture content measurements using the nuclear moisture and density gauge will be performed in general accordance with ASTM D6938.
Pavement Density Observation and Testing: We will test relative compaction of aggregate base and asphaltic concrete during pavement construction using the nuclear moisture and density gauge in general accordance with ASTM D6938.
Fresh Concrete Field Sampling and Testing: We will provide field technicians that have been certified by American Concrete Institute (ACI) for fresh concrete sampling and field testing on site. Our field technician will sample fresh concrete (ASTM C172) and perform slump tests (ASTM C143). Concrete compressive strength cylinders will also be molded in accordance with ASTM C31, by our representative, at a sampling frequency in accordance with the project manual. After initial field curing, we will transport hardened concrete cylinders from the site to our materials laboratory. We have assumed that PCC for flatwork/sidewalk will not require sampling and testing just the requested street gutters per IRFB.
Geotechnical/Materials Laboratory Testing: We will perform geotechnical laboratory testing of samples from onsite and imported soil/aggregate in accordance with the City of Chino’s QAP. Our laboratory tests will likely include the following:
Asphalt: Aggregate gradation, asphalt binder content, theoretical maximum density, stabilometer (S-value).
Aggregate Base: Sieve analyses, R -Value, sand equivalent, percentage wear, optimum moisture and maximum density compaction curves (ASTM D1557).
Subgrade: Optimum moisture and maximum density compaction curves (ASTM D1557), sand equivalent, gradation.
Budgeted laboratory tests based on estimated material quantities and test frequencies are presented in the attached fee breakdowns.
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We will coordinate our field personnel and provide administrative support services. We will also provide professional geotechnical observations and materials testing management, supervision and internal quality control. Daily Field Reports (DFRs) written by our technicians in the field will be reviewed and prepared for distribution. Laboratory test results will also be reviewed and distributed. Concerns encountered in the field and noted on DFRs, and any material tested and found not to conform to project specifications, will be brought to the attention of your project superintendent or designated representative.
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01225.0001/863604.2 B-1
EXHIBIT “B”
SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
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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 approval of the 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 compensation for the Services shall not exceed the Contract Sum, as provided in Section 2.1 of this Agreement.
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EXHIBIT “C-1”
Project Total Fee
ST173 – Transportation Right of Way ADA Improvements $19,296.00 ST241 – Street Rehabilitation FY 2023-2024 $34,927.00
GRAND TOTAL: $54,223.00
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01225.0001/863604.2 D-1
EXHIBIT “D”
SCHEDULE OF PERFORMANCE
I. Consultant shall perform all services timely in accordance with the following schedule:
*Finalized deadline dates will be contingent upon actualized project schedules, which shall be approved by the Project Manager (s). Consultant will coordinate with City and Project staff to ensure timely completion of services and adherence to approved task schedules.
III. The Project Manager may approve extensions for performance of the services in accordance with Section 3.2.
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MEMORANDUM
CITY OF CHINO
PUBLIC WORKS DEPARTMENT
CITY COUNCIL MEETING DATE: MAY 21, 2024
TO: LINDA REICH, CITY MANAGER
FROM: HYE JIN LEE, PE, DIRECTOR OF PUBLIC WORKS
SUBJECT
..titl e
Kimball Avenue Median Improvements Project.
..end
RECOMMENDATION
..recommendation
Approve the 1) establishment of a new CIP project entitled “Kimball Avenue Median Improvement Project”, G7241 with a total project budget of $319,323.40; 2) appropriate $319,323.40 to the Transportation Fund (320), with a corresponding increase in grant revenue from the County of San Bernardino American Plan Rescue Act (ARPA) Funds and $4,999.40 backfill from the General Fund (100) reserves; 3) approve a Cooperative Agreement between the City of Chino and San Bernardino County to establish reimbursement obligations for th e Kimball Avenue Median Improvements Project G7241 for $314,324; 4) award a Construction Contract for $250,399.40 to Metrocell Construction Inc., Ontario, CA for the Kimball Avenue Median Improvements Project and authorize up to $25,040 (10% of the contrac t amount) for construction contingencies for a total amount not to exceed $275,439.40; 5) approve a Professional Service Agreement with AESCO, Inc., Huntington Beach, CA for Geotechnical Engineering Services for the Kimball Avenue Median Improvements Proje ct for $13,184; 6) authorize expenditures of up to $15,700.00 for construction management services, $10,000 for design services and $5,000 for overtime inspection costs; and 7) authorize the City Manager to execute all necessary documents on behalf of the City.
..body
FISCAL IMPACT
Appropriate $319,323.40, G7241 to the Transportation Fund (320) and a General Fund backfill of $4,999.40 and grant revenue of $314,324, from the County of San Bernardino Federal ARPA funds, which will be reimbursed to the City upon completion of the project.
Funding Sources Appropriation
San Bernardino County ARPA Funds $314,324.00
General Fund $4,999.40
Total Project Budget $319,323.40
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 358
CITY COUNCIL MEETING DATE: MAY 21, 2024
TITLE: KIMBALL AVENUE MEDIAN IMPROVEMENTS PROJECT.
PAGE: 2
Revenue: 3207100-59500-G7241
Expenditure: 3207100 – 48003 |40010| 48004 | 48005 |
48007 | 48009 |G7241
Transfer In: 3201000-50000 Transfer Out: 1001000-40001 359
CITY COUNCIL MEETING DATE: MAY 21, 2024
TITLE: KIMBALL AVENUE MEDIAN IMPROVEMENTS PROJECT.
PAGE: 3
BACKGROUND
The representatives for the property owners and association for the commercial center located at the southeast corner of Euclid Avenue and Kimball Avenue have approached the City of Chino regarding means to enhance access to their business site. With the r ecent completion of the In-N-Out distribution center, a master -planned raised median has been constructed along Kimball Avenue, which prevents any left turn movements into the property from Kimball Avenue westbound traffic. The business center owner has re presented to the City that the lack of access from westbound traffic has negatively impacted the businesses in the center. This item was brought forth for discussion at the City Council Infrastructure Streets Committee meeting held on June 12, 2023. The Committee supported the investigation of creating a left turn pocket within the median, with construction being completed at the expense of the property owners either directly or indirectly through reimbursement with the City. Staff was advised to provide the representatives with an estimated cost for this improvement for owners to determine the feasibility of implementation.
The City prepared a conceptual design for the left turn pocket and obtained three quotes from qualified contractors. The City provide d these estimates to the property owner representatives wherein they could decide on how to finance the project. The representatives explored cost - sharing options with the City and ultimately reached out to the San Bernardino County Board of Supervisors’ o ffice to seek other funding opportunities. The City also submitted a letter of support for consideration of funding the left turn pocket to County Supervisor Curt Hagman’s office. The addition of a left turn pocket will facilitate customer access to these businesses, improve the traffic flow, and enhance traffic safety for patrons accessing the shopping center.
The County Board of Supervisor’s Office has also requested a second turn pocket along Kimball Avenue into the Chino airport hangar which is owned by San Bernardino County. Through a collaborative effort, Supervisor Curt Hagman requested the use of San Bernardino County’s American Rescue Plan Act (ARPA) allocation to fund median improvements on Kimball Avenue.
The funding request is for $314,324 for the design and construction of the two left turn pockets.
To facilitate this request, the County will need to enter into an ARPA sub -recipient agreement with the City of Chino.
ISSUES/ANALYSIS
The City utilized one of its current on -call engineering firms, Transtech Engineers, Inc., Chino, CA to complete the final design of the two left turn pockets. On March 8, 2024, staff published a formal Notice Inviting Bids via the City’s Planet Bids website and in the local publication on March 9 and March 16 , 2024, for “Kimball Avenue Median Improvements Project”. On March 28, 2024, at 10:00 a.m., two (2) bids were received and opened, with the following results:
Company Name City Bid Amount
Metrocell Construction Inc. Ontario, CA $250,399.40
HZs Engineering DBA HZS Construction Orange, CA $460,925.00
The lowest, responsible, responsive bid was submitted by Metrocell Construction Inc., Ontario, CA, as shown in the table above for $250,399.40. Staff subsequently reviewed the contractor’s licensing, bonding, references, and list of subcontractors submitted for the project, and found all bid submittal documentation to be in order.
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CITY COUNCIL MEETING DATE: MAY 21, 2024
TITLE: KIMBALL AVENUE MEDIAN IMPROVEMENTS PROJECT.
PAGE: 4
On March 28, 2024, staff published an informal Request for Proposals via email to three (3) pre- qualified Geotechnical Engineering firms from the approved on -call list. On April 4, 2024, at 10:00 a.m., two (2) proposals were received and one (1) opted not to participate. Staff reviewed both proposals and determined AESCO Inc., Huntington Beach, CA as the lowest apparent responsible proposal.
City Staff determined that Z&K Consultants Inc. (“Z&K”) is the best qualified firm to manage the construction services due to their previous work on the Kimball Avenue Improvements Project (ST232) which is currently under construction in the same area. Z&K also provides competitive hourly rates compared to other consultants with similar qualifications. The C ity will utilize the existing on-call consultant agreement with Z&K.
The following table includes the projected expenditures for the new CIP project G7241.
Kimball Ave Turn Pocket West–
Commercial Center Vendor Totals
Subtotal Construction
Metrocell Construction Inc.,
Ontario, CA $129,075.00
Kimball Ave Turn Pocket East –
Airport Hangar
Subtotal Construction
Metrocell Construction Inc.,
Ontario, CA $121,325.40
Design
Transtech Engineers Inc.,
Chino, CA $10,000
Materials Testing and Special Inspection
AESCO, Inc., Huntington
Beach, CA $13,184.00
Construction Management
Z & K Consultants Inc.,
Riverside, CA $15,700.00
Construction Contingencies (10%)
As allowable per the Public
Contract Code $25,040.00
Inspection Services City Staff $5,000
Total Estimated Expenditures $319,323.40
Note: (1) Note that, as in all the City's public works contracts, the contract itself provides the Director of Public Works authority to issue change orders of up to 10% of the original contract amount. When the Council approves the contract, it approves this authority. Ten percent is generally considered within the normal range of changed conditions on a public works construction project and, by providing change order authority upfront, Council helps to reduce the possibility of delay on a construction project.
Staff recommends the following as summarized above:
1) Establish a new CIP project entitled “Kimball Avenue Median Improvements Project” G7241;
2) appropriate $319,323.40 to the new CIP project - $314,324 of ARPA grant funds and $4,999.40 of General Fund reserves;
3) approve a Cooperative Agreement between the City of Chino and San Bernardino County to establish reimbursement obligations for the Kimball Avenue Median Improvements Project for $314,324;
4) award a Construction Contract in the amount of $250,399.40 to Metrocell Construction 361
CITY COUNCIL MEETING DATE: MAY 21, 2024
TITLE: KIMBALL AVENUE MEDIAN IMPROVEMENTS PROJECT.
PAGE: 5
Inc., Ontario, CA for the Kimball Avenue Median Improvements Project and authorize up to $25,040 (10% of the contract amo unt) for construction contingencies for a total amount not to exceed $275,439.40;
5) approve a Professional Service Agreement with AESCO, Inc., Huntington Beach, CA for Geotechnical Engineering Services for the Kimball Avenue Median Improvements Project for $13,184.
6) authorize expenditures of up to $15,700 for construction management services with Z&K Consultants Inc., Riverside, CA using an existing on-call agreement, $5,000 for overtime inspection costs, and $10,000 for design services from Transtech Eng, Inc; and 7) authorize the City Manager to execute all necessary documents on behalf of the City.
This project is exempt from the California Environmental Quality Act (CEQA) according to Section 15301(c) of the CEQA Guidelines - Existing Facilities, which inc ludes the operation, repair, and maintenance of highways, streets, sidewalks, gutters, bicycle and pedestrian trails, and other similar facilities.
Attachments: Exhibit A – Location Map
Exhibit B – Agreement Between San Bernardino County and City of Chino Exhibit C – Construction Agreement – Metrocell Construction, Inc.
Exhibit D – PSA – AESCO, Inc.
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THE INFORMATION IN THIS BOX IS NOT A PART OF THE CONTRACT AND IS FOR COUNTY USE ONLY
County Administrative Office
Department Contract Representative Matthew Erickson, County Chief Financial Officer
Telephone Number (909) 387-5423
Contractor City of Chino
UEI No. RGVNGHJR3NV5
Contractor Representative Rob Burns, Finance Director
Telephone Number 909-334-3341
Contract Term October 17, 2023 through
December 31, 2026
Original Contract Amount Based on actual project costs not to exceed $ 314,324
Amendment Amount
Total Contract Amount Based on actual project costs not to exceed $314,324
Cost Center 110-094-1078
Internal Order (If Applicable)
CONTRACT BETWEEN SAN BERNARDINO COUNTY AND CITY OF CHINO RELATED TO THE
AMERICAN RESCUE PLAN ACT AND THE CORONAVIRUS LOCAL FISCAL RECOVERY FUND
WHEREAS, on March 4, 2020, the State of California declared a state of emergency as a result of the Coronavirus Disease 2019 ( COVID-19) outbreak and on March 13, 2020, by Proclamation 9994, the President declared a national emergency concerning the COVID -19 pandemic. The COVID -19 pandemic continues to cause significant risk to the public health and safety of the United States; and
WHEREAS, on March 11, 2021, the American Rescue Plan Act (ARPA) was signed into law by the President and the law is intended to combat the COVID-19 pandemic, including the public health and economic impacts; and
WHEREAS, pursuant to Section 9901 of the ARPA, San Bernardino County (County) received a disbursement from the Unite d States Department of the Treasury of money associated with the Coronavirus Local Fiscal Recovery Fund (CLFRF) for Local Governments under Section 603(a) [see 42 U.S.C. Section 803]; and
WHEREAS, the County agreed to comply with the United States Department of the Treasury Coronavirus State Fiscal Recovery Fund Award Terms and Conditions (Terms and Conditions), Contract Number
SAP Number
ARPA21-PRJC-048-CHI
364
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including Assurance of Compliance with Title VI of the Civil Rights Act of 1964 (Assurance of Compliance with Civil Rights Requirements), identified in the U nited States Department of the Treasury and San Bernardino County Agreement (OMB Approved No. 1505 -0271) (U nited States Department of the Treasury Agreement), which is on file with the County and incorporated herein by this reference; and
WHEREAS, the Assistance Listing Number (ALN)/Federal Assistance Identification Number (FAIN) for the ARPA CLFRF is 21.027/SLFRP0154 respectively; and
WHEREAS, the ARPA provides that payments from the CLFRF may be used for the following : i) to respond to the public health emergency with respect to COVID -19 or its negative economic impacts, including assistance to households, small businesses, and nonprofits, or aid to impacted industries such as tourism, travel, and hospitality ; ii) to respond to workers performing essential work during the COVID–19 public health emergency by providing premium pay to eligible workers that are performing such essential work, or by providing grants to eligible employers that have eligible workers who perform essential work ; iii) for the provision of government services to the extent of the reduction in revenue due to the COVID –19 public health emergency relative to revenues collected in the most recent full fiscal year prior to the emergency; or iv) to make necessary investments in water, sewer, or broadband infrastructure; and
WHEREAS, funding provided under ARPA CLFRF must be obligated by December 31, 2024 and expended by December 31, 2026; and
WHEREAS, the County desires to transfer and City of Chino (Contractor) desires to accept a transfer from ARPA CLFRF in the not-to-exceed amount of $ 314,324 for expenditures identified in Exhibit “A” related to the Chino Kimball Avenue Median Improvements Project.
NOW, THEREFORE, in consideration of the above, the County and Contractor agree as follows:
1. THE ARPA CLFRF
A. This Contract applies to the following ARPA CLFRF transfers:
The transfer by the County of an amount not to exceed $314,324 to Contractor on a reimbursement basis for expenditures identified in Exhibit “A”. Exhibit “A” is attached hereto and incorporated herein by this reference. County acknowledges and agrees that Contractor will be administering the transfer of funds for the expenditures identified in Exhibit “A” by separate contracts. Contractor shall provide the County quarterly reports of actual cash expenditures to date under this Contract, and estimated cash expenditures through December 31 st of each year. County, through its Chief Executive Officer (CEO), in the CEO’s sole discretion, reserves the right to reduce the transfer amount identified in this Contract with fifteen (15) days advance written notice provided to Contractor. The reduction would be based: A) on Contractor’s estimated cash expenditures through December 31st of each year ; B) a later determination by the United States Department of the Treasury, or County, that the costs identified in this Contract are inelig ible for ARPA CLFRF; or C) a determination by CEO the funds should be utilized in a different manner.
B. Contractor certifies that the use of funds that will be submitted for reimbursement from the CLFRF under Paragraph 1. A. and Exhibit “A ” of this Contract will be used only to cover those costs that: i) are related to government operations eligible uses; and ii) were incurred during the period that begins October 17, 2023 and will end December 31, 2024. For purposes of this Contract and pursuant to federal guidance, expended or obligated costs are costs incurred by Contractor during the time period referenced above that are allowable for reimbursement. Any cost obligated by Contractor as of December 31, 2024, must be 365
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expended by December 31, 2026, to meet the eligible costs timeframe as defined by the United States Department of the Treasury.
C. Contractor agrees that the funds provided pursuant to this Contract cannot be used: i) as a revenue replacement for lower than expected tax or other revenue collections; ii) for expenditures for which Contractor has received any other emergency COVID -19 supplemental funding (whether federal, state, or private in nature) for that same expense ; or iii) as a deposit into any pension fund.
D. Contractor shall prepare and submit to County an invoice for reimbursement of eligible funding expenses identified in Paragraph 1.A., above. Invoices may be submitted to County as frequently as monthly. Invoices will be reviewed and approved for compliance with terms of this Contract. County shall reimburse to Contractor the amount of approved invoices submitted within sixty (60) days of receipt. If an invoice is rejected, or revisions are requested, Contractor will work with County to submit the required revisions.
E. Both County and Contractor agree to comply with any and all ARPA CLFRF requirements, including but are not limited to the terms included in this Contract , as well as any and all applicable County, Contractor, State, and Federal laws, regulations, policies and procedures pertaining to the funding described in this Contract. County and Contractor shall comply with Title 2 Code of Federal Regulations ( C.F.R.) Part 200 (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards), including, but not limited to, Title 2 C.F.R. Section 200.303 (internal control), Title 2 C.F.R. Sections 200.331 through 200.333 (subrecipient monitoring and management), and Title 2 C.F.R. Part 200 S ubpart F (audit requirements), as these sections currently exist or may be amended . The use of funds must also adhere to official federal guidance issued or to be issued on what constitutes a n eligible expenditure. Any funds expended by Contractor or its subcontractor(s) in any manner that does not adhere to official federal guidance shall be returned to the County. Contractor agrees to comply with all official guidance regarding the ARPA CLFRF. County and Contractor also agree that as additional federal guidance becomes available, a n amendment to this Contract may become necessary. If an amendment is required, Contractor agrees to promptly execute the Contract amendment.
F. Contractor shall retain documentation of all uses of the funds, including but not limited to invoices and/or sales receipts in a manner consistent with Title 2 C.F.R. Section 200.334 (retention requirements for records ). Such documentation shall be produced to County upon request and may be subject to audit. Unless otherwise provided by Federal or State law (whichever is the most restrictive) , Contractor shall maintain all documentation connected with its performance under this Contract for a minimum of five (5) years from the date of the last payment made by County or until audit resolution is achieved, whichever is later, and to make all such supporting information available for inspection and audit by representatives of the County, the State or the United States Government during normal business hours at Contractor. Copies will be made and furnished by Contractor upon written request by County.
G. Contractor shall establish and maintain an accounting system conforming to Generally Accepted Accounting Principles (GAAP) to support Contractor’s requests for reimbursement which segregate and accumulate costs of Contractor and produce monthly reports which clearly identify reimbursable costs, matching fund costs (if applicable), and other allowable expenditures by Contractor. Contractor shall provide a monthly report of expenditures under this Contract no later than the 20th day of the following month. 366
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H. Contractor shall cooperate in having an audit completed by County, at County’s option and expense. Any audit require d by A RPA CLFRF and its regulation and United States Treasury guidance will be completed by Contractor at Contractor’s expense.
I. Contractor shall repay to County any r eimbursement for ARPA CLFRF funding that is determined by subsequent audit to be unallowable under the ARPA CLFRF within the time period required by the ARPA CLFRF, but no later than one hundred twenty (120) days of Contractor receiving notice of audit findings, which time shall include an opportunity for Contractor to respond to and/or resolve the findings. Should the findings not be otherwise resolved and Contractor fail to reimburse moneys due County within one hundred twenty (120) days of audit findings, or within such other period as may be agreed between b oth parties or required by the ARPA CLFRF, County reserves the right to withhold future payments due Contractor from any source under County’s control.
J. Contractor shall accept all payments from County via electronic funds transfer (EFT) directly deposited into the Contractor’s designated checking or other bank account.
Contractor shall promptly comply with directions and accurately complete forms provided by County required to process EFT payments.
K. County is exempt from Federal excise taxes and no payment shall be made for any personal property taxes levied on Contractor or on any taxes levied on employee wages.
The County shall only pay for any State or local sales or use taxes on the services rendered or equipment and/or parts supplied to the County pursuant to the Contract.
L. Funds made available under this Contract shall not supplant any federal, state or any governmental funds intended for services of the same nature as this Contract. Contractor shall not claim reimbursement or payment from County for, or apply sums received from County with respect to that portion of its obligations that have been paid by another source of revenue. Contractor agrees that it will not use funds received pursuant to this Contract, either directly or indirectly, as a contribution or compensation for purposes of obtaining funds from another revenue source without prior written approval of the County.
M. County shall only reimburse costs incurred through the dates identified in Exhibit “A”. Contractor requirements in Sections 1, 2 and 5 of this Contract shall survive the termination of this Contract. The costs to be reimbursed under this Contract do not include Research and Development as defined in Title 2 Code of Federal Regulations ( C.F.R.) Section 200.1, nor do they include indirect costs.
2. AMERICAN RESCUE PLAN ACT REQUIREMENTS
A. This Contract may be funded in whole or in part with funds provided by the American Rescue Plan Act - Coronavirus Local Fiscal Recovery Fund (ARPA), Federal Award Identification Number (FAIN): SLFRP0154 and Assistance Listing Number (formerly known as a CFDA number): 21.027 , and therefore Contractor agrees to comply with any and all ARPA requirements in addition to any and all applicable County, State, and Federal laws, regulations, policies, and procedures pertaining to the funding of this Contract. The us e of the funds must also adhere to official federal guidance issued or to be issued on what constitutes a necessary expenditure. Any funds expended by Contractor or its subcontractor(s) in any manner that does not adhere to the ARPA requirements shall be returned or repaid to the County. Any funds paid to Contractor: i) in excess of the amount to which Contractor is finally determined to be authorized to retain; ii) that are determined to 367
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have been misused; or iii) that are determined to be subject to a repayment obligation pursuant to section 603(e) of the Act and have not been repaid, shall constitute a debt to the federal government. Contractor agrees to comply with the requirements of section 603 of the Act, regulations adopted by Treasury pursuant to the Act, and guidance issued by Treasury regarding the foregoing. Contractor shall provide for such compliance in any agreements with subcontractor(s).
B. Contractor agrees to comply with all applicable federal laws and regulations, including but not limited to all laws and regulations identified in Section 2 of the Contract.
C. In accordance with Title 2 C.F.R. Section 200.322, the non -Federal Contractor should, to the greatest extent practicable under a Federal award, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all subawards including all contracts and purchase orders for work or products under this award. For purposes of this section: “Produced in the United States” means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States. “Manufactured products” means items and construction materials composed in whole or in part of non -ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.
D. In accordance with Title 2 C.F.R. Section 200.471, c osts incurred for telecommunications and video surveillance services or equipment such as phones, internet, video surveillance, cloud servers are allowable except for the following circumstances: Obligating or expending covered telecommunications and video surveillance services or equipment or services (as described in 2 C.F.R. Section 200.216) to: 1) Procure or obtain, extend or renew a contract to procure or obtain; 2) Enter into a contract (or extend or renew a contract) to procure; or 3) Obtain the equipment, services, or systems, as described in Title 2 C.F.R. Section 200.216 that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. As described in Public Law 115 -232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities) and: (i) F or the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities); (ii) Telecommunications or video surveillance services provided by such e ntities or using such equipment; and (iii) Telecommunications or video surveillance equipment or services produced or provided by a n entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country. In implementing the prohibition under Public Law 115 -232, section 889, subsection (f), paragraph (1), heads of executive agencies administering loan, grant, or subsidy programs shall prioritize available funding and technical support to assist affected businesses, institutions and organizations as is reasonably necessary for those affected entities to transition from covered communications equipment and services, to procure replacement equipment and services, and to ensure that communications service to users and customers is sustained.
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E. A non -Federal Contractor that is a state agency or agency of a political subdivision of a state and its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at Title 40 C.F.R. Part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.
F. Byrd Anti-Lobbying Amendment (31 U.S.C. Section 1352) - Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by Title 31 U.S.C. Section 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non-Federal award.
G. Clean Air Act (42 U.S.C. Sections 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C. Sections 1251-1389), as amended - Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non -Federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. Sections 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. Sections1251-1389).
H. Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets the definition of “funding agreement” under Title 37 C.F.R. Section 401.2(a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the Title 33 U.S.C. Sections 1251-1387 recipient or subrecipient must comply with the requirements of Title 37 C.F.R. Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency.
I. Contract Work Hours and Safety Standards Act (40 U.S.C. Sections 3701-3708). Where applicable, all contracts awarded by the non -Federal Contractor in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with Title 40 U.S.C. Sections 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. Part 5). Under Title 40 U.S.C. Section 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week.
The requirements of Title 40 U.S.C. Section 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous to health or safety . 369
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These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.
J. Davis-Bacon Act, as amended (40 U.S.C. Sections 3141-3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non - Federal entities must include a provision for compliance with the Davi s-Bacon Act (40 U.S.C. Sections 3141 -3148) as supplemented by Department of Labor regulations (29 C.F.R. Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non -Federal contractor must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non -Federal Contractor must report all suspected or reported violations to the Federal awarding agency.
The contracts must also include a provision for compliance with the Copeland “Anti - Kickback” Act ( 18 U.S.C. Section 874 and 40 U.S.C. Section 3145), as supplemented by Department of Labor regulations (29 C.F.R. Part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non -Federal contractor must report all suspected or reported violations to the Federal awarding agency.
i. The Contractor and all Subcontractors and Sub -subcontractors are required to pay their employees and workers a wage not less than the minimum wage for the work classification as specified in both the Federal and California wage decisions. See Exhibit “B” for additional information regarding California Prevailing Wage Rate Requirements and the applicable general prevailing wage determinations which are on file with the County and are available to any interested party on request. The higher of the two applicable wage determinations, either California prevailing wage or Davis -Bacon Federal prevailing wage, will be enforced for all applicable work/services under this Contract.
K. Contracts for more than the simplified acquisition threshold, which is the inflation adjusted amount determined by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) as authorized by Title 41 U.S.C. Section 1908, must address administrative, contractual, or leg al remedies in instances where C ontractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate.
L. All contracts in excess of $10,000 must address termination for cause and for convenience by the non -Federal Contractor including the manner by which it will be effected and the basis for settlement.
M. Equal Employment Opportunity. Except as otherwise provided under Title 41 C.F.R. Part 60, all contracts that meet the definition of “federally assisted const ruction contract” in Title 41 C.F.R. Section 60-1.3 must include the equal opportunity clause provided under Title 41 C.F.R. Section 60-1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 C.F.R. Part, 1964-1965 Comp., p. 339), as amended 370
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by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 C.F.R. part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.” The identified clause is below and Contractor shall comply with the clause and all legal requirements and include the equal opportunity clause in each of its nonexempt subcontracts.
i. The applicant hereby agrees that it will incorporate or cause to be incorporated into any contract for construction work, or modification thereof, as defined in the regulations of the Secretary of Labor at Title 41 C.F.R. Chapter 60, which is paid for in whole or in part with funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to a grant, contract, loan, insurance, or guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, the following equal opportunity clause:
During the performance of this contract, the contractor agrees as follows:
(1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin.
Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information.
(4) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
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(5) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and the rules, regulations, and relevant orders of the Secretary of Labor.
(6) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(7) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(8) The contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor.
The contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, however, that in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the contractor may request the United States to enter into such litigation to protect the interests of the United States.
The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, that if the applicant so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract.
The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.
The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government 372
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contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.
N. Data Collection Requirements – Contractor agrees to collect pre-post data per County, and United States Treasury guidelines and timeline, for project tracking and monitoring and various rep orting purposes. Data including , but not limited to: Required Project Demographic Distribution Data; Required Performance I ndicators and Programmatic Data; Required Expenditure Report Data; and Required Program Evaluation Data. Contractor agrees to track and monitor data in a quantifiable and reportable database - retrievable collective data that needs to be available to County, State or Federal governments upon request.
O. Data Submission Requirements - Contractor agrees to furnish data to the County up on request, per County, and United States Treasury guidelines and timeline, for project tracking and monitoring and various reporting purposes. Data including, but not limited to:
Required Project Demographic Distribution Data; Required Performance I ndicators and Programmatic Data; Required Expenditure Report Data; Required Program Evaluation Data. Contractor agrees to track and monitor data in a quantifiable and reportable database - retrievable collective data that needs to be available at request.
P. Project Progress Reporting - Contractor agrees to provide project timeline and progress updates to the County up on request, per County, and United States Treasury guidelines and timeline. Contractor agrees to routine and impromptu program and project evaluation by the County.
Q. Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, Title 2 C.F.R. Part 200, other than such provisions as Treasury may determine are inapplicable and subject to such exceptions as may be otherwise provided by Treasury.
Subpart F – Audit Requirements of the Uniform Guidance, implementing the Single Audit Act, shall apply.
R. Universal Identifier and System for Award Management (SAM), Title 2 C.F.R. Part 25.
S. Reporting Subaward and Executive Compensation Information, Title 2 C.F.R. Part 170.
T. OMB Guidelines to Agencies on Governmentwide Debarment and Suspension (nonprocurement), title 2 C.F.R. Part 180, including the requirement to include a term or condition in all lower tier covered transactions (contracts and subcontracts described in 2 C.F.R. Part 180, subpart B) that the award is subject to Title 2 C.F.R. Part 180 and Treasury’s implementing regulation at Title 31 C.F.R. Part 19. Debarment and Suspension (Executive Orders 12549 and 12689) - A contract award (see 2 CFR Section 180.220) must not be made to parties listed on the governmentwide exclusions in the System for Award 373
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Management (SAM), in accordance with the OMB guidelines at Title 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.
U. Recipient Integrity and Performance Matters, pursuant to which the award terms set forth in Title 2 C.F.R. Part 200, Appendix XII to Part 200 is hereby incorporated by reference.
V. Government Requirements for Drug-Free Workplace, Title 31 C.F.R. Part 20.
W. New Restrictions on Lobbying, Title 31 C.F.R. Part 21.
X. Uniform Relocation Assistance and Real Property Acquis itions Act of 1970 (42 U.S.C.
Sections 4601-4655) and implementing regulations.
Y. Applicable Federal environmental laws and regulations.
Z. Statutes and regulations prohibiting discrimination include, without limitation, the following:
i. Title VI of the Civil Rights Act of 1964 (42 U.S.C. Sections 2000d et seq.) and Treasury’s implementing regulations at Title 31 C.F.R. Part 22, which prohibit s discrimination on the basis of race, color, or national origin under programs or activities receiving federal financial assistance.
ii. The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (42 U.S.C. Sections 3601 et seq.), which prohibits discrimination in housing on the basis of race, color, religion, national origin, sex, familial status, or disability. iii. Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. Section 794), which prohibits discrimination on the basis of disability under any program or activity receiving federal financial assistance.
iv. The Age Discrimination Act of 1975, as amended (42 U.S.C. Sections 6101 et seq.), which prohibits discrimination on the basis of disability under programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto.
v. Title II of the Americans with Disabilities Act o f 1990, as amended (42 U.S.C.
Sections 12101 et seq.), which prohibits discrimination on the basis of disability under programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto.
AA. Contractor understands that making false statements or claims in connection with the ARPA funded activities is a violation of federal law and may result in criminal, civil, or administrative sanctions, including fines, imprisonment, civil damages and penalties, debarment from participating in federal awards or contracts, and/or any other remedy available by law.
BB. Any publications produced with ARPA funds must display the following language: “This project [is being] [was] supported, in whole or in part, by federal award number SLFRP0154 awarded to San Bernardino County by the United States Department of Treasury.”
CC. Pursuant to Executive Order 13043, 62 FR 19217 (Apr. 18, 1997), Contractor is being encouraged to adopt and enforce on -the-job seat belt policies and programs for their employees when operating company-owned, rented, or personally owned vehicles. 374
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DD. Pursuant to Executive Order 13513, 74 FR 51225 (Oct. 6, 2009), Contractor is being encouraged to adopt and enforce policies that ban text messaging while driving and establishing workplace safety policies to decrease accidents caused by distracted drivers.
EE. As a recipient of federal financial assistance, the Civil Rights Restoration Act of 1987 applies, and Contractor and all subrecipients assures that it:
i. Ensures its current and future compliance with Title VI of the Civil Rights Act of 1964, as amended, which prohibits exclusion from participation, denial of the benefits of, or subjection to discrimination under programs and activities receiving federal funds, of any person in the United States on the ground of race, color, or national origin (42 U.S.C. Sections 2000d et seq.), as implemented by the Department of the Treasury Title VI regulations at Title 31 CFR Part 22 and other pertinent executive orders such as Executive Order 13166, directives, circulars, policies, memoranda and/or guidance documents.
ii. Acknowledges that Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency,” seeks to improve access to federally assisted programs and activities for individuals who, because of national origin, have Limited English proficiency (LEP). Contractor understands that denying a person access to its programs, services, and activities, because of LEP is a form of national origin discrimination prohibited under Title VI of the Civil Rights Act of 1964 and the Department of the Treasury’s implementing regulations. Contractor shall initiate reasonable steps, or comply with the Department of the Treasury’s directives, to ensure LEP persons have meaningful access to its programs, services, and activities. Contractor understands and agrees that meaningful access may entail provide language assistance services, including oral interpretation and written translation where necessary, to ensure effective communication. iii. Agrees to consider the need for language services for LEP persons during development of applicable budgets and when conducting programs, services, and activities.
iv. Agrees to maintain a complaint log of any complaints of discrimination on the grounds of race, color, or national origin, and limited English proficiency covered by Title VI of the Civil Rights Act and implementing regulations and provide, upon request, a list of all such reviews or proceedings based on the complaint, pending or completed, including outcome.
FF. The Contractor must include the following language in every contract or agreement subject to Title VI and its regulations:
“The sub -grantee, contractor, successor, transferee, and assignee shall comply with Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal financial assistance from excluding a program or activity, denying benefits of, or otherwise discriminating against a person on the basis of race, colo r, or nation origin (42 U.S.C.
Section 2000d et seq.), as implemented by the Department of the Treasury’s Title VI regulations, 31 CFR Part 22, which are herein incorporated by reference and made a part of this contract (or agreement). Title VI also includes protection to persons with “Limited English Proficiency” in any program or activity receiving federal f inancial assistance, 42 U.S.C. Sections 2000d et seq., as implemented by the Department of the Treasury’s Title VI regulations, 31 CFR Part 22, and herein incorporated by reference and made a part of this contract or agreement.”
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GG. Contractor shall cooperate in any enforcement or compliance review activities by the County and/or the Department of the Treasury. Contractor shall comply with information requests, on-site compliance reviews, and reporting requirements.
HH. Contractor shall maintain records and financial documents sufficient to evidence compliance with section 603(c), regulations adopted by Treasury implementing those sections, and guidance issued by Treasury regarding the foregoing.
II. County has the right of access to records (electronic or otherwise) of Contractor in order to conduct audits or other investigations.
JJ. Contractor shall maintain records for a period of five (5) years after the completion of the contract or a period of five (5) years after the last reporting date the County is obligated with the Department of the United States Treasury, whichever is later.
KK. Contractor must disclose in writing any potential conflict of interest in accordance with Title 2 C.F.R. Section 200.112.
LL. In accordance with Title 41 U.S.C. Section 4712, subrecipient or C ontractor may not discharge, demote, or otherwise discriminate against an employee in reprisal for disclosing to any of the list of persons or entities provided below, information that the employee reasonably believes is evidence of gross mismanagement of a federal contract or grant, a gross waste of federal funds, an abuse of authority relating to a federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a federal contract (including the competition for or negotiation of a contract) or grant.
The list of persons and entities referenced in the paragraph above includes the following: (i) A member of Congress or a representative of a committee of Congress; (ii) An Inspector General; (iii) The Government Accountability Office; (iv) A Treasury employee responsible for contract or grant oversight or management; (v) An authorized official of the Department of Justice or other law enforcement agency; (vi) A court or grand jury; or (vii) A management officia l or other employee of recipient, subrecipient, contractor, or subcontractor who has the responsibility to investigate, discover, or address misconduct.
Subrecipient or Contractor shall inform its employees in writing of the rights and remedies provided under this section, in the predominant native language of the workforce.
MM. County and Contractor acknowledge that if additional federal guidance is issued, an amendment to this Contract may be necessary. In the event any of the terms in this Section 2 conflict with any other terms in the Contract, the terms in this Section 2 shall control.
3. GENERAL CONTRACT REQUIREMENTS
A. Recitals
The recitals set forth above are true and correct and incorporated herein by this reference.
B. Contract Amendments
Contractor agrees any alterations, variations, modifications, or waivers of the provisions of the Contract, shall be valid only when reduced to writing, executed and attached to the original Contract and approved by the person(s) authorized to do so on behalf of Contractor and County.
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C. Contract Assignability
Without the prior written consent of the County, the Contract is not assignable by Contractor either in whole or in part.
D. Contract Exclusivity
This is not an exclusive Contract. The County reserves the right to enter into a contract with other contractors for the same or similar services. The County does not guarantee or represent that the Contractor will be permitted to perform any minimum amount of work, or receive compensation other than on a per order basis, under the terms of this Contract.
E. Attorney’s Fees and Costs
If any legal action is instituted to enforce any party’s rights hereunder, each party shall bear its own costs and attorney fees, regardless of who is the prevailing party. This paragraph shall not apply to those costs and attorney fees directly arising from a third -party legal action against a party hereto and payable under Indemnification and Insurance Requirements.
F. Background Checks for Contractor Personnel
Contractor shall ensure that its personnel (a) are authorized to work in the jurisdiction in which they are assigned to perform s ervices; (d) do not use legal or illegal substances in any manner which will i mpact their ability to provide services ; and (c) are not otherwise disqualified from performing the s ervices under applicable law. If requested by the County and not in violation of applicable law, Contractor shall conduct a background check, at Contractor’s sole expense, on all its personnel providing s ervices. If requested by the County, Contractor shall provide the results of the background check of each individual to the County. Such background check shall be in the form generally used by Contractor in its initial hiring of employees or contracting for contractors or, as applicable, during the employment-screening process but must, at a minimum, have been performed within the preceding 12 -month period. Contractor personnel who do not meet the County’s hiring criteria, in County’s sole discretion, shall not be assigned to work on County property or services, and County shall have the right, at its sole option, to refuse access to any Contract personnel to any County facility.
G. Change of Address
Contractor shall notify the County in writing, of any change in mailing address within ten (10) business days of the change.
H. Choice of Law
This Contract shall be governed by and construed according to the laws of the State of California.
I. Confidentiality
Contractor shall protect from unauthorized use or disclosure names and other identifying information concerning persons receiving s ervices pursuant to this Contract, except for statistical information not identifying any participant. Contractor shall not use or disclose any identifying information for any other purpose other than carrying out the Contractor's obligations under this Contract, except as may be otherwise required by law. This provision will remain in force even after the termination of the Contract.
J. Primary Point of Contact
Contractor will designate an individual to serve as the primary point of contact for the Contract. Contractor or designee must respond to County inquiries within two (2) business 377
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days. Contractor shall not change the primary contact without written acknowledgement to the County. Contractor will also designate a back -up point of contact in the event the primary contact is not available.
K. Rule of Construction
The parties agree that this Contract and all agreements or documents incorporated herein shall not be subject to the rule of construction that a written agreement is construed against the party preparing or drafting that agreement.
L. County Representative
The Chief Executive Officer or his/her designee shall represent the County in all matters pertaining to the services to be rendered under this Contract, including termination and assignment of this Contract, and shall be the final authority in all matt ers pertaining to the services/scope of Work by Contractor. If this contract was initially approved by the San Bernardino County Board of Supervisors, then the Board of Supervisors must approve all amendments to this Contract.
M. Damage to County Property
Contractor shall repair, or cause to be repaired, at its own cost, all damages to County vehicles, facilities, buildings or grounds caused by the willful or negligent acts of Contractor or its employees or agents. Such repairs shall be made immediately after Contractor becomes aware of such damage, but in no event later than thirty (30) days after the occurrence.
If the Contractor fails to make timely repairs, the County may make any necessary repairs.
The Contractor, as determined by the County, shall repay all costs incurred by the County for such repairs, by cash payment upon demand, or County may deduct such costs from any amounts due to the Contractor from the County, as determined at the County’s sole discretion.
N. Debarment and Suspension
Contractor certifies that neither it nor its principals or subcontracts is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any federal department or agency. (See the following United States General Services Administration’s System for Award Management website https://www.sam.gov). Contractor further certifies that if it or any of its subcontractors are business entities that must be registered with the California Secretary of State, they are registered and in good standing with the Secretary of State. An subcontracts funded by this Contract shall be with vendors that meet this certification and registration requirement.
O. Drug and Alcohol Free Workplace
In recognition of individual rights to work in a safe, healthful and productive work place, as a material condition of this Contract, the Contractor agrees that the Contractor and the Contractor’s employees, while performing service for the County, on County property, or while using County equipment:
i. Shall not be in any way impaired because of being under the influence of alcohol or an illegal or controlled substance.
ii. Shall not possess an open container of alcohol or consume alcohol or possess or be under the influence of an illegal or controlled substance.
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iii. Shall not sell, offer, or provide alcohol or an illegal or controlled substance to another person, except where Contractor or Contractor’s employee who, as part of the performance of normal job duties and responsibilities, prescribes or administers medically prescribed drugs.
The Contractor shall inform all employees that are performing service for the County on County property, or using County equipment, of the County’s objective of a safe, healthful and productive work place and the prohibition of drug or alcohol use or impairment from same while performing such service for the County.
The County may terminate for default or breach of this Contract and any other Contract the Contractor has with the County, if the Contractor or Contractor’s employees are determined by the County not to be in compliance with above.
P. Duration of Terms
This Contract, and all of its terms and conditions, shall be binding upon and shall inure to the benefit of the heirs, executors, administrators, successors, and assigns of the respective parties, provided no such assignment is in violation of the provisions of this Contract.
Q. Discrimination
During the term of the Contract, Contractor shall not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age, or military and veteran status. Contractor shall comply with Executive Orders 11246, 11375, 11625, 12138, 12432, 12250, 13672, Title VI and Title VII of the Civil Rights Act of 1964, the California Fair Employment and Housing Act and other applicable Federal, State and County laws and regulations and policies relating to equal employment and contracting opportunities, including laws and regulations hereafter enacted.
R. Improper Influence
Contractor shall make all reasonable efforts to ensure that no County officer or employee, whose position in the County enables him/her to influence any award of the Contract or any competing offer, shall have any direct or indirect financial interest resulting from the award of the Contract or shall have any relationship to the Contractor or officer or employee of the Contractor.
S. Improper Consideration
Contractor shall not offer (either directly or through an intermediary) any improper consideration such as, but not limited to cash, discounts, service, the provision of travel or entertainment, or any items of value to any officer, employee or agent of the County in an attempt to secure favorable treatment regarding this Contract.
The County, by written notice, may immediately terminate this Contract if it determines that any improper consideration as described in the preceding paragraph was offered to any officer, employee or agent of the County with respect to the proposal and award process.
This prohibition shall apply to any amendment, extension or evaluation process once a contract has been awarded.
Contractor shall immediately report any attempt by a County officer, employee or agent to solicit (either directly or through an intermediary) improper consideration from Contractor. 379
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The report shall be made to the supervisor or manager charged with supervision of the employee or the County Administrative Office. In the event of a termination under this provision, the County is entitled to pursue any available legal remedies.
T. Informal Dispute Resolution
In the event the County determines that service is unsatisfactory, or in the event of any other dispute, claim, question or disagreement arising from or relating to this Contract or breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties.
U. Legality and Severability
The parties’ actions under the Contract shall comply with all applicable laws, rules, regulations, court orders and governmental agency orders. The provisions of this Contract are specifically made severable. If a provision of the Contract is terminated or held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall remain in full effect.
V. Licenses, Permits and/or Certifications
Contractor shall ensure that it has all necessary licenses, permits and/or certifications required by the laws of Federal, State, County, and municipal laws, ordinances, rules and regulations. The Contractor shall maintain these licenses, permits and/or certifications in effect for the duration of this Contract. Contractor will notify County immediately of loss or suspension of any such licenses, permits and/or certifications. Failure to maintain a required license, permit and/or certification may result in immediate termination of this Contract.
W. Material Misstatement/Misrepresentation
If during the course of the administration of this Contract, the County determines that Contractor has made a material misstatement or misrepresentation or that materially inaccurate information has been provided to the County, this Contract may be immediately terminated. If this Contract is terminated according to this provision, the County is entitled to pursue any available legal remedies.
X. Mutual Covenants
The parties to this Contract mutually covenant to perform all of their obligations hereunder, to exercise all discretion and rights granted hereunder, and to give all consents in a reasonable manner consistent with the standards of “good faith” and “fair dealing”.
Y. Nondisclosure
Contractor shall hold as confidential and use reasonable care to prevent unauthorized access by, storage, disclosure, publication, dissemination to and/or use by third parties of, confidential information that is either: (1) provided by the County to Contractor or an agent of Contractor or otherwise made available to Contractor or Contractor’s agent in connection with this Contract; or, (2) acquired, obtained, or learned by Contractor or an agent of Contractor in the performance of this Contract. For purposes of this provision, confidential information means any data, files, software, information or materials in oral, electronic, tangible or intangible form and however stored, compiled or memorialize and includes, but is not limited to, technology infrastructure, architecture, financial data, trade secrets, equipment specifications, user lists, passwords, research data, and technology data.
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Z. Notice of Delays
Except as otherwise provided herein, when either party has knowledge that any actual or potential situation is delaying or threatens to delay the timely performance of this contract, that party shall, within twenty -four (24) hours, give notice thereof, including all relevant information with respect thereto, to the other party.
AA. Ownership of Documents
All documents, data, products, graphics, computer programs and reports prepared by Contractor pursuant to the Contract shall be considered property of the County upon payment for services (and products, if applicable). All such items shall be delivered to County at the completion of work under the Contract. Unless otherwise directed by County, Contractor may retain copies of such items.
BB. Air, Water Pollution Control, Safety and Health
Contractor shall comply with all air pollution control, water pollution, safety and health ordinances and statutes, which apply to the work performed pursuant to this Contract.
CC. Records
Contractor shall maintain all records and books pertaining to the delivery of services under this Contract and demonstrate accountability for contract performance. All records shall be complete and current and comply with all Contract requirements. Failure to maintain acceptable records shall be considered grounds for withholding of payments for invoices submitted and/or termination of the Contract.
All records relating to the Contractor’s personnel, consult ants, subcontractors, services/scope of Work and expenses pertaining to this Contract shall be kept in a generally acceptable accounting format. Records should include primary source documents. Fiscal records shall be kept in accordance with Generally Accepted Accounting Principles and must account for all funds, tangible assets, revenue and expenditures. Fiscal records must comply with the appropriate Office of Management and Budget (OMB) Circulars, which state the administrative requirements, cost principles and other standards for accountancy.
DD. Relationship of the Parties
Nothing contained in this Contract shall be construed as creating a joint venture, partnership, or employment arrangement between the Parties hereto, nor shall either Party have the right, power or authority to create an obligation or duty, expressed or implied, on behalf of the other Party hereto.
EE. Release of Information
No news releases, advertisements, public announcements or photographs arising out of the Contract or Contractor’s relationship with County may be made or used without prior written approval of the County.
FF. Representation of the County
In the performance of this Contract, Contractor, its agents and employees, shall act in an independent capacity and not as officers, employees, or agents of the San Bernardino County.
GG. Strict Performance
Failure by a party to insist upon the strict performance of any of the provisions of this Contract by the other party, or the failure by a party to exercise its rights upon the default of 381
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the other party, shall not constitute a waiver of such party’s right to insist and demand strict compliance by the other party with the terms of this Contract thereafter.
HH. Subcontracting
Contractor shall obtain County’s written consent, which County may withhold in its sole discretion, before entering into Contracts with or otherwise engaging any subcontractors who may supply any part of the s ervices to County. At County’s request, Contractor shall provide information regarding the subcontractor’s qualifications and a listing of a subcontractor’s key personnel including, if requested by the County, resumes of proposed subcontractor personnel. Contractor shall remain directly responsible to County for its subcontractors and shall indemnify County for the actions or omissions of its subcontractors under the terms and conditions specified in S ection 5 . All approved subcontractors shall be subject to the provisions of this Contract applicable to Contractor Personnel.
For any subcontractor, Contractor shall:
i. Be responsible for subcontractor compliance with the Contract and the subcontract terms and conditions; and
ii. Ensure that the subcontractor follows County’s reporting formats and procedures as specified by County.
iii. Include in the subcontractor’s subcontract substantially similar terms as are provided in this Contract.
Upon expiration or termination of this Contract for any reason, County will have the right to enter into direct Contracts with any of the Subcontractors. Contractor agrees that its arrangements with Subcontractors will not prohibit or restrict such Subcontractors from entering into direct Contracts with County.
II. Subpoena
In the event that a subpoena or other legal process commenced by a third p arty in any way concerning the goods or services provided under this Contract is served upon Contractor or County, such party agrees to notify the other party in the most expeditious fashion possible following receipt of such subpoena or other legal process. Contractor and County further agree to cooperate with the other party in any lawful effort by such other party to contest the legal validity of such subpoena or other legal process commenced by a third party as may be reasonably required and at the expense of the party to whom the legal process is directed, except as otherwise provided herein in connection with defense obligations by Contractor for County.
JJ. Termination for Convenience
The County reserves the right to terminate the Contract, for any reason, with a thirty (30) day written notice of termination. The County’s Chief Executive Officer is authorized to terminate this Contract. Such termination may include all or part of the services described herein. Upon such termination, payment will be made to the Contractor for services rendered and expenses reasonably incurred prior to the effective date of termination. Upon receipt of termination notice Contractor shall promptly discontinue services unless the notice directs otherwise. Contractor shall deliver promptly to County and transfer title (if necessary) all completed work, and work in progress, including drafts, documents, plans, forms, data, products, graphics, computer programs and reports.
KK. Time of the Essence
Time is of the essence in performance of this Contract and of each of its provisions. 382
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LL. Venue
The parties acknowledge and agree that this Contract was entered into and intended to be performed in San Bernardino County, California. The parties agree that the venue of any action or claim brought by any party to this Contract will be the Superior Court of California, San Bernardino County, San Bernardino District. Each party hereby waives any law or rule of the court, which would allow them to request or demand a change of venue. If any action or claim concerning this Contract is brought by any third party and filed in another venue, the parties hereto agree to use their best efforts to obtain a change of venue to the Superior Court of California, San Bernardino County, San Bernardino District.
MM. Conflict of Interest
Contractor shall make all reasonable efforts to ensure that no conflict of interest exists between its officers, employees, or subcontractors and the County. Contractor shall make a reasonable effort to prevent employees, Contractor, or members of governing bodies from using their positions for purposes that are, or give the appearance of being motivated by a desire for private gain for themselves or others such as those with whom they have family business, or other ties. Officers, employees, and agents of cities, counties, districts, and other local agencies are subject to applicable conflict of interest codes and state law. In the event the County determines a conflict of interest situation exists, any increase in costs, associated with the conflict of interest situation, may be disallowed by the County and such conflict may constitute grounds for termination of the Contract. This provision shall not be construed to prohibit employment of persons with whom Contractor’s officers, employees, or agents have family, business, or other ties so long as the employment of such persons does not result in increased costs over those associated with the employment of any other equally qualified applicant.
NN. Copyright
County shall have a royalty-free, non-exclusive and irrevocable license to publish, disclose, copy, translate, and otherwise use, copyright or patent, now and hereafter, all reports, studies, information, data, statistics, forms, designs, plans, procedures, systems, and any other materials or properties developed under this Contract including those covered by copyright, and reserves the right to authorize others to use or reproduce such material. All such materials developed under the terms of this Contract shall acknowledge the San Bernardino County as the funding agency and Contractor as the creator of the publication.
No such materials, or properties produced in whole or in part under this Contract shall be subject to private use, copyright or patent right by Contractor in the United States or in any other country without the express written consent of County. Copies of all educational and training materials, curricula, audio/visual aids, printer material, and periodicals, assembled pursuant to this Contract must be filed with the County prior to publication.
OO. Iran Contracting Act
IRAN CONTRACTING ACT OF 2010, Public Contract Code S ections 2200 et seq. (Applicable for all Contracts of one million dollars ($1,000,000) or more). In accord ance with Public Contract Code S ection 2204(a), the Contractor certifies that at the time the Contract is signed, the Contractor signing the Contract is not identified on a list created pursuant to subdivision (b) of Public Contract Code Section 2203 as a person (as defined in Public Contract Code S ection 2202(e)) engaging in investment activities in Iran described in subdivisi on (a) of Public Contract Code S ection 2202.5, or as a person described in subdivision (b) of Public Contract Code Section 2202.5, as applicable.
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Contractors are cautioned that making a false certification may subject the Contractor to civil penalties, termination of existing contract, and ineligibility to bid on a contract for a period of three (3) years in accordance with Public Contract Code Section 2205.
PP. California Consumer Privacy Act
To the extent applicable, if Contractor is a business that collects the personal information of a consumer(s) in performing s ervices pursuant to this Contract, Contractor must comply with the provisions of the California Consumer Privacy Act (CCPA). (Cal. Civil Code Sections 1798.100, et seq.). For purposes of this provision, “business,” “consumer,” and “personal information” shall have the same meani ngs as set forth at Civil Code S ection 1798.140. Contractor must contact the County immediately upon receipt of any request by a consumer submitted pursuant to the CCPA that requires any action on the part of the County, including but not limited to, providing a list of disclosures or deleting personal information. Contractor must not sell, market or otherwise disclose personal information of a consumer provided by the County unless specifically authorized pursuant to terms of this Contract. Contractor must immediately provide to the County any notice provided by a consumer to Con tractor pursuant to Civil Code S ection 1798.150(b) alleging a violation of the CCPA, that involves personal information received or maintained pursuant to this Contract. Contractor must immediately notify the County if it receives a notice of violation from the California Attorney General pursuant to Civil Code Section 1798.155(b).
QQ. Prevailing Wage Laws
By its execution of this Contract, Contractor certifies that it is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq. as well as California Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. Section 1720 of the California Labor Code states in part: “For purposes of this paragraph, ‘construction’ includes work performed during the design, site assessment, feasibility study, and other preconstruction phases of construction including, but not limited to, inspection and land surveying work…” If the services/scope of Work are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type o f worker needed to execute the s ervices available to interested parties upon request, and shall post copies at the Contractor’s principal place of business and at the project site. Contractor will also adhere to any other applicable requirements, including but not limited to, those regarding the employment of apprentices, travel and subsistence pay, retention and inspection of payroll records, workers compensation and forfeiture of penalties prescribed in the Labor Code for violations.
Contractor shall defend, indemnify and hold the County, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with Prevailing Wage Laws.
See Exhibit “B”, which is attached and incorporated by reference, for additional information regarding Prevailing Wage Laws. Contractor shall comply with all applicable terms and conditions in Exhibit “B”. The applicable general prevailing wage determinations are on file with the County and are available to any interested party on request. Contractor shall post a copy of the applicable prevailing wage determinations at the job site.
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4. TERM OF CONTRACT
This Contract is effective as of the date last signed by authorized representatives of any party (Effective Date), requires all incurred obligations by December 31, 2024, and expires on December 31, 2026, but may be terminated earlier in accordance with the provisions of this Contract.
5. INDEMNIFICATION AND INSURANCE REQUIREMENTS
A. Indemnification
The Contractor agrees to indemnify, defend (with counsel reasonably approved by County) and hold harmless the County and its authorized officers, employees, agents and volunteers from any and all claims, actions, losses, damages and/or liability arising out of this Contract from any cause whatsoever, including the acts, errors or omissions of any person and for any costs or expenses incurred by the County on account of any claim except where such indemnification is prohibited by law. This indemnification provision shall apply regardless of the existence or degree of fault of indemnities. The Contractor indemnification obligation applies to the County’s “active” as well as “passive” negligence but does not apply to the County’s “sole negligence” or “willful misconduct” wi thin the meaning of Civil Code Section 2782.
B. Insurance
Contractor and County are authorized self -insured public entities for purposes of Professional Liability, General Liability, Automobile Liability, Worker’s Compensation and Property Damage and warrant that through their respective programs of self -insurance, they have adequate coverage or resources to protect against liabilities arising out of the performance of the terms, conditions or obligations of this Contract.
i. Insurance Review – Insurance requirements are subject to periodic review by the County. The Director of Risk Management or designee is authorized, but not required, to reduce, waive or suspend any insurance requirements whenever Risk Management determines that any of the required insurance is not available, is unreasonably priced, or is not needed to protect the interests of the County. In addition, if the Department of Risk Management determines that heretofore unreasonably priced or unavailable types of insurance coverage or coverage limits become reasonably priced or available, the Director of Risk Management or designee is authorized, but not required, to change the above insurance requirements to require additional types of insurance coverage or higher coverage limits, provided that any such change is reasonable in light of past claims against the County, inflation, or any other item reasonably related to the County’s risk.
Any change requiring additional types of insurance coverage or higher coverage limits must be made by amendment to this Contract. Contractor agrees to execute any such amendment within thirty (30) days of receipt.
Any failure, actual or alleged, on the part of the County to monitor or enforce compliance with any of the insurance and indemnification requirements will not be deemed as a waiver of any rights on the part of the County.
6. RIGHT TO MONITOR AND AUDIT
A. The County, State and Federal government shall have absolute right to review and audit all records, books, papers, documents, corporate minutes, and other pertinent items as requested, and shall have absolute right to monitor the performance of Contractor in the delivery of services provided under this Contract. Contractor shall give full cooperation, in 385
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any auditing or monitoring conducted. Contractor shall cooperate with the County in the implementation, monitoring, and evaluation of this Contract and comply with any and all reporting requirements established by the County.
B. All records pertaining to services delivered and all fiscal, statistical and management books and records shall be available for examination and audit by County representatives for a period of three years after final payment under this Contract or until all pending County, State and Federal audits are completed, whichever is later.
7. CORRECTION OF PERFORMANCE DEFICIENCIES
A. Failure by Contractor to comply with any of the provisions, covenants, requirements or conditions of this Contract shall be a material breach of this Contract.
B. In the event of a non-cured breach, County may, at its sole discretion and in addition to any other remedies available at law, in equity, or otherwise specified in this Contract:
i. Afford Contractor thereafter a time period within which to cure the breach, which period shall be established at the sole discretion of County; and/or ii. Discontinue reimbursement to Contractor for and during the period in which Contractor is in breach, which reimbursement shall not be entitled to later recovery; and/or
iii. Withhold funds pending duration of the breach; and/or iv. Offset against any monies billed by Contractor but yet unpaid by County those monies disallowed pursuant to Item “B” of this paragraph; and/or v. Terminate this Contract immediately and be relieved of the payment of any consideration to Contractor. In the event of such termination, the County may proceed with the work in any manner deemed proper by the County. The cost to the County shall be deducted from any sum due to the Contractor under this Contract and the balance, if any, shall be paid by the Contractor upon demand.
8. NOTICES
All written notices provided for in this Contract or which either party desires to give to the other shall be deemed fully given, when made in writing and either served personally, or by facsimile, or deposited in the United States mail, postage prepaid, and addressed to the other party as follows:
San Bernardino County
County Administrative Office – 4th Floor
385 N. Arrowhead Avenue
San Bernardino, CA 92415
City of Chino
Public Works Department
13220 Central Avenue
Chino, CA 91710
Notice shall be deemed communicated two (2) County working days from the time of mailing if mailed as provided in this paragraph.
9. ENTIRE AGREEMENT
This Contract, including all Exhibits and other attachments, which are attached hereto and incorporated by reference, and other documents incorporated herein, represents the final, complete and exclusive agreement between the parties hereto. Any prior agreement, promises, negotiations or representations relating to the subject matter of this Contract not expressly set forth herein are of no force or effect. This Contract is executed without reliance upon any promise, warranty or representation by any party or any representative of any party other than those expressly contained herein. Each party has carefully read this Contract and signs the same of its own free will.
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10. CONTRACT EXECUTION
This Contract may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such counterparts shall together constitute one and the same Contract. The parties shall be entitled to sign and transmit an electronic signature of this Contract (whether by facsimile, PDF or other email transmission), which signature shall be binding on the party whose name is contained therein. Each party providing an electronic signature agrees to promptly execute and deliver to the other party an original signed Contract upon request.
IN WITNESS WHEREOF, the San Bernardino County and the City of Chino have each caused this Contract to be subscribed by its respective duly authorized officers, on its behalf.
FOR COUNTY USE ONLY
Approved as to Legal Form Reviewed for Contract Compliance Reviewed/Approved by Department
County Counsel
Date Date Date
SAN BERNARDINO COUNTY
CITY OF CHINO
(Print or type name of corporation, company, contractor, etc.)
By
Luther Snoke, Chief Executive Officer (Authorized signature - sign in blue ink) Dated:
Name
Linda Reich
(Print or type name of person signing contract)
Title City Manager
(Print or Type)
Dated:
Address
13220 Central Ave
Chino CA. 91710
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EXHIBIT A
SCOPE OF EXPENDITURES
[SEPARATELY ATTACHED]
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EXHIBIT B
PREVAILING WAGE REQUIREMENTS
A. All or a portion of the Scope of Work in the Contract requires the payment of prevailing wages and compliance with the following requirements:
1. Determination of Prevailing Rates:
Pursuant to Labor Code sections 1770, et seq., the County has obtained from the Director of the Department of Industrial Relations (DIR) pursuant to the California Labor Code, the general prevailing rates of per diem wages and the prevailing rates for holiday and overtime work in the locality in which the Scope of Work is to be performed. Copies of said rates are on file with the County, will be made available for inspection during regular business hours, may be included elsewhere in the specifications for the Scope of Work, and are also available online at www.dir.ca.gov. The wage rate for any classification not listed, but which may be required to execute the Scope of Work, shall be commensurate and in accord with specified rates for similar or comparable classifications for those performing similar or comparable duties. In accordance with Labor Code section 1773.2, the Contractor shall post, at appropriate and conspicuous locations on the job site, a schedule showing all applicable prevailing wage rates and shall comply with the requirements of Labor Code sections 1773, et seq.
2. Payment of Prevailing Rates
Each worker of the Contractor, or any subcontractor, engaged in the Scope of Work, shall be paid not less than the general prevailing wage rate, regardless of any contractual relationship which may be alleged to exist between the Contractor or any subcontractor, and such worker.
3. Prevailing Rate Penalty
The Contractor shall, as a penalty, forfeit two hundred dollars ($200.00) to the County for each calendar day or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of the DIR for such work or craft in which such worker is employed by the Contractor or by any subcontractor in connection with the Scope of Work.
Pursuant to California Labor Code section 1775, the difference between such prevailing wage rates and the amount paid to each worker for each calendar day, or portion thereof, for which each worker was paid less than the prevailing wage rate, shall be paid to each worker by the Contractor.
4. Ineligible Contractors:
Pursuant to the provisions of Labor Code section 1777.1, the Labor Commissioner publishes and distributes a list of contractors ineligible to perform work as a contractor or subcontractor on a public works project. This list of debarred contractors is available from the DIR website at http://www.dir.ca.gov/Public-Works/PublicWorks.html. Any contract entered into between a contractor and a debarred subcontractor is void as a matter of law.
A debarred subcontractor may not receive any public money for performing work as a subcontractor on a public works contract, and any public money that may have been paid to a debarred subcontractor by a contractor on the project shall be returned to the County.
The Contractor shall be responsible for the payment of wages to workers as a debarred subcontractor who has been allowed to work on the Scope of Work.
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5. Payroll Records:
a. Pursuant to California Labor Code section 1776, the Contractor and each subcontractor, shall keep accurate certified payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker or other employee employed by them in connection with the Scope of Work. The payroll records enumerated herein shall be verified by a written declaration made under penalty of perjury that the information contained in the payroll record is true and correct and that the Contractor or subcontractor has complied with the requirements of the California Labor Code sections 1771, 1811, and 1815 for any Scope of Work performed by his or her employees. The payroll records shall be available for inspection at all reasonable hours at the principal office of the Contractor on the following basis:
i. A certified copy of an employee's payroll record shall be made available for inspection or furnished to such employee or his/her authorized representative on request;
ii. A certified copy of all payroll records shall be made available for inspection or furnished upon request to the County, the Division of Labor Standards Enforcement of the DIR;
iii. A certified copy of payroll records shall be made available upon request to the public for inspection or copies thereof made; provided, however, that a request by the public shall be made through either the County or the Division of Labor Standards Enforcement. If the requested payroll records have not been previously provided to the County or the Division of Labor Standards Enforcement, the requesting party shall, prior to being provided the records, reimburse the cost of preparation by the Contractor, subcontractor and the entity through which the request was made; the public shall not be given access to such records at the principal office of the Contractor; iv. The Contractor shall file a certified copy of the payroll records with the entity that requested such records within ten (10) days after receipt of a written request; and v. Copies provided to the public, by the County or the Division of Labor Standards Enforcement shall be marked or obliterated in such a manner as to prevent disclosure of an individual's name, address and social security number. The name and address of the Contractor or any subcontractor, performing a part of the Scope of Work shall not be marked or obliterated. The Contractor shall inform the County of the location of payroll records, including the street address, city and county and shall, within five (5) working days, provide a notice of a change of location and address.
b. The Contractor shall have ten (10) days from receipt of the written notice specifying in what respects the Contractor must comply with the above requirements. In the event Contractor does not comply with the requirements of this section within the ten (10) day period, the Contractor shall, as a penalty to the County, forfeit one -hundred dollars ($100.00) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the Division of Labor Standards Enforcement, such penalty shall be withheld from any portion of the payments then due or to become due to the Contractor.
6. Limits on Hours of Work:
Pursuant to California Labor Code section 1810, eight (8) hours of labor shall constitute a legal day's work. Pursuant to California Labor Code section 1811, the time of service of any worker employed at any time by the Contractor or by a subcontractor, upon the Scope of Work or upon any part of the Scope of Work, is limited and restricted to eight (8) hours during any one calendar day and forty (40) hours during any one calendar week, except as 390
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provided for under Labor Code section 1815. Notwithstanding the foregoing provisions, work performed by employees of Contractor or any subcontractor, in excess of eight (8) hours per day and forty (40) hours during any one week, shall be permitted upon compensation for all hours worked in excess of eight (8) hours per day at not less than one and one-half (1½) times the basic rate of pay.
7. Penalty for Excess Hours:
The Contractor shall pay to the County a penalty of twenty -five dollars ($25.00) for each worker employed on the Scope of Work by the Contractor or any subcontractor, for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any calendar day and forty (40) hours in any one calendar week, in violation of the provisions of the California Labor Code, unless compensation to the worker so employed by the Contractor is not less than one and one -half (1½) times the basic rate of pay for all hours worked in excess of eight (8) hours per day.
8. Senate Bill 854 (Chapter 28, Statutes of 2014) and Senate Bill 96 (Chapter 28, Statutes of 2017) Requirements:
a. Contractor shall comply with Senate Bill 854 and Senate Bill 96. The requirements include, but are not limited to, the following:
i. No contractor or subcontractor may be listed on a bid proposal for a public works project unless registered with the DIR pursuant to Labor Code section 1725.5, with limited exceptions from this requirements for bid purposes only as allowed under Labor Code section 1771.1(a).
ii. No contractor or subcontractor may be awarded a contract for public work or perform work on a public works project unless registered with the DIR pursuant to Labor Code section 1725.5.
iii. This project is subject to compliance monitoring and enforcement by the DIR. iv. As required by the DIR, Contractor is required to post job site notices, as prescribed by regulation, regarding compliance monitoring and enforcement by the DIR.
v. Contractors and all subcontractors must submit certified payroll records online to the Labor Commissioner for all public works projects.
1) The certified payroll must be submitted at least monthly to the Labor Commissioner.
2) The County reserves the right to require Contractor and all subcontractors to submit certified payroll records more frequently than monthly to the Labor Commissioner.
3) The certified payroll records must be in a format prescribed by the Labor Commissioner.
vi. Registration with the DIR and the submission of certified payroll records to the Labor Commissioner are not required if the public works project is $25,000 or less when the project is for construction, alteration, demolition, installation or repair work, or if the public works project is $15,000 or less when the project is for maintenance work.
b. Labor Code section 1725.5 states the following:
“A contractor shall be registered pursuant to this section to be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any public work contract that is subject to the requirements of this chapter. For the purposes of this section, “contractor” includes a subcontractor as defined by Section 1722.1.
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(a) To qualify for registration under this section, a contractor shall do all of the following:
(1) (A) Register with the Department of Industrial Relations in the manner prescribed by the department and pay an initial nonrefundable application fee of four hundred dollars ($400) to qualify for registration under this section and an annual renewal fee on or before July 1 of each year thereafter. The annual renewal fee shall be in a uniform amount set by the Director of Industrial Relations, and the initial registration and renewal fees may be adjusted no more than annually by the director to support the costs specified in Section 1771.3.
(B) Beginning June 1, 2019, a contractor may register or renew according to this subdivision in annual increments up to three years from the date of registration.
Contractors who wish to do so will be required to prepay the applicable nonrefundable application or renewal fees to qualify for the number of years for which they wish to preregister.
(2) Provide evidence, disclosures, or releases as are necessary to establish all of the following:
(A) Workers' compensation coverage that meets the requirements of Division 4 (commencing with Section 3200) and includes sufficient coverage for any worker whom the contractor employs to perform work that is subject to prevailing wage requirements other than a contractor who is separately registered under this section. Coverage may be evidenced by a current and valid certificate of workers' compensation insurance or certification of self -insurance required under Section 7125 of the Business and Professions Code.
(B) If applicable, the contractor is licensed in accordance with Chapter 9 (commencing with Section 7000) of the Business and Professions Code.
(C) The contractor does not have any delinquent liability to an employee or the state for any assessment of back wages or related damages, interest, fines, or penalties pursuant to any final judgment, order, or determination by a court or any federal, state, or local administrative agency, including a confirmed arbitration award. However, for purposes of this paragraph, the contractor shall not be disqualified for any judgment, order, or determination that is under appeal, provided that the contractor has secured the payment of any amount eventually found due through a bond or other appropriate means.
(D) The contractor is not currently debarred under Section 1777.1 or under any other federal or state law providing for the debarment of contractors from public works.
(E) The contractor has not bid on a public works contract, been listed in a bid proposal, or engaged in the performance of a contract for public works without being lawfully registered in accordance with this section, within the preceding 12 months or since the effective date of the requirements set forth in subdivision (e), whichever is earlier. If a contractor is found to be in violation of the requirements of this paragraph, the period of disqualification shall be waived if both of the following are true:
(i) The contractor has not previously been found to be in violation of the requirements of this paragraph within the preceding 12 months.
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(ii) The contractor pays an additional nonrefundable penalty registration fee of two thousand dollars ($2,000).
(b) Fees received pursuant to this section shall be deposited in the State Public Works Enforcement Fund established by Section 1771.3 and shall be used only for the purposes specified in that section.
(c) A contractor who fails to pay the renewal fee required under paragraph (1) of subdivision (a) on or before the expiration of any prior period of registration shall be prohibited from bidding on or engaging in the performance of any contract for public work until once again registered pursuant to this section. If the failure to pay the renewal fee was inadvertent, the contractor may renew its registration retroactively by paying an additional nonrefundable penalty renewal fee equal to the amount of the renewal fee within 90 days of the due date of the renewal fee.
(d) If, after a body awarding a contract accepts the contractor's bid or awards the contract, the work covered by the bid or contract is determined to be a public work to which Section 1771 applies, either as the result of a determination by the director pursuant to Section 1773.5 or a court decision, the requirements of this section shall not apply, subject to the following requirements:
(1) The body that awarded the contract failed, in the bid specification or in the contract documents, to identify as a public work that portion of the work that the determination or decision subsequently classifies as a public work.
(2) Within 20 days following service of notice on the awarding body of a determination by the Director of Industrial Relations pursuant to Section 1773.5 or a decision by a court that the contract was for public work as defined in this chapter, the contractor and any subcontractors are registered under this section or are replaced by a contractor or subcontractors who are registered under this section.
(3) The requirements of this section shall apply prospectively only to any subsequent bid, bid proposal, contract, or work performed after the awarding body is served with notice of the determination or decision referred to in paragraph (2).
(e) The requirements of this section shall apply to any bid proposal submitted on or after March 1, 2015, to any contract for public work, as defined in this chapter, executed on or after April 1, 2015, and to any work performed under a contract for public work on or after January 1, 2018, regardless of when the contract for public work was executed.
(f) This section does not apply to work performed on a public works project of twenty - five thousand dollars ($25,000) or less when the project is for construction, alteration, demolition, installation, or repair work or to work performed on a public works project of fifteen thousand dollars ($15,000) or less when the project is for maintenance work.”
c. Labor Code section 1771.1 states the following:
“(a) A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by 393
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Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded.
(b) Notice of the requirement described in subdivision (a) shall be included in all bid invitations and public works contracts, and a bid shall not be accepted nor any contract or subcontract entered into without proof of the contractor or subcontractor's current registration to perform public work pursuant to Section 1725.5.
(c) An inadvertent error in listing a subcontractor who is not registered pursuant to Section 1725.5 in a bid proposal shall not be grounds for filing a bid protest or grounds for considering the bid nonresponsive, provided that any of the following apply:
(1) The subcontractor is registered prior to the bid opening.
(2) Within 24 hours after the bid opening, the subcontractor is registered and has paid the penalty registration fee specified in subparagraph (E) of paragraph (2) of subdivision (a) of Section 1725.5.
(3) The subcontractor is replaced by another registered subcontractor pursuant to Section 4107 of the Public Contract Code.
(d) Failure by a subcontractor to be registered to perform public work as required by subdivision (a) shall be grounds under Section 4107 of the Public Contract Code for the contractor, with the consent of the awarding authority, to substitute a subcontractor who is registered to perform public work pursuant to Section 1725.5 in place of the unregistered subcontractor.
(e) The department shall maintain on its Internet Web site a list of contractors who are currently registered to perform public work pursuant to Section 1725.5.
(f) A contract entered into with any contractor or subcontractor in violation of subdivision (a) shall be subject to cancellation, provided that a contract for public work shall not be unlawful, void, or voidable solely due to the failure of the awarding body, contractor, or any subcontractor to comply with the requirements of Section 1725.5 or this section.
(g) If the Labor Commissioner or his or her designee determines that a contractor or subcontractor engaged in the performance of any public work contract without having been registered in accordance with this section, the contractor or subcontractor shall forfeit, as a civil penalty to the state, one hundred dollars ($100) for each day of work performed in violation of the registration requirement, not to exceed an aggregate penalty of eight thousand dollars ($8,000) in addition to any penalty registration fee assessed pursuant to clause (ii) of subparagraph (E) of paragraph (2) of subdivision (a) of Section 1725.5.
(h)(1) In addition to, or in lieu of, any other penalty or sanction authorized pursuant to this chapter, a higher tiered public works contractor or subcontractor who is found to have entered into a subcontract with an unregistered lower tier subcontractor to perform any public work in violation of the requirements of Section 1725.5 or this section shall be subject to forfeiture, as a civil penalty to the state, of one hundred dollars ($100) for each day the unregistered lower tier subcontractor performs wor k in violation of the 394
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registration requirement, not to exceed an aggregate penalty of ten thousand dollars ($10,000).
(2) The Labor Commissioner shall use the same standards specified in subparagraph (A) of paragraph (2) of subdivision (a) of Section 1775 when determining the severity of the violation and what penalty to assess, and may waive the penalty for a first time violation that was unintentional and did not hinder the Labor Commissioner’s ability to monitor and enforce compliance with the requirements of this chapter.
(3) A higher tiered public works contractor or subcontractor shall not be liable for penalties assessed pursuant to paragraph (1) if the lower tier subcontractor’s performance is in violation of the requirements of Section 1725.5 due to the revocation of a previously approved registration.
(4) A subcontractor shall not be liable for any penalties assessed against a higher tiered public works contractor or subcontractor pursuant to paragraph (1). A higher tiered public works contractor or subcontractor may not require a lower tiered subcontractor to indemnity or otherwise be liable for any penalties pursuant to paragraph (1).
(i) The Labor Commissioner or his or her designee shall issue a civil wage and penalty assessment, in accordance with the provisions of Section 1741, upon determination of penalties pursuant to subdivision (g) and subparagraph (B) of paragraph (1) of subdivision (h). Review of a civil wage and penalty assessment issued under this subdivision may be requested in accordance with the provisions of Section 1742. The regulations of the Director of Industrial Relations, which govern proceedings for review of civil wage and penalty assessments and the withholding of contract payments under Article 1 (commencing with Section 1720) and Article 2 (commencing with Section 1770), shall apply.
(j)(1) Where a contractor or subcontractor engages in the performance of any public work contract without having been registered in violation of the requirements of Section 1725.5 or this section, the Labor Commissioner shall issue and serve a stop order prohibiting the use of the unregistered contractor or the unregistered subcontractor on all public works until the unregistered contractor or unregistered subcontractor is registered. The stop order shall not apply to work by registered contractors or subcontractors on the public work.
(2) A stop order may be personally served upon the contractor or subcontractor by either of the following methods:
(A) Manual delivery of the order to the contractor or subcontractor personally.
(B) Leaving signed copies of the order with the person who is apparently in charge at the site of the public work and by thereafter mailing copies of the order by first class mail, postage prepaid to the contractor or subcontractor at one of the following:
(i) The address of the contractor or subcontractor on file with either the Secretary of State or the Contractors’ State License Board.
(ii) If the contractor or subcontractor has no address on file with the Secretary of State or the Contractors’ State License Board, the address of the site of the public work. 395
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(3) The stop order shall be effective immediately upon service and shall be subject to appeal by the party contracting with the unregistered contractor or subcontractor, by the unregistered contractor or subcontractor, or both. The appeal, hearing, and any further review of the hearing decision shall be governed by the procedures, time limits, and other requirements specified in subdivision (a) of Section 238.1.
(4) Any employee of an unregistered contractor or subcontractor who is affected by a work stoppage ordered by the commissioner pursuant to this subdivision shall be paid at his or her regular hourly prevailing wage rate by that employer for any hours the employee would have worked but for the work stoppage, not to exceed 10 days.
(k) Failure of a contractor or subcontractor, owner, director, officer, or managing agent of the contractor or subcontractor to observe a stop order issued and served upon him or her pursuant to subdivision (j) is guilty of a misdemeanor punishable by imprisonment in county jail not exceeding 60 days or by a fine not exceeding ten thousand dollars ($10,000), or both.
(l) This section shall apply to any bid proposal submitted on or after March 1, 2015, and any contract for public work entered into on or after April 1, 2015. This section shall also apply to the performance of any public work, as defined in this chapter, on or after January 1, 2018, regardless of when the contract for public work was entered.
(m) Penalties received pursuant to this section shall be deposited in the State Public Works Enforcement Fund established by Section 1771.3 and shall be used only for the purposes specified in that section.
(n) This section shall not apply to work performed on a public works project of twenty - five thousand dollars ($25,000) or less when the project is for construction, alteration, demolition, installation, or repair work or to work performed on a public works project of fifteen thousand dollars ($15,000) or less when the project is for maintenance work.”
d. Labor Code section 1771.4 states the following:
“(a) All of the following are applicable to all public works projects that are otherwise subject to the requirements of this chapter:
(1) The call for bids and contract documents shall specify that the project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
(2) The awarding body shall post or require the prime contractor to post job site notices, as prescribed by regulation.
(3) Each contractor and subcontractor shall furnish the records specified in Section 1776 directly to the Labor Commissioner, in the following manner:
(A) At least monthly or more frequently if specified in the contract with the awarding body.
(B) In a format prescribed by the Labor Commissioner.
(4) If the contractor or subcontractor is not registered pursuant to Section 1725.5 and is performing work on a project for which registration is not required because of subdivision (f) of Section 1725.5, the unregistered contractor or subcontractor is not 396
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required to furnish the records specified in Section 1776 directly to the Labor Commissioner but shall retain the records specified in Section 1776 for at least three years after completion of the work.
(5) The department shall undertake those activities it deems necessary to monitor and enforce compliance with prevailing wage requirements.
(b) The Labor Commissioner may exempt a public works project from compliance with all or part of the requirements of subdivision (a) if either of the following occurs:
(1) The awarding body has enforced an approved labor compliance program, as defined in Section 1771.5, on all public works projects under its authority, except those deemed exempt pursuant to subdivision (a) of Section 1771.5, continuously since December 31, 2011.
(2) The awarding body has entered into a collective bargaining agreement that binds all contractors performing work on the project and that includes a mechanism for resolving disputes about the payment of wages.
(c) The requirements of paragraph (1) of subdivision (a) shall only apply to contracts for public works projects awarded on or after January 1, 2015.
(d) The requirements of paragraph (3) of subdivision (a) shall apply to all contracts for public work, whether new or ongoing, on or after January 1, 2016.”
B. STATE PUBLIC WORKS APPRENTICESHIP REQUIREMENTS
1. State Public Works Apprenticeship Requirements:
a. The Contractor is responsible for compliance with Labor Code section 1777.5 and the California Code of Regulations, title 8, sections 230 – 230.2 for all apprenticeable occupations (denoted with “#” symbol next to craft name in DIR Prevailing Wage Determination), whether employed by the Contractor, subcontractor, vendor or consultant. Included in these requirements is (1) the Contractor’s requirement to provide notification (i.e. DAS-140) to the appropriate apprenticeship committees; (2) pay training fund contributions for each apprenticeable hour employed on the Contract; and (3) utilize apprentices in a minimum ratio of not less than one apprentice hour for each five journeyman hours by completion of Contract work (unless an exception is granted in accordance with Labor Code section 1777.5) or request for the dispatch of apprentices. b. Any apprentices employed to perform any of the Scope of Work shall be paid the standard wage to apprentices under the regulations of the craft or trade for which such apprentice is employed, and such individual shall be employed only for the work of the craft or trade to which such individual is registered. Only apprentices, as defined in California Labor Code section 3077, who are in training under apprenticeship standards and written apprenticeship agreements under California Labor Code sections 3070 et seq. are eligible to be employed for the Scope of Work. The employment and training of each apprentice shall be in accordance with the provisions of the apprenticeship standards and apprentice agreements under which such apprentice is training.
2. Compliance with California Labor Code section 1777.5 requires all public works contractors to:
a. Submit Contract Award Information (DAS-140):
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i. Although there are a few exemptions (identified below), all Contractors, regardless of union affiliation, must submit contract award information when performing on a California public works project.
ii. The DAS -140 is a notification “announcement” of the Contractor’s participation on a public works project—it is not a request for the dispatch of an apprentice. iii. Contractors shall submit the contract award information (you may use form DAS 140) within 10 days of the execution of the prime contract or subcontract, but in no event later than the first day in which the Contractor has workers employed on the public work.
iv. Contractors who are already approved to train apprentices (i.e. check “Box 1” on the DAS -140) shall only be required to submit the form to their approved program.
v. Contractors who are NOT approved to train apprentices (i.e. those that check either “Box 2” or “Box 3” on the DAS-140) shall submit the DAS-140 TO EACH of the apprenticeship program sponsors in the area of your public works project. For a listing of apprenticeship programs see
http://www.dir.ca.gov/Databases/das/pwaddrstart.asp.
b. Employ Registered Apprentices
i. Labor Code section 1777.5 requires that a contractor performing work in an “apprenticeable” craft must employ one (1) hour of apprentice work for every five (5) hours performed by a journeyman. This ratio shall be met prior to the Contractor’s completion of work on the project. “Apprenticeable” crafts are denoted with a pound symbol “#” in front of the craft name on the prevailing wage determination.
ii. All Contractors who do not fall within an exemption category (see below) must request for dispatch of an apprentice from an apprenticeship program (for each apprenticeable craft or trade) by giving the program actual notice of at least 72 hours (business days only) before the date on which apprentices are required. iii. Contractors may use the “DAS-142” form for making a request for the dispatch of an apprentice.
iv. Contractors who are participating in an approved apprenticeship training program and who did not receive sufficient number of apprentices from their initial request must request dispatch of apprentices from ALL OTHER apprenticeship committees in the project area in order to fulfill this requirement. v. Contractor should maintain and submit proof (when requested) of its DAS -142 submittal to the apprenticeship committees (e.g. fax transmittal confirmation). A Contractor has met its requirement to employ apprentices only after it has successfully made a dispatch request to all apprenticeship programs in the project area.
vi. Only “registered” apprentices may be paid the prevailing apprentice rates and must, at all times work under the supervision of a Journeyman (Cal. Code Regs., tit 8, § 230.1).
c. Make Training Fund Contributions
i. Contractors performing in apprenticeable crafts on public works projects, must make training fund contributions in the amount established in the prevailing wage rate publication for journeymen and apprentices.
ii. Contractors may use the “CAC -2” form for submittal of their training fund contributions.
iii. Contractors who do not submit their training fund contributions to an approved apprenticeship training program must submit their contributions to the California Apprenticeship Council (CAC), PO Box 420603, San Francisco, CA 94142-0603. 398
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iv. Training fund contributions to the CAC are due and payable on the 15th day of the month for work performed during the preceding month. v. The “training” contribution amount identified on the prevailing wage determination shall not be paid to the worker, unless the worker falls within one of the exemption categories listed below.
3. Exemptions to Apprenticeship Requirements:
a. The following are exempt from having to comply with California apprenticeship requirements. These types of contractors do not need to submit a DAS -140, DAS-142, make training fund contributions, or utilize apprentices:
i. When the Contractor holds a sole proprietor license (“Owner -Operator”) and no workers were employed by the Contractor. In other words, the contractor performed the entire work from start to finish and worked alone. ii. Contractors performing in non -apprenticeable crafts. “Apprenticeable” crafts are denoted with a pound symbol “#” in front of the craft name on the prevailing wage determination.
iii. When the Contractor has a direct contract with the Public Agency that is under $30,000.
iv. When the project is 100% federally -funded and the funding of the project does not contain any city, county, and/or state monies (unless the project is administered by a state agency in which case the apprenticeship requirements apply).
v. When the project is a private project not covered by the definition of public works as found in Labor Code section 1720.
4. Exemption from Apprenticeship Rations:
a. The Joint Apprenticeship Committee shall have the discretion to grant a certificate, which shall be subject to the approval of the Administrator of Apprenticeship, exempting the Contractor from the 1-to-5 ratio set forth in this Section when it finds that any one of the following conditions are met:
i. Unemployment for the previous three -month period in such area exceeds an average of fifteen percent (15%); or
ii. The number of apprentices in training in such area exceeds a ratio of 1 -to-5 in relation to journeymen; or
iii. The Apprenticeable Craft or Trade is replacing at least one -thirtieth (1/30) of its journeymen annually through apprenticeship training, either on a statewide basis or on a local basis; or
iv. If assignment of an apprentice to any work performed under the Contract Documents would create a condition which would jeopardize such apprentice's life or the life, safety or property of fellow employees or the public at large, or if the specific task to which the apprentice is to be assigned is of such a nature that training cannot be provided by a journeyman.
b. When such exemptions from the 1 -to-5 ratio between apprentices and journeymen are granted to an organization which represents contractors in a specific trade on a local or statewide basis, the member contractors will not be required to submit individual applications for approval to local Joint Apprenticeship Committees, provided they are already covered by the local apprenticeship standards.
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5. Contractor’s Compliance:
a. The responsibility of compliance with this Section for all Apprenticeable Trades or Crafts is solely and exclusively that of the Contractor. All decisions of the Joint Apprenticeship Committee(s) under this Section are subject to the provisions of California Labor Code section 3081 and penalties are pursuant to Labor Code section 1777.7 and the determination of the Labor Commissioner.
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EXHIBIT A – SCOPE OF EXPENDITURES
APPLIES TO AGREEMENT ARPA21-PRJC-048-CHI BETWEEN SAN BERNARDINO
COUNTY AND CITY OF CHINO RELATED TO THE CORONAVIRUS LOCAL FISCAL
RECOVERY FUND FOR LOCAL GOVERNMENTS
1. The following is the mutually agreed upon scope of expenditures to be funded by the American Rescue Plan Act of 2021 (ARPA) Coronavirus Local Fiscal Recovery Fund (CLFRF) received by San Bernardino County:
Kimball Ave Turn Pocket West: Create a left turn pocket on westbound Kimball Avenue before Euclid Avenue. Remove existing concrete curb and median and replacing it with a new turn pocket will facilitate access to the businesses on the southeast corner of Kimball and Euclid. This will facilitate customer access to these businesses, improve flow of traffic through this busy intersection and make it safer for residents and patrons to enter the shopping center.
Kimball Ave Turn Pocket East: Create a left turn pocket on eastbound Kimball Avenue before Flight Avenue. Remove existing curb and median and replace with a new turn pocket, and relocate a drive approach to facilitate access to the aviation hangar on San Bernardino County Airport property.
2. Not-to-exceed amount of expenditures described in 1, above, obligated during the period of October 17, 2023 and December 31, 2024 and expended on or before December 31, 2026 is $ 314,324.
3. The following is the list of projected expenditures that will be funded by the CLFRF for the scope identified in 1, above:
Kimball Ave Turn Pocket East Projected
Expenditures*
1. Mobilization $13,625.00
2. Traffic Control $10,000.00
3. Excavation Safety Measures $4,000.00
4. Replace Monuments $3,000.00
5. Construct Commercial Driveway $13,000.00
6. Remove and dispose existing driveway, curb and gutter $9,000.00
7. Remove and dispose existing landscaping and irrigation system $10,000.00
8. Construct PCC Pavement/mowstrip median $8,000.00
9. Construct 5” AC over 9” AB $28,800.00
10. Construct 8” Curb and Gutter $14,000.00
11. Install/Relocate Signage and Striping, Median Nose Treatment $7,900.00 Subtotal Turn Pocket East $121,325.00
Kimball Ave Turn Pocket West
1. Mobilization $13,625.00
2.Traffic Control $10,000.00
3. Excavation Safety Measures $4,000.00
401
4. Replace Monuments $3,000.00
5. Sawcut, Remove, and Dispose existing curb $12,600.00
6. Construct PCC median curb $24,200.00
7. Construct 5” AC over 9” AB $36,000.00
8. Provide Irrigation Sleeves $20,000.00
9. Install Signage and Striping, Median Nose Treatment $5,650.00 Subtotal Turn Pocket West $129,075.00
Subtotal Construction $250,400.00
Construction Contingencies (10%) $25,040.00
Design $ 10,000.00
Materials Testing and Special Inspection $13,184.00
Construction Management $15,700.00
Total Expenditures $314,324.00
*Note: Projected expenditures may differ from the actual costs but a total amount of expenditure shall not exceed the amount as specified in Section 2, above.
4. The Contractor is responsible for ensuring that any procurement using CLFRF funds, or payments under procurement contracts using such funds are consistent with the procurement standards set forth in the Uniform Guidance at Title 2 C.F.R. Sections 200.317 - 200.327, as applicable. The Uniform Guidance establishes in Title 2 C.F.R.
Section 200.319 that all procurement transactions for property or services must be conducted in a manner providing full and open competition, consistent with standards outlined in Title 2 C.F.R. Section 200.320. If the full and open procurement is not applicable, provide a reason for its exemption:
Confirm – No exemption identified
402
01225.0006/515653.2
Contract No.:
Approved:
AGREEMENT
KIMBALL AVENUE MEDIAN IMPROVEMENTS
THIS AGREEMENT is made and entered into this 21st day of May, 2024 by and between THE CITY OF CHINO, a municipal corporation, hereinafter called “ City”, and Metrocell Construction, 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 MEDIAN IMPROVEMENTS” 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 Hundred Fif ty Tho usand Three Hundred Ninety-Nine Dollars and Forty Cents ($250,399.40) 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 heirs, executors, administrators, successors and assignees, do hereby agree to the full performance of the covenants herein contained.
ARTICLE IV: Contractor shall begin work within five (5) calendar days after receiving a Notice to Proceed from the City and the work shall be completed within Forty-Five (45) 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 403
01225.0006/515653.2
(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 other 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 leg al counsel from representing both 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 ha ve 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 404
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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:
Fred Galante, City Attorney Hye Jin Lee, PE, Director of Public Works
METROCELL CONSTRUCTION
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
406
Project Name/No.: Geotechnical Engineering Svcs Contract No.: ______________ for Kimball Avenue Median
Improvements
Project Manager: PW/ M. Hindersinn Approved: ________________ 01225.0001/863606.2 1 (Short Form)
AGREEMENT FOR SERVICES
BETWEEN THE CITY OF CHINO AND
AESCO, INC.
THIS AGREEMENT FOR SERVICES (herein “Agreement”) is made and entered into this 21st day of May, 2024 (“Effective Date”) by and between the CITY OF CHINO, a California municipal corporation (“City”) and AESCO, Inc. , a California Corporation (herein “Consultant”).
NOW, THEREFORE, the parties hereto agree as follows:
1. SERVICES OF CONSULTANT
1.1 Scope of Services . In compliance with all of the terms and conditions of this Agreement, the Consultant shall perform the work or services set forth in the “Scope of Services” attached hereto as Exhibit “A” and incorporated herein by reference. 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. Consultant warrants that it has the experience and ability to perform all work and services required hereunder and that it shall diligently perform such work and services in a professional and satisfactory manner.
1.2 Compliance With Law . All work and services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental agency of competent jurisdiction.
1.3 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 and 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 Relations (“DIR”) . Consultant shall post job site notices, as prescribed by regulation.
(b) Prevailing Wages . Consultant shall pay prevailing wages to the extent 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 party on request. By initiating any work under this Agreement, Consultant acknowledges receipt of a copy of the DIR determination of the prevailing rate of per diem 407
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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 Labor Code Sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. The Consultant shall, as a penalty to the City, forfeit two hundred dollars ($200) for each 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 comply with and be bound by the provisions of Labor Code Section 1776, which requires Consultant and each subcontractor to:
keep accurate payroll records and verify such records in writing under penalty of perjury, as specified in Section 1776; certify 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 employment of apprentices on public works projects. Consultant shall be responsible for compliance with these aforementioned Sections for all apprenticeable occupations. Prior to commencing work under this Agreement, Consultant shall provide City with a copy of the information submitted to any applicable 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 bound 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, forfeit twenty -five dollars ($25) for each worker employed in the performance 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 the provisions of Division 2, Part 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 permitted upon public work upon compensation for all hours worked in excess 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 will be required to secure the payment of compensation to its employees if it has employees. By executing this Agreement, and in accordance with the provisions of California Labor Code Section 1861, Consultant certifies as follows:
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“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability 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 of this contract.”
(i) Consultant’s Responsibility for Subcontractors . For every subcontractor who will perform work under this Agreement , Consultant shall be responsible for such subcontractor's compliance with Division 2, Part 7, Chapter 1 (commencing 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 enforce such contractual provisions and ensure subcontractor's compliance, including w ithout limitation, conducting a review of the certified payroll records of the subcontractor on a periodic basis or upon becoming aware of the failure of the subcontractor to pay his or her workers the specified prevailing rate of wages. Consultant shall diligently take corrective action to halt or rectify any such failure by any subcontractor.
1.4 Licenses, Permits, Fees and Assessments . Consultant shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the performance of the services required by the Agreement.
1.5 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 represents 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 under this Agreement is compatible, 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.
1.6 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the “Special Requirements” attached hereto as Exhibit “B” and incorporated herein by this referenc e. 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.
2. COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement, Consultant shall be compensated in accordance with the “Schedule of Compensation” attached hereto as Exhibit “C” and incorporated herein by this reference, but not exceeding the maximum contract amount of Thirteen Thousand One Hundred Eighty -Four Dollars and Zero Cents ($13,184.00) (“Contract Sum”).
2.2 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 409
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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. (e) If this Agreement requires prevailing wages, per Section 1.4 of the Agreement, all invoices shall include a copy of Consultant’s Certified Payroll and proof that Certified Payroll has been submitted to the DIR.
Consultant shall also submit a list of the prevailing wage rates for all employees and subcontractors providing services under this Agreement, as applicable, with Consultant’s first invoice. If these rates change at any time during the term of the Agreement, Consultant shall submit a new list of rates to the City 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 that payment will occur within this time 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.
2.3 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 a ctual costs of the extra work, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Consultant. Any increase in compensation for extra work shall require the 410
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approval of City 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 Section 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 costly or time consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor. City may in its sole and absolute discretion 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.
2.4 Contingency of Funds.
Consultant acknowledges that funding or portions of funding for this Agreement may be contingent upon State budget 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 hereunder in the budget approved by Chino City Council for each fiscal 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.
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 perform all services within the time period(s) established in the “Schedule of Performance” attached hereto as Exhibit “D” and incorporated herein by this 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 thirty (30) 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 enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Consultant shall within ten (10) days of the commencement of such delay notify 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 conclusive 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 extension of the Agreement pursuant to this Section. 411
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3.4 Term. Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services, which shall be no later than June 30, 20 25, except as otherwise provided in the Schedule of Performance ( Exhibit “D” ). This Agreement may be renewed by a written amendment for up to an additional Two (2) One (1) year terms at the option of the City if the City is satisfied with the quality of services performed by Consultant under this Agreement.
4. COORDINATION OF WORK
4.1 Representative of Consultant. ____________________________ is hereby designated as being the representative of Consultant authorized to act on its behalf with respect to the work and services specified herein and make all decisions in connection therewith.
All personnel of Consultant and any authorized agents shall be under the exclusive direction of the representative of Consultant. 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, and shall keep City informed of any changes.
4.2 Project Manager . Michele Hindersinn, PE, Principal Engineer , or any other person as may be designated by the City Manager, is hereby designated as being the representative the City authorized to act in its behalf with respect to the work and services specified herein and to make all decisions in connection therewith (“Project Manager”).
4.3 Prohibition Against Subcontracting or Assignment . Consultant shall not contract with any entity to perform in whole or in part the work or services required hereunder without the express written approval of the City. Neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. Any such prohibited assignment or transfer shall be void.
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 or employees, perform the services required herein, except as otherwise set forth. Consultant shall perform all services required herein as an independent contractor of City with only such obligations as are consistent with that role. 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, or that it is a member of a joint enterprise with City.
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 shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. (a) General liability insurance . Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance 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 property damage. The policy must include contractual liability that 412
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has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
(b) Automobile liability insurance . Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Services to be performed under this Agreement, including coverage for any owned, hired, non - owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
(c) Professional liability (errors & omissions) insurance . Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 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. (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 include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages 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 . Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and endorsements must be approved by City’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
(b) Duration of coverage . Consultant shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the 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 herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or 413
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be endorsed to contain a provision that such coverage shall also apply on a primary and non - contributory basis for the benefit of City before the City’s own insurance 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 specifications 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 Commissioner to transact business of insurance or that is on the List 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 approved by the City’s Risk Manager.
(f) Waiver of subrogation . All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow 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). Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non -compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder.
(h) Requirements not limiting . Requirements of specific coverage features or limits contained in this section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the 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 cancellation . 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 required) or nonrenewal of coverage for each required coverage.
(j) Additional insured status . General liability policies shall provide or be endorsed to provide that City and its officers, officials, employees, and agents, and volunteers 414
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shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies.
(k) Prohibition of undisclosed coverage limitations . 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 claim 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 involved in the project by Consultant, provide the same minimum insurance coverage and endorsements required of Consultant. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this 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 Consultant may renegotiate Consultant’s compensation.
(o) Self-insured retentions . Any self -insured retentions 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 deductible. Self -insurance will not be considered to comply with these specifications unless approved by City.
(p) Timely notice of claims . Consultant shall 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 insurance . Consultant shall also procure and maintain, at its own cost and expense, any additional kinds 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 permitted by law, Consultant agrees to indemnify, defend and hold harmless the City, its officers, employees 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 property, 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, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities provided herein of Consultant, its officers, employees, agents, 415
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subcontractors, invitees, or any individual or entity for which Consultant is legally liable (“indemnitors”), or arising from Consultant’s or indemnitors’ reckless or willful misconduct, or arising from Consultant’s or indemnitors’ negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, except claims or liabilities occurring as a result of City’s sole negligence or willful acts or omissions . Notwithstanding the above, a design professional’s indemnity hereunder shall be limited to claims and liabilities arising out of the negligence, recklessness or willful misconduct of the design professional. The indemnity obligation shall be binding on successors and assigns of Consultant and shall survive termination of this Agreement.
6. RECORDS, REPORTS, AND RELEASE OF INFORMATION
6.1 Records. Consultant shall keep, and require subcontractors 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 and shall keep such records for a period of three years following completion of the services hereunder. 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.
6.2 Reports. Consultant shall periodically prepare and submit to the Project Manager such reports concerning the performance of the services required by this Agreement or as the Project Manager shall require.
6.3 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 the City without prior written authorization from the Project Manager.
(b) Consultant shall not, without prior written authorization from the Project Manager or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony 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 the City notice of such court order or subpoena.
(c) If Consultant provides any information or work product in violation of this Agreement, then the 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.
(d) Consultant shall promptly notify the City should Consultant be served with any summons, complaint, subpoena, notice of deposition, request for documents, 416
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interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreeme nt and the work performed there under. The City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with the City and to provide the City with the opportunity to review any response to discovery requests provided by Consultant.
6.4 Ownership of Documents. All studies, surveys, data, notes, computer files, reports, records, drawings, specifications, maps, designs, photographs, documents and other materials (the “documents and materials”) prepared by Consultant in the performance of this Agreement shall be the property of the City and shall be delivered to the 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 the City of its full rights of ownership use, reuse, or assignment of the documents and materials hereunder.
Moreover, Consultant with respect to any documents and materials that may qualify as “works made for hire” as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed “works made for hire” for the City.
7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law . 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. 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 which Consultant may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, 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. If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under this Article.
7.3 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary provision herein, Consultant shall file a statutory claim pursuant to Government Code Sections 905 et seq. and 910 et seq., in order to pursue a ny legal action under this Agreement.
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party 417
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of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
7.4 Liquidated Damages . Since the determination 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 shall pay to the City the sum of Zero Dollars and Zero Cents ($0.00) 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 account of services performed by the Consultant any accrued liquidated damages.
7.5 Termination Prior to Expiration of Term . 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 terminate this Contract at any time, with or without cause, 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 terminate this Contract at any time, with 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. 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, but not exceeding the compensation provided therefore in the Schedule of Compensation Exhibit “C”. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section 7.2.
7.6 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 completion of the services required hereunder 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.
8. MISCELLANEOUS
8.1 Covenant Against Discrimination . Consultant covenants that, by and for itself, its heirs, executors, assigns and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color , creed, religion, sex, gender, sexual orientation, marital status, national origin, 418
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ancestry, or other protected class in the performance of this Agreement. Consultant shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color , creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry, or other protected class
8.2 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Consultant, or any successor in interest, in the event of any default or breach by the City or for any amount, which may become due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
8.3 Notice. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first -class mail, 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 designated on the execution page of this Agreement.
Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy - two (72) hours from the time of mailing if mailed as provided in this Section.
8.4 Integration; Amendment . It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing.
8.5 Severability. In the event that part of this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining portions of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.
8.6 Waiver. No delay or omission in the exercise of any right or remedy by non-defaulting party on any default shall impair such right or remedy or be construed as a waiver. A party’s consent to or approval of any act by the other party requiring the party’s consent or approval shall not be deemed to waive or render unnecessary the other party’s consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
8.7 Attorneys’ Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which any be granted, whether legal or equitable, shall be entitled to reasonable attorney’s fees, whether or not the matter proceeds to judgment.
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8.8 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
8.9 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.
8.10 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 City participate in any decision relating to this Agreement which may affect his/her financial interest or the financial interest of 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 interests 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 not pay or give, to any third party including, but not limited to, any City official, officer, or employee, any money, consideration, 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 other 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 awarded any agreement. Consultant is aware of and understands that any such act(s), omission(s) o r other conduct resulting in such payment of money, consideration, or other thing of value will render this Agreement void and of no force or effect.
Consultant’s Authorized Initials _______
8.11 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. 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 CONTENT:
___________________________________
Hye Jin Lee, PE, Director of Public Works
CONSULTANT:
AESCO, INC.:
By:
Name:
Title:
By:
Name:
Title:
Address:
Two corporate officer signatures required when Con sultant is a corporation, with one signature required from each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. 421
01225.0001/863606.2 A-1
EXHIBIT “A”
SCOPE OF SERVICES
I. Consultant will perform the Services described in Consultant’s Proposal, attached hereto as Exhibit A-1.
II. 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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EXHIBIT “A-1”
SCOPE OF WORK
• Geotechnical Engineering Services are to include, but are not limited to, the following:
• Geotechnical Observation
• Laboratory Testing; typical but not limited to
o 2 subgrade samples to get max density for trench and street pavement base o 1 Base Material sample to determine quality and max density o 1 AC material sample to determine quality and max density o 1 set of concrete cylinder tests for the street gutters for quality and strength o 45 half days (180 hours) of field material compaction testing to verify subgrade/base/AC testing. Days of testing to be set by CM based on scheduled construction activities to get representative sample of the job’s quality of work • Report Development (e.g. Trench Compaction Report, Materials Testing Final Report, etc.)
• Field Services
• Daily Inspection Reports
• Report to City’s Construction Manager/Inspector
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01225.0001/863606.2 B-1
EXHIBIT “B”
SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
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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 approval of the 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 2.2.
IV. The total compensation for the Services shall not exceed the Contract Sum, as provided in Section 2.1 of this Agreement.
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EXHIBIT “C-1”
PROJECT TOTAL FEE
Kimball Median Improvements $13,184.00
Grand Total: $13,184.00
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D-1
01225.0001/863606.2
EXHIBIT “D”
SCHEDULE OF PERFORMANCE
I. Consultant shall perform all services timely in accordance with the following schedule:
*Finalized deadline dates will be contingent upon actualized project schedules, which shall be approved by the Project Manager (s). Consultant will coordinate with City and Project staff to ensure timely completion of services and adherence to approved task schedules.
II. The Project Manager may approve extensions for performance of the services in accordance with Section 3.2.
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MEMORANDUM
CITY OF CHINO
DEVELOPMENT SERVICES DEPARTMENT
CITY COUNCIL MEETING DATE: MAY 21, 2024
TO: MAYOR AND CITY COUNCIL MEMBERS, CITY OF CHINO
FROM: WARREN MORELION, AICP, DIRECTOR OF DEVELOPMENT SERVICES
SUBJECT
..titl e
Ordinance 2024-008 Adding Chapter 12.24, "Limitation on Use of City Property", to the Chino Municipal Code.
..end
RECOMMENDATION
..recommendation
Approve the introduction of Ordinance No. 2024 -008, to be read by number and title only and waive further reading of the Ordinance, adding Chapter 12.24, “Limitation on Use of City Property”, to the Chino Municipal Code, to permit the City to establish limits on access to City owned or controlled properties, to be established via Resolution. ..body
FISCAL IMPACT
There is no fiscal impact.
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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CITY COUNCIL MEETING DATE: MAY 21, 2024
TITLE: ORDINANCE 2024 -008 ADDING CHAPTER 12.24, "LIMITATION ON USE OF CITY PROPERTY", TO THE CHINO MUNICIPAL CODE.
PAGE: 2
BACKGROUND
Government Code section 37359 allows the legislative body of a city to withdraw or place limits on public access to any property owned or controlled by the city. Pursuant to this authority, the City Council may limit the access or use of City property via the area of property that may be accessed, the time that it may be accessed, or by any other reasonable manner deemed necessary by the City. Any person thereafter using the property without permission or in a manner other than that prescribed would be considered a trespasser and may be subject to criminal trespass law and/or punishment as proscribed under the Chino Municipal Code.
The proposed Ordinance, if adopted, would allow the City to limit access to City owned or controlled property by resolution, such as the area around City Hall. This Ordinance would not limit or restrict any person from access or use who has a private right and/or City approval to access or use the City property outside of business hours. Violations of the Ordinance would be able to be enforced through state civ il and criminal laws governing trespass and any manner prescribed for violations of the Chino Municipal Code.
ISSUES/ANALYSIS
City staff is recommending the City Council introduce by first reading the proposed Ordinance attached as Exhibit A, which wo uld allow the City to limit access to City owned or controlled properties. In particular, City staff and the Chino Police Department seek to be able to close certain City-owned properties located in downtown Chino overnight.
The Ordinance would permit the City to establish limits on access to City owned or controlled properties via resolution, which provides the City additional flexibility in establishing and amending these limits. The proposed Resolution is attached as Exhibi t B and would be brought before the City Council for consideration if the proposed Ordinance is passed. As currently drafted, the proposed Resolution would prohibit public access on the City Hall Complex Property, the Old Fire Station (vacant lot) and Fami ly Services Building Property, the Carolyn Owens Community Center Property, the Chino Branch Library Property, the Chino Senior Center Property, the Seventh Street Theater Property, the downtown Chaffey College Building Property, the Chino Community Building Property, the IT Center Property, the Old Schoolhouse Museum Property, and various City -owned parking lots between the hours of 10:00 p.m. and 6:00 a.m., seven days a week. If a public meeting or City -authorized event located at these properties ends after 10:00 p.m. through approval of a City Rental Facility Permit, the property would be allowed to remain open to those persons authorized to attend the event listed in the Rental Facility Permit for 30 minutes after the conclusion of the event. These prop osed limits to public access would not apply to the sidewalks bordering the properties, to allow for free travel in the downtown area.
This Ordinance will place the same hours of operations on the above -listed properties that currently exist for all City parks. The Police Department will use this Ordinance, as they use the current Municipal Codes, to deter vandalism, burglary, drug use, and other crimes that commonly occur on public property during nighttime hours. The Ordinance will enhance the safety of the surrounding neighborhoods and City property by providing Police Officers probable cause to investigate and detain individuals loitering on public property at night. This type of Ordinance has proven successful in deterring crime in the City’s parks and will have the same positive impacts for the parcels that may be designated by Resolution authorized by the Ordinance.
429
CITY COUNCIL MEETING DATE: MAY 21, 2024
TITLE: ORDINANCE 2024 -008 ADDING CHAPTER 12.24, "LIMITATION ON USE OF CITY PROPERTY", TO THE CHINO MUNICIPAL CODE.
PAGE: 3
ENVIRONMENTAL IMPACT
The proposed Ordinance is not subject to the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelin es Section 15061(b)(3) because it can be seen with certainty that it will not have a significant effect or physical change to the environment.
Attachments: Exhibit A – Ordinance 2024-008
Exhibit B – Draft Resolution Closing City Property During Certain Hours
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01225.0001/944570.3
ORDINANCE NO. 2024-008
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CHINO, CALIFORNIA, ADDING CHAPTER 12.24 (LIMITATION
ON USE OF CITY PROPERTY) TO THE CHINO MUNICIPAL
CODE
WHEREAS, Government Code Section 37359 provides: “the legislative body having control of any property owned or controlled by the city may at any time withdraw the property from the personal access and use of members of the public, or limit the access or use in area or time or in any other reasonable manner deemed necessary. Any person thereafter using the property without permission or in a manner other than that prescribed is a trespasser. This section does not limit or restrict any person from access or use who has a private right in the property”; and WHEREAS, in accordance with Government Code Section 37359, the City wishes to adopt regulations limiting the personal access and use of City property by members of the public; and
WHEREAS, the City desires to adopt such regulations in order to enhance the safety of City property and neighborhoods surrounding City property by providing Police Officers probable cause to investigate and detain individuals loitering on public property at night; and WHEREAS, in addition to enforcing limitations on the personal access and use of City property by members of the public through trespass laws, the City also wishes to adopt enforcement mechanisms on such use of or access to City property through administrative remedies and nuisance abatement.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHINO DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. The City Council finds that the above recitals are true and correct and are incorporated herein by this reference.
SECTION 2. Chapter 12.24 is hereby added to the Chino Municipal Code and shall read as follows:
Chapter 12.24 LIMITATIONS ON USE OF CITY PROPERTY
12.24.010 Limitations Established by City Council.
Pursuant to Government Code Section 37359, and any successor provision of state law, the City Council may, by resolution, withdraw any property owned or controlled by the City from the personal access and use of members of the public, or limit such access or use to specific areas or times or in any other reasonable manner deemed necessary by the City Council. Any person who accesses or uses property owned or controlled by the City in a manner prohibited by a resolution adopted by the City Council under this Section is a trespasser under state law and shall also be in violation of this Chapter.
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12.24.020 Exception.
Limitations on access to and use of property imposed pursuant to this Chapter shall not apply to any person who has a private right to enter upon and use the property, including but not limited to, a right granted by a lease or license agreement with the City or a valid permit issued by the City, or who has otherwise been duly authorized by the City in writing to enter upon or use the property.
12.24.030 Violations.
Violations of this Chapter may be enforced through state cr iminal and civil laws governing trespass and may also be punished in any manner prescribed for violations of this municipal code in Title 1 or in any other manner provided by law.
Such enforcement mechanisms shall be cumulative and one enforcement mechanism shall not be exclusive of any other enforcement mechanism unless such exclusion is required by law.
SECTION 3. Effective Date. This Ordinance shall be in full force and effect thirty (30) days after its second reading and adoption.
SECTION 4. Certification. The City Clerk of the City of Chino shall certify to the passage and adoption of this Ordinance and shall cause the same to be published in the Chino Champion, a newspaper of general circulation, within said City in accordance with the prov isions of the Government Code.
PASSED, APPROVED, AND ADOPTED THIS 4TH DAY OF JUNE 2024.
By:
EUNICE M. ULLOA, MAYOR
ATTEST:
By:
NATALIE GONZAGA, CITY CLERK
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Ordinance No. 2024-008
01225.0001/944570.3
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO ) §
CITY OF CHINO )
I, Natalie Gonzaga, City Clerk of the City of Chino do hereby certify that the foregoing Ordinance of the City of Chino was duly adopted by said City Council at a regular meeting held on the 4th day of June 2024 by the following vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
By:
NATALIE GONZAGA, CITY CLERK
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01225.0001/944585.4
RESOLUTION NO. 2024-xxx
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHINO, CALIFORNIA,
APPROVING THE CLOSUR E OF SPECIFIED CITY PROPERTY AND CITY
CONTROLLED PROPERTY DURING CERTAIN HOURS
WHEREAS, Chino Municipal Code Section 12.24.010 provides as follows: “Pursuant to Government Code Section 37359, and any successor provision of State law, the City Council may, by resolution, withdraw any property owned or controlled by the City from the personal access and use of members of the public, or limit such access or use to specific areas or times or in any other reasonable manner deemed necessary by the City Council. Any person who accesses or uses property owned or controlled by the City in a manner prohibited by a resolution adopted by the City Council under this Section is a trespasser under State law and shall also be in violation of this Chapter;” and
WHEREAS, Chino City Hall is located at 13220 Central Avenue in the City of Chino, on a property comprised of three parcels designated by Assessor Parcel Numbers 1020-284-22, 1020- 272-15, and 1020-272-15, all of which are owned by the City of Chino (“City Hall Property Complex”).
The City Hall Property Complex is comprised of the block bounded by D Street to the north, Central Avenue to the east, Chino Avenue to the south, and 6th Street to the west; and
WHEREAS, former Fire Station 1, which is a currently vacant lot and the Family Services Building are owned by the City and located at 13201 Central Avenue in the City of Chino on a property comprised of one parcel designated by Assessor Parcel Number 1020-274-11 (“Old Fire Station & Family Services Property”). The Old Fire Station & Family Services Property is abutted by the Carolyn Owens Community Center to the north, 9th Street to the east, Central Avenue to the west, and Chino Central Park to the south. The City Hall Property Complex is located West of the Old Fire Station & Family Services Property, across Central Avenue; and
WHEREAS, the Carolyn Owens Community Center is located at 13201 Central Avenue in the City of Chino, on a property comprised of five parcels designated by Assessor Parcel Numbers 1020-274-02, 1020-274-03, 1020-274-09, 1020-274-08, and 1020-274-10, which are owned by the City of Chino (“ Carolyn Owens Community Center”). The Carolyn Owens Community Center is abutted by a private business to the north, 9th Street to the east, Central Avenue to the west, and the Old Fire Station Property to the south. The City Hall Property Complex is located west of the Carolyn Owens Community Center, across Central Avenue; and
WHEREAS, the Chino Branch Library is located at 13 180 Central Avenue in the City of Chino, on a property comprised of six parcels designated by Assessor Parcel Numbers 1020-271- 06, 1020-271-05, 1020-271-04, 1020-271-03, 1020-271-02, and 1020-271-01, which are owned by the City of Chino (“Chino Branch Library”). The Chino Branch Library is abutted by the Chino Senior Center to the north, Central Avenue to the east, 7th Street to the west, and D Street to the south. The City Hall Property Complex is located south of the Chino Branch Library, across D Street; and
WHEREAS, the Chino Senior Center is located at 13170 Central Avenue in the City of Chino, on a property comprised of six parcels designated by Assessor Parcel Numbers 1020-271-07, 1020- 271-22, 1020-271-08, 1020-271-21, 1020-271-09, and 1020-271-20, which are owned by the City of Chino (“Chino Senior Center”). The Chino Senior Center is abutted by Chaffey College and the Seventh Street Community Theater to the north, Central Avenue to the east, 7th Street to the west, 434
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and the Chino Branch Library to the south. The City Hall Property Complex is located south of the Chino Senior Center, across D Street; and
WHEREAS, the Seventh Street Community Theater is located at 13123 7th Street in the City of Chino, on a property comprised of four parcels designated by Assessor Parcel Numbers 1020- 271-10, 1020-271-11, 1020-271-12, and 1020-271-23, which are owned by the City of Chino (“Seventh Street Theater”). The Seventh Street Theater is abutted by C Street to the north, the Chaffey College Building to the east, 7th Street to the west, and the Chino Senior Center and Chino Branch Library to the south; and
WHEREAS, the Chaffey College Downtown Chino Building is located at 13 106 Central Avenue in the City of Chino, on a property comprised of four parcels designated by Assessor Parcel Numbers 1020-271-19, 1020-271-18, 1020-271-24, and 1020-271-15, which are owned by the City of Chino (“Chaffey College Building”). The Chaffey College Building is abutted by C Street to the north, Central Avenue to the east, the Seventh Street Theater to the west, and the Chino Senior Center and Chino Branch Library to the south; and
WHEREAS, the Chino Community Building is located on a property comprised of three parcels designated by Assessor Parcel Number 1020 -054-01, 1020-054-14, and 1020 -054-15, which is owned by the City of Chino (“Chino Community Building”). The Chino Community Building is abutted by B Street to the north, 11th Street to the east, 10th Street to the west, and an alley to the south; and
WHEREAS, the IT Center Building is located at 13170 7th Street in the City of Chino on a property comprised of one parcel designated by Assessor Parcel Number 1020-283-29 (“IT Center Building”). The IT Center Building is abutted by the Chino Valley Chamber of Commerce Building to the north, 7th Street to the east, a commercial building to the south, and Aguiar Square to the west; and
WHEREAS, the Old Schoolhouse Museum Building is located at 5493 B Street in the City of Chino on a property comprised of one parcel designated by Assessor Parcel Number 1020-062-25 (“Old Schoolhouse Museum Building”). The Old Schoolhouse Museum Building is abutted by B Street to the north, residential homes to the east and south, and 11th Street to the west; and
WHEREAS, the City of Chino owns and operates six parking lots in downtown Chino adjacent to the City Hall Property Complex, the Chaffey College Building, and the Seventh Street Theater, further detailed below and individually referred to in this Resolution as the Transit Depot Parking Lot, the 5th Street Parking Lot, the 6th and D Street Parking Lot, the 7th and C Street Parking Lot, the Central Avenue and C Street Parking Lot, and the 9th and C Street Parking Lot. These City- owned and operated parking lots are collectively referred to in this Resolution as the “Downtown Parking Lots”; and
WHEREAS, the 5th Street Parking Lot is located on a property comprised of two parcels designated by Assessor Parcel Numbers 1020-282-09 and 1020-282-10, which are owned by the City of Chino (“5th Street Parking Lot”).The 5th Street Parking Lot is abutted by a private business to the north, the 6th and D Street Parking Lot and Transit Depot Parking Lot to the east, 5th Street to the west, and a private business to the south; and
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01225.0001/944585.4
WHEREAS, the Transit Depot Parking Lot is located on a property comprised of three parcels designated by Assessor Parcel Numbers 1020-282-06, 1020-282-05, and 1020-282-04, which are owned by the City of Chino (“Transit Depot Parking Lot”).The Transit Depot Parking Lot is abutted by the 6th and D Street Parking Lot to the north, 6th Street to the east, the 5th Street Parking Lot to the west, and a private business to the south; and
WHEREAS, the 6 th and D Street Parking Lot is located on a property comprised of two parcels designated by Assessor Parcel Numbers 1020-282-02 and 1020-282-01, which are owned by the City of Chino (“6th and D Street Parking Lot”).The 6th and D Street Parking Lot is abutted by D Street to the north, 6th Street to the east, a private business to the west, and the Transit Depot Parking Lot to the south; and
WHEREAS, the 7 th and C Street Parking Lot is located on a property comprised of two parcels designated by Assessor Parcel Numbers 1020-034-12 and 1020-034-11, which are owned by the City of Chino (“7th and C Street Parking Lot”).The 7th and C Street Parking Lot is abutted by private property to the north, 7th Street to the east, private property to the west, and C Street to the south; and
WHEREAS, the Central Avenue and C Street Parking Lot is located on a property comprised of one parcel designated by Assessor Parcel Number 1020-273-10, which is owned by the City of Chino (“Central Avenue and C Street Parking Lot”).The Central Avenue and C Street Parking Lot is abutted by C Street to the north, the 9th and C Street Parking Lot to the east, Central Avenue to the west, and a private business to the south; and
WHEREAS, the 9th and C Street Parking Lot is located on a property comprised of one parcel designated by Assessor Parcel Number 1020-271-11, which is owned by the City of Chino (“9th and C Street Parking Lot”).The 9th and C Street Parking Lot is abutted by C Street to the north, 9th Street to the east, the Central Avenue and C Street Parking Lot to the west, and a private business to the south; and
WHEREAS, the City Council wishes to ensure that the City Hall Property Complex, the Old Fire Station Property, the Carolyn Owens Community Center, the Chino Branch Library, the Chino Senior Center, the Seventh Street Theater, the Chaffey College Buil ding, the Chino Community Building, and the Downtown Parking Lots are only used for authorized purposes.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHINO, CALIFORNIA, HEREBY RESOLVES AS FOLLOWS:
SECTION 1. The above recitals are true and are incorporated herein.
SECTION 2. The City Hall Property Complex, the Old Fire Station Property, the Carolyn Owens Community Center, the Chino Branch Library, the Chino Senior Center, the Seventh Street Theater, the Chaffey College Building, the Chino Community Building, IT Center Building, Old Schoolhouse Museum Building, and the Downtown Parking Lots, as defined in the recitals and depicted in Exhibit A, are closed to all members of the public between the hours of 10:00 p.m. and 6:00 a.m., seven days a week. Notwithstanding the previous sentence, if a City-authorized event located at the City Hall Property Complex, the Old Fire Station Property, the Carolyn Owens Community Center, the Chino Branch Library, the Chino Senior Center, the Seventh Street Theater, the Chaffey College 436
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01225.0001/944585.4
Building, the Chino Community Building, or the Downtown Parking Lots ends after 9:30 pm, then the property or properties where the public meeting or City-authorized event is held shall remain open to the public for 30 minutes after the time that the event ends. Additionally, if a City-authorized event through approval of a City Rental Facility Permit takes place at these properties, which ends after 10:00 p.m., the property would be allowed to remain open to those persons authorized to attend the event listed in the Rental Facility Permit for 30 minutes after the conclusion of the event.
SECTION 3. This resolution does not apply to the sidewalks adjacent to D Street, C Street, B Street, Pioneer Street, Central Avenue, Chino Avenue, 5th Street, 6th Street, 7th Street, 9th Street, 10th Street, and 11th Street.
SECTION 4. This resolution does not change the business hours during which buildings located on the City Hall Property Complex, the Old Fire Station Property, the Carolyn Owens Community Center, the Chino Branch Library, the Chino Senior Center, the Seventh Street Theater, the Chaffey College Building, the Chino Community Building, and the Downtown Parking Lots are open to the public.
SECTION 5. This Resolution shall be effective on the effective date of Ordinance No. 2024-008.
APPROVED AND ADOPTED THIS 4TH DAY OF JUNE 2024.
EUNICE M. ULLOA, MAYOR
ATTEST:
NATALIE GONZAGA, CITY CLERK
437
RESOLUTION NO. 2024-xxx
01225.0001/944585.4
State of California )
County of San Bernardino ) ss.
City of Chino )
I, Natalie Gonzaga, City Clerk of the City of Chino, do hereby certify that the forgoing Resolution was duly adopted by the City Council at a regular meeting held on the 4th day of June 2024, by the following votes:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
NATALIE GONZAGA, CITY CLERK
Attachment: Exhibit “A” – Map depicting Downtown City-Owned Properties 438
439
MEMORANDUM
CITY OF CHINO
ADMINISTRATION DEPARTMENT
CITY COUNCIL MEETING DATE: MAY 21, 2024
TO: MAYOR AND CITY COUNCIL MEMBERS, CITY OF CHINO
FROM: LINDA REICH, CITY MANAGER
SUBJECT
..titl e
Resolution Amending the City's Classification and Salary Schedule.
..end
RECOMMENDATION
..recommendation
Adopt Resolution No. 2024 -24 amending the Classification and Salary Schedule to add the following positions and appropriate funds in the FY 2024 -25 Mid -Term Budget : One (1) Sergeant; one (1) Corporal; two (2) Police Officer; one (1) Principal Engineer; two (2) Associate Engineer; one (1) Information Technology Analyst (GIS); one (1) Assistant Parks and Capital Projects Manager; one (1) Facilities Maintenance Technician; one (1) Human Resources and Risk Management Analyst; and one (1) Management Analyst (Administration/Economic Development).
..body
FISCAL IMPACT
Funding the proposed positions for F Y 2024 -25 requires an appropriation from the following funds: General Fund 100: $717,620; Transportation Fund 320: $126,702; Park Development Fund 340: $28,363; Enterprise Funds 520/5 30/540: $3 84,858; Internal Service Funds 610/630/640/650/660: $1,402,919. The total of all funds for the additional appropriation is $2,660,462.
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
Superior Customer Service
Responsible Long-Range Planning
Public Service Excellence through Internal and External Partnerships
Revenue:
Expenditure: VARIOUS DETAIL ACCOUNTS IN THE
FINANCE DEPARTMENT
Transfer In: Transfer Out:
440
CITY COUNCIL MEETING DATE: MAY 21, 2024
TITLE: RESOLUTION AMENDING THE CITY'S CLASSIFICATION AND SALARY SCHEDULE.
PAGE: 2
BACKGROUND
On March 5, 2024, Chino’s voters passed the City of Chino Public Safety, Roads, and Essential Services Protection Measure approving additional local funding to maintain critical City services.
Over 60% of voters approved Measure V, enacting a local sales tax of 1% which is anticipated to generate approximately $28 million annually in locally controlled funds.
Community leaders, the Mayor, City Council Members, and City staff participated in numerous public education meetings to inform residents about the need for, and benefits of, the new revenue generated by Measure V. The purpose of the proposed Resolution is to expedite the fulfillment of the promises made to our community that Measure V funds will have an immediate and positive impact on priorities such as public safety, streets, sidewalks, parks, recreation, community beautification, and economic development.
ISSUES/ANALYSIS
Resolution No. 2024 -024 will add 12 positions to the City’s workforce to provide immediate assistance in implementing commitments associated with the passing of the ballot measure.
The following positions are recomme nded for approval outside of the typical budget process because they will work toward expediting improvements to 1) public safety; 2) infrastructure construction, maintenance, and repairs; 3) parks, recreation, and community beautification and 4) economic development.
Police Department
Sergeant and Police School Resource Officer (SRO)
The Chino Police Department has seen an increase in student related threats, the presence of dangerous narcotics on campus, and the complexity of juvenile related investiga tions at the junior high school level. The addition of a Sergeant and a School Resource Officer will allow the City and Chino Valley Unified School District to expand the existing, extremely successful SRO Program to the City’s junior high schools by assig ning an SRO to the junior high schools and designating a Police Sergeant to oversee the entire SRO program for the District. There are currently two junior high schools, one year -round K -8 school, with another year-round K-8 school opening in the 2024/25 s chool year. Including these campuses will increase the SRO Program ranks to 5 SRO Officers over 7 schools. The proposed Sergeant position will also be responsible for coordinating all special events necessitating Police involvement. Annually, the Police Department reviews more than 115 special events, a number expected to rise. The cost of salaries and benefits for these two positions will be shared with Chino Valley Unified School District.
Corporal and Police Officer
Over the last several years retail theft, from petty theft to organized retail theft crews, has grown exponentially and poses a significant threat to communities and businesses alike. Chino experienced an increase of 53% in shoplifting cases in 2023. The Chino Police Department has temporarily assigned a Detective and Quality of Life Officers to combat retail theft during the last two holiday shopping seasons. The results have been extraordinary, and the positive feedback from the community and business owners has been overwhelming. Adding a d edicated Retail Theft Detail comprised of a Corporal and Police Officer will help the Department combat a top crime concern for the community throughout the year and the holiday shopping season.
441
CITY COUNCIL MEETING DATE: MAY 21, 2024
TITLE: RESOLUTION AMENDING THE CITY'S CLASSIFICATION AND SALARY SCHEDULE.
PAGE: 3
Public Works Department
Principal Engineer, 2 Associate Engineers, and Information Technology Analyst (GIS) Infrastructure improvement is a key component of the quality of life for Chino residents and the revenue generated by Measure V will assist in addressing approximately $260 million in unfunded infrastruc ture and neighborhood improvement projects. The City’s Capital Improvement Program (CIP) Division currently has over 90 active projects and operates with only 3 full-time City staff members. The Public Works Department relies heavily on consultants for pro ject management and construction management services to execute the City’s CIP projects and, on average, the City spends an estimated $2 million annually for Public Works/Engineering consultants. Bringing this work in -house and adding the requested Princip al Engineer, 2 Associate Engineers, and Information Technology (GIS) Analyst positions will reduce costs, enhance quality assurance, and ensure the long -term retention and utilization of institutional knowledge. Employing internal staff also engenders adva ntages such as long -term commitment to the organization’s goals, flexibility in adjusting to changing priorities and project needs, and direct supervision and control, allowing for better oversight and management of projects and resources.
Community Services, Parks and Recreation Department
Assistant Parks and Capital Projects Manager and Facilities Maintenance Technician The Measure V education effort indicated that as much as $46 million in revenue generated by the sales tax measure within the ne xt 5 years could fund maintenance, lighting and safety improvements, and park CIP projects such as restrooms, playgrounds, ballfields, and court maintenance. To ensure proper maintenance and services for parks, recreation, and community beautification efforts, as well as to address a tremendous backlog of deferred maintenance at City facilities, staff is recommending the addition of an Assistant Parks and Capital Projects Manager and a Facilities Maintenance Technician. The vacant position of Projects Manag er is proposed to be replaced by the Assistant Parks and Capital Projects Manager to better reflect the level of work, project oversight, and required supervision of staff.
Human Resources/ Risk Management Department
Human Resources and Risk Management Analyst
This position will assist in addressing the City’s ongoing recruitment needs. With the new positions recommended in the proposed Resolution, additional positions requested with future budget adjustments, and the continuous recruitment efforts to fill City positions, the Human Resources/Risk Management Department must keep up with the demand to fill positions at a rate to support organizational staffing needs. The addition of the proposed Human Resources/Risk Management Analyst will allow staff to continue to operate in an organized, fast-paced manner.
Administration Department
Management Analyst (Economic Development)
Our business partners play a vital role in Chino’s economy by creating jobs, supporting the community, and contributing to the City’s economic growth. The proposed Management Analyst position in Economic Development will further the City’s objectives to stimulate economic growth, attract new commercial, industrial, and retail businesses, and support our local business partners. This position will focus on business attraction efforts, including marketing and support retention and workforce development efforts.
442
CITY COUNCIL MEETING DATE: MAY 21, 2024
TITLE: RESOLUTION AMENDING THE CITY'S CLASSIFICATION AND SALARY SCHEDULE.
PAGE: 4
Attachment: Resolution 2024-024
443
RESOLUTION NO. 2024-024
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHINO,
CALIFORNIA, AMENDING CERTAIN PORTIONS OF RESOLUTION NOS. 2023- 051, 2023-053, 202 3-060, 202 3-061, AND 2023-073 OF THE CITY’S
CLASSIFICATION AND SALARY SCHEDULE
WHEREAS, the City Council of the City of Chino has the authority to create and maintain position classifications; and
WHEREAS, greater flexibility is desired to meet changing business conditions and serve budgetary staffing and general organizational needs; and
WHEREAS, the need to add twelve new full-time positions has been identified; and
WHEREAS, the need to eliminate an existing full-time position has been identified; and
WHEREAS, the need to establish the salary range for the new classification of Assistant Parks and Capital Projects Manager has been identified; and
NOW, THEREFORE, BE IT RESOLVED as follows:
1. That Resolution Nos. 2023 -051, 2023 -053, 2023-060, 2023 -061, and 2023 -073 of the City’s Classification and Salary Schedule are revised to establish the following changes to the salary schedule:
Add:
One (1) Full-time Sergeant (CPMA)
One (1) Full-time Corporal (CPOA)
Two (2) Full-time Police Officers (CPOA)
One (1) Full-time Principal Engineer (Unrepresented Management) Two (2) Full-time Associate Engineers (Unrepresented Management) One (1) Full-time Information Technology Analyst (GIS) (Unrepresented Management) One (1) Full-time Assistant Parks & Capital Projects Manager (Unrepresented Management) One (1) Full-time Facilities Maintenance Technician (AFSCME) One (1) Full-time Human Resources and Risk Management Analyst (Unrepresented Management)
One (1) Full-time Management Analyst (Unrepresented Management)
Remove:
One (1) Full-Time Projects Manager (Unrepresented Management)
Non-Sworn Management Classification (monthly salary amounts) Base 22.5% Maximum
Assistant Parks and Capital Projects Manager $8,936 $10,947 $11,818
2. Except as so modified, Resolution Nos. 2023-051, 2023-053, 2023-060, 2023-061, and 2023- 073 of the City’s Classification and Salary Schedule shall remain unmodified and in full force and effect.
444
RESOLUTION NO. 2024-024
PAGE 2
APPROVED AND ADOPTED THIS 21st day of May, 2024.
________________________________
EUNICE M. ULLOA, MAYOR
ATTEST:
_____________________________
NATALIE GONZAGA, CITY CLERK
CITY OF CHINO
445
RESOLUTION NO. 2024-024
PAGE 3
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )ss.
CITY OF CHINO )
I, NATALIE GONZAGA, City Clerk of the City of Chino, do hereby certify that the foregoing Resolution was duly adopted by the City Council of the City of Chino at a regular meeting held on the 21st day of May 2024 by the following votes:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
NATALIE GONZAGA, CITY CLERK
446
MEMORANDUM
CITY OF CHINO
ADMINISTRATION DEPARTMENT
CITY COUNCIL MEETING DATE: MAY 21, 2024
TO: MAYOR AND CITY COUNCIL MEMBERS, CITY OF CHINO
FROM: COUNCIL MEMBER CURTIS BURTON
SUBJECT
..titl e
Community Support Fund – Council Member Burton.
..end
RECOMMENDATION
..recommendation
Approve a community support fund contribution of $375 to Chaffey College Foundation. ..body
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
Superior Customer Service
Exemplary Leadership
Public Service Excellence through Internal and External Partnerships
Revenue:
Expenditure: 1002000 43300 N2034
Transfer In: Transfer Out:
447
CITY COUNCIL MEETING DATE: MAY 21, 2024
TITLE: COMMUNITY SUPPORT FUND - COUNCIL MEMBER BURTON.
PAGE: 2
BACKGROUND
The City of Chino is fortunate to have multiple non -profits and community groups 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 contribution:
$375 contribution to the Chaffey College Foundation will support the Chaffey College Golf Tournament F undraiser. This foundation provides vital assistance for the students and local community served by the Chaffey Community College District.
By approving this contribution, Ch affey College Foundation will be better equipped to provide services to the Chino community. Therefore, as proposed by Council Member Burton, staff recommends that the City Council approve the community support contribution to Chaffey College Foundation.
448