Those persons wishing to speak on any item included on the agenda, or on any matter within the subject matter jurisdiction of the City Council, are invited fill out and submit to the City Clerk a “Request to Speak” form (name and address optional) which is available at the entrance to the City Council Chambers. Additionally, members of the public may submit electronic inquiries or comments by submitting emails to [email protected]
If you require a reasonable accommodation to participate in this meeting per your rights under the Americans with Disabilities Act or for any other reason, please contact the City Clerk’s Office (909) 334-3306, at least 48 hours prior to the advertised starting time of the meeting.
Any documents produced by the City and distributed to a majority of the City Council regarding any item on this agenda will be made available in the City Clerk ’s Office during normal business hours at City Hall located at 13220 Central Avenue, Chino. In addition, such documents will be posted on the City’s website at www.cityofchino.org
CHINO CITY COUNCIL
SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY
CHINO SENIOR CENTER
13170 CENTRAL AVENUE
CHINO, CA 91710
TUESDAY, JULY 30, 2024
SPECIAL MEETING
AGENDA
OPEN SESSION – 6:00 PM
_________________________________________________________________________________
NOTICE AND CALL FOR A SPECIAL MEETING OF THE CHINO CITY COUNCIL / SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY THAT WILL BE HELD ON TUESDAY, JULY 30, 2024 AT 6 :00 PM AT THE CHINO SENIOR CENTER LOCATED AT 13170 CENTRAL AVENUE, CHINO, CA.
ROLL CALL
Mayor Eunice M. Ulloa, Mayor Pro Tem Karen C. Comstock, Council Member Curtis Burton, Council Member Christopher Flores, Council Member Marc Lucio.
FLAG SALUTE
AGENDA ADDITIONS/REVISIONS
PUBLIC COMMENTS
This is the time and place for the general public to address the City Council about subjects that do not appear elsewhere on the agenda. Due to Council policy and Brown Act requirements, action will not be taken on any issues not on the Agenda. Ordinance No. 97-08 (Chino Municipal Code Section 2.04.090) limits speakers to no more than five (5) minutes in which to address Council, except as provided under Government Code 54954.3 (b)(2). If more than three (3) persons seek to address the same agenda item or the same subject matter, the Mayor shall establish a maximum period of time not to exceed thirty (30) minutes. 1 CHINO CITY COUNCIL
JULY 30, 2024 2
CONSENT CALENDAR
At this time, members of the public may present testimony as to why an item should be removed from the Consent Calendar for separate discussion. Unless a member of the public or City Council requests that an item be removed from the Consent Calendar, all items will be acted upon as a whole and by one vote. Items placed on the Consent Calendar represent routine expenditures and/or actions that support ongoing City operations.
1. Amended Property Tax Allocation for Annexation - LAFCO Reorganization (Detachment/Annexation from County Service Area 70) No. 3268 - East End Annexation. Adopt Resolution No. 2024 -039, determining the amount of property tax revenues to be exchanged between and among the City of Chino and the County of San Bernardino, resulting from the jurisdictional change described by LAFCO 3268 (PL20-0003, Annexation).
2. Award of Contracts for Water Operations Division - Morton Salt, Inc., for Bulk Solar Salt & Univar Solutions USA, LLC, for Hydrochloric Acid FCC/NSF Grade. Approve a contract to 1) Morton Salt, Inc., in the amount of $550,000 for Bulk Solar Salt purchase and 2) Univar Solutions USA, LLC, in the amount of $110,000 for Hydrochloric Acid FCC/NSF Grade.
3. Award of Contract and Approve a Pilot Project for the Utilization of Rubberized Emulsion Aggregate Slurry (REAS). Adopt Resolution 2024 -040 supporting the pilot project for the utilization REAS and award a contract to Petrochem Materials, Innovation, LLC, Carlsbad, CA in an amount not to exceed $48,786.34, for the application of REAS.
NEW BUSINESS
4. The Ontario Ranch Business Park Project (referred to as REDA) Merrill Avenue Widening, Interconnect, and Euclid Median Improvements. Approve the Ontario Ranch Business Park Project Right of Entry Agreement, MOU, & Construction Reimbursement Agreement for the Merrill Avenue Widening, Interconnect, and Euclid Median Improvements.
Staff Report By: Jesus Plasencia, Assistant City Engineer RECOMMENDATION: 1) Create Capital Improvement Project MS253 titled “Merrill Avenue Widening, Interconnect, and Euclid Avenue Median Improvements”; 2) appropriate $15,709,100 to the Transportation Fund 320; 3) schedule year -end transfers from the following: reserve fund balance for perimeter and circulation enhancements around Chino Airport, primarily along Merrill Avenue, funded by Scannell Properties (FedEx development) reserve account (320-35335), totaling $4,764,984; Future Improvements deposit account (220-24270) totaling $3,309,027 for the Euclid Median/Widening; Citywide Circulation (Streets, Signals and Bridges) Development Impact Fee Fund (220) totaling $2,021,986; and The Preserve Circulation (Streets, Signals and Bridges) Development Impact Fee Fund (260) totaling $5,613,104; 4) approve a construction reimbursement agreement not to exceed $15,709,100 between the City and the developer, Euclid Land Venture, LLC, a Delaware limited liability company, for the Merrill Avenue Widening, Interconnect, and Euclid Avenue Median Improvements; 5) approve the Right of Entry Agreement between the City and San Bernardino County to obtain access to certain portions of airport property necessary for constructing the Merrill Avenue public improvements; 6) approve the Memorandum of Understanding between the City and Euclid Land Venture, LLC, a Delaware limited liability company, to transfer the rights under the Right of Entry Agreement to the developer for the construction of the Merrill Avenue Public Improvements; and 8) authorize the City Manager to execute all necessary documents on behalf of the City.
2 CHINO CITY COUNCIL
JULY 30, 2024 3
5. Amendment to the Construction Reimbursement Agreement with LS College Park, LLC for the design/construction of public improvements on Edison Avenue between Central Avenue to Oaks Avenue in the amount of $2,500,000 for a total contract amount not to exceed $16,200,000. Approve an amendment to the construction reimbursement agreement with LS College Park, LLC for the design/construction of public improvements on Edison Avenue between Central Avenue to Oaks Avenue.
Staff Report By: Jesus Plasencia, Assistant City Engineer RECOMMENDATION: 1) Appropriate $2,500,000 to the Transportation Fund (320 Fund) and schedule a corresponding year -end transfer from the Citywide Circulation (Streets, Signals, & Bridges) Development Impact Fee program (220 Fund); 2) increase the project budget for ST163, Edison Avenue between Central and Oaks Avenues, by $2,500,000 bringing the total project budget to $16,200,000; 3) approve an amendment to the construction reimbursement agreement with LS College Park, LLC for the design and construction of public improvements on Edison Ave between Central Avenue and Oaks Avenue, increasing the agreement amount by $2,500,000, for a total not to exceed $16,200,000; and 4) authorize the City Manager to execute all the necessary documents of behalf of the City.
ADJOURN
The next Regular Meeting of the City Council will be held on Tuesday, September 3, 2024 at 6:00 p.m. (Closed Session no earlier than 4:00 p.m. if necessary) in the Council Chambers.
I, Natalie Gonzaga, City Clerk of the City of Chino, hereby declare that on Friday, July 26, 2024 this agenda was posted on the south window of Chino City Hall and at the Chino Senior Center, and this agenda together with all of the agenda reports and related documents were posted on the City’s website at www.cityofchino.org by myself or under my direction. _______________________________________
Natalie Gonzaga, City Clerk.
3 MEMORANDUM
CITY OF CHINO
DEVELOPMENT SERVICES DEPARTMENT
CITY COUNCIL MEETING DATE: JULY 30, 2024
TO: LINDA REICH, CITY MANAGER
FROM: WARREN MORELION, AICP, DIRECTOR OF DEVELOPMENT SERVICES
SUBJECT
..titl e
Amended Property Tax Allocation for Annexation – LAFCO Reorganization (Detachment/Annexation from County Service Area 70) No. 3268 – East End Annexation. ..end
RECOMMENDATION
Adopt Resolution No. 2024-039, determining the amount of property tax revenues to be exchanged between and among the City of Chino and the County of San Bernardino, resulting from the jurisdictional change described by LAFCO 3268 (PL20-0003, Annexation). ..body
FISCAL IMPACT
The attached Resolution will transfer future property tax revenues from the County of San Bernardino to the City of Chino, estimated to be approximately $54,870 for Fiscal Year 2024-25.
Tax revenues will increase in subsequent years as properties become developed within the annexed area. The additional revenue generated will be placed in the FY2023 -25 Mid -Term Budget.
CITY OF CHINO MISSION / VISION / VALUES / STRATEGIC ISSUES The recommendation detailed above will 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:
Responsible Long-Range Planning
Revenue: 1001000-51005
Expenditure:
Transfer In: Click or tap here to enter text. Transfer Out: Click or tap here to enter text. 4 CITY COUNCIL MEETING DATE: JULY 30, 2024
TITLE: AMENDED PROPERTY TAX ALLOCATION FOR ANNEXATION - LAFCO REORGANIZATION (DETACHMENT/ANNEXATION FROM COUNTY SERVICE AREA 70) NO. 3268 - EAST END ANNEXATION.
PAGE: 2
BACKGROUND
The City Council initiated an annexation ( East End Annexation ) on behalf of the applicant, Golden Management Services, Inc., on October 3, 2023, to annex 23 parcels consisting of
56.87 acres of land in the City’s Sphere of Influence from the unincorporated area of San Bernardino County. The annexation area is generally located south of Francis Avenue, west of East End Avenue, north of Philadelphia Street, and a small portion south of Philadelphia Street (Exhibit A). The intent of the annexation is to allow the applicant to construct three industrial buildings, totaling 63,900 square feet on 3.59 acres of land at the northwest corner of East End Avenue and Philadelphia Street once the annexation is complete. The proposed annexation area is currently comprised of industrial properties that include vacant property, outdo or storage (vehicles, equipment, materials), and Scott Brothers Dairy. In addition to initiating the annexation in October 2023, the City also approved the Prezone (PL20-0003) of the annexation area to Light Industrial (M1) and General Industrial (M2) . An application (LAFCO 3268) was submitted to the Local Agency Formation Commission (LAFCO) on December 8, 2023.
On April 16, 2024, the City Council approved a property tax allocation for the East End Annexation. Subsequently, on April 23, 2024, the San Bernardino County Board of Supervisors opposed the current proposal for the East End Annexation unless the annexation area is expanded to include three additional parcels (totaling 7.31 acres) located west of the San Antonio Channel, as identified in Exhibit B. Expanding the annexation area to include these lots would prevent the formation of an unincorporated County island, which is prohibited by State Law. To remedy this issue, LAFCO administration amended the City’s application (LAFCO 3268) to includ e the additional three parcels west of the channel. On July 17, 2024, the San Bernardino County Local Agency Formation Commission approved the annexation. The City and the County of San Bernardino have 30 days from July 17, 2024, to approve the revised property tax allocation to include the newly added parcels.
ISSUES/ANALYSIS
State law provides that an agreement be reached between the City of Chino and San Bernardino County on future distribution of property tax revenue within areas that are annexed into the City. A formula for tax transfer has been revised to now include the addition of the three parcels for the East End Annexation. The amount to be transferred to the City for the entire annexation area, including the three added parcels will be the average of all the Tax Rate Areas in the City equaling 10.43%.
To begin transfe r of the property tax, both the City and County must approve separate resolutions approving the tax-split, which is attached for Council review.
Attachments: Exhibit A – Original East End Annexation Map Exhibit B – Amended East End Annexation Map
Resolution No. 2024-039
5 LI
RD 2
GI LI
RD 2LI
RD 4.5
RD 4.5
RD 4.5RD 4.5
RD 4.5
RD 4.5
RD 4.5
RD 4.5
RD 2
RD 2
EAST END AVE
FRANCIS AVE
PHILADELPHIA ST
LAKE ST
TAFT AVE
M
ODOC PL
BRIARROSE LN
LOYOLA CT
HUM
BOLDT AVE
HUM
BOLDT PL
LOYOLA W
AY
DEWCREST CT
¯
LEGEND
Proposed Project
Proposed Annexation boundary
Current City Boundary
Proposed Annexation - East End Ave.
Date: 07/20/2021
General Plan Land Use Designations:
RD 2
RD 4.5
RD 8
RD 12
LI
GI
NC
6 LI
RD 2
GI LI
RD 2LI
RD 4.5
RD 4.5
RD 4.5RD 4.5
RD 4.5
RD 4.5
RD 4.5
RD 4.5
RD 2
RD 2
¯
LEGEND
Proposed Development Project
Original Previous Annexation Boundary
Amended Annexation Boundary
Current City Boundary
Amended Annexation - East End Ave.
Date: 6/26/2024
General Plan Land Use Designations:
RD 2
RD 4.5
RD 8
RD 12
LI
GI
NC
EAST END AVE
FRANCIS AVE
PHILADELPHIA ST
LI
7 RESOLUTION NO. 2024-039
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHINO,
CALIFORNIA, DETERMINING THE AMOUNT OF TAX REVENUES TO BE
EXCHANGED BETWEEN AND AMONG THE CITY OF CHINO , SAN
BERNARDINO COUNTY, AND COUNTY OF SAN BERNARDINO SERVICE AREA 70, RESULTING FROM THE JURISDICTIONAL CHANGE DESCRIBED BY LAFCO 3268, EAST END ANNEXATION PL20-0003.
WHEREAS, on April 16, 2024, the City Council approved a property tax allocation for the East End Annexation; and
WHEREAS, on April 23, 2024, the San Bernardino County Board of Supervisors opposed the current jurisdictional changed described by LAFCO 3268 for the East End Annexation unless the annexation area is expanded to include three parcels (APNs: 1013-531-09, 1013-531-10, and 1013 -531-11), totaling 7.31 acre s west of the San Antonio Channel, to prevent the formation of an unincorporated County island; and
WHEREAS, the administration of the Local Agency Formation Commission (LAFCO) amended the City’s application (LAFCO 3268) to include the aforementioned thre e parcels west of the San Antonio Channel; and
WHEREAS, on July 17, 2024, the San Bernardino County LAFCO approved the East End Annexation to include three additional parcels (APNs: 1013 -531-09, 1013 -531-10, and 1013 - 531-11); and
WHEREAS, the property tax allocation for the East End Annexation has been revised to include the three additional parcels (APNs: 1013-531-09, 1013-531-10, and 1013-531-11); and
WHEREAS, the Chino City Council hereby finds and determines as follows:
SECTION 1. The Chino City Council hereby finds and determines that:
A. Pursuant to Section 99 of the Revenue and Taxation Code, prior to the issuance of a Certificate of Filing by the Local Agency Formation Commission Executive Order, the governing bodies of all local agencies whose se rvice responsibilities will be altered by change of organization shall negotiate and determine by resolution the amount of property tax revenues to be exchanged between and among such local agencies.
B. Except as provided in Section 99 of the Revenue and Taxa tion Code, in the event that a jurisdictional change would affect the service area or service responsibility of one or more special districts, the Board of Supervisors shall, on behalf of all special districts, negotiate any exchange of property tax revenues.
C. The Board of Supervisors of the County of San Bernardino and the City of Chino have determined the amount of property tax revenues to be exchanged as a result of the following jurisdictional change:
LOCAL AGENCY FORMATION COMMISSION 3 268 – REORGANIZATION TO
INCLUDE THE CITY OF CHINO AND DETACHMENT FROM COUNTY SERVICE AREA 70 (EAST END ANNEXATION)
SECTION 2. The Chino City Council hereby resolves and orders that:
8 RESOLUTION NO. 2024-039
PAGE 2 OF 3
A. The negotiated exchange of property tax revenue between the City of Chino , San Bernardino County and County Service Area 70, attached hereto as Exhibit “A” and incorporated herein by reference, resulting from the above -described jurisdictional change, is accepted.
B. The annual tax increment generated in the area subject to the jurisdictional ch ange and attributable to the local agencies who se service area or service responsibilities will be altered by the proposed jurisdictional change shall be allocated in future years pursuant to the provisions of Section 98 of the Revenue and Taxation Code.
SECTION 3. The City Clerk of the Chino City Council is hereby directed to certify the passage of this resolution and to cause a certified copy to be sent to the Executive Officer of the Local Agency Formation Commission of the County of San Bernardino.
Further, it is understood that future property tax revenue will be distributed to the City of Chino in an amount not less than the percentage obtained by applying the herein agreed-upon amount of $54,870 to the total amount of property tax revenue of $ 526,086 generated within LAFCO 3268, per attached Exhibit “A” , as such amount may change based on t he application of the City’s tax rate of 10.43% to the applicable property valuation in the East End Annexation.
NOW, THEREFORE, BE IT RESOLVED, the City Council of the City of Chino hereby approves the tax share agreement between the City of Chino and the County of San Bernardino related to LAFCO 3268 (East End Annexation).
APPROVED AND ADOPTED THIS 30TH DAY OF JULY 2024.
EUNICE M. ULLOA, MAYOR
ATTEST:
NATALIE GONZAGA, CITY CLERK
9 RESOLUTION NO. 2024-039
PAGE 3 OF 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 the foregoing Resolution was duly adopted by the Chino City Council at a special meeting held on the 30th day of July 2024, by the following votes:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
NATALIE GONZAGA, CITY CLERK
Attachment: Exhibit “A”
10 City of Chino Percent: 10.43
TRA 61055 61101 61102 GRAND TOTAL
Assessed Value 19,118,260$ 1,156,740$ 32,333,612$ 52,608,612$ RDA Increment -$ -$ -$ -$ Net Value After RDA / TRA Frozen Base 19,118,260$ 1,156,740$ 32,333,612$ 52,608,612$ Tax Revenue 191,183$ 11,567$ 323,336$ 526,086$ Estimated Change
In Base Year
2023-24
Estimated Change
In Base Year
2023-24
Estimated Change
In Base Year
2023-24
Estimated Change
In Base Year
2023-24
TRANSFER FROM
COUNTY GENERAL FUND (19,940)$ (1,206)$ (33,724)$ (54,870)$ COUNTY SERVICE AREA 70 -$ -$ -$ -$ Total Transfers From (19,940)$ (1,206)$ (33,724)$ (54,870)$
TRANSFER TO
CITY OF CHINO 19,940$ 1,206$ 33,724$ 54,870$ Total Transfers To 19,940$ 1,206$ 33,724$ 54,870$ LAFCO 3268
Reorganization to Include Annexation to the City of Chino and Detachment from County Service Area 70 (East End Connection) Exhibit A
0.1043
MEMORANDUM
CITY OF CHINO
PUBLIC WORKS DEPARTMENT
CITY COUNCIL MEETING DATE: JULY 30, 2024
TO: LINDA REICH, CITY MANAGER
FROM: HYE JIN LEE, PE, DIRECTOR OF PUBLIC WORKS
SUBJECT
..titl e
Award of Contracts for Water Operations Division – Morton Salt, Inc., for Bulk Solar Salt & Univar Solutions USA, LLC, for Hydrochloric Acid FCC/NSF Grade. ..end
RECOMMENDATION
Approve 1) contract to Morton Salt, Inc., Chicago, IL, for $550,000 for Bulk Solar Salt purchase; 2) contract to Univar Solutions USA, LLC, Kent, WA, for $110,000 for Bulk Hydrochloric Acid; and 3) authorize the City Manager to execute the necessary documents on behalf of the City. ..body
FISCAL IMPACT
Sufficient funds are budgeted in the Fiscal Year 2024-2025 Water Services as follows:
Budget Program Amount Description
Water Services (5207300) $550,000 Bulk Solar Salt
Water Services (5207300) $110,000 Hydrochloric Acid FCC/NSF Grade Total $660,000 Morton Salt, Inc. & Univar Solutions USA, LLC Contract
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:
Superior Customer Service
Responsible Long-Range Planning
Revenue: Click or tap here to enter text.
Expenditure: 5207300-43050
Transfer In: Click or tap here to enter text. Transfer Out: Click or tap here to enter text. 12 CITY COUNCIL MEETING DATE: JULY 30, 2024
TITLE: AWARD OF CONTRACTS FOR WATER OPERATIONS DIVISION - MORTON SALT, INC., FOR BULK SOLAR SALT & UNIVAR SOLUTIONS USA, LLC, FOR HYDROCHLORIC ACID FCC/NSF GRADE.
PAGE: 2
BACKGROUND
The City of Chino’s Public Works Department is committed to maintaining and operating the city’s vital infrastructure, ensuring the reliable delivery of essential services to its residents and community. One of those essential services is potable water. Chino’s drinking water is produced by removing contaminants using Ion -Exchange process. This process involves the removal of nitrate and perchlorate via a resin based composite materials at any of our three water treatment plants. Chemicals are needed for various stages of the process, such as 32% hydrochloric acid and 26% brine salt which ar e added with the right dosage to achieve maximum contaminant removal.
Bulk salt is mixed with water to create a brine that is needed to regenerate the resin during the ion-exchange process. On average, when there is more demand during the summer, about 10 0 tons of salt per week is used for all three water treatment plants.
Hydrochloric acid (HCL) is needed during the Ion -exchange process. Mostly for the back wash of the resin, and to descale the pipes in the treatment plant. HCL is also used to lower the pH of the brine waste to maintain compliance with wastewater discharge regulations. On average, about 900 gallons of hydrochloric acid per week is used for all water treatment plants. This number fluctuates based on the amount of water treated.
These two chemicals ensure that our water treatment system remains safe and reliable, maintaining the quality and quantity of water provided to customers.
ISSUES/ANALYSIS
On July 2, 2024 , the City solicited an Invitation for Bids (IFB) on Planet Bids for two di fferent types of purchase including Bulk Solar Salt - Coarse (Undried) and Hydrochloric Acid FCC/NSF Grade (Muriatic Acid 20 Baume).
Bulk Solar Salt
On July 16, 2024, the City received (1) one proposal:
OVERALL TOTAL BID RESULTS
Contractor
Price (Per Ton)
Total Award Amount
1. Morton Salt Inc. $179.03 $550,000
Note: It should be noted that the sole bidder for the solicitation is the existing vendor currently providing Bulk Solar Salt Acid to the City. Despite the lack of additional bidders, staff reviewed the submitted per ton amount and determined that it was satisfactory.
Bulk Hydrochloric Acid
On July 19, 2024, the City received (1) one proposal:
13 CITY COUNCIL MEETING DATE: JULY 30, 2024
TITLE: AWARD OF CONTRACTS FOR WATER OPERATIONS DIVISION - MORTON SALT, INC., FOR BULK SOLAR SALT & UNIVAR SOLUTIONS USA, LLC, FOR HYDROCHLORIC ACID FCC/NSF GRADE.
PAGE: 3
OVERALL TOTAL BID RESULTS
Contractor
Price Per Gallon
Total Award Amount
1. Univar Solutions USA, LLC $1.87 $110,000
Note: It should be noted that the sole bidder for the solicitation is the existing vendor currently providing Bulk Solar Salt Acid to the City. Despite the lack of additional bidders, staff reviewed the submitted per ton amount and determined that it was satisfactory.
Staff analyzed typical annual expenditures for both kinds of purchases and now recommending a reasonable average expected costs to the City Council for contract award. Therefore, City staff recommends that the City Council approve a contract to Morton Salt, Inc., Chicago, IL, for $550,000 for Bulk Solar Salt and approve a contract to Univar Solutions USA, LLC, Kent, WA, for $110,000 for Bulk Hydrochloric Acid.
Attachments: Agreement – Morton Salt, Inc.
Agreement – Univar Solutions USA, LLC
14 Project Name/No.: BULK SOLAR SALT Contract No.: ______________ COARSE [UNDRIED]
Project Manager: PWS/ P. Vicario Approved: ______________
01225.0001/863604.2 (Long Form)
AGREEMENT FOR SERVICES
BETWEEN THE CITY OF CHINO AND
MORTON SALT, INC.
THIS AGREEMENT FOR SERVICES (herein “Agreement”) is made and entered into this 30th day of July, 2024 (“Effective Date”) by and between the City of Chino, a California municipal corporation (“City”) and Morton Salt, Inc. , a Delaware Corporation (“Consultant”).
City and Consultant may be referred to individually as “Party” or collectively as “Parties.”
RECITALS
A. City has sought, by issuance of a Request for Proposals or Invitation for Bids, the performance of the services defined and described particularly in Article 1 of this Agreement.
B. Consultant, following submission of a proposal or bid for the performance of the services defined and described particularly in Article 1 of this Agreement, was selected by the City to perform those services.
C. Pursuant to the City of Chino’s Municipal Code, City has authority to enter into and execute this Agreement.
D. The Parties desire to formalize the selection of Consultant for performance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1. SERVICES OF CONSULTANT
1.1 Scope of Services.
In compliance with all terms and conditions of this Agreement, the Consultant shall provide those services specified in the “Scope of Services ” attached hereto as Exhibit “A” and incorporated herein by this reference, which may be referred to herein as the “services” or “work” hereunder. As a material inducement to the City entering into this Agreement, Consultant represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the work and services contemplated herein. Consultant shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all services described herein. Consultant covenants that it shall follow the highest professional standards in performing the work and services required hereunder 15 01225.0001/863604.2 2
and that all materials will be both of good quality as well as fit for the purpose intended. For purposes of this Agreement, the phrase “highest professional standards ” shall mean those standards of practice recognized by one or more first -class firms performing similar work under similar circumstances.
1.2 Consultant’s Proposal.
The Scope of Services shall include the scope of work included in Consultant’s proposal, which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern.
1.3 Compliance with Law.
Consultant shall keep itself informed concerning, and shall render all services hereunder in accordance with , all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental entity having jurisdiction in effect at the time service is rendered.
1.4 California Labor Law.
If the Scope of Services includes any “public work” or “maintenance work,” as those terms are defined in California Labor Code Section 1720 et seq. and California Code of Regulations, Title 8, Section 16000 et seq. , and if the total compensation is $1,000 or more, Consultant shall pay prevailing wages for such work and comply with the requirements in California Labor Code section 1770 et seq. and 1810 et seq., and all other applicable laws, as they pertain to such work, including the following requirements:
(a) DIR Monitoring 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 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 16 01225.0001/863604.2 3
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:
“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.”
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(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 without 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.
1.5 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 this Agreement.
Consultant shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Consultant’s performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City , its officers, employees or agents of City, against any such fees, assessments, taxes , penalties or interest levied, assessed or imposed against City hereunder.
1.6 Familiarity with Work.
By executing this Agreement, Consultant warrants that Consultant (i) has thoroughly investigated and considered the scope of services to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Consultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Consultant discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Consultant shall immediately inform the City of such fact and shall not proceed except at Consultant’s risk until written instructions are received from the Project Manager.
1.7 Software and Computer Services.
If the Scope of Services includes the provision and/or installation of any software, computer system, or other computer 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.
1.8 Care of Work.
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The Consultant shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City’s own negligence.
1.9 Further Responsibilities of Parties.
Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other.
1.10 Additional Services.
City shall have the right , subject to state law and the City’s Municipal Code, at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Project Manager to the Consultant, incorporating therein any adjustment in (i) the Contract Sum for the actual costs of the extra work , and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Consultant. Any increase in compensation for extra work shall require the 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.
1.11 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 reference. In the event of a conflict between the provisions of Exhibit “B” and any other provisions of this Agreement, the provisions of Exhibit “B” shall govern.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.
2.1 Contract Sum.
Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the amounts specified in the “Schedule of Compensation ” attached hereto as Exhibit “C” and 19 01225.0001/863604.2 6
incorporated herein by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed Five Hundred Fifty Thousand Dollars and Zero Cents ($550,000.00) (the “Contract Sum”), unless additional compensation is approved pursuant to Section 1.10.
2.2 Method of Compensation.
The method of compensation may include: (i) a lump sum payment upon completion ; (ii) payment in accordance with specified tasks or the percentage of completion of the services, less contract retention; (iii) payment for time and materials based upon the Consultant’s rates as specified in the Schedule of Compensation, provided that (a) time estimates are provided for the performance of sub tasks , (b) contract retention is maintained, and (c) the Contract Sum is not exceeded; or (iv) such other methods as may be specified in the Schedule of Compensation.
2.3 Reimbursable Expenses.
Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Project Manager in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5, and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by the City.
Coordination of the performance of the work with City is a critical component of the services. If Consultant is required to attend additional meetings to facilitate such coordination, Consultant shall not be entitled to any additional compensation for attending said meetings.
2.4 Invoices.
Each month Consultant shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month in a form approved by City ’s Director of Finance. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the Agreement . Consultant shall not invoice City for any duplicate services performed by more than one person.
All invoices shall be submitted by email to [email protected]. Each invoice is to include:
(a) Line items for all personnel describing the work performed, the number of hours worked, and the hourly rate.
(b) Line items for all materials and equipment properly charged to the Services.
(c) Line items for all other approved reimbursable expenses claimed, with supporting documentation.
(d) Line items for all approved subcontractor labor, supplies, equipment, materials, and travel properly charged to the Services. 20 01225.0001/863604.2 7
(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.
2.5 Waiver.
Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant.
2.6 Contingency of Funds.
Consultant acknowledges that funding or portions of funding for this 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.
ARTICLE 3. PERFORMANCE SCHEDULE
3.1 Time of Essence.
Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance.
Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the “Schedule of Performance ” attached hereto as Exhibit “D” and incorporated herein by this 21 01225.0001/863604.2 8
reference. When requested by the Consultant, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Project Manager but not exceeding one hundred eighty (180) days cumulatively.
3.3 Force Majeure.
The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of the public 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.
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, 2025, 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) year(s) at the option of the City if the City is satisfied with the quality of services performed by Consultant under this Agreement.
ARTICLE 4. COORDINATION OF WORK
4.1 Representatives and Personnel of Consultant.
The following principals of Consultant (“Principals”) are hereby designated as being the principals and representatives of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
(Name) (Title)
(Name) (Title)
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. 22 01225.0001/863604.2 9
Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. All personnel of Consultant, and any authorized agents, shall at all times be under the exclusive direction and control of the Principals. For purposes of this Agreement, the foregoing Principals may not be replaced nor may their responsibilities be substantially reduced by Consultant without the express written approval of City. Additionally, Consultant shall utilize only competent personnel to perform services pursuant to this Agreement. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and subcontractors, if any, assigned to perform the services required under this Agreement.
Consultant shall notify City of any changes in Consultant’s staff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to and during any such performance.
4.2 Status of Consultant.
Consultant shall have no authority to bind City in any manner, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. Consultant shall not at any time or in any manner represent that Consultant or any of Consultant’s officers, employees, or agents are in any manner officials, officers, employees or agents of City. Neither Consultant, nor any of Consultant’s officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City ’s employees. Consultant expressly waives any claim Consultant may have to any such rights.
4.3 Project Manager.
The Project Manager shall be the Water Util ities Superintendent, or any other person as may be designated by the Project Manager. It shall be the Consultant’s responsibility to assure that the Project Manager is kept informed of the progress of the performance of the services and the Consultant shall refer any decisions which must be made by City to the Project Manager.
Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Project Manager . The Project Manager shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement.
4.4 Independent Consultant.
Neither the City nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Consultant’s employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Consultant shall perform all services required herein as an independent contract or of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed 23 01225.0001/863604.2 10
to be a partner of Consultant in its business or otherwise or a joint venturer or a member of any joint enterprise with Consultant.
4.5 Prohibition Against Subcontracting or Assignment.
The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Consultant shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Consultant or any surety of Consultant of any liability hereunder without the express consent of City.
ARTICLE 5. INSURANCE AND INDEMNIFICATION
5.1 Insurance Coverages.
Without limiting Consultant’s indemnification of City, and prior to commencement of any services under this Agreement, Consultant 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 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. 24 01225.0001/863604.2 11
(d) Workers’ compensation insurance . Consultant shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000).
(e) Subcontractors. Consultant shall 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 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.
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(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 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 26 01225.0001/863604.2 13
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, subcontractors, or invitees, or any individual or entity for which Consultant is legally liable (“indemnitors”), or arising from Consultant’s or indemnitors’ reckless or willful misconduct, or arising from Consultant’s or indemnitors’ negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, and in connection therewith:
(a) Consultant will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys’ fees incurred in connection therewith;
(b) Consultant will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Consultant hereunder; and Consultant agrees to save and hold the City, its officers, agents, and employees harmless therefrom;
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(c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Consultant for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Consultant hereunder, Consultant agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys ’ fees.
Consultant shall incorporate similar indemnity agreements with its subcontra ctors and if it fails to do so Consultant shall be fully responsible to indemnify City hereunder therefore, and failure of City to monitor compliance with these provisions shall not be a waiver hereof. This indemnification includes claims or liabilities arising from any negligent or wrongful act, error or omission, or reckless or willful misconduct of Consultant in the performance of professional services hereunder. The provisions of this Section do not apply to claims or liabilities occurring as a result of City ’s sole negligence or willful acts or omissions, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City ’s negligence, except that design professionals’ indemnity hereunder shall be limited to claims and liabilities arising out of the 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.
ARTICLE 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. Any and all such documents shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Project Manager shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. In the event of dissolution of Consultant’s business, custody of the books and records may be given to City, and access shall be provided by Consultant’s successor in interest. Notwithstanding the above, the Consultant shall fully cooperate with the City in providing access to the books and records if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act.
6.2 Reports.
Consultant shall periodically prepare and submit to the Project Manager such reports concerning the performance of the services required by this Agreement as the Project Manager shall require. Consultant hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Consultant 28 01225.0001/863604.2 15
agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Consultant is providing design services, the cost of the project being designed, Consultant shall promptly notify the Project Manager of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Consultant is providing design services, the estimated increased or decreased cost estimate for the project being designed.
6.3 Ownership of Documents.
All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials (the “documents and materials”) prepared by Consultant, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Project Manager or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the documents and materials hereunder. Any use, reuse or assignment of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Consultant will be at the City’s sole risk and without liability to Consultant, and Consultant’s guarantee and warranties shall not extend to such use, re use or assignment . Consultant may retain copies of such documents for its own use. Consultant shall have the right to use the concepts embodied therein.
All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom. Moreover, Consultant with respect to any documents and materials that may qualify as “works made for hire ” as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed “works made for hire” for the City.
6.4 Confidentiality and Release of Information.
(a) All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Project Manager.
(b) Consultant, its officers, employees, agents or subcontractors, 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 City notice of such court order or subpoena. (c) If Consultant, or any officer, employee, agent or subcontractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Consultant’s conduct. 29 01225.0001/863604.2 16
(d) Consultant shall promptly notify City should Consultant, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admiss ions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed there under. City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law.
This Agreement 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.
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, though not reduced, if circumstances warrant. During the period of time that Consultant is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of the City to give notice of the Consultant’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.
7.3 Retention of Funds.
Consultant hereby authorizes City to deduct from any amount payable to Consultant (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Consultant’s acts or omissions in performing or failing to perform Consultant’s obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear 30 01225.0001/863604.2 17
to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Consultant to insure, indemnify, and protect City as elsewhere provided herein.
7.4 Waiver.
Waiver by any party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement.
Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a 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.
7.5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
7.6 Legal Action.
In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this 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 legal action under this Agreement.
7.7 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 ($0) 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.
7.8 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 31 01225.0001/863604.2 18
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 , except as provided in Section 7.3. In the event the Consultant has initiated termination, the Consultant shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non -terminating party with the opportunity to cure pursuant to Section 7.2.
7.9 Termination for Default of Consultant.
If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for 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.
7.10 Attorneys’ Fees.
If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney ’s fees. Attorney’s fees shall include attorney ’s fees on any appeal, and in addition a party entitled to attorney ’s fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.
ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees.
No officer or employee of the City shall be 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.
32 01225.0001/863604.2 19
8.2 Conflict of Interest.
Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant’s performance of services under this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or sub contractor without the express written consent of the Project Manager . Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision r elating to the Agreement which a ffects her/his financial interest or the financial interest of any corporation, partnership or association in which (s)he is, directly or indirectly, interested, in violation of any State statute or regulation. The Consultant warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.
8.3 Covenant Against Discrimination.
Consultant covenants that, by and for itself, its heirs, executors, assigns, and all 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, ancestry or other protected class in the performance of this Agreement. Consultant shall take affirmative action to insure 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.
8.4 Unauthorized Aliens.
Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. , as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys ’ fees, incurred by City.
ARTICLE 9. MISCELLANEOUS PROVISIONS
9.1 Notices.
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 33 01225.0001/863604.2 20
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.
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 34 01225.0001/863604.2 21
“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]
35 01225.0001/863604.2 22
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written.
CITY:
CITY OF CHINO, a municipal corporation
Linda Reich, City Manager
ATTEST:
Natalie Gonzaga, City Clerk
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
ALESHIRE & WYNDER, LLP
_____________________________ _____________________________
Fred Galante, City Attorney Hye Jin Lee, P.E., Director of Public Works
CONSULTANT:
MORTON SALT 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. 36 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.
37 01225.0001/863604.2 A-2
EXHIBIT “A-1”
A. Product Requirements:
Sodium Chloride (salt) product supplied shall be bulk solar salt – coarse [undried], and must be ANSI/NSF Standard 60 Certified. All salt products shall comply with FDA Food Chemical Codex Tolerances or chemical purity.
Component Units Typical Range
NaCI % 99.65 >99.75
CaSO4 % 0.04 <0.15
CaCI2 % Trace <0.01
MgCI2 % 0.01 <0.02
Water Insolubles % 0.02 <0.8
Calcium ppm 120 -
Magnesium ppm 25 -
Cu ppm Trace <0.2
Fe ppm Trace <0.2
B. Estimated Quantities: Contractor shall provide bulk solar salt, as described in Section II -A during the term of this Contract. The City anticipates an estimated weekly usage of approximately 100 tons, increasing usage during warmer months.
The anticipated annual usage may approach approximately 5,200 tons. The City will not be obligated to purchase any specific quantities and reserves the right to purchase either more or less product, based on seasonal adjustments, at the firm -fixed price quoted.
C. Shipping Instructions: The City shall require an average of 100 tons delivered each week. Contractor shall provide twenty -four (24) hours’ notice prior to delivery. Salt delivery shall be coordinated and scheduled by the City Water Systems Operator.
Primary Contact: Frank Ruiz, Water Treatment Plant Operator Office: (909) 334-3441
Mobile: (909) 772-0373
Tomas Himaya, Water Treatment Plant Operator
Office: (909) 334-3441
Mobile: (909) 721-6255
38 01225.0001/863604.2 A-3
Jose Avila, Water Treatment Plant Operator
Office: (909) 334-3441
Mobile: (909) 573-8559
Hours: Monday-Thursday 7:00 A.M.-4:00 P.M.
*Secondary Contact(s): Pete Vicario, Water Utilities Superintendent Office: (909) 334-3444
Mobile: (909) 437-1430
Delivery Schedule and Location: Salt shall be delivered to the City of Chino Water Treatment Facilities, Monday through Thursday between the hours of 7:00 A.M.-2:30 P.M.
Benson Water Treatment Plant Eastside Water Treatment Facility 11840 Benson Ave. 7537 Schaefer Avenue
Chino, CA 91710 Ontario, CA 91761
D. Storage Tank(s): Three (3) salt storage tanks, each tank having a capacity of 50 tons, are located at the 11840 Benson Avenue treatment plant site. Two (2) salt storage tanks, each having a storage capacity of 50 tons, are located at the 7537 Schaefer Avenue treatment plant site. Maximum combined bulk salt storage capacity for all sites is 250 tons. Bulk salt shall be loaded into storage tanks utilizing stainless steel hoses supplied by the bulk product hauler or bulk commodity transport company. The requirement for this location and any additional locations, as may be required shall receive like product, service, pricing, etc., as required in said contract.
E. Termination: The City of Chino may reject delivery or terminate the Contract if the quality of the delivered hydrochloric acid does not meet the product specifications. It shall be the sole responsibility of the Contractor to immediately remove said product and provide acceptable replacement product at the sole expense of the Contractor. The City of Chino may terminate the Contract should two or more deliveries of hydrochloric acid be rejected in a six (6) month period.
F. Emergency Telephone Number: Contractor shall provide the City a telephone number(s) where a representative may be contacted 24 hours a day, seven days a week in the event of an emergency.
39 01225.0001/863604.2 A-4
G. Safety Data Sheets: Contractor shall provide two copies of a Safety Data Sheet (SDS) to the City of Chino Risk Management Division and one copy to the Water Systems Operator, upon execution of the Contract, if or when said document is revised or updated.
H. Safety Training: Contractor shall provide training in the safe and proper handling procedures of their product. Training shall be provided at least two times per calendar year. The training shall be provided at the City of Chino facility and at no additional expense to the City of Chino.
40 01225.0001/863604.2 B-1
EXHIBIT “B”
SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
41 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.
42 01225.0001/863604.2 C-2
EXHIBIT “C-1”
Compensation: This is firm fixed price Contract between City and Contractor. Contractor agrees to accept the specified compensation as set forth in this Contract as full remuneration for performing all services and furnishing all staffing, labor, and insurance, vehicles, equipment, tools, materials, overhead, travel, etc. required for any reasonably unforeseen difficulties which may arise or be encountered in the execution of the services until acceptance, for risks connected with the services, and for performance by Contractor of all its duties and obligations hereunder. Price schedule includes all fees, shipping, freight, transportation, travel, tax and any other fees. No other compensation will be allowed.
Contractor shall only be compensated as set forth herein below for work performed in accordance with the Technical Provision set for in Section II of the IFB. City shall have no obligation to pay any sum in excess of total Contract amount specified herein unless authorized by amendment in accordance with Article 21 – Modifications.
Fees and Charges:
City will pay the following fees in accordance with the provisions of this Contract.
Product Description Total Net Price Per Ton
Bulk Solar Salt – Coarse [Undried] $179.03
Payments and Invoicing : Contractor shall submit invoices on a monthly basis. Contractor shall reference Purchase Order number on invoice. Payment will be net 30 days after receipt of an invoice in a format acceptable to the City and verified and approved by City and subject to routine processing requirements. The responsibility for providing an acceptable invoice rests with the Contractor.
Billing shall cover services and/or goods not previously invoiced. Contractor shall reimburse City for any monies paid to Contractor for goods or services not provided or when goods or services do not meet Contract requirements.
Payments made by City shall not preclude the right of City from thereafter disputing any items or services involved or billed under this Contract and shall not be construed as acceptance of any part of the goods or services.
43 01225.0001/863604.2 C-3
Contractor will provide an invoice on Contractor’s letterhead for services rendered.
Each invoice shall include the following information:
1. Contractor’s name and address
2. Contractor’s remittance address (if different from above)
3. Contractor’s Invoice Number
4. City Purchase Order (PO) number
5. Service Description
6. Service date(s)
7. Unit cost
8. Total Invoice Amount
Invoices and support documentation are to be forwarded to (not both):
Accounts Payable
P.O. Box 667
Chino, CA 91708
Or
Email to:
[email protected]
44 01225.0001/863604.2 D-1
EXHIBIT “D”
SCHEDULE OF PERFORMANCE
I. Contractor shall perform all Services timely in accordance with the following schedule:
A. The City of Chino shall require weekly deliveries at the Benson Water Treatment Plant, and the Eastside Water Treatment Facility. Contractor shall provide twenty-four (24) hour notice to City Primary prior to delivery.
B. Bulk Salt delivery shall be coordinated and scheduled by the City Water Treatment Plant Operator.
C. Bulk Salt shall be delivered to the City of Chino Treatment Plants Monday through Thursday between the hours of 7:00 a.m. - 2:30 p.m.
II. The Project Manager may approve extensions for performance of the services in accordance with Section 3.2.
45 Project Name/No.: HYDROCHLORIC ACID FCC/NSF Contract No.: ______________ GRADE (MURIATIC ACID 200 BAUME)
Project Manager: PWS/ P. Vicario Approved: ______________
01225.0001/863604.2 (Long Form)
AGREEMENT FOR SERVICES
BETWEEN THE CITY OF CHINO AND
UNIVAR SOLUTIONS USA, LLC
THIS AGREEMENT FOR SERVICES (herein “Agreement”) is made and entered into this 30th day of July, 2024 (“Effective Date”) by and between the City of Chino, a California municipal corporation (“City”) and Univar Sol utions USA, LLC, an Illinois limited liability company (“Contractor”). City and Contractor may be referred to individually as “Party” or collectively as “Parties.”
RECITALS
A. City has sought, by issuance of a Request for Proposals or Invitation for Bids, the performance of the services defined and described particularly in Article 1 of this Agreement.
B. Contractor, following submission of a proposal or bid for the performance of the services defined and described particularly in Article 1 of this Agreement, was selected by the City to perform those services.
C. Pursuant to the City of Chino’s Municipal Code, City has authority to enter into and execute this Agreement.
D. The Parties desire to formalize the selection of Contractor for performance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1. SERVICES OF CONTRACTOR
1.1 Scope of Services.
In compliance with all terms and conditions of this Agreement, the Contractor shall provide those services specified in the “Scope of Services ” attached hereto as Exhibit “A” and incorporated herein by this reference, which may be referred to herein as the “services” or “work” hereunder. As a material inducement to the City entering into this Agreement, Contractor represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the work and services contemplated herein. Contractor shall at all times faithfully, competently and to the best of its ability, 46 01225.0001/863604.2 2
experience and talent, perform all services described herein. Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be both of good quality as well as fit for the purpose intended. For purposes of this Agreement, the phrase “highest professional standards ” shall mean those standards of practice recognized by one or more first -class firms performing similar work under similar circumstances.
1.2 Contractor’s Proposal.
The Scope of Services shall include the scope of work included in Contractor’s proposal, which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern.
1.3 Compliance with Law.
Contractor shall keep itself informed concerning, and shall render all services hereunder in accordance with , all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental entity having jurisdiction in effect at the time service is rendered.
1.4 California Labor Law.
If the Scope of Services includes any “public work” or “maintenance work,” as those terms are defined in California Labor Code Section 1720 et seq. and California Code of Regulations, Title 8, Section 16000 et seq. , and if the total compensation is $1,000 or more, Contractor 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”) . Contractor shall post job site notices, as prescribed by regulation.
(b) Prevailing Wages . Contractor 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, Contractor acknowledges receipt of a copy of the DIR determination of the prevailing rate of per diem wages, and Contractor 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 . Contractor 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 Contractor shall, as a penalty to the City, forfeit two hundred dollars ($200) for each 47 01225.0001/863604.2 3
calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any public work done pursuant to this Agreement by Contractor or by any subcontractor. (d) Payroll Records . Contractor shall comply with and be bound by the provisions of Labor Code Section 1776, which requires Contractor 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. Contractor 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. Contractor shall be responsible for compliance with these aforementioned Sections for all apprenticeable occupations. Prior to commencing work under this Agreement, Contractor 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, Contractor 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 . Contractor acknowledges that eight (8) hours labor constitutes a legal day's work. Contractor shall comply with and be bound by Labor Code Section 1810.
(g) Penalties for Excess Hours . Contractor shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work excess hours. The Contractor shall, as a penalty to the City, forfeit twenty -five dollars ($25) for each worker employed in the performance of this Agreement by the Contractor 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 Contractor 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, Contractor certifies as follows:
“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.”
48 01225.0001/863604.2 4
(i) Contractor’s Responsibility for Subcontractors. For every subcontractor who will perform work under this Agreement, Contractor 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. Contractor shall be required to take all actions necessary to enforce such contractual provisions and ensure subcontractor's compliance, including without 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. Contractor shall diligently take corrective action to halt or rectify any such failure by any subcontractor.
1.5 Licenses, Permits, Fees and Assessments.
Contractor 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 this Agreement.
Contractor shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Contractor’s performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City , its officers, employees or agents of City, against any such fees, assessments, taxes , penalties or interest levied, assessed or imposed against City hereunder.
1.6 Familiarity with Work.
By executing this Agreement, Contractor warrants that Contractor (i) has thoroughly investigated and considered the scope of services to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Contractor discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Contractor shall immediately inform the City of such fact and shall not proceed except at Contractor’s risk until written instructions are received from the Project Manager.
1.7 Software and Computer Services.
If the Scope of Services includes the provision and/or installation of any software, computer system, or other computer technology, Contractor 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 Contractor under this Agreement is compatible, and shall be fully functional, with such infrastructure, equipment, computer system and software of the City. Contractor acknowledges that the City is relying on the representation by Contractor as a material consideration in entering into this Agreement.
1.8 Care of Work.
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The Contractor shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City’s own negligence.
1.9 Further Responsibilities of Parties.
Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other.
1.10 Additional Services.
City shall have the right , subject to state law and the City’s Municipal Code, at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Project Manager to the Contractor, incorporating therein any adjustment in (i) the Contract Sum for the actual costs of the extra work , and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Contractor. Any increase in compensation for extra work shall require the 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 Contractor that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services. Contractor 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 Contractor anticipates and that Contractor 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.
1.11 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 reference. In the event of a conflict between the provisions of Exhibit “B” and any other provisions of this Agreement, the provisions of Exhibit “B” shall govern.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.
2.1 Contract Sum.
Subject to any limitations set forth in this Agreement, City agrees to pay Contractor the amounts specified in the “Schedule of Compensation ” attached hereto as Exhibit “C” and 50 01225.0001/863604.2 6
incorporated herein by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed One Hundr ed Ten Thousand Dollars and Zero Cents ($110,000.00) (the “Contract Sum”), unless additional compensation is approved pursuant to Section 1.10.
2.2 Method of Compensation.
The method of compensation may include: (i) a lump sum payment upon completion ; (ii) payment in accordance with specified tasks or the percentage of completion of the services, less contract retention; (iii) payment for time and materials based upon the Contractor’s rates as specified in the Schedule of Compensation, provided that (a) time estimates are provided for the performance of sub tasks , (b) contract retention is maintained, and (c) the Contract Sum is not exceeded; or (iv) such other methods as may be specified in the Schedule of Compensation.
2.3 Reimbursable Expenses.
Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Project Manager in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5, and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Contractor at all project meetings reasonably deemed necessary by the City.
Coordination of the performance of the work with City is a critical component of the services. If Contractor is required to attend additional meetings to facilitate such coordination, Contractor shall not be entitled to any additional compensation for attending said meetings.
2.4 Invoices.
Each month Contractor shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month in a form approved by City ’s Director of Finance. By submitting an invoice for payment under this Agreement, Contractor is certifying compliance with all provisions of the Agreement . Contractor 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. 51 01225.0001/863604.2 7
(e) If this Agreement requires prevailing wages, per Section 1.4 of the Agreement, all invoices shall include a copy of Contractor’s Certified Payroll and proof that Certified Payroll has been submitted to the DIR.
Contractor shall also submit a list of the prevailing wage rates for all employees and subcontractors providing services under this Agreement, as applicable, with Contractor’s first invoice. If these rates change at any time during the term of the Agreement, Contractor 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 Contractor 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 Contractor which are disputed by City, or as provided in Section 7.3, City will use its best efforts to cause Contractor to be paid within forty -five (45) days of receipt of Contractor’s correct and undisputed invoice; however, Contractor 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 Contractor for correction and resubmission. Review and payment by City for any invoice provided by the Contractor shall not constitute a waiver of any rights or remedies provided herein or any applicable law.
2.5 Waiver.
Payment to Contractor for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Contractor.
2.6 Contingency of Funds.
Contractor 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.
ARTICLE 3. PERFORMANCE SCHEDULE
3.1 Time of Essence.
Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance.
Contractor shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the “Schedule of Performance ” attached hereto as Exhibit “D” and incorporated herein by this 52 01225.0001/863604.2 8
reference. When requested by the Contractor, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Project Manager but not exceeding one hundred eighty (180) days cumulatively.
3.3 Force Majeure.
The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Contractor shall within ten (10) days of the commencement of such delay notify the 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 Contractor be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Contractor’s sole remedy being extension of the Agreement pursuant to this Section.
3.4 Term.
Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services , which shall be no later than June 30, 2025, 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) year(s) at the option of the City if the City is satisfied with the quality of services performed by Contractor under this Agreement.
ARTICLE 4. COORDINATION OF WORK
4.1 Representatives and Personnel of Contractor.
The following principals of Contractor (“Principals”) are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
(Name) (Title)
(Name) (Title)
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. 53 01225.0001/863604.2 9
Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder. All personnel of Contractor, and any authorized agents, shall at all times be under the exclusive direction and control of the Principals. For purposes of this Agreement, the foregoing Principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City. Additionally, Contractor shall utilize only competent personnel to perform services pursuant to this Agreement. Contractor shall make every reasonable effort to maintain the stability and continuity of Contractor’s staff and subcontractors, if any, assigned to perform the services required under this Agreement.
Contractor shall notify City of any changes in Contractor’s staff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to and during any such performance.
4.2 Status of Contractor.
Contractor shall have no authority to bind City in any manner, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. Contractor shall not at any time or in any manner represent that Contractor or any of Contractor’s officers, employees, or agents are in any manner officials, officers, employees or agents of City. Neither Contractor, nor any of Contractor’s officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City ’s employees. Contractor expressly waives any claim Contractor may have to any such rights.
4.3 Project Manager.
The Project Manager shall be the Water Utilities Superintendent or any other person as may be designated by the Project Manager. It shall be the Contractor’s responsibility to assure that the Project Manager is kept informed of the progress of the performance of the services and the Contractor shall refer any decisions which must be made by City to the Project Manager .
Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Project Manager . The Project Manager shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement.
4.4 Independent Contractor.
Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Contractor’s employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Contractor shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed 54 01225.0001/863604.2 10
to be a partner of Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor.
4.5 Prohibition Against Subcontracting or Assignment.
The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Contractor shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Contractor, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder without the express consent of City.
ARTICLE 5. INSURANCE AND INDEMNIFICATION
5.1 Insurance Coverages.
Without limiting Contractor’s indemnification of City, and prior to commencement of any services under this Agreement, Contractor 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 . Contractor 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 has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
(b) Automobile liability insurance . Contractor 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 Contractor 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 . Contractor 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 Contractor agrees to maintain continuous coverage through a period no less than three (3) years after completion of the services required by this Agreement. 55 01225.0001/863604.2 11
(d) Workers’ compensation insurance . Contractor shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000).
(e) Subcontractors. Contractor 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 . Contractor 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 . Contractor 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 Contractor, its agents, representatives, employees or subcontractors. (c) Primary/noncontributing. Coverage provided by Contractor 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 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 Contractor or City will withhold amounts sufficient to pay premium from Contractor 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.
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(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 Contractor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subcontractors.
(g) Enforcement of contract p rovisions (non -estoppel). Contractor acknowledges and agrees that any actual or alleged failure on the part of the City to inform Contractor 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 Contractor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Contractor. 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 . Contractor 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 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 Contractor’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 . Contractor agrees to ensure that its sub contractors, subcontractors, and any other party involved with the project who is brought onto or involved in the project by Contractor, provide the same minimum insurance coverage and endorsements required of Contractor. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements 57 01225.0001/863604.2 13
of this section. Contractor agrees that upon request, all agreements with contractors, 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 Contractor ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Contractor, the City and Contractor may renegotiate Contractor’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 . Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
(q) Additional insurance . Contractor 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, Contractor 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 Contractor, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Contractor is legally liable (“indemnitors”), or arising from Contractor’s or indemnitors’ reckless or willful misconduct, or arising from Contractor’s or indemnitors’ negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, and in connection therewith:
(a) Contractor will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys’ fees incurred in connection therewith;
(b) Contractor will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Contractor hereunder; and Contractor agrees to save and hold the City, its officers, agents, and employees harmless therefrom;
58 01225.0001/863604.2 14
(c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Contractor hereunder, Contractor agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys ’ fees.
Contractor shall incorporate similar indemnity agreements with its subcontra ctors and if it fails to do so Contractor shall be fully responsible to indemnify City hereunder therefore, and failure of City to monitor compliance with these provisions shall not be a waiver hereof. This indemnification includes claims or liabilities arising from any negligent or wrongful act, error or omission, or reckless or willful misconduct of Contractor in the performance of professional services hereunder. The provisions of this Section do not apply to claims or liabilities occurring as a result of City ’s sole negligence or willful acts or omissions, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City ’s negligence, except that design professionals’ indemnity hereunder shall be limited to claims and liabilities arising out of the negligence, recklessness or willful misconduct of the design professional . The indemnity obligation shall be binding on successors and assigns of Contractor and shall survive termination of this Agreement.
ARTICLE 6. RECORDS, REPORTS, AND RELEASE OF INFORMATION
6.1 Records.
Contractor 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. Any and all such documents shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Project Manager shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. In the event of dissolution of Contractor’s business, custody of the books and records may be given to City, and access shall be provided by Contractor’s successor in interest. Notwithstanding the above, the Contractor shall fully cooperate with the City in providing access to the books and records if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act.
6.2 Reports.
Contractor shall periodically prepare and submit to the Project Manager such reports concerning the performance of the services required by this Agreement as the Project Manager shall require. Contractor hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Contractor 59 01225.0001/863604.2 15
agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Contractor is providing design services, the cost of the project being designed, Contractor shall promptly notify the Project Manager of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Contractor is providing design services, the estimated increased or decreased cost estimate for the project being designed.
6.3 Ownership of Documents.
All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials (the “documents and materials”) prepared by Contractor, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Project Manager or upon the termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the documents and materials hereunder. Any use, reuse or assignment of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Contractor will be at the City’s sole risk and without liability to Contractor, and Contractor’s guarantee and warranties shall not extend to such use, re use or assignment . Contractor may retain copies of such documents for its own use. Contractor shall have the right to use the concepts embodied therein.
All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. Moreover, Contractor 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.
6.4 Confidentiality and Release of Information.
(a) All information gained or work product produced by Contractor in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Contractor. Contractor shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Project Manager.
(b) Contractor, its officers, employees, agents or subcontractors, 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 Contractor gives City notice of such court order or subpoena. (c) If Contractor, or any officer, employee, agent or subcontractor of Contractor, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Contractor for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Contractor’s conduct. 60 01225.0001/863604.2 16
(d) Contractor shall promptly notify City should Contractor, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admiss ions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed there under. City retains the right, but has no obligation, to represent Contractor or be present at any deposition, hearing or similar proceeding. Contractor agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Contractor. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law.
This Agreement 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 Contractor 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.
7.2 Disputes; Default.
In the event that Contractor is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Contractor for any work performed after the date of default. Instead, the City may give notice to Contractor of the default and the reasons for the default. The notice shall include the timeframe in which Contractor may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Contractor is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Contractor does not cure the default, the City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of the City to give notice of the Contractor’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.
7.3 Retention of Funds.
Contractor hereby authorizes City to deduct from any amount payable to Contractor (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Contractor’s acts or omissions in performing or failing to perform Contractor’s obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Contractor, or any indebtedness shall exist which shall appear 61 01225.0001/863604.2 17
to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Contractor to insure, indemnify, and protect City as elsewhere provided herein.
7.4 Waiver.
Waiver by any party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a 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.
7.5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
7.6 Legal Action.
In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary provision herein, Contractor shall file a statutory claim pursuant to Government Code Sections 905 et seq. and 910 et seq., in order to pursue a legal action under this Agreement.
7.7 Liquidated Damages.
Since the 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 Contractor and its sureties shall be liable for and shall pay to the City the sum of Zero Dollars ($0) 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 Contractor any accrued liquidated damages.
7.8 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 62 01225.0001/863604.2 18
Contract at any time, with or without cause, upon thirty (30) days ’ written notice to Contractor, except that where termination is due to the fault of the Contractor, the period of notice may be such shorter time as may be determined by the Project Manager . In addition, the Contractor 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 Contractor may determine. Upon receipt of any notice of termination, Contractor shall immediately cease all services hereunder except such as may be specifically approved by the Project Manager. Except where the Contractor has initiated termination, the Contractor shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Project Manager thereafter in accordance with the Schedule of Compensation or such as may be approved by the Project Manager , except as provided in Section 7.3. In the event the Contractor has initiated termination, the Contractor shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non -terminating party with the opportunity to cure pursuant to Section 7.2.
7.9 Termination for Default of Contractor.
If termination is due to the failure of the Contractor 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 Contractor 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 Contractor for the purpose of set-off or partial payment of the amounts owed the City as previously stated.
7.10 Attorneys’ Fees.
If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney ’s fees. Attorney’s fees shall include attorney ’s fees on any appeal, and in addition a party entitled to attorney ’s fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.
ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees.
No officer or employee of the City shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.
63 01225.0001/863604.2 19
8.2 Conflict of Interest.
Contractor covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Contractor’s performance of services under this Agreement. Contractor further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or sub contractor without the express written consent of the Project Manager . Contractor agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision r elating to the Agreement which a ffects her/his financial interest or the financial interest of any corporation, partnership or association in which (s)he is, directly or indirectly, interested, in violation of any State statute or regulation. The Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.
8.3 Covenant Against Discrimination.
Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class in the performance of this Agreement. Contractor shall take affirmative action to insure 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.
8.4 Unauthorized Aliens.
Contractor hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. , as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Contractor so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Contractor hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys ’ fees, incurred by City.
ARTICLE 9. MISCELLANEOUS PROVISIONS
9.1 Notices.
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 64 01225.0001/863604.2 20
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 Contractor, 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.
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 Contractor 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 65 01225.0001/863604.2 21
“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 . Contractor 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.
Contractor 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. Contractor 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.
Contractor’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]
66 01225.0001/863604.2 22
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written.
CITY:
CITY OF CHINO, a municipal corporation
Linda Reich, City Manager
ATTEST:
Natalie Gonzaga, City Clerk
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
ALESHIRE & WYNDER, LLP
_____________________________ _____________________________
Fred Galante, City Attorney Hye Jin Lee, Director of Public Works
CONTRACTOR:
UNIVAR SOLUTIONS USA, LLC
By:
Name:
Title:
By:
Name:
Title:
Address:
Two corporate officer signatures required when Contractor 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. 67 01225.0001/863604.2 A-1
EXHIBIT “A”
SCOPE OF SERVICES
I. Contractor will perform the Services described in Contractor’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 Contractor without additional charge to the City until found satisfactory and accepted by City.
68 01225.0001/863604.2 A-2
EXHIBIT “A-1”
Product Requirements:
Hydrochloric Acid FCC or NSF Grade Muriatic Acid 20 0 Baume must meet requirements of Food Chemical Codex, 6th edition, and NSF Standard for drinking water.
Chemical Formula: HCI (Muriatic Acid, Hydrogen Chloride) Property Specification
Assay (as % HCI) 31.45% - 33.12%
Specific Gravity @ 680 F 1.16
Color (APHA) – colorless to slightly yellow 30 Max.
Iron 5 ppm Max.
Total Organic Compounds
(TOC) (non-fluorine containing) 5 ppm Max.
Reducing Substances (as SO3) 70 ppm Max.
Oxidizing Substances (as C12) 30 ppm Max.
Fluorinated Organic Compounds 25 pm Max.
Estimated Quantities: The City of Chino anticipates an estimated annual usage of approximately 62,000 gallons. The City of Chino will not be obligated to purchase any specific quantities and reserves the right to purchase either more or less product, based on seasonal adjustments, at the firm-fixed price quoted.
Shipping Instructions: The City of Chino shall require an average of approximately 2,500 to 4,000 gallons each month at the Benson Water Treatment Plant, and the Eastside Water Treatment Facility. Contractor shall provide twenty -four (24) hour notice to City Primary Contacts listed below prior to delivery. Hydrochloric acid delivery shall be coordinated and scheduled by the City Water Systems Plant Operator.
Primary Contacts: Water Treatment Plant Operators
Telephone No. (909) 334-3441 (Office)
Hours: Monday - Thursday
7:00 am – 4:00 pm
Frank Ruiz - (909) 772-0373
Tomas Himaya - (909) 721-6255
Jose Avila - (909) 573-8559
Alternative Contacts: Water Utilities Superintendent – Pete Vicario III Office: (909) 334-3444 / Mobile: (909) 437-1430
69 01225.0001/863604.2 A-3
Delivery Schedule and Location: Hydrochloric acid shall be delivered to the City of Chino Nitrate Treatment Plant Monday through Thursday between the hours of 7:00 a.m. - 3:00 p.m.
Benson Water Treatment Facility Eastside Water Treatment Facility 11840 Benson Ave. 7537 Schaefer Avenue
Chino, CA 91710 Ontario, CA 91761
Storage Tank(s):
• One (1) storage tank with a maximum capacity of 2,100 gallons located at the Benson Water Treatment Plant site
• One (1) storage tank with a maximum capacity of 2,500 gallons located at the Eastside Water Treatment Plant site.
• Bulk hydrochloric acid shall be loaded into the storage tanks utilizing hoses supplied by the bulk product hauler or bulk commodity transport company.
Termination: The City of Chino may reject delivery or terminate the Contract if the quality of the delivered hydrochloric acid does not meet the product specifications. It shall be the sole responsibility of the Contractor to immediately remove said product and provide acceptable replacement product at the sole expense of the Contractor. The City of Chino may terminate the Contract should two or more deliveries of hydrochloric acid be rejected in a six (6) month period.
Emergency Telephone Number: Contractor shall provide the City a telephone number(s) where a representative may be contacted 24 hours a day, seven days a week in the event of an emergency.
Safety Data Sheets: Contractor shall provide two copies of a Safety Data Sheet (SDS) to the City of Chino Risk Management Division and one copy to the Water Systems Operator, upon execution of the Contract, if or when said document is revised or updated.
Safety Training: Contractor shall provide training in the safe and proper handling procedures of their product. Training shall be provided at least two times per calendar year. The training shall be provided at the City of Chino facility and at no additional expense to the City of Chino.
70 01225.0001/863604.2 B-1
EXHIBIT “B”
SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
71 01225.0001/863604.2 C-1
EXHIBIT “C”
SCHEDULE OF COMPENSATION
I. Contractor 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 Contractor 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.
72 01225.0001/863604.2 C-2
EXHIBIT “C-1”
Compensation: This is firm fixed price Contract between City and Contractor. Contractor agrees to accept the specified compensation as set forth in this Contract as full remuneration for performing all services and furnishing all staffing, labor, and insurance, vehicles, equipment, tools, materials, overhead, travel, etc. required for any reasonably unforeseen difficulties which may arise or be encountered in the execution of the services until acceptance, for risks connected with the services, and for performance by Contractor of all its duties and obligations hereunder. Price schedule includes all fees, shipping, freight, transportation, travel, tax and any other fees. No other compensation will be allowed.
Contractor shall only be compensated as set forth herein below for work performed in accordance with the Technical Provision set for in Section II of the IFB. City shall have no obligation to pay any sum in excess of total Contract amount specified herein unless authorized by amendment in accordance with Article 21 – Modifications.
Fees and Charges:
City will pay the following fees in accordance with the provisions of this Contract.
Price for FCC
Grade
Price for NSF
Grade
Material Cost/Gallon $1.87 $1.87
Miscellaneous Surcharge(s) Included Included
Sales Tax (Exempt) N/A N/A
TOTAL NET PRICE/GALLON $1.87 $1.87
Payments and Invoicing : Contractor shall submit invoices on a monthly basis. Contractor shall reference Purchase Order number on invoice. Payment will be net 30 days after receipt of an invoice in a format acceptable to the City and verified and approved by City and subject to routine processing requirements. The responsibility for providing an acceptable invoice rests with the Contractor.
Billing shall cover services and/or goods not previously invoiced. Contractor shall reimburse City for any monies paid to Contractor for goods or services not provided or when goods or services do not meet Contract requirements.
Payments made by City shall not preclude the right of City from thereafter disputing any items or services involved or billed under this Contract and shall not be construed as acceptance of any part of the goods or services.
Contractor will provide an invoice on Contractor’s letterhead for services rendered.
Each invoice shall include the following information:
1. Contractor’s name and address
2. Contractor’s remittance address (if different from above)
3. Contractor’s Invoice Number
4. City Purchase Order (PO) number
73 01225.0001/863604.2 C-3
5. Service Description
6. Service date(s)
7. Unit cost
8. Total Invoice Amount
Invoices and support documentation are to be forwarded to (not both):
Accounts Payable
P.O. Box 667
Chino, CA 91708
Or
Email to:
[email protected]
74 01225.0001/863604.2 D-1
EXHIBIT “D”
SCHEDULE OF PERFORMANCE
I. Contractor shall perform all services and deliver all work products timely in accordance with the schedule attached hereto as Exhibit “D-1”.
A. The City of Chino shall require monthly deliveries at the Benson Water Treatment Plant, and the Eastside Water Treatment Facility. Contractor shall provide twenty-four (24) hour notice to City Primary prior to delivery.
B. Hydrochloric acid delivery shall be coordinated and scheduled by the City Water Systems Plant Operator.
C. Hydrochloric acid shall be delivered to the City of Chino Nitrate Treatment Plant Monday through Thursday between the hours of 7:00 a.m. - 3:00 p.m.
III. The Project Manager may approve extensions for performance of the services in accordance with Section 3.2.
75 MEMORANDUM
CITY OF CHINO
PUBLIC WORKS DEPARTMENT
CITY COUNCIL MEETING DATE: JULY 30, 2024
TO: LINDA REICH, CITY MANAGER
FROM: HYE JIN LEE, PE, DIRECTOR OF PUBLIC WORKS
SUBJECT
..titl e
Award of Contract and Approve a Pilot Project for the Utilization of Rubberized Emulsion Aggregate Slurry (REAS).
..end
RECOMMENDATION
1) Create a Project MS254, titled “TM 18903 Rubberized Emulsion Aggregate Slurry Project”; 2) appropriate $52,087 to the General Fund (Fund 100), with a corresponding year-end transfer in the same amount from the Deposits for Future Improvements account (220 -24270); 3) approve Resolution 2024 -040 supporting the pilot project for the utilization of Rubberized Emulsion Aggregate Slurry (REAS); 4) award a contract to Petrochem Materials, Innovation, LLC, Carlsbad, CA for $44,351.34 and approve a construction con tingency for $4,435 (10% of contract) for a total not to exceed amount of $4 8,786.34 for the application of Rubberized Emulsion Aggregate Slurry (REAS); and 5) authorize the City Manager to execute the necessary documents on behalf of the City.
..body
FISCAL IMPACT
Requires an appropriation to the General Fund (Fund 100) of $52,087 with a corresponding year-end transfer in the same amount from the Deposits for Future Improvements Deposit Account (Fund 220). Costs associated with this project are c ompletely offset by Meritage Homes of California, Inc., the developer for the Tract Map No. 18903.
Appropriation Summary:
Amount 10% Contingency Total
PMI - REAS Contract $44,351.34 $4,435 $48,786.34
Self-Performed Work (City) $3,000 $300 $3,300
Total $52,087 (rounded)
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
Financial Stability
Effective Technology
76 CITY COUNCIL MEETING DATE: JULY 30, 2024
TITLE: AWARD OF CONTRACT AND APPROVE A PILOT PROJECT FOR THE UTILIZATION OF RUBBERIZED EMULSION AGGREGATE SLURRY (REAS).
PAGE: 2
Revenue:
Expenditure: 1007010 – 40010 | 48005 – MS254
Transfer In: 100-1000-50000 Transfer Out: 220-24270
77 CITY COUNCIL MEETING DATE: JULY 30, 2024
TITLE: AWARD OF CONTRACT AND APPROVE A PILOT PROJECT FOR THE UTILIZATION OF RUBBERIZED EMULSION AGGREGATE SLURRY (REAS).
PAGE: 3
BACKGROUND
The Planning Commission conditionally approved Site Approval PL17-0112 and Tentative Tract Map. No 18903 on August 20, 2018, for the development of 38 single -family homes. This development is generally located north of Chino Avenue between Pipeline and Norton Avenues, as shown in Exhibit A.
The Conditions of Approval ("COA") required public improvements along the project’s frontage between Pipeline and Norton Avenues north of Chino Avenue as well as in -tract improvements which include curb, gutter, sidewalk, curb ramps, signing & striping, driv e approaches, street paving, sewer, storm drain, and domestic water improvements.
The public improvements for this tract are substantially complete and all deficiencies have been addressed, except for the pavement cracking on Rushmore Court, Ryan Way, and Denali Lane.
Notably, the City Council acknowledged the completion of the storm drain improvements on March 19, 2024. However, pending the resolution of pavement conditions, the City Council withholds final acceptance of remaining public improvements.
On June 10, 2024, staff presented a proposal to the Infrastructure Streets Committee. This initiative proposes piloting Type II Rubberized Emulsion Aggregate Slurry ("REAS"), a proven technology utilized successfully in neighboring cities. REAS, adheres to industry standards, and offers enhanced durability, and crack coverage. Its application can be reapplied as needed to maintain street integrity and neighborhood aesthetics. The Infrastructure Committee expressed optimism about the staff's recommendation to proceed with the pilot project.
The City is taking the lead on completing the remaining street work in this tract. Petrochem Materials Innovation, LLC (PMI) provided a quote of $44,351.34 for Type II Central Mix REAS, covering approximately 58,770 square f eet in one day. This includes material transport, traffic control, sweeping, equipment, resident notification, and labor. The City plans to handle crack - sealing and striping internally, which is estimated to cost $3,000. Therefore, the total estimated project cost is $47,351.34, with an additional 10% contingency of $4,735 for a total amount not to exceed $52,086.47.
Additionally, it should be noted that Petrochem Materials Innovation, LLC., (PMI) currently holds a contract with Los Angeles County and has o ffered the City of Chino the same pricing (i.e. “piggy-backing” price). Despite the smaller paved area in Chino compared to Los Angeles County, the City benefits from quantity -based pricing, leveraging economies of scale to implement REAS for the first tim e. This practice is consistent with Purchasing Policy 3.1.5 Noncompetitive Proposal - “Same Price Purchased by Another Public Agency”
ISSUES/ANALYSIS
Meritage Homes of California, the developer, has placed $121,252.68 into the City's account.
This sum is designated for the initial application of REAS, covering the City staff's efforts, with the remainder allocated for future expenses related to a second application of REAS on the specified streets. Any remaining funds after the project's completion will be reserved for the future application of REAS moving into the future.
Moving into the future, it is important to know that cost analysis shows initial investment in REAS may exceed conventional treatments, yet its extended lifespan and reduced maintenance costs offer long -term savings. Its quick curing and minimal disruption during application align with project timelines and operational needs. Choosing REAS mitigates risks of premature 78 CITY COUNCIL MEETING DATE: JULY 30, 2024
TITLE: AWARD OF CONTRACT AND APPROVE A PILOT PROJECT FOR THE UTILIZATION OF RUBBERIZED EMULSION AGGREGATE SLURRY (REAS).
PAGE: 4
pavement failures, backed by its proven performance in similar p rojects, ensuring reliable, durable outcomes. Based on its unique characteristics, proven performance, technical compatibility, cost -effectiveness, industry standard, and urgency, REAS stands as a viable option for this project.
Additionally, the unique be nefits of REAS are unlike traditional asphalt or concrete surfaces, REAS offers a distinct combination of rubberized emulsion and aggregate, significantly enhancing durability. The rubberized emulsion component improves flexibility and reduces cracking, addressing long-term maintenance needs effectively. Extensive testing has validated REAS against technical standards, including resistance to weathering, rutting, and deformation under heavy traffic conditions. Moreover, REAS integrates seamlessly with exist ing road infrastructure, requiring minimal modifications and ensuring consistent application across various material types. This application aligns with the current 2024 Greenbook Standard Specifications for Public Works Construction.
REAS includes a 7 -year warranty, ensuring prompt contractor response to address any street degradation issues, including cracking. It's important to note that environmental factors and settling may lead to occasional raveling and new surface cracks.
Therefore, it is staff’s re commendation to the City Council to approve the pilot project to use REAS to address pavement cracking on Rushmore Court, Ryan Way, and Denali Lane, based on the findings and justifications provided in the resolution and staff report. Staff will monitor th e implementation of REAS, assess its performance, and report back to the City Council with findings and recommendations for future applications.
Attachments: Exhibit A: Location Map
Exhibit B: Resolution 2024-040
Exhibit C: Agreement – PMI
79 Huitt-Zollars, Inc. IrvinePhone (949) 988-5815 Fax (949) 988-58202603 Main Street, Suite 400Irvine, California 92614
LOCATION MAP
80 RESOLUTION NO. 2024-040
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHINO,
CALIFORNIA, APPROVING PILOT PROJECT MS-254 FOR
RUBBERIZED EMULSION AGGREGATE SLURRY (REAS)
WHEREAS, the City of Chino (“City”) approved Site Approval PL17 -0112 and Tentative Tract Map No 18903 on August 20, 2018, for the development of 38 single -family homes, with Conditions of Approval ("COA") requiring public improvements including pavement on Rushmore Court, Ryan Way, and Denali Lane; and
WHEREAS, the public improvements for this tract are substantially complete and all deficiencies have been addressed, except for the pavement cracking on Rushmore Court, Ryan Way, and Denali Lane; and
WHEREAS, on June 10, 2024, staff presented a proposal to the Infrastructure Streets Committee regarding the piloting of Rubberized Emulsion Aggregate Slurry (REAS). This technology has been successfully employed in neighboring cities and is designed to meet industry standards. Here are some key points about REAS and its proposed initiative:
1. Technology and Standards: REAS is a well -established technology known for its adherence to industry standards. It offers enhanced durability and effective coverage of cracks in pavement surfaces.
2. Pilot Initiative: The proposal suggests piloting REAS in the City of Chino as a trial run.
This allows for testing its effectiveness in local conditions and assessing its suitability for wider application across the City's infrastructure.
3. Maintenance Benefits: One of the advantages of REAS is its ability to be reapplied as necessary. This capability helps in maintaining the integrity of streets over time, contributing to the overall aesthetics and functionality of neighborhoods.
4. Community Impact: By improving street surfaces and reducing pavement deterioration, REAS can positively impact the quality of life for residents, enhancing both safety and aesthetics.
5. Long-Term Strategy: Implementing REAS as part of a maintenance strategy can potentially extend the lifespan of roads and reduce the need for more extensive repairs or replacements in the future.
WHEREAS, Meritage Homes of California, the developer, has deposited $121,252.68 with the City for the initial application of Rubberized Emulsion Aggregate Slurry (REAS), in addition a future second application of REAS; and
WHEREAS, Petrochem Materials Innovation (“PMI”), LLC, Carlsbad, CA is the sole manufacturer that applies REAS in the Western United States, and while REAS is nonproprietary and available for purchase by other contractors, procurement through Petrochem Materials Innovation, LLC ensures application expertise and efficiency, which may reduce overall costs and ensure quality control; and
WHEREAS, REAS has been successfully utilized by PMI for similar projects, including the City of Los Angeles, demonstrating its suitability, performance, and compliance with industry standards; and
81 RESOLUTION NO. 2024-040
01225.0005/701923.2 BWB
WHEREAS, City of Los Angeles uses purchasing procedures substantially similar to those that the City would have been required to use, and PMI offers the same price(s) to the City as offered to said agency, thereby satisfying the procurement criteria set forth in the City's policies; and
WHEREAS, REAS includes a 7 -year warranty ensuring timely contractor response to address any street degradation issues, and its technical characteristics and cost -effectiveness make it the sole viable option; and
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chino:
1. The City Council approves the pilot project to use REAS to address pavement cracking on Rushmore Court, Ryan Way, and Denali Lane, based on the findings and justifications provided in this resolution.
2. The City Council directs staff t o monitor the implementation of REAS, assess its performance, and report back to the City Council with findings and recommendations for future applications if successful.
3. This resolution shall take effect immediately upon passage.
APPROVED AND ADOPTED THIS 30TH DAY OF JULY 2024.
EUNICE M. ULLOA, MAYOR
ATTEST:
NATALIE GONZAGA, CITY CLERK
82 RESOLUTION NO. 2024-040
01225.0005/701923.2 BWB
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 special meeting held on the 30th day of July 2024, by the following votes:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
NATALIE GONZAGA, CITY CLERK
83 Project Name/No.: TM 18903 Rubberized Emulsion Contract No.: ______________ Aggregate Slurry Project
Project Manager: PW/ J. Plasencia Approved: ______________ 01225.0001/863604.2 (Long Form)
AGREEMENT FOR SERVICES
BETWEEN THE CITY OF CHINO AND
PETROCHEM MATERIALS, INNOVATION, LLC
THIS AGREEMENT FOR SERVICES (herein “Agreement”) is made and entered into this 30th day of July, 2024 (“Effective Date”) by and between the City of Chino, a California municipal corporation (“City”) and Petrochem Materials, Innovation, LLC , (“Consultant”).
City and Consultant may be referred to individually as “Party” or collectively as “Parties.”
RECITALS
A. City has sought, by issuance of a Request for Proposals or Invitation for Bids, the performance of the services defined and described particularly in Article 1 of this Agreement.
B. Consultant, following submission of a proposal or bid for the performance of the services defined and described particularly in Article 1 of this Agreement, was selected by the City to perform those services.
C. Pursuant to the City of Chino’s Municipal Code, City has authority to enter into and execute this Agreement.
D. The Parties desire to formalize the selection of Consultant for performance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1. SERVICES OF CONSULTANT
1.1 Scope of Services.
In compliance with all terms and conditions of this Agreement, the Consultant shall provide those services specified in the “Scope of Services ” attached hereto as Exhibit “A” and incorporated herein by this reference, which may be referred to herein as the “services” or “work” hereunder. As a material inducement to the City entering into this Agreement, Consultant represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the work and services contemplated herein. Consultant shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all services described herein. Consultant covenants that it shall 84 01225.0001/863604.2 2
follow the highest professional standards in performing the work and services required hereunder and that all materials will be both of good quality as well as fit for the purpose intended. For purposes of this Agreement, the phrase “highest professional standards ” shall mean those standards of practice recognized by one or more first -class firms performing similar work under similar circumstances.
1.2 Consultant’s Proposal.
The Scope of Services shall include the scope of work included in Consultant’s proposal, which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern.
1.3 Compliance with Law.
Consultant shall keep itself informed concerning, and shall render all services hereunder in accordance with , all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental entity having jurisdiction in effect at the time service is rendered.
1.4 California Labor Law.
If the Scope of Services includes any “public work” or “maintenance work,” as those terms are defined in California Labor Code Section 1720 et seq. and California Code of Regulations, Title 8, Section 16000 et seq. , and if the total compensation is $1,000 or more, Consultant shall pay prevailing wages for such work and comply with the requirements in California Labor Code section 1770 et seq. and 1810 et seq., and all other applicable laws, as they pertain to such work, including the following requirements:
(a) DIR Monitoring 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 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 85 01225.0001/863604.2 3
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:
“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.”
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(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 without 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.
1.5 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 this Agreement.
Consultant shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Consultant’s performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City , its officers, employees or agents of City, against any such fees, assessments, taxes , penalties or interest levied, assessed or imposed against City hereunder.
1.6 Familiarity with Work.
By executing this Agreement, Consultant warrants that Consultant (i) has thoroughly investigated and considered the scope of services to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Consultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Consultant discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Consultant shall immediately inform the City of such fact and shall not proceed except at Consultant’s risk until written instructions are received from the Project Manager.
1.7 Software and Computer Services.
If the Scope of Services includes the provision and/or installation of any software, computer system, or other computer 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.
1.8 Care of Work.
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The Consultant shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City’s own negligence.
1.9 Further Responsibilities of Parties.
Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other.
1.10 Additional Services.
City shall have the right , subject to state law and the City’s Municipal Code, at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Project Manager to the Consultant, incorporating therein any adjustment in (i) the Contract Sum for the actual costs of the extra work , and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Consultant. Any increase in compensation for extra work shall require the 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.
1.11 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 reference. In the event of a conflict between the provisions of Exhibit “B” and any other provisions of this Agreement, the provisions of Exhibit “B” shall govern.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.
2.1 Contract Sum.
Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the amounts specified in the “Schedule of Compensation ” attached hereto as Exhibit “C” and 88 01225.0001/863604.2 6
incorporated herein by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed Forty-Four Thousand Three Hundred Fifty-One Dollars and Thirty-Four Cents ($44,351.34) (the “Contract Sum”), unless additional compensation is approved pursuant to Section 1.10.
2.2 Method of Compensation.
The method of compensation may include: (i) a lump sum payment upon completion ; (ii) payment in accordance with specified tasks or the percentage of completion of the services, less contract retention; (iii) payment for time and materials based upon the Consultant’s rates as specified in the Schedule of Compensation, provided that (a) time estimates are provided for the performance of sub tasks , (b) contract retention is maintained, and (c) the Contract Sum is not exceeded; or (iv) such other methods as may be specified in the Schedule of Compensation.
2.3 Reimbursable Expenses.
Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Project Manager in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5, and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by the City.
Coordination of the performance of the work with City is a critical component of the services. If Consultant is required to attend additional meetings to facilitate such coordination, Consultant shall not be entitled to any additional compensation for attending said meetings.
2.4 Invoices.
Each month Consultant shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month in a form approved by City ’s Director of Finance. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the Agreement . Consultant shall not invoice City for any duplicate services performed by more than one person.
All invoices shall be submitted by email to [email protected]. Each invoice is to include:
(a) Line items for all personnel describing the work performed, the number of hours worked, and the hourly rate.
(b) Line items for all materials and equipment properly charged to the Services.
(c) Line items for all other approved reimbursable expenses claimed, with supporting documentation.
(d) Line items for all approved subcontractor labor, supplies, equipment, materials, and travel properly charged to the Services. 89 01225.0001/863604.2 7
(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.
2.5 Waiver.
Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant.
2.6 Contingency of Funds.
Consultant acknowledges that funding or portions of funding for this 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.
ARTICLE 3. PERFORMANCE SCHEDULE
3.1 Time of Essence.
Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance.
Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the “Schedule of Performance ” attached hereto as Exhibit “D” and incorporated herein by this 90 01225.0001/863604.2 8
reference. When requested by the Consultant, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Project Manager but not exceeding one hundred eighty (180) days cumulatively.
3.3 Force Majeure.
The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of the public 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.
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, 2025, except as otherwise provided in the Schedule of Performance (Exhibit “D”).
ARTICLE 4. COORDINATION OF WORK
4.1 Representatives and Personnel of Consultant.
The following principals of Consultant (“Principals”) are hereby designated as being the principals and representatives of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
(Name) (Title)
(Name) (Title)
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement.
Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. All personnel of Consultant, and any authorized agents, shall at all times be 91 01225.0001/863604.2 9
under the exclusive direction and control of the Principals. For purposes of this Agreement, the foregoing Principals may not be replaced nor may their responsibilities be substantially reduced by Consultant without the express written approval of City. Additionally, Consultant shall utilize only competent personnel to perform services pursuant to this Agreement. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and subcontractors, if any, assigned to perform the services required under this Agreement.
Consultant shall notify City of any changes in Consultant’s staff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to and during any such performance.
4.2 Status of Consultant.
Consultant shall have no authority to bind City in any manner, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. Consultant shall not at any time or in any manner represent that Consultant or any of Consultant’s officers, employees, or agents are in any manner officials, officers, employees or agents of City. Neither Consultant, nor any of Consultant’s officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City ’s employees. Consultant expressly waives any claim Consultant may have to any such rights.
4.3 Project Manager.
The Project Manager shall be Jesus Plasencia, City of Chino Assistant City Engineer, or any other person as may be designated by the Project Manager. It shall be the Consultant’s responsibility to assure that the Project Manager is kept informed of the progress of the performance of the services and the Consultant shall refer any decisions which must be made by City to the Project Manager. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Project Manager . The Project Manager shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement.
4.4 Independent Consultant.
Neither the City nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Consultant’s employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Consultant shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor 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. City shall not in any way or for any purpose become or be deemed to be a partner of Consultant in its business or otherwise or a joint venturer or a member of any joint enterprise with Consultant.
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4.5 Prohibition Against Subcontracting or Assignment.
The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Consultant shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Consultant or any surety of Consultant of any liability hereunder without the express consent of City.
ARTICLE 5. INSURANCE AND INDEMNIFICATION
5.1 Insurance Coverages.
Without limiting Consultant’s indemnification of City, and prior to commencement of any services under this Agreement, Consultant 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 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. 93 01225.0001/863604.2 11
(d) Workers’ compensation insurance . Consultant shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000).
(e) Subcontractors. Consultant shall 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 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.
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(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 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 95 01225.0001/863604.2 13
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, subcontractors, or invitees, or any individual or entity for which Consultant is legally liable (“indemnitors”), or arising from Consultant’s or indemnitors’ reckless or willful misconduct, or arising from Consultant’s or indemnitors’ negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, and in connection therewith:
(a) Consultant will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys’ fees incurred in connection therewith;
(b) Consultant will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Consultant hereunder; and Consultant agrees to save and hold the City, its officers, agents, and employees harmless therefrom;
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(c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Consultant for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Consultant hereunder, Consultant agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys ’ fees.
Consultant shall incorporate similar indemnity agreements with its subcontra ctors and if it fails to do so Consultant shall be fully responsible to indemnify City hereunder therefore, and failure of City to monitor compliance with these provisions shall not be a waiver hereof. This indemnification includes claims or liabilities arising from any negligent or wrongful act, error or omission, or reckless or willful misconduct of Consultant in the performance of professional services hereunder. The provisions of this Section do not apply to claims or liabilities occurring as a result of City ’s sole negligence or willful acts or omissions, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City ’s negligence, except that design professionals’ indemnity hereunder shall be limited to claims and liabilities arising out of the 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.
ARTICLE 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. Any and all such documents shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Project Manager shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. In the event of dissolution of Consultant’s business, custody of the books and records may be given to City, and access shall be provided by Consultant’s successor in interest. Notwithstanding the above, the Consultant shall fully cooperate with the City in providing access to the books and records if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act.
6.2 Reports.
Consultant shall periodically prepare and submit to the Project Manager such reports concerning the performance of the services required by this Agreement as the Project Manager shall require. Consultant hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Consultant 97 01225.0001/863604.2 15
agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Consultant is providing design services, the cost of the project being designed, Consultant shall promptly notify the Project Manager of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Consultant is providing design services, the estimated increased or decreased cost estimate for the project being designed.
6.3 Ownership of Documents.
All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials (the “documents and materials”) prepared by Consultant, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Project Manager or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the documents and materials hereunder. Any use, reuse or assignment of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Consultant will be at the City’s sole risk and without liability to Consultant, and Consultant’s guarantee and warranties shall not extend to such use, re use or assignment . Consultant may retain copies of such documents for its own use. Consultant shall have the right to use the concepts embodied therein.
All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom. Moreover, Consultant with respect to any documents and materials that may qualify as “works made for hire ” as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed “works made for hire” for the City.
6.4 Confidentiality and Release of Information.
(a) All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Project Manager.
(b) Consultant, its officers, employees, agents or subcontractors, 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 City notice of such court order or subpoena. (c) If Consultant, or any officer, employee, agent or subcontractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Consultant’s conduct. 98 01225.0001/863604.2 16
(d) Consultant shall promptly notify City should Consultant, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admiss ions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed there under. City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law.
This Agreement 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.
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, though not reduced, if circumstances warrant. During the period of time that Consultant is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of the City to give notice of the Consultant’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.
7.3 Retention of Funds.
Consultant hereby authorizes City to deduct from any amount payable to Consultant (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Consultant’s acts or omissions in performing or failing to perform Consultant’s obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear 99 01225.0001/863604.2 17
to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Consultant to insure, indemnify, and protect City as elsewhere provided herein.
7.4 Waiver.
Waiver by any party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement.
Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a 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.
7.5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
7.6 Legal Action.
In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this 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 legal action under this Agreement.
7.7 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.
7.8 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 100
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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 , except as provided in Section 7.3. In the event the Consultant has initiated termination, the Consultant shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non -terminating party with the opportunity to cure pursuant to Section 7.2.
7.9 Termination for Default of Consultant.
If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for 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.
7.10 Attorneys’ Fees.
If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney ’s fees. Attorney’s fees shall include attorney ’s fees on any appeal, and in addition a party entitled to attorney ’s fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.
ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees.
No officer or employee of the City shall be 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.
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8.2 Conflict of Interest.
Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant’s performance of services under this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or sub contractor without the express written consent of the Project Manager . Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision r elating to the Agreement which a ffects her/his financial interest or the financial interest of any corporation, partnership or association in which (s)he is, directly or indirectly, interested, in violation of any State statute or regulation. The Consultant warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.
8.3 Covenant Against Discrimination.
Consultant covenants that, by and for itself, its heirs, executors, assigns, and all 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, ancestry or other protected class in the performance of this Agreement. Consultant shall take affirmative action to insure 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.
8.4 Unauthorized Aliens.
Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. , as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys ’ fees, incurred by City.
ARTICLE 9. MISCELLANEOUS PROVISIONS
9.1 Notices.
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 102
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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.
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 103
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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:
PETROCHEM MATERIALS, INNOVATION,
LLC:
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
• Application of Type II Central Mix REAS
• Transportation of material
• Posting and notifying
• Traffic control per watch handbook
• Sweeping
• Equipment
• and labor for application of approximately 37,526SF over 1 day
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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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01225.0001/863604.2 C1-1
EXHIBIT “C-1”
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01225.0001/863604.2 D-1
EXHIBIT “D”
SCHEDULE OF PERFORMANCE
I. Consultant shall perform all services timely in accordance with the following schedule:
*Finalized deadline dates will be contingent upon actualized project schedules, which shall be approved by the Project Manager. 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
PUBLIC WORKS DEPARTMENT
CITY COUNCIL MEETING DATE: JULY 30, 2024
TO: LINDA REICH, CITY MANAGER
FROM: HYE JIN LEE, PE, DIRECTOR OF PUBLIC WORKS
SUBJECT
..titl e
The Ontario Ranch Business Park Project (referred to as REDA) Merrill Avenue Widening, Interconnect, and Euclid Median Improvements.
..end
RECOMMENDATION
..recommendation
1) Create Capital Improvement Project MS253 titled “Merrill Avenue Widening, Interconnect, and Euclid Avenue Median Improvements”; 2) appropriate $15,709,100 to the Transportation Fund 320; 3) schedule year -end transfers f rom the following: reserve fund balance for perimeter and circulation enhancements around Chino Airport, primarily along Merrill Avenue, funded by Scannell Properties (FedEx development) reserve account (320 -35335), totaling $4,764,984; Future Improvemen ts deposit account (220 -24270) totaling $3,309,027 for the Euclid Median/Widening; Citywide Circulation (Streets, Signals and Bridges) Development Impact Fee Fund (220) totaling $2,021,986; and The Preserve Circulation (Streets, Signals and Bridges) Development Impact Fee Fund (260) totaling $5,613,104; 4) approve a construction reimbursement agreement not to exceed $15,709,100 between the City and the developer, Euclid Land Venture, LLC, a Delaware limited liability company, for the Merrill Avenue Widening, Interconnect, and Euclid Avenue Median Improvements; 5) approve the Right of Entry Agreement between the City and San Bernardino County to obtain access to certain portions of airport property necessary for constructing the Merrill Avenue public improvem ents; 6) approve the Memorandum of Understanding between the City and Euclid Land Venture, LLC, a Delaware limited liability company, to transfer the rights under the Right of Entry Agreement to the developer for the construction of the Merrill Avenue Publ ic Improvements; and 8) authorize the City Manager to execute all necessary documents on behalf of the City. ..body
FISCAL IMPACT
Requires an appropriation to the Transportation Fund 320 in the amount of $15,709,100. This appropriation has no impact on the General Fund. Scannell Properties (FedEx project) deposited $5,000,000 with the City as stipulated in Section 2.13.6 of the Development Services Conditions of Approval for Master Site Approval PL16 -0719. From this deposit, $4,764,984 remains and wi ll be allocated to perimeter and circulation improvements around Chino Airport, focusing primarily on Merrill Avenue. Furthermore, developments along the Euclid Avenue corridor north of Merrill Avenue have contributed in -lieu-of-construction fees for the E uclid median and widening enhancements in the amount of $3,309,027. The City will use these deposits to help cover costs related to improving Euclid Avenue. While the developer's deposits largely fund improvements on Merrill and Euclid Avenues, a shortfall of $7,635,089 remains.
There are sufficient funds in each of the funds and accounts listed below. This deficit will be supplemented by Development Impact Fees (“DIFs”), as summarized on the next page:
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CITY COUNCIL MEETING DATE: JULY 30, 2024
TITLE: THE ONTARIO RANCH BUSINESS PARK PROJECT (REFERRED TO AS REDA) MERRILL AVENUE WIDENING, INTERCONNECT, AND EUCLID MEDIAN IMPROVEMENTS.
PAGE: 2
Year-End Backfill Accounts Amount
Scannell Fed Ex Deposit-320-35335 $ 4,764,984
Euclid Avenue Developer Deposits-220-242770 $ 3,309,027 Citywide Circulation DIF- Fund 220 $ 2,021,986
The Preserve Circulation DIF-Fund 260 $ 5,613,104
Transportation Fund 320 Appropriation $ 15,709,100
CITY OF CHINO MISSION / VISION / VALUES / STRATEGIC ISSUES The recommendation detailed above furthers the City’s values and strategic issues that serve as key pillars on which identified priorities, goals, and action plans are built, by fostering:
Positive City Image
Financial Stability
Responsible Long-Range Planning
Public Service Excellence through Internal and External Partnerships
Revenue: Click or tap here to enter text.
Expenditure: 3207100-40010-MS253
Transfer In: 3201000-50001 Transfer Out: 220-24270/2201000-40001/2601000- 40001
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CITY COUNCIL MEETING DATE: JULY 30, 2024
TITLE: THE ONTARIO RANCH BUSINESS PARK PROJECT (REFERRED TO AS REDA) MERRILL AVENUE WIDENING, INTERCONNECT, AND EUCLID MEDIAN IMPROVEMENTS.
PAGE: 3
BACKGROUND
On October 27, 2020, the City of Ontario Planning Commission approved Parcel Map No. 20016. This map consists of seven numbered lots and one lettered lot on approximately 80.653 acres of land, as presented by the Developer, Euclid Land Venture, LLC. The pr oposed project consists of an industrial / business park to include seven warehouse buildings ranging from 43,400 square feet (sf) to 1,099,000 sf, totaling a maximum development of 1,676,000 sf of warehouse and office uses (“Project”). The Project area is bounded by Eucalyptus Avenue on the north, Sultana Avenue on the east, Merrill Avenue on the south, and Euclid Avenue on the west located in The Ontario Ranch Business Park Specific Plan area (Exhibit A).
As a condition of project approval and under the terms outlined in the existing development agreement between the Developer and the City of Ontario, the Developer is obligated to design and construct certain public improvements along the perimeter of Merri ll Avenue. These improvements include but are not limited to, full-width ultimate street improvements on the north side of Merrill Avenue within the Ontario City limits, including curb, gutter, sidewalk, landscaping, and streetlights, as part of the Merril l Avenue widening. The Developer must construct the ultimate improvements on Merrill Avenue to be eligible for reimbursement through Ontario’s Development Impact Fee (“DIF”) program.
Additionally, the Developer is required to design and construct improvem ents along the south side of Merrill Avenue within the Chino City limits, adjacent to Chino Airport. The conditioned improvements are limited to the roadway pavement, signing and striping, curb and gutter installations, ADA ramps, and storm drain catch bas ins. The conditioned improvements did not include sidewalks, landscaping, and streetlights, as these components were not negotiated between the City of Ontario and the Developer as part of the conditions of approval at that time.
The estimated cost for th e conditioned improvements is $7,015,250, based on the actual bid, which also includes 10% for project contingencies and 25% for soft costs.
On October 18, 2022, the Developer entered into a Public Improvement Agreement with the City of Chino, providing t he necessary securities to ensure timely completion of the conditioned improvements, attached as Exhibit B.
Recently, the Developer and the City of Chino mutually agreed to extend the scope of improvements on Merrill Avenue to include additional improvemen ts. The additional improvements include traffic signal interconnect, sidewalks, landscaping, and streetlights. This decision goes beyond what the City of Ontario required in its conditions of approval for the project. The estimated cost for the additional improvements is $3,362,838, which also includes 10% for project contingencies and 25% for soft costs. Concurrently, the Developer is finalizing engineering plans for these additional improvements while commencing construction on the initial Merrill Avenue improvements. This coordinated approach aims to prevent project delays, minimize road closures, adhere to the construction schedule, and reduce disruptions to local traffic and the community.
The City received $5.0 million from the Scannell/Fed -Ex project, earmarked for future enhancements along the Chino Airport perimeter primarily on Merrill Avenue. A portion of these funds were utilized by the City to conduct a comprehensive airport right -of-way survey, critical for implementing full-width improvements on Merrill Avenue. Pending ultimate approval from the 114
CITY COUNCIL MEETING DATE: JULY 30, 2024
TITLE: THE ONTARIO RANCH BUSINESS PARK PROJECT (REFERRED TO AS REDA) MERRILL AVENUE WIDENING, INTERCONNECT, AND EUCLID MEDIAN IMPROVEMENTS.
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Federal Aviation Administration (“FAA”), the City plans to acquire the necessary ultimate right - of-way for streets surrounding the airport.
The remaining developer deposit will be allocated towards the a dditional improvements on Merrill Avenue, specifically for sidewalk construction, landscaping enhancements, and streetlights.
Additionally, under the terms of the development agreement and project approval conditions, the Developer was obligated to design and construct public improvements on Euclid Avenue to mitigate traffic impacts resulting from the Project. This includes the Euclid Median between Merrill and Eucalyptus Avenues, within Chino's jurisdiction.
Over the years, developments along the Euclid Avenue corridor north of Merrill Avenue have contributed in-lieu-of-construction fees for the Euclid median and widening. The City intends to utilize these deposits to offset costs associated with the Euclid Avenue improvements, estimated at $5,331,013, wh ich includes 10% for project contingencies and 25% for soft costs.
While these deposits may not fully cover the City's share of the project costs, City staff plans to include this project in the next DIF Nexus Study update to address remaining funding needs.
As a result, the total estimated cost to the City for the Merrill Avenue and Euclid Avenue Improvements is $15,709,100. It is imperative for staff, the Developer, and San Bernardino County to collaborate on a comprehensive plan addressing the timing of construction, financing, and the necessary right-of-way dedications essential for completing these improvements.
On June 10, 2024, City staff delivered an informational presentation to the Infrastructure Committee regarding the improvements planned for Merrill Avenue and Euclid Avenue. The next steps outlined by staff involved collaborating with San Bernardino County to obtain the necessary right of way along Merrill Avenue adjacent to the airport and initiating negotiations for a construction reimbursement agreement with the developer. The Infrastructure Committee did not express any objections to staff’s proposed approach during the meeting.
ISSUES/ANALYSIS
The Developer, at its own expense, will provide all necessary equipment and materials to diligently and professionally execute and complete the public improvements as per the approved construction plans per applicable standards and regulations. To facilitate timely construction, the City and Developer intend to enter a construction reimburseme nt agreement, attached as Exhibit C. This agreement will establish the framework for reimbursing the Developer for eligible costs incurred during construction. It will also outline the methodology for determining reimbursement amounts and specify the timin g and process for reimbursement requests throughout the construction phase.
Additionally, The Preserve and Citywide Circulation DIF programs will offset costs not covered by developer deposits for the construction of Merrill Avenue and the Euclid Median improvements, as established in Chapters 3.40 and 3.45 of the Chino Municipal Code. DIFs have been established by City to finance public facilities in furtherance of the goals and objectives of City’s general plan, various facility master plans, capital impr ovement plans, and the nexus report. The DIF Ordinance provides that if, as a condition of approval of a development project, a developer constructs a public facility identified in the nexus reports, the 115
CITY COUNCIL MEETING DATE: JULY 30, 2024
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Developer shall be entitled to reimbursement for eli gible costs of constructing the public facility.
The DIF ordinance specifically requires that the Developer and City enter into a reimbursement agreement.
Upon completion of the public improvements, the City Engineer and staff will review the final accepted/approved "as -built" plans, specifications, and supporting documentation and will determine the actual costs.
As previously noted, the City has completed a comprehensive airport right-of-way survey for the purposes of acquiring the ultimate right -of-way along the Chino Airport perimeter, which is currently pending approval from the County and FAA. In response, the City engaged with the County to establish a Right of Entry Agreement. This agreement, attached as Exhibit D, grants construction access to the portion of the public improvements along Merrill that lie within the County's property prior to the City obtaining the necessary right -of-way from the FAA. The access area is specifically allocated for the construction of roadway pavement, signing and striping, curb and gutter installations, ADA ramps, storm drain catch basins, sidewalk, landscape, and the installation of dry utility conduit.
In addition, the Memorandum of Understanding, attached as Exhibit E, between the City and the Developer, transfers the City's rights and obligations under the Right of Entry Agreement necessary for completing construction on Merrill Avenue within the designated access area.
These agreements are effective for a period of up to five years or until the City, at its discre tion, formally records easements for the access area or pertinent portions required for the Developer's activities.
Lastly, to enhance support for the community and local businesses affected by the construction on Merrill Avenue, both the City and Develope r are committed to expediting the completion of Public Improvements. The City approved plans for a full closure of Merrill Avenue from Euclid Avenue east to just west of Stearman Drive beginning July 25, 2024, through November 30, 2024, as indicated in Exh ibit F. Detours will be carefully planned to minimize disruption to businesses at the airport and signage will be required of the contractor to inform motorists that airport businesses remain open during construction and guide them around the closure. The Developer assures proper notice to affected properties and pledges to take necessary steps to assist local businesses in the area. City staff has also engaged some of the airport businesses to inform them in advance of the closures and reviewed their conce rns. City staff used these discussions to guide the developer on mitigating the closure impacts. Furthermore, the accelerated construction schedule will necessitate extended hours for night and weekend work.
The City is prepared to allocate additional fund s within the construction contract to facilitate this effort, recognizing the benefits to the community and acknowledging the financial challenges faced by nearby businesses.
Therefore, it is staff recommendation that the City Council approve the following : a construction reimbursement agreement between the City and Euclid Land Venture, LLC for a not to exceed amount of $15,709,100 for the Merrill Avenue Widening, Interconnect, and Euclid Avenue Median Improvements; the Right of Entry Agreement between the City and San Bernardino County to obtain access to certain portions of airport property necessary for constructing the Merrill Avenue public improvements.; and the Memorandum of Understanding between the City 116
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and Euclid Land Venture, LLC to transfer the ri ghts under the Right of Entry Agreement to the developer for the construction of the Merrill Avenue public Improvements.
Attachments: Exhibit A - Location Map PM 20016
Exhibit B - Fully Executed Public Improvement Agreement Exhibit C - Construction & Reimbursement Agreement
Exhibit D - Right of Entry Agreement
Exhibit E - Memorandum of Understanding
Exhibit F – Detour Plan
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ORBP
LEGEND:
EXHIBIT "A"
4150 CONCOURS, ONTARIO, CA 91764PHONE: (909) 989-9789 FAX: (909) 989-9660Engineering Geospatial Land Planning 118
Contract # 2023- 159
Approved: 10/ 18/ 2022
PUBLIC IMPROVEMENT AGREEMENT
by and between
CITY OF CHINO
and
EUCLID LAND VENTURE, LLC
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PUBLIC IMPROVEMENT AGREEMENT BETWEEN
THE CITY OF CHINO
AND
EUCLID LAND VENTURE, LLC
Agreement Date; October 18, 2022
Developer Name: Euclid Land Venture, LLC
Description: Euclid Land Venture, LLC to construct the Ontario Ranch Business Park ( ORBP) consisting of eleven parcels totaling 80. 653 acres in the City of Ontario located east of Euclid Avenue, north of Merrill Avenue, west of the unimproved right- of- way of Sultana Avenue and south of Eucalyptus Avenue.
Estimated Total Cost of Improvements: $ 6, 241, 300. 00 Security:
Bond No.:
Surety:
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Deslgnees for the Service of Written Notice:
CITY: DEVELOPER
Jesus Plasencia
Assistant City Engineer
Euclid Land Venture, LLC
Attn: Jeff Johnston
13220 Central Avenue
Chino, CA 91710
4450 MacArthur Boulevard, Suite 100
Newport Beach, California 92660
909) 334- 3417 ( 949) 945- 6809
iiohnston( 5) redaiic. com
CITY PROJECT INSPECTOR
Isaac Ortega
Permit & inspection Supervisor
13220 Central Avenue
Chino. CA 91710
909) 334- 3501
iorteaa( a> citvofchino. ora
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TABLE OF CONTENTS
1. Constnjction Obligations
1. 1 Works of improvement
1. 2 Other Obligations Referenced in Conditions of Approval
1. 3 Intent of Plans
1. 4 Survey Monuments
1. 5 Performance of Work
1. 6 Changes jn the Work
1. 7 Defective Work
1. 8 No Warranty by City
1. 9 Authority of the City Engineer
1. 10 Documents Available at the Site
1. 11 Inspection
1. 12 Compliance With Law; Applicable Standards for Improvements
1. 13 Suspension of Work
1. 14 Erosion and Dust Control and Environmental Mitigation
1. 15 Final Acceptance of Works of Improvement
1. 16 Vesting of Ownership
1. 17 Developer' s Obligation to Warn Public During Construction
1. 18 Injury to Public Improvements, Public Property or Public Utility
2. Time for Performance
2. 1 Commencement and Completion Dates
2. 2 Liquidated Damages for Delays
2. 3 Force Majeure
2. 4 Continuous Work
3. Labor
3. 1 Labor Standards
3. 2 Nondiscrimination
3. 3 Licensed Contractors
3. 4 Workers' Compensation
4. Security
4. 1 Required Security
4. 2 Form of Security Instruments
4. 3 Developer' s Liability
4. 4 Letters of Credit
4. 5 Release of Security Instruments
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5. Cost of Construction and Provision of Inspection Service
5. 1 Developer Responsible for Aii Related Costs of Construction
5. 2 Payment to City for Cost of Related Inspection and Engineering Services
5. 3 Payment of Development Impact Fees
6. Acceptanceof Offers of Dedication
7. Warranty of Work
8. Default
8. 1 Default by Developer
8. 2 Remedies
8. 3 Remedies Not Exclusive
8. 4 Attorney' s Fees and Costs
8. 5 Waiver
9. Indemnity/ Hold Harmless
10. Developer' s Indemnity of Project Approval
11. Insurance Requirements
12. Environmental Warranty
13. General Provisions
13. 1 Successors and Assigns
13. 2 No Third Party Beneficiaries
13. 3 No Vesting; Rights
13. 4 Developer Is Not Agent of City
13. 5 Time of the Essence
13. 6 Notices
13. 7 No Apportionment
13. 8 Severablllty
13. 9 Captions
13. 10 Incorporation of Recitals
13. 11 Interpretation
13. 12 Entire Agreement; Waivers and Amendments
13. 13 Counterparts
14. Authority
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PUBLIC IMPROVEMENT AGREEMENT
THIS PUBLIC IMPROVEMENT AGREEMENT ( this " Agreement") Is entered into this 18^ day of October, 2022, by and between the CITY OF CHINO, a municipal corporation, organized and existing in the County of San Bernardino, under and by virtue of the laws of the State of California, (" CITY"), and Euclid Land Venture, LLC (" DEVELOPER").
RECITALS
A. Developer is the owner of certain real property located in the City of Ontario, County of San Bernardino, State of California ( the " Propert/), as described on Exhibit " A", which Developer proposes to develop and construct certain works of improvement thereon, as hereafter set forth.
B. Developer has applied for and received City of Ontario approval to construct warehouse buildings for the Ontario Ranch Business Park, located north of Chino. ( the Project").
C. The City desires to assure that certain public infrastructure improvements proposed for the Project and located in the City of Chino will be constructed in a good workmanlike manner and in accordance with all applicable laws, statues, ordinances, resolutions and regulations now in force and effect in the City of Chino and the State of California, all of which are incorporated herein.
D. The Developer acknowledges familiarity with the various requirements for public improvements contained in the Chino Municipal Code and agrees to comply therewith.
COVENANTS
Based upon the foregoing Recitals which are incorporated herein by reference.
Developer agrees to timely perform all of its obligations as set forth herein.
1. Construction Obligations.
1. 1. Works of Improvement. Developer agrees, at its sole cost and expense, to construct or install, or cause to be constructed or installed the street, drainage, landscaping, utility, and other improvements more fully described in Exhibit " B" attached hereto as well as the work identified in the plans listed in the Drawing Log as a part of Exhibit B ( the " Works of Improvement"), as the same may be supplemented and revised from time to time as set forth in this Agreement, together with all related documents, ( the " Plans"). The estimated construction cost for the Works of Improvement is $ 6, 241, 281. 75.
1. 2. Other Obligations Referenced in Conditions of Tentative Map Approval. In addition to the foregoing. Developer shall satisfy all of the other Conditions associated with the Project and the Property. The Conditions associated with the Map are included in Exhibit " B" attached hereto.
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1. 3. Intent of Plans. The intent of the Plans referenced in Section 1. 1 is to prescribe a complete work of improvement which Developer shall perform or cause to be performed in a manner acceptable to the City Engineer, ( or designee), and in full compliance with all codes and the terms of this Agreement. Developer shall complete a functional or operable improvement or facility, even though the Plans may not specifically call out all items of work required for Developer' s contractor to complete its tasks, incidental appurtenances, materials, and the like. If any omissions are made or information necessary to carry out the full intent and meaning of the Plans, Developer or its contractor shall immediately notify its design engineer who will seek approval of the City Engineer for furnishing of detailed instructions. In the event of any doubt or question arising regarding the true meaning of any of the Plans, reference shall be made to the City Engineer whose decision thereon shall be final.
Developer recognizes that the Plans consist of general drawings. All authorized alterations affecting the requirements and information given on the Plans shall be in writing and approved by the City Engineer. The Plans shall be supplemented by such working or shop drawings as are necessary to adequately control the work. Without the City Engineer' s prior written approval, no change shall be made by Developer or its contractor to any plan, specification, or working or shop drawing after it has been stamped as approved.
1. 4. Performance of Work. Developer shall furnish or cause to be furnished all materials, labor, tools, equipment, utilities, transportation, and incidentals required to perform Developer' s obligations under this Agreement.
1. 5. Changes in the Work. The City Engineer, without invalidating this Agreement and without notification to any of the sureties or financial institutions referenced in Paragraph 4, may order reasonable extra work or may make reasonable changes consistent with the original intended scope of work by altering or deleting any portion of the Works of Improvement as specified herein or as deemed necessary or desirable by the City Engineer as determined necessary to accomplish the purposes of this Agreement and to protect the public health, safety, or welfare. These changes shall not significantly expand the scope of work originally intended under the Plans, without Developer' s written approval. The City Engineer shall notify Developer or its contractor in writing ( by Correction Notice) at the time a determination has been made to require changes in the work. No field changes performed or proposed by Developer or its contractor shall be binding on City unless approved in writing by the City Engineer. The City and Developer shall mutually agree upon changes to the Works of Improvement, subject to the security requirements in Section 4.
1. 6. Defective Work. Developer shall repair, reconstruct, replace, or otherwise make acceptable any work found by the City Engineer to be defective.
1. 7. No Warrantv bv Citv. The Plans for the Works of Improvement have been prepared by or on behalf of Developer or its consultants or contractors, and City makes no representation or warranty, express or implied, to Developer or to any other person regarding the adequacy of the Plans or related documents.
1. 8. Authoritv of the Citv Engineer. In addition to the authority granted to the City Engineer elsewhere in this Agreement, the City Engineer shall have the authority to decide all 01225. 0005/ 784688. 1
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questions which may arise as to the quality and acceptability of materials furnished and work performed, and all questions as to the satisfactory and acceptable fulfillment of the terms of this Agreement by Developer and its contractor.
1. 9. Documents Available at the Site. Developer shall keep a copy of all approved Plans at the job site and shall give access thereto to the City' s inspectors and engineers at all times.
1. 10. Inspection. Developer shall have an authorized representative on the Job site at all times during which work is being done who has full authority to act for Developer, or its design engineer, and Developer' s contractor( s) regarding the Works of Improvement.
Developer shall cause its contractor to furnish the City with every reasonable facility for ascertaining whether or not the Works of Improvement as performed are in accordance with the requirements and intent of this Agreement, including the Plans. If the City inspector requests it, the Developer or its contractor, at any time before acceptance of the Works of Improvement, shall remove or uncover such portions of the finished work as may be directed which have not previously been inspected. After examination, the Developer or its contractor shall restore said portions of the work to the standards required hereunder. Inspection or supervision by the City Engineer ( or designee) shall not be considered as direct control of the individual workmen on the job site. City' s inspectors shall have the authority to stop any and all work not in accordance with the requirements contained or referenced in this Agreement.
The inspection of the work by City shall not relieve Developer or its contractor of any obligations to fulfill this Agreement as herein provided, and unsuitable' materials or work may be rejected notwithstanding that such materials or work may have been previously overlooked or accepted.
1. 11. Compliance With Law: Applicable Standards for Improvements. In addition to the express provisions of this Agreement and the Plans, Developer shall cause construction of the Works of Improvement to be completed in accordance with all other applicable federal, state, and local laws, ordinances, rules and regulations. In addition, without limiting the foregoing, the Developer shall, at its expense, obtain and comply with the conditions of all necessary permits and licenses for the construction of the Works of Improvement. The Developer shall also give all necessary notices and pay all fees and taxes as required by law.
Developer shall construct the improvements in accordance with the City standards in effect at the time of the adoption of this Agreement. City reserves the right to protect the public safety or welfare or comply with applicable Federal or State law or City zoning ordinances.
1. 12. Suspension of Work. The City Engineer shall have authority to order suspension of the work for failure of the Developer' s contractor to comply with law pursuant to Section
1. 12. In case of suspension of work for any cause whatsoever, Developer and its contractor shall be responsible for all materials and shall store them properly if necessary, and shall provide suitable interim drainage and/ or dust control measures, and erect temporary structures where necessary.
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flooding problems. The City Engineer shall have the authority to require erosion plans to prescribe reasonable controls on the method, manner, and time of grading, landscaping, and construction activities to prevent nuisances to surrounding properties. Pians shall include without limitation temporary drainage and erosion control requirements, dust control procedures, restrictions on truck and other construction traffic routes, noise abatement procedures, storage of materials and equipment, removal of garbage, trash, and refuse, securing the job site to prevent injury, and similar matters.
1. 14. Final Acceptance of Works of Improvement. After Developer has completed all of the Works of Improvement, Developer shall then request a final inspection of the work. If items are found by the City' s inspectors to be incomplete or not in compliance with this Agreement or any of the requirements contained or referenced herein, City will inform the Developer or its contractor of such items. After the Developer has completed these items, the procedure shall then be the same as specified above for the Developer' s or its contractor' s Initial request for final inspection. If items are found by City' s inspectors to be incomplete or not in compliance after two ( 2) " final" inspections, the City may require the Developer or its contractor, as a condition to performing further field inspections, to submit in writing a detailed statement of the work performed subsequent to the date of the previous inspection which was found to be incomplete or not in compliance at that time. Developer shall be responsible for payment to City Engineer of re- inspection fees in the amount necessary to cover the City' s costs for additional final inspections, as determined by the City Engineer.
No inspection or acceptance pertaining to specific parts of the Works of Improvement shall be construed as final acceptance of any part until the overall final acceptance by the City Engineer is made. The City Engineer shall make a certification of completion and acceptance on the Works of Improvement by recordation of a Notice of Acceptance on behalf of the City.
Final acceptance shall not constitute a waiver by the City Engineer of defective work subsequently discovered.
The date on which the Works of Improvement will be considered as complete shall be the date of the Notice of Acceptance.
1. 15. Vesting of Ownership. Upon recordation of the Notice of Acceptance, ownership of the Works of Improvement shall vest in the City.
1. 16. Developer' s Obligation to Warn Public During Construction. Until recordation of the Notice of Acceptance, Developer shall give good and adequate warning to the public of any dangerous condition of the Works of Improvements, and shall take reasonable actions to protect the public from such dangerous condition. Until recordation of the Notice of Acceptance, Developer shall provide forty- eight ( 48) hours' advance written notice to all neighboring property owners and tenants affected by Developer' s operations or construction of the hours, dates and duration of any planned construction activities.
1. 17. Iniurv to Public Improvements. Public Propertv or Public Utilitv. Until recordation of the Notice of Acceptance of the Works of Improvement, Developer assumes responsibility for the care and maintenance of, and any damage to, the Works of Improvements. Developer shall replace or repair all Works of Improvements, public property, public utility facilities, and 01225. 0005/ 784688. 1
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surveying or subdivision monuments and benchmarks which are destroyed or damaged for any reason, regardless whether resulting from the acts of the Developer, prior to the recordation of the Notice of Acceptance. Developer shall bear the entire cost- of such replacement or repairs regardless of what entity owns the underlying property. Any repair or replacement shall be to the satisfaction, and subject to the approval, of the City Engineer.
Neither the City, nor any officer or employee thereof, shall be liable or responsible for any accident, loss or damage, regardless of cause, occurring to the work or Works of Improvements prior to recordation of the Notice of Acceptance of the work or improvemente.
2. Time for Performance.
2. 1. Commencement and Completion Dates. Subject to Sections 2. 2 and 2. 3 below.
Developer shall ( i) commence with construction and installation of the Works of Improvement thirtv ( 30) davs following City' s approval of the Plans, assuming that other agencies having jurisdiction over the improvements have also issued necessary permits and approvals to begin Commencement Date"); and ( ii) complete or cause to be completed all of the Works of Improvement within two ( 2) vears after the Commencement Date. In the event good cause exists as determined by the City Engineer, the time for commencement of construction or completion of the Works of Improvement hereunder may be extended by up to three ( 3) additional one year periods. Extensions shall be executed in writing by the City Engineer. The City Engineer in his or her reasonable discretion determines whether or not the Developer has established good cause for an extension. As a condition of such extension, the City Engineer may require Developer to furnish new security guaranteeing performance of this Agreement, as extended, in an increased amount to compensate for any increase in construction costs as determined by the City Engineer. If Developer requests and is granted an extension of time for completion of the improvements. City may apply the standards in effect at the time of the extension.
2. 2. Liquidated Damages for Delays. The proposed full closure of Merrill Avenue between Euclid Avenue and Stearman Drive for the purposes of constructing storm drain facilities shall be limited to a 60 day period. Subject to Section 2. 3 below, Developer shall be liable for and shall pay to the City the sum of Five Thousand Dollars ($ 5, 000) as liquidated damages for each day of delay in the opening of Merrill Avenue to vehicle travel in both east and west directions if such opening is delayed beyond such 60 day period for the completion of such storm drain work. City and Developer acknowledge and agree that it would be impractical and/ or extremely difficult to fix or establish the actual damage sustained by City as a result of such delay by Developer, and agree that the aforementioned damages for each day of delay is a reasonable approximation thereof.
2. 3. Force Maieure. Notwithstanding the provisions of Sections 2. 1 and 2. 2, Developer' s time for commencement and completion of the Works of Improvement hereunder shall be extended for the period of any enforced delay caiused due to circumstances beyond the control and without the fault of Developer, including without limitation and to the extent applicable adverse weather conditions, flood, earthquakes, fire, acts of God or of a public enemy, strikes, lockouts, labor disputes, inability to obtain labor or materials or reasonable substitutes therefor, pandemics, acts or failures to act of a public agency ( including City), delay 01225. 0005/ 784688. 1
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in issuance of permits, approvals or inspections, utility company delays, unknown utility conflicts, unforeseen adverse soils conditions, required changes to the scope of work required by City, and similar causes; provided, however, that the period of any enforced delay hereunder shall not include any period longer than five ( 5) days prior to City' s receipt of a written notice from Developer or its contractor detailing the grounds for Developer' s claim to a right to extend its time for performance hereunder. The City Engineer shall evaluate all claims to Force Majeure and make a reasonable determination after consultation with Developer regarding the length of any extension of time for commencement and/ or completion of the Works of Improvement.
2. 4. Continuous Work. After commencement of construction of the Works of Improvement ( or separate portion thereof), Developer shall cause such work to be diligently pursued to completion, and shall not abandon the work for a consecutive period or more than thirty ( 30) days, events of Force Majeure excepted. It is expressly acknowledged by City that there are multiple scopes of work involved with these improvements, some of which occur in the City of Ontario, and that certain work in the City of Chino that is connected to work in the City of Ontario will not be completed until such work can be performed jointly, which may produce gaps in timing of work sequence. Certain work must necessarily be completed in City of Ontario before certain work can be completed in City of Chino, and such gap in timing shall not be considered an abandonment.
3. Labor.
3. 1. Labor Standards. This Agreement is subject to, and Developer agrees to comply with, ail of the applicable provisions of the Labor Code including, but not limited to, the wage and hour, prevailing wage, worker compensation, and various other labor requirements in Division 2, Part 7, Chapter 1, including section 1720 to 1740, 1770 to 1780, 1810 to 1815, 1860 to 1861, which provisions are specifically incorporated herein by reference as set forth herein in their entirety. Developer shall expressly require compliance with the provisions of this Section in all agreements with contractors and subcontractors for the performance of the Works of Improvement.
3. 2. Nondiscrimination. In accordance with the California Fair Employment and Housing Act (" FEHA"), California Government Code Section 12940 et seq., Developer agrees that Developer, its agents, employees, contractors, and subcontractor performing any of the Works of Improvement shall not discriminate, in any way, against any person on the basis of race, ethnicity, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. Developer shall expressly require compliance with the provisions of this Section in all agreements with contractors and subcontractors for the performance of this Agreement.
3. 3. Licensed Contractors. Developer shall cause all of the Works of Improvement to be constructed by contractors and subcontractors with valid California Contractors' licenses for the type of work being performed. All of Developer' s contractors and subcontractors shall obtain a valid City of Chino business license prior to performing any work pursuant to this Agreement. Developer shall provide the City Engineer with a list of all of its contractors and 01225. 0005/ 784688. 1
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subcontractors prior to initiating any work, and all valid Contractor' s licenses and business licenses issued thereto as a condition of constructing the Works of Improvements.
3. 4. Worker' s Compensation. Developer shall cause every contractor and subcontractor performing any of the Works of Improvement to carry Workers' Compensation Insurance as required by the Labor Code of the State of California and shall cause each such contractor and subcontractor to submit to City a Certificate of Insurance verifying such coverage prior to such contractor or subcontractor entering onto the job site.
4. Securitv.
4. 1. Required Securitv.
a) At the time Developer executes this Agreement, Developer shall furnish to City the following bonds, letters of credit, instruments of credit ( assignment of deposit account) or other security acceptable to City in its sole and absolute discretion and satisfying the requirements of the applicable provisions of this Section 4 below ( hereinafter " Security Instruments"):
i) A Security Instrument securing Developer' s faithful performance of all of the Works of Improvement (" Faithful Performance Security Instrument"), in the amount of $ 6, 241, 300. 00 equal to 100% of the estimated construction cost referenced in Section 1. 1. ii) A Security Instrument guaranteeing the payment to contractors, subcontractors, and other persons furnishing labor, materials, and/ or equipment (" Labor and Materials Security Instrument") with respect to the Works of Improvement in an amount equal to 3, 120, 600. 00 equal to 50% of the estimated construction cost referenced in Section 1. 1.
This Agreement shall not be effective for any purpose until such Security Instruments are supplied to and approved by City in accordance herewith. b) Required Securitv Instrument for Maintenance and Warranty. Prior to the City Council' s acceptance of the Works of Improvement and recordation of a Notice of Completion, Developer shall deliver a Security Instrument warranting the work accepted for a period of one ( 1) year following said acceptance Maintenance and Warranty Security Instrument"), in the amount of $ 624, 100. 00 equal to 10% of the estimated construction cost set forth in Section 1. 1 or a suitable amount determined by the City Engineer.
4. 2. Form of Securitv Instruments. All Security Instruments shall be in the amounts required under Section 4. 1 ( a) or 4. 1( b), as applicable, shall meet the following minimum requirements and othenwise shall be in a form provided by City or otherwise approved by the City Attorney:
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a) Bonds. For Security Instruments provided in the form of bonds, any such bond must be issued and executed by an insurance company or bank authorized to transact surety business in the State of California. Any insurance company acting as surety shall have a minimum rating of A- IX, as rated by the current edition of Best' s Key Rating Guide published by A. M. Best' s Company, Oldwick, New Jersey, 08858. Any bank acting as surety shall have a minimum rating of AA, as rated by Mood/ s or Standard & Poor' s.
b) Letters of Credit. For Security Instruments which are letters of credit, any letter of credit shall be an original separate unconditional, irrevocable, negotiable and transferable commercial letter of credit issued by a financial institution with offices in the State of California acceptable to City. Any such letter of credit shall specifically permit City to draw on same by unilateral certification of the City Engineer of the City that Developer is in default under its payment or performance obligations hereunder or in the event Developer fails to deliver a replacement letter of credit not less than thirty ( 30) days prior to the date of expiration of any such letter of credit and shall further be subject to the provisions of Section 4. 4.
c) Instrument of Credit. For Security Instruments which are Instruments of Credit, any Instrument of Credit shall be an assignment of deposit account assigning as security to City all of Developer' s interest in funds on deposit in one or more bank accounts with financial institutions acceptable to City. d) General Requirements for all Securitv Instruments.
i) Payments under any Security Instruments shall be required to be made ( and, with respect to bonds, litigation shall be required to be instituted and maintained) in the City of Chino, State of California and the Security Instrument shall so provide).
ii) Each Security Instrument shall have a minimum term of one ( 1) year after the deadline for Developer' s completing the Works of Improvement, in accordance with Section 2. 1 ( other than Instruments of Credit, which shall have no defined term or expiration date).
ill) Each Security Instrument shall provide that changes may be made in the Works of Improvement pursuant to the terms of this Agreement without notice to any issuer or surety and without affecting the obligations under such Security Instrument. iv) If the Developer seeks to replace any security with another security, the replacement shall: ( 1) comply with all the requirements for security in this Agreement; ( 2) be provided by the Developer to the City Engineer; and ( 3) upon its written acceptance by the City Engineer, be deemed a part of this Agreement. Upon the City 01225. 0005/ 784688. 1
8 131
Engineer' s acceptance of a replacement security, the former security shall be released by the City.
4. 3. Developer' s Liability. While no action of Developer shall be required in order for City to realize on its security under any Security Instrument, Developer agrees to cooperate with City to facilitate City' s realization under any Security Instrument, and to take no action to prevent City from such realization of any Security Instrument. Notwithstanding the giving of any Security Instrument or the subsequent expiration of any Security Instrument or any failure by any surety or financial institution to perform its obligations with respect thereto, Developer shall be personally liable for performance under this Agreement and for payment of the cost of the labor and materials for the improvements required to be constructed or installed hereby and shall, within ten ( 10) days after written demand therefor, deliver to City such substitute security as City shall require satisfying the requirements in this Section 4.
4. 4. Letters of Credit.
a) In the event a letter of credit is given pursuant to Section 4. 2( b), City shall be entitled to draw on any such letter of credit if a replacement letter of credit expiring in not less than one ( 1) year, unless City agrees to a lesser term in City' s sole and absolute discretion) is not delivered not less than thirty ( 30) days prior to the expiration of the original letter of credit, such substitute letter of credit being in the same amount and having the terms and conditions as the initial letter of credit delivered hereunder, issued by a financial institution acceptable to City as of the date of delivery of the replacement letter of credit. b) In the event of draw by the City on a letter of credit, the City may elect, in its sole and absolute discretion, to apply any such funds drawn to the obligations secured by such letter of credit or to hold such funds in an account under the control of the City, with no interest accruing thereon for the benefit of the Developer. If the City elects to hold the funds in an account pursuant to the foregoing. City may thereafter at any time elect instead to apply such funds as provided in the foregoing. Developer agrees and hereby grants City a security interest in such account to the extent required for City to realize on its interests therein, and agrees to execute and deliver to City any other documents requested by City in order to evidence the creation and perfection of City' s security Interest in such account.
4. 5. Release of Securitv Instruments. The City shall release ail Security Instruments consistent with Government Code Sections 66499. 7 and 66499. 8, Section 19. 09. 010 of the Chino Municipal Code, and as follows:
a) City shall release the Faithful Performance Security Instrument and Labor and Materials Security Instrument when all of the following have occurred:
i) Developer has made written request for release and provided evidence of satisfaction of all other requirements in this Section 4. 5; ii) the Works of Improvement have been accepted;
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iii) Developer has delivered the Maintenance and Warranty Security Instrument; and
Iv) after passage of the time within which lien claims are required to be made pursuant to Title 3 ( commencing with Section 9000) of Part 6 of Division 4 of the Civil Code of the State of California. If lien claims have been timely filed, City shall hold the Labor and Materials Security Instrument until such claims have been resolved, Developer has provided a statutory bond, or otherwise as required by applicable law.
b) City shall release the Maintenance and Warranty Security Instrument upon Developer' s written request upon the expiration of the warranty period, and settlement of any claims filed during the warranty period. c) The City may retain from any security released, an amount sufficient to cover costs and reasonable expenses and fees, including reasonable attorney' s fees.
5. Cost of Construction and Provision of Inspection Service.
5. 1. Developer Responsible for All Costs of Construction. Developer shall be responsible for payment of all costs incurred for construction and installation of the Works of Improvement. In the event Developer is entitled to reimbursement from City for any of the Works of Improvement, such reimbursement shall be subject to a separate Reimbursement Agreement to be entered into between Developer and City prior to construction of the Works of Improvement.
5. 2. Pavment to Citv for Cost of Related Inspection and Engineering Services.
Developer shall compensate City for all of City' s costs reasonably incurred in having its authorized representative make the usual and customary inspections of the Works of Improvement. In addition, Developer shall compensate City for all design, plan check, evaluating any proposed or agreed- upon changes in the work. The procedures for deposit and payment of such fees shall be as established by the City. In no event shall Developer be entitled to additional inspections or a final inspection and acceptance of any of the Works of Improvement until all City fees and charges have been fully paid, including without limitation, charges for applicable penalties and additional required inspections.
5. 3. Pavment of Development Impact Fees. N/ A
6. Acceptance of Offers of Dedication. N/ A
7. Warrantv of Work. Developer shall guarantee all Works of Improvement against defective materials and workmanship for a period of one ( 1) year from the date of final acceptance. If any of the Works of Improvement should fail or prove defective within said one ( 1) year period due to any reason other than improper maintenance, or if any settlement of fill or backfill occurs, or should any portion of the Works of Improvement fail to fulfill any requirements of the Plans, Developer, within fifteen ( 15) 01225. 0005/ 784688. 1
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days after written notice of such defects, or within such shorter time as may reasonably be determined by the City in the event of emergency, shall commence to repair or replace the same together with any other work which may be damaged or displaced in so doing. Should Developer fail to remedy defective material and/ or workmanship or make replacements or repairs within the period of time set forth above, City may make such repairs and replacements and the actual cost of the required labor and materials shall be chargeable to and payable by Developer. The warranty provided herein shall not be in lieu of, but shall be in addition to, any warranties or other obligations otherwise imposed by law.
8. Default.
8. 1. Default bv Developer. Default by Developer shall include, but not be limited to:
a) Subject to Section 2. 3, Developer' s failure to timely commence construction of Works of Improvement under this Agreement; b) Subject to Section 2. 3, Developer' s failure to timely complete construction of the Works of Improvement;
c) Subject to Section 2. 3, Developer' s failure to perform substantial construction work for a period for 20 consecutive calendar days after commencement of the work; however, Developer' s work in City of Ontario which is necessary to continue and complete work in City of Chino shall be considered as proper performance of construction work and not a failure in timing; d) Developer' s insolvency, appointment of a receiver, or the filing of any petition in bankruptcy, either voluntary or involuntary, which Developer fails to discharge within 30 days;
e) The commencement of a foreclosure action against the Property or a portion thereof, or any conveyance in lieu or in avoidance of foreclosure; or f) Developer' s failure to perform any other obligation under this Agreement.
8. 2. Remedies. The City reserves all remedies available to it at law or in equity for a default or breach of Developer' s obligations under this Agreement. The City shall have the right, subject to this Section, to draw upon or use the appropriate security to mitigate the City' s damages in the event of default by Developer. The City' s right to draw upon or use the security is in addition to any other remedy available to City. The parties acknowledge that the estimated costs and security amounts may not reflect the actual cost of construction of the improvements and, therefore, City' s damages for Developer' s default shall be measured by the cost of completing the required Improvements. The City may use the sums provided by the securities for the completion of the Works of Improvement in accordance with the plans. In the event the Developer fails to cure any default under this Agreement within 20 days after the City mails a notice of such default to the Developer and the Developer' s surety. Developer authorizes the City to perform the obligation for which Developer is in default and agrees to pay the entire cost of such performance by the City. The City may take over the work and complete the 01225. 0005/ 784688. 1
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Works of Improvement, by contract or by any other method City deems appropriate, at the expense of the Developer. In such event. City, without liability for doing so, may complete the Works of Improvement using any of Developer' s materials, appliances, plans and other property that are at the work site and that are necessary to complete the Works of Improvement.
8. 3. Remedies Not Exclusive. In any case where this Agreement provides a specific remedy to City for a default by Developer hereunder, the Developer agrees that the choice of remedy or remedies for Developer' s breach shall be in the discretion of the City. Additionally, any remedy specifically provided in this Agreement shall be in addition to, and not exclusive of.
City' s right to pursue any other administrative, legal, or equitable remedy to which it may by entitled.
8. 4. Attornev' s Fees and Costs. In the event that Developer fails to perform any obligation under this Agreement, Developer agrees to pay all costs and expenses incurred by City in securing performance of such obligations, including costs of suit and reasonable attorney' s fees. In the event of any dispute arising out of Developer' s performance of its obligations under this Agreement or under any of the Security Instruments referenced herein, the prevailing party in such action, in addition to any other relief which may be granted, shall be entitled to recover its reasonable attorney' s fees and costs. Such attorney' s fees and cost shall include fees and costs on any appeal, and in addition a party entitled to attorney' s fees and costs shall be entitled to all other reasonable costs incurred in investigating such action, taking depositions and discovery, retaining expert witnesses, and all other necessary and related costs with respect to the litigation. All such fees and costs shall be deemed to have accrued on commencement of the action and shall be enforceable whether or not the action is prosecuted to judgment.
8. 5. Waiver. No waiver by the City of any breach or default by the Developer shall be considered valid unless in writing, and no such waiver by the City shall be deemed a waiver of any subsequent breach or default by the Developer.
9. Indemnitv/ Hold Harmless. City or any officer, employee or agent thereof shall not be liable for any injury to persons or property occasioned by reason of the acts or omissions of Developer, its agents, employees, contractors and subcontractors in the performance of this Agreement. Developer further agrees to protect, defend, indemnify and hold harmless City, its officials, boards and commissions, and members thereof, agents, and employees from any and all claims, demands, causes of action, liability or loss of any sort, because of, or arising out of, acts or omissions of Developer, its agents, employees, contractors and subcontractors in the performance of this Agreement, except for such claims, demands, causes of action, liability or loss arising out of the sole active negligence or willful misconduct of the City, its officials, boards, commissions, the members thereof, agents and employees, including all claims, demands, causes of action, liability or loss because of or arising out of, in whole or in part, the design or construction of the improvements. This indemnification and agreement to hold harmless shall extend to injuries to persons and damages or taking of property resulting from the design or construction of said Project, and the public improvements as provided herein, and in addition, to adjacent property owners as a 01225. 0005/ 784688. 1
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consequence of the diversion of waters from the design and construction of public drainage systems, streets and other improvements. Recordation of the Notice of Acceptance by the City of the Works of improvements shall not constitute an assumption by the City of any responsibility for any damage or taking covered by this Section. City shall not be responsible for the design or construction of the property to be dedicated or the improvements pursuant to the approved improvement plans or map, regardless of any negligent action or inaction taken by the City in approving the plans or map, unless the particular improvement design was specifically required by City over written objection by Developer submitted to the City Engineer before approval of the particular improvement design, which objection indicated that the particular improvement design was dangerous or defective and suggested an alternative safe and feasible design.
After recordation of the Notice of Acceptance, the Developer shall remain obligated to eliminate any latent defect in design or dangerous condition caused by the design or construction defect for a period of one ( 1) year; however. Developer shall not be responsible for routine maintenance. It is the intent of this section that Developer shall be responsible for all liability for design and construction of the improvements installed or work done pursuant to this Agreement and that City shall not be liable for any negligence, nonfeasance, misfeasance or malfeasance in approving or reviewing any work or construction. The improvement security shall not be required to cover the provisions of this Paragraph.
Developer shall reimburse the City for all costs and expenses, including but not limited to fees and charges of architects, engineers, attorneys, and other professionals, and court costs. Incurred by City in enforcing this Section.
10. Developer' s Indemnitv of Project Approval. Developer shall defend, indemnify, and hold harrnless the City and its agents, officers, and employees from any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the City, advisory agency, appeal board, or legislative body concerning the Project. The City shall promptly notify the Developer of any claim, action, or proceeding and cooperate fully in the defense of any such claim, action, or proceeding. In the event City fails to promptly notify the Developer of any claim, action, or proceeding, or if the City fails to cooperate in the defense, the Developer shall not thereafter be responsible to defend, indemnity, or hold harmless the City. Nothing in this Section prohibits the City from participating in the defense of any claim, action, or proceeding if City bears its own attorney' s fees and costs and defends the action in good faith. Developer shall not be required to pay or perform any settlement unless the settlement is approved by the Developer.
11. Insurance Requirements. Developer, at Developer' s sole cost and expense and for the full term of this Agreement and any extensions thereto, shall obtain and maintain all of the following minimum insurance requirements in a form approved by the City' s authorized designee for Risk Management prior to commencing any work:
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a) Commercial General Liability poiicy with a minimum $ 1 million combined single limit for bodily injury and property damage providing all of the following minimum coverage with a $ 50, 000. 00 deductible:
i) Premises operations; including X, 0, and U coverage; ii) Owners' and contractors' protection;
iii) Bianket contractual;
iv) Completed operations; and
v) Products.
b) Commercial Business Auto policy with a minimum $ 1 million combined single limit for bodily injury and property damage, providing ai! of the following minimum coverage with a $ 50, 000. 00 deductible:
i) . Coverage shall apply to any and all leased, owned, hired, or non- owned vehicles used in pursuit of any of the activities associated with this Agreement; and
ii) Any and ail mobile equipment including cranes which are not covered under the above Commercial Business Auto policy shall have said coverage provided under the Commercial General Liability policy.
c) Workers Compensation and Employers' Liability poiicy in accordance with the laws of the State of California and providing coverage for any and ail employees of the Developer:
i) This policy shall provide coverage for Workers' Compensation Coverage A); and
i) This policy shall provide coverage for $ 1, 000, 000 Employers' Liability ( Coverage B).
ii) Pursuant to Labor Code section 1861, Developer by executing this Agreement certifies:"/ am aware of the provisions of Section 3700 of the Labor Code which requires 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."
Prior to commencement of work, the Developer shall file with the City' s Risk Manager a Certificate of insurance or certification of 01225. 0005/ 784688. 1
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permission to self- insure workers' compensation conforming to the requirements of the Labor Code.
d) Endorsements. All of the following endorsements are required to be made a part of each of the above- required policies as stipulated below:
i) " The City of Chino, its officers, employees and agents are hereby added as additional insureds."
ii) " This policy shail be considered primary insurance with respect to any other valid and collectible insurance the City may possess, including any self- insured retention the City may have and any other insurance the City does possess shall be considered excess insurance only."
iii) " This insurance shall act for each Insured and additional insured as though a separate policy has been written for each. This, however, will not act to increase the limit of the insuring company." iv) " Thirty ( 30) days prior written notice of cancellation shall be given to the City of Chino in the event of cancellation and/ or reduction in coverage, except that ten ( 10) days prior written notice shall apply in the event of cancellation for non- payment of premium." Such notice shall be sent to the Risk Manager at the address indicated in Subsection f below.
v) Subsection d( iv) hereinabove " Cancellation Notice" is the only endorsement required of the Workers' Compensation and
Employers' Liability policy.
e) Admitted Insurers. All insurance companies providing insurance to the Developer- under this Agreement shall be admitted to transact the business of insurance by the California Insurance Commissioner.
f) Proof of Coverage. Copies of all required endorsements shail be attached to the Certificate of Insurance which shall be provided by the Developer' s insurance company as evidence of the coverage required herein and shall be mailed to:
City of Chino
Risk Management
13220 Central Avenue
Chino, CA 91710
12. Environmental Warrantv. ( Not applicable - Developer is not dedicating anv propertv to Citv. 1 ,
13. General Provisions.
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13. 1. Successors and Assigns. This Agreement shall be binding upon all successors and assigns to Developer' s right, title, and interest in and to the Property and any portion thereof. Developer hereby consents to City recording this Agreement as official records of San Bernardino County, affecting fee title interest to the Property to provide constructive notice of the rights and obligations incurred by Developer in the City' s approval of this Agreement. In the event the Property is subsequently conveyed by Developer to a third party prior to completion of the Works of improvement, whereby the third party is intended to assume Developer' s responsibilities with regard to this Agreement, ( the " Replacement Developer"), the rights and obligations of this Agreement shall transfer to the Replacement Developer; however, the Security Instruments required pursuant to Section 4 of this Agreement, and furnished by Developer as a condition of the City' s approval of this Agreement, shall remain Developer' s responsibility to maintain until such time as Developer and Its Replacement Developer enter into a Transfer and Assignment of Public Improvement Agreement, ( the " Transfer Agreement"), to acknowledge the transfer of fee title to the Property from the Developer to its Replacement Developer, and to acknowledge the rights and obligations associated with this Agreement upon the Replacement Developer, including Replacement Developer' s responsibility to furnish replacement Security Instruments meeting the City' s approval pursuant to Section 4 of this Agreement, at which time Developer' s Security Instruments shall be released and Developer shall thereafter have no obligations hereunder. Until such time as a Transfer Agreement, meeting the City' s approval, is executed by Developer and its Replacement Developer, and replacement Security Instruments meeting City' s approval are furnished by the Replacement Developer, Developer retains sole responsibility for maintaining all Security Instruments required pursuant to Section 4 of this Agreement.
13. 2. No Third Party Beneficiaries. This Agreement is intended to benefit only the parties hereto and their respective successors and assigns. Neither City nor Developer intend to create any third party beneficiary rights in this Agreement in any contractor, subcontractor, member of the general public, or other person or entity.
13. 3. No Vesting Rights. Performance by the Developer of this Agreement shall not be construed to vest Developer' s rights with respect to any change in any zoning or building law or ordinance.
13. 4. Developer is Not Agent of Citv. Neither Developer nor Developer' s agents, contractors, or subcontractors are agents or contractors of the City in connection with the performance of Developer' s obligations under this Agreement.
13. 5. Time of the Essence. Time is of the essence of Developer' s performance of all of its obligations under this Agreement.
13. 6. Notices. Unless otherwise specified in this Agreement, all notices required or provided for under this Agreement shall be in writing and delivered in person or sent by mail, postage prepaid and addressed as provided in this Section. Notice shall be effective on the date is delivered in person, or, if mailed, on the date of deposit in the United States Mail.
Notice shall be provided to the persons listed on Pages 1 and 2 of this Agreement by the parties for this purpose.
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Either party may provide a new designated representative and/ or address by written notice as provided in this Section.
13. 7. No Apportionment. Nothing contained in this Agreement shall preclude City from expending monies pursuant to agreements concurrently or previously executed between the parties, or from entering into agreements with other Developers for the apportionment of costs of water and sewer mains, or other improvements pursuant to the provisions of the City ordinances providing therefore. Nor shall anything in the Agreement commit City to any such apportionment.
13. 8. Severabilitv. If any portion of this Agreement is held invalid by a court of competent jurisdiction, the remainder of the Agreement shall remain in full force and effect unless amended or modified by mutual written consent of the parties.
13. 9. Captions. The captions of this Agreement are for convenience and reference only and shall not be used in the interpretation of any provision of this Agreement.
13. 10. Incorporation of Recitals. The recitals to this Agreement are hereby incorporated into the terms of this Agreement.
13. 11. Interpretation. This Agreement shall be interpreted in accordance with the laws of the State of California.
13. 12. Entire Agreement: Waivers and Amendments. This Agreement integrates all of the terms and conditions mentioned herein, or incidental hereto, and supersedes all negotiations and previous agreements between the parties with respect to all or part of the subject matter hereof, except as may be expressly provided herein. All waivers of the provisions of this Agreement must be in writing and signed by an authorized representative of the party to be charged, and all amendments hereto must be in writing and signed by the appropriate representatives of both parties.
13. 13. Counterparts. This Agreement may be executed in one or more counterparts, including the execution and delivery of counterparts via electronic means without the need to exchange original signatures, all of which taken together shall be deemed one original.
14. Authoritv. The persons executing this Agreement on behalf of the parties warrant the ( I) 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 of this Agreement does not violate any provisions of any other agreement to which said party is bound.
SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the City and the Developer have caused this Agreement to be executed the day and year first above written.
APPROVED AS TO FORM:
SIGNED IN COUNTERPART
Fred Galante, City Attorney
Euclid Land Venture, LLC
A Delaware limited liability company
APPROVED AS TO CONTENT:
Nicholas 8. Ligudri, AlCP
DevelopmenrServlces Director
By: RBV Euclid, LLC, a Delaware limited liability company Its Managing Member
By: REDA Bascom Ventures, LLC, a Delaware limited liability company Its Managing Member
By: Real Estate Development Associates, LLC, a California limited liability company Its Administrative Member
ohnstdn
President
ATTEST:
Angel^ f^ obles, City Clerk
Dated: | l - ^ - 2^ 2.^
CITYO
Reich, City Manager
Dated:_
01225, 0005^ 84688. 1
18 141
DocuSign Envelope ID: 6E1CCABC- FFC8- 4E11- B913- E4BB03D8D40F IN WITNESS WHEREOF, the City and the Developer have caused this Agreement to be executed the day and year first above written.
APPROVED AS TO FORM:
DocuSlgnedby:^.—DocuSlj
APPROVED AS TO CONTENT:
fn, l
N— 7O0FS5700FSgilggMF405
Fred Galante, City Attorney Nicholas S. ILlgudri, AlCP
DevelopmenrS^ vices Director
Euclid Land Venture, LLC
A Delaware limited liability company
By; RBV Euclid, LLC, a Delaware limited liability company Its Managing Member
By: REDA Bascom Ventures, LLC, a Delaware limited liability company Its Managing Member
By: Real Estate Development Associates, LLC, a California limited liability company Its Administrative Member .
ohnston
Si^ n) br Vice Presi
ATTEST:
CITY OF CHINO
Linda Reich, City Manager
Dated:
By:
Angela Robjes, City Clerk
Dated:
01225. 0005^ 764688. 1
18 142
ACKNOWLEDGMENT
A notary public or other offlcer completing this
certificate verifies only the identity of the Individual who signed the document to which this certificate Is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of J
On before me. T^ Pr (^ jr
insert name and title of the officer)
is of satisfactdry evidence to be the pers
personally appeared
who proved to me on the basis of satisfactdry evidence to be the person( 8fwhose name(8j( is? are^ Inscribed to the within instrument and acknowlec^ d to me thatftie& he/ they executed the same in Pher/ their authorized capacity( iee); and that by t^ her/ their signature( s) on the instrument the person( s) rorthe entity upon behalf of which the person( s)- acted, executed the instrument.
I certify under PENALPi^ OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and
Signature
DANA D' ANGELO L
COMM. # 2394774 z
Notary Public • California 5
Orange
CountyMyComm. ExpiresFeb. 23.2026 [
Seal)
143
EXHIBIT " A"
ORBP
J L_ EUCALYPTUSAVL J11
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Q
O
WestLAMP
iGroup, Inc.
r : 7iK
PROPOSED
BUILDINOS Ic
1<
i<
ico
en _ CITY OF ONTARIO _ J L_
CITY OF CHINO
MERRILL AVE.
STDRU DRAM lUPRmQJENTS TO " 1500* SOUTH OF UERRtLL
STREET ITPROVOenS ID "«»'
LEGEND:
PROPERTY BOUNDARY
STREET RIGHT OF WAY
STREET CENTERLINE
STREET WIDENING & STORM DRAIN WORK WITHIN
Engineering • Geospatial • Land Planning
4150 CONCOURS, ONTARIO, OA 91764
PHONE: ( 909) 989- 9789 FAX: ( 909) 989- 9660
0 N.T.S.
Ontario Ranch Business Park Specific Plan
DATE: 06/ 17/ 2022
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EXHIBIT " B"
WORKS OF IMPROVEMENT
A. Removal of undesirable, dangerous and dead plant materials and roots.
B. All onsite and offsite grading as specified on the approved grading plan.
C. Relocation of all public utility structures as necessary to properly construct the required improvements.
D. Storm drain facilities as required and shown on the approved construction plans and in accordance with City Standards.
E. N/ A
F. N/ A
G. N/ A
H. Disposal of all rocks and debris located within any public right- of- way within said development or on the boundary streets thereof.
I. installation of concrete curbs, gutters, cross gutters, driveways and intersections as shown on approved construction plans and in accordance with City Standards.
J. Installation of asphalt concrete or Portland Cement Concrete street pavement on base material as shown on approved construction plans and in accordance with City Standards.
K. Street signs at intersections per the City Standards.
L. Installation of approved landscaping ( plants and materials).
M. Setting monuments as required by the State Code.
The Developer shall also perform all work and furnish all materials necessary, in the opinion of the Director of Development Services or his designee and on his order, to complete the improvements in accordance with the plans and specifications on file as hereinbefore specified, or any changes required or ordered by said Engineer which, in his opinion, are necessary or required to complete this work, in accordance with Section
1. 5 of the Agreement.
See Drawing Log ( following herein) of approved Plans for work to be built in City of Chino.
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145
EXHIBIT " B'
Title:
For:
Drawing Log
Plans by WestLAND Group, Inc.)
Street Improvement Plans
Euclid Avenue ( SR- 83) 840' south of Merrill Avenue to 835' north of Eucalyptus Avenue
Sheet# Sheet Name Sheet Date
1 Title Sheet 7/ 20/ 2022
2 Sheet Index and Typical Sections 7/ 19/ 2022
3 Plan & Profile - Euclid Avenue - 840' South to 345' North of Merrill Avenue 7/ 20/ 2022 4 Plan & Profile - Euclid Avenue - 345' North of Merrill Avenue to 1146' South of Eucalyptus Avenue 7/ 20/ 2022
5 Plan 8t Profile - Euclid Avenue - 1146' South of Eucalyptus Avenue to 104' North of Eucalyptus Avenue 7/ 20/ 2022
6 Plan & Profile - Euclid Avenue - 104' North of Eucalyptus Avenue to 871' North of Eucalyptus Avenue 7/ 20/ 2022
7 Details and Cross Sections 7/ 20/ 2022
8 Street Transition Details 7/ 19/ 2022
9 Concrete Pavement Details - Euclid Avenue and Merrill Avenue 7/ 19/ 2022 Title:
For:
Street Improvement Plans
Parcel Map 20016 Merrill Avenue, Eucalyptus Avenue, & Sultana Avenue Sheet # Sheet Name Sheet Date
1 Title Sheet 4/ 5/ 2022
2 Sheet Index 4/ 5/ 2022
3 Merrill Avenue - From 128' East of Euclid Ave to 1100' East of Euclid Ave 4/ 5/ 2022 4 Merrill Avenue - From 1100' East of Euclid Ave to 2300' East of Euclid Ave 4/ 5/ 2022 5 Merrill Avenue - From2300' East of Euclid Ave to 3425' East of Euclid Ave 4/ 5/ 2022 6 Merrill Avenue - From 3425' East of Euclid Ave to 4600' East of Euclid Ave 4/ 5/ 2022 7 Merrill Avenue - From 4600' East of Euclid Ave to 5800' East of Euclid Ave 4/ 5/ 2022 8 Merrill Avenue - From 5800' East of Euclid Ave to 6509' East of Euclid Ave 4/ 5/ 2022 9 Eucalyptus Avenue - From 130' East of Euclid Ave to 960' East of Euclid Ave 4/ 5/ 2022 10 Eucalyptus Avenue - From 960' East of Euclid Ave to 654' East of Sultana Ave 4/ 5/ 2022 11 Sultana Avenue - From Merrill Ave to 1100' North of Merrill Avenue 4/ 5/ 2022 12 Sultana Avenue - From 1100' North of Merrill Avenue to 2150' North of Merrill Ave 4/ 5/ 2022 13 Sultana Avenue - From 2150' North of Merrill Ave to Eucalyptus Ave 4/ 5/ 2022 14 Details 4/ 5/ 2022
15 Merrill Avenue Driveway Details 4/ 5/ 2022
16 Merrill Avenue Local Depression Details 4/ 5/ 2022
17 Concrete Pavement Plan - Merrill Avenue from 130' E/ 0 Euclid Avenue to 300' E/ 0 Euclid Ave 4/ 5/ 2022
18 Concrete Pavement Plan - Merrill Avenue from 300' E/ 0 Euclid Avenue to 475' E/ 0 Euclid Ave 4/ 5/ 2022
19 Concrete Pavement Plan - Merrill Avenue from 1, 521' E/ 0 Euclid Avenue to 1, 800' E/ 0 Euclid Ave 4/ 5/ 2022
20 Concrete Pavement Plan - Merrill Avenue from 1, 800' E/ 0 Euclid Avenue to 2, 000' E/ 0 Euclid Ave 4/ 5/ 2022
146
Sheet# Sheet Name Sheet Date
21 Concrete Pavement Plan - Merrill Avenue from 2, 824' E/ 0 Euclid Avenue to 3, 100' E/ 0 Euclid Ave 4/ 5/ 2022
22 Concrete Pavement Plan - Merrill Avenue from 3, 100' E/ 0 Euclid Avenue to 3, 338' E/ 0 Euclid Ave 4/ 5/ 2022
23 Concrete Pavement Plan - Merrill Avenue from 4, 162' E/ 0 Euclid Avenue to 4, 400' E/ 0 Euclid Ave 4/ 5/ 2022
24 Concrete Pavement Plan - Merrill Avenue from 4, 400' E/ 0 Euclid Avenue to 4, 640' E/ 0 Euclid Ave 4/ 5/ 2022
Title: Storm Drain improvement Plan
For: Parcel Map 20016 Eucalyptus Avenue, Merrill Avenue & Sultana Avenue Sheet# Sheet Name Sheet Date
1 Title Sheet 6/ 6/ 2022
2 Index/ System Map 6/ 6/ 2022
3 Eucalyptus Ave - From Euclid Ave to 900' East of Euclid Ave 6/ 6/ 2022 4 Eucalyptus Ave -' From 900' East of Euclid Ave to Sultana Ave 6/ 6/ 2022 5 Sultana Ave - From Merrill Ave to 800' North of Merrill Ave 6/ 14/ 2022 6 Sultana Ave - From 800' North of Merrill Ave to 1400' North of Merrill Ave 6/ 14/ 2022 7 Merrill Ave - From Euclid Ave to 800' East of Euclid Ave 6/ 14/ 2022 8 Merrill Ave - From 800' East of Euclid Ave to 160' East of Sultana Ave 6/ 14/ 2022 9 Merrill Ave - From 160' East of Sultana Ave to 260' West of Campus Ave 6/ 6/ 2022 10 Merrill Ave - From 260' West of Campus Ave to 640' East of Campus Ave 6/ 6/ 2022 11 Merrill Ave - From 640' East of Campus Ave to 220' East of Bon View Ave 6/ 6/ 2022 12 Merrill Ave - From 220' East of Bon View Ave to 1300' East of Bon View Ave 6/ 6/ 2022 13 Merrill Ave - From 1300' East of Bon View Ave to 1650' East of Bon View Ave 6/ 14/ 2022 ! 14 Eucalyptus Ave - Lateral Details B- 1 to B- 9 8i D- 18 & D- 19 6/ 15/ 2022 15 Merrill Ave - Lateral Details D- 1 to D- 15, F- 1 to F- 3, Line E and D Bon View Ave 6/ 14/ 2022 16 Sultana Ave - Lateral Profiles C- 1 to C- 6 6/ 14/ 2022 17- 18 CDS Details 6/ 15/ 2022
19- 24 Details 6/ 6/ 2022
Title: Storm Drain Improvement Plan
For: Parcel Map 20016 Eucalyptus Avenue, Merrill Avenue & Sultana Avenue Sheet# Sheet Name Sheet Date
1 Title Sheet 6/ 16/ 2022
2 Sheet Index and Typical Sections 6/ 3/ 2022
3 Euclid Avenue - From Merrill Ave to 912' North of Merrill Ave 6/ 16/ 2022 4 Euclid Avenue - Frorri 912' North of Merrill Ave to 1812' North of Merrill Ave 6/ 16/ 2022 5 Euclid Avenue - From 1812' North of Merrill Ave to Eucalyptus Ave 6/ 16/ 2022 6 Euclid Avenue - From 2171' to 3071'- North of Kimball Ave 6/ 8/ 2022 7 Euclid Avenue - From 3071' North of Kimball Ave to 1310' South of Merrill Ave 6/ 16/ 2022 8 Euclid Avenue - From 1310' South of Merrill Ave to 590' South of Merrill Ave 6/ 16/ 2022 9 Euclid Avenue - From 590' South of Merrill Ave to Merrill Ave 6/ 16/ 2022 10 CDS & Utility Crossing Details 6/ 16/ 2022
11- 21 Details 6/ 3/ 2022
147
EXHIBIT " C"
ENGINEERING COST ESTIMATES
01225. 0005/ 784688. 1 0- 1
148
RESOLUTION NO 2015- 078
EXHIBIT C
CITY OFCHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM-a0016
LOCATION : Merrill Avenue • Euclid to Grove
By:
DATE:
Slew MecKtnney
S/ 2/ 3022
Quantity Unit Item Unit
Price
Total Cost
Per Item
STREETS
LS Traffic Control ( 5% of construction cost) 5%$ 135. 047. 68 LS Clear & Grub Site ( 5% of construction cost) 5%$ 135. 047. 68 EA Tree Removal $ 800. 00 t
CY Concrete Removal $ 300. 00 s
2939 CY AC Pavement Removal S 100. 00 % 293. 900. 00
LS Excavation ( Clean Material) ( 5% of Consbuction Cost) 5%$ 135. 047. 68 CY Imoorted Common Fill ( Incl. Compaction)$ 34. 00 s
136936 SF Preparation of Subgrade S 1. 00 $ 136. 936. 00 6328 LF PCC 8" Curb & 24" Gutter $ 23. 00 145. 544. 00
3181 LF PCC Curb Onlv S 20. 00 63. 620. 00
130 LF 8" A. C. Berm $ 20. 00 $ 2. 600. 00
SF 8" PCC Cross Gutter S 11. 00 $
SF 4' PCC Sidewalk $ 5. 80 s
7984 SF 6" PCC Thick Drive Approach $ 7. 40 $ 59. 081. 60 SF 8' PCC Thick Drive Approach $ 9. 00 $
1225 LF 2" X 6" Redwood Header $ 5. 00 $ 6. 125. 00
EA Street Sion $ 475. 00 $
33 EA Traffic Sign and Post $ 400. 00 s 13. 200. 00
EA Reflector Sign and Post $ 175. 00 $
52 EA Painted Leoend S 6. 50 $ 338. 00
SF Prime or Tack Coat $ 0. 05 $
67187 SF PCC Pavement S 5. 00 s 285. 935. 00
TON AC Variable - < 300T $ 90. 00 s
11371 TON AC Variable - > 300T S 80. 00 $ 909. 680. 00
EngCoetEstimate Pagei of 14 Effective Dele: January 1, 2016 149 RESOLUTION NO 2015- 078
EXHIBIT C
CITYOFCHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM. 2& 016
LOCATION : MttIU Av» ny - Euclid to Grovt
By: Stan MacKlnrwy
DATE: 8/ 2/ 2022
Quantity Unit Item Unit
Price
Total Cost
Per Item
STREETS
TON CAB Variable - < 300T $ 75. 00 $
7372 TON CAB Variable - > 300T $ 65. 00 $ 479. 180. 00
5 EA Adjust Sewer Manhole to Grade S 665. 00 $ 3. 325. 00 LS Mobilization 5%$ 135, 047. 68
EA Adjust Sewer Cleanout to Grade S 350. 00 $
10 EA Adjust Water Valve to Grade $ 265. 00 $ 2. 650. 00 EA Street Uaht ( Citv Owner) S 6. 700. 00 $
EA Lot Monument Setting Fee $ 550. 00 $
5000 IF Sawcut A. C. S 3. 00 $ 15. 000. 00
LF Sawcut Concrete S 3. 00 $
5150 SF Cold Plan A. C 15 foot wide)$ 0. 28 $ 1. 442. 00 LF Sionino & Strioino for
7650 Arterial S 19. 00 $ 145. 350. 00
Collector S 13. 00 $
Local $ 7. 00 $
EA Traffic Signal ( 8 - Phase Conb' olier) S 250. 000. 00 $ EA Modify exisbno Traffic Signal oer Quadrant $ 50. 000. 00 $ LF Chain Link Fence
4 foot Residential Grade ( Add $ 7. 00/ LF for Removal
of Existing Fence) S 25. 00 $
837
6 foot School fence ( Add $ 9. 00/ LF for Removal of
Existing Fence)$ 35. 00 $ 29. 295. 00
2358
6 foot School fence ( Add $ 9. 00/ LF for Removal of
Existing Fence)$ 44. 00 8 103. 752. 00
EA Utllitv Poles
Transmission $ 11. 500. 00 $
Distribution $ 8. 000. 00 $
Service $ 3. 000. 00 $
EngCostEstimale Page 2 of 14 EfTective Date: January 1. 2016 150 RESOLUTION NO 2015- 078
EXHIBIT C
CITY OFCHINO
ENGINEERING COST ESTIMATE
PROJECT NO; PM- 2Mie
LOCATION : Mtfrill Av> nu» - Euclid to Grove
By: Slifi MtcKlntwy
DATE: tnnm
Quantity Unit Item Unit
Price
Total Cost
Per Item
STREETS
SF
Landscape ( including shrubs. Hardscape. Irrigation,
Ground Cover. Lighting, Installation Labor and Connection to Existina Svstemsl $ 10. 00 $
LF
14 foot Median with Landscape. Irrigation, Lighting,
Hardscape. Curb. Gutter & Pavement $ 300. 00 $
Rail Road Crossing
LS
Safety Equipment ( Complete Including Crossing
Gates. Signs, and Lights)$ 400. 000. 00 $
SF Track Crossing ( Concrete) S 150. 00 $
SF Aoproach $ 2. 25 $
1 EA S. W. Ramos ( A. DA. Compliant) S 4. 000. 00 $ 4. 000. 00 EA Traffic Signal Loops S 400. 00 $
STREET SUBTOTAL $ 3. 241, 144. 32
PROJECT ADDITIVES Project Contingencies 10%$ $ 24, 114. 43 Construcf/ on Slakina 3%$ 97. 234. 33
Soils Testina 1% S 32. 411. 44
Material Testing 1% S 32. 411. 44
Construction Inspection 2% S 64, 822. 89
Contract Adminisnation 1% S 32. 411. 44
GRAND TOTAL STREETS ONLY 3, 824, 550. 30
EngCostEstiinate Page 3 of 14 Effective Dale: January 1, 2016 151 RESOLUTION NO 2015- 078
EXHIBIT C
CITYOFCHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM-aooie
LOCATION : Merrill Avenue - Euclid to Grove
By: SUri MacKlnney
DATE: 9/ 2/ 2022
Quantity Unit Kem Unit Total Cost
Price Per Item
WATER
LS Traffic Contn^ ( 5% of Construction Cost) 5%$
LF Trench SuoDort/ Shorina ( 6 foot decth)$ 15. 00 $
CY Pioe Bedding llmDorted)$ 45. 00 $
LF
6' Pipe & Fittings Installed, including excavation, bedding, backfiil and oavement restoration $ 60. 00 $
LF
8' Pipe & Fittings Installed, including excavation, bedding, backfill and oavement restoration. S 75. 00 $
LF
10" Pipe & Fittings Installed, including excavation,
bedding, backfill and oavement restoration $ 80. 00 $
LF
12" Pipe & Fittings Installed, including excavation,
bedding, backfill and oavement restoration $ 90. 00 $
LF
16" Pipe & Fittings Installed, including excavation,
beddirK). backfill and oavement restoration $ 105. 00 $ EA 6' Gate Valve S 1. 500. 00 $
EA 8" Gate Valve $ 2. 000. 00 $
EA 10" Gate Valve S 2. 400. 00 $
EA 12' Gate Valve $ 2, 800. 00 $
EA 16" Gate Valve $ 3. 500. 00 $
EA Fire Hvdrant Assembly oer Citv Std. S 7. 500. 00 $
EA Blow- off Assembly 6" oer City Std.$ 4, 500. 00 S
EA 2" Air Relief Assembly
o
e
d
o>
ri
EA 1" Water Service/ Meter $ 3. 500. 00 $
EA 2" Water Service/ Meter $ 4. 500. 00 $
EngCostEstfmate Page 4 of 14 Etfecttve Dale: January 1. 2016 152 RESOLUTION NO 2015- 078
EXHIBIT C
CITYOFCHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM.20016
LOCATION : MerflM Avenu* - Euclid to Grove
By: Slara ItacKinnty
DATE: 812/ 2022
Quantity Unit Item Unit
Price
Total Cost
Per Item
WATER
WATER SUBTOTAL $
PROJECT ADDITIVES Project Contingertcies 10%$
Construction Staking 3%$
Soils Testing 1%$
Material Testing 1%$ •
Construction Inspection 2% S
Contract Administration 1%$
GRAND TOTAL WATER ONLY
EngCoetEstimate Page 5 of 14 Enective Date: January 1. 2016 153 RESOLUTION NO 2015- 078
EXHIBIT C
CITY OFCHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM-2001«
LOCATION : MarriH Awnue - Euclid to Grow
By: Stara MacKlnnty
DATE: 8/ 2/ 2022
Quantity Unit hem Unit
Price
Total Cost
Per Item
RECYCLED WATER
LS Traffic Control ( 5% of Construction Cost) 5% S
LF Trench Suooort/ Shorino f6 foot deoth)$ 15. 00 $
CY Pioe Beddino ( imoorted) S 45. 00 s
LF
6' Pipe & Fittings Installed, including excavation, bedding, backfiil and pavement restoration S 60. 00 $
LF
8" Pipe & Fittings Installed, including excavation, bedding, backfill and pavement restoration.$ 75. 00 $
LF
10" Pipe & Fittings Installed, including excavation,
beddino. backfill and oavement restoration $ 80. 00 s
LF
12" Pipe & Fittings Installed, including excavation,
beddino. backfill and oavement restoration $ 90. 00 $
LF
16" Pipe & Fittings Installed, including excavation,
beddino, backfill and pavement restoration $ 105. 00 $
EA 6' Gate Valve $ 1. 500. 00 $
EA 8" Gate Valve $ 2, 000. 00 $
EA 10' Gate Valve $ 2. 400. 00 $
EA 12' Gate Valve $ 2. 800. 00 $
EA 16' Gate Valve $ 3. 800. 00 s
EA Fire Hydrant Assembly per City Std.$ 7. 500. 00 s
EA Blow- off Assembly 6" per City Std.$ 4. 500. 00 $
EA 2" Air Relief Assembly $ 4. 500. 00 $
EA 1' Water Service/ Meter S 3. 500. 00 $
EA 2" Water Service/ Meter S 4. 500. 00 $
EngCostEstimsia Page 6 of 14 Effective Date: January 1, 2016 154 RESOLUTION NO 2015- 078
EXHIBIT C
CIT\ OFCMINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM- 2001>
LOCATION : Mrrill Avnm • Euclid to Gfw
By: SItri MacKlniwy
DATE: % i2n022
Quantity UnH Item Unit
Price
Total Cost
Per Item
RECYCLED WATER
RECYCLED WATER SUBTOTAL $
PROJECT ADDITIVES Pmyecf Continaencies 10% i
Construcf/ on Stakina 3% s
SoHs Testinq 1%$
Malarial Tastina 1%$
Construction Insoaction 2%$
Contract Administration 1% s
GRAND TOTAL RECYCLED WATER ONLY
EngCosCetimate Page 7 of 14 EffBctive Date: Januaiy 1, 2016 155 RESOLUTION NO 2015- 078
EXHIBIT C
CITYOFCHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM- 20016
LOCATION : MwtHI Avtnu* - EuclM to Grove
By: Slara MacKlnnty
DATE: 8/ 2/ 2022
Quantity Unit Hem Unit
Price
Total Cost
Per Hem
SEWER
LS Traffic Control ( 5% of Construction cost) 5%$
LF Trench SupDort/ Shorlno $ 15. 00 $
LF
8* V. C. P Installed, including excavation, bedding, backfill and oavement restoration S 92. 00 $
LF
10' V. C. P. Installed, including excavation, bedding,
backfill and oavement restoration $ 98. 00 $
LF
12' V. C. P. Installed, including excavation, bedding,
backfill and pavement restoration $ 104. 00 $
LF
15" V. C. P. Installed, including excavation, bedding,
backfill and pavement restoration S 110. 00 $
LF
18" V. C. P. Installed, Including excavation, bedding,
backfill and pavement restoration S 140. 00 $
LF
21" V. C. P. installed, including excavation, bedding,
backfill and pavement restoration S 150. 00 $
LF
24" V. C. P. Installed, including excavation, bedding,
backfill and pavement restoration $ 170. 00 $
EA Sewer Saddle S 450. 00 $
EA Wves 4' x8' Tvpical $ 225. 00 $
EA 48" Sewer Manhole $ 5. 000. 00 $
EA 60" Sewer Manhole $ 6. 400. 00 $
EA Sewer Cleanout $ 1. 800. 00 $
LF
36" V. C. P. Installed, including excavation, bedding,
backfill and pavement restoration $ 255. 00 $
LF 54' Steel Casino with 1/ 2" wall thickness $ 350. 00 $ LF
30' V. C. P. Installed, including excavation, bedding,
backfiil and oavement restoration S 300. 00 $
EA 72' Sewer Manhole $ 7. 700. 00 $
LF Remove Exisitina 16' Sewer $ 70. 00 $
EA Remove Existina Manhole S 1. 200. 00 $
EA Temporarv Sewer Piua $ 200. 00 $
EA Connect to Existina S 500. 00 $
EngCostEsUmate Page 8 of 14 Effective Date: January 1, 2016 156 RESOLUTION NO 2015- 078
EXHIBIT C
CITY OFCHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM. 200H
LOCATION : Utenlii Avnut» Euclid to Grow
By: Siwi MicKlnnty
DATE: e/ 2/ 2022
Quantity Unit Hem Unit
Price
Total Cost
Per Item
SEWER
SEWER SUBTOTAL $
PROJECT ADDITIVES Project Corttlngencles 10%$
Construction StaMna 3%$
Soils Testina 1%$
Material Testina 1% t
Construction Inspection 2%$
Contract Administration 1%$
GRAND TOTAL SEWER ONLY
EngCostEstitnate Page 9 of 14 Effective Date: January 1. 2016 157 RESOLUTION NO 2015^ 78
EXHIBIT C
CITYOFCHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM- 20016
LOCATION : Marrfll Avenue - Euclid to Grove
By: Siara MacKinney
DATE: 6/ 2/ 2022
Quantity Unit Item Unit Total Cost
Piice Per Item
STORM DRAIN
LS Traffic Control ( 5% of Construction Cost) 5%% 97, 527. 50 LF 24" X 36" C. M. P A ( 10 Gauge)$ 230, 00 $
LF 27" X 43" C. M. PA ( 10 Gauae) S 250. 00 $
15 EA Storm Drain Manhoie # 1 $ 5. 000. 00 $ 75. 000. 00 0 EA Junction Structure # 2 ( 24" or larger)$ 4. 400. 00 $ 0 EA Junction Structure # 4 ( 24" or smaller)$ 2. 500. 00 $ 0 EA Outlet Sbucture $ 5. 000. 00 $
EA Catch Basin 3. 5' Width $ 5. 500. 00 $
EA Catch Basin T Width/ L. D. S 6. 100. 00 $
8 EA Catch Basin 10' Width/ L. D.$ 7. 000. 00 S 56. 000. 00 EA Catch Basin 14' Width/ L. D.$ 8. 000. 00 $
EA Catch Basin 21' Width/ L. D.% 10. 000. 00 $
0 LF
24 inch HOPE Installed, including excavation, bedding,
backfill and oavement restoration $ 50. 00 $
400 LF
18 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration $ 130. 00 $ 52. 000. 00 0 LF
24 inch HDPE Installed, including excavation, bedding,
backfill and oavement restoration S 150. 00 $
5550 LF
24 inch RCP Installed, including excavation, bedding,
backfill and oavement restoration $ 85. 00 $ 471. 750. 00 LF
27 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration $ 160. 00 $
0 LF
30 inch RCP installed, including excavation, bedding,
backfill and oavement restoration S 175. 00 S
LF
33 inch RCP installed, including excavation, bedding,
backfill and pavement restoration $ 190. 00 $
LF
36 inch RCP Installed, including excavation, bedding,
backfill and oavement restoration $ 240. 00 $
LF
39 inch RCP Installed, indudtng excavation, bedding,
backfill and oavement restoration S 260. 00 $
LF
42 inch RCP Installed, including excavation, bedding,
backfill and oavement restoration % 275. 00 $
EngCostEstimate Page 10 of 14 Eftactive Date: January 1. 2016 158 RESOLUTION NO 2015- 078
EXHIBIT C
CITYOFCHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM- aoOK
LOCATION : MttHI Avnw - EucHd to Grove
By: Stow ltocKinn» y
DATE: «/ 2/ 2022
Quantity Unit Hem Unit
Price
Total Cost
Per Item
STORM DRAIN
LF
45 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration $ 280. 00 $
LF
48 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration S 300. 00 $
LF
51 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration $ 325. 00 $
0 LF
54 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration $ 350. 00 $
LF
60 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration S 360. 00 $
LF
63 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration $ 370. 00 $
0 LF
66 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration S 400. 00 $
0 LF
72 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration $ 460. 00 $
LF
78 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration $ 470. 00 %
LF
81 inch RCP installed, including excavation, bedding,
bad( fill and pavement restoration S 490. 00 %
LF
84 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration $ 510. 00 $
0 LF
90 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration $ 540. 00 i
LF
96 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration S 570. 00 %
0 LF
102 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration S 610. 00 $
LF
108 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration $ 640. 00 $
0 LF
120 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration S 675. 00 $
LF
T X 6' RCB Installed, including excavation, bedding,
backfill and pavement restoration $ 700. 00 $
LF
7' X 8. 5' RCB Installed, including excavation, bedding, backfill and pavement restoration $ 820. 00 $
LF
7' X 9. 5' RCB Installed, including excavation, bedding, backfill and pavement restoration $ 870. 00 (
LF
8' X 11' RCB Installed, including excavation, bedding,
backfill and pavement restoration S 1. 000. 00 $
LF
8' X 13' RCB Installed, including excavation, bedding,
baddill and pavement restoration S 1. 100. 00 $
0 LF
DBLE lO' xIO' RCB Installed, including excavation,
bedding, backfill and pavement restoration $ 1. 800. 00 $ LF
9' X 12' RCB Installed, including excavation, bedding,
backfill and pavement restoration $ 1. 100. 00 $
LF
4' X 6' RCB Installed, including excavation, bedding,
backfill and pavement restoration S 680. 00 $
639 LF
Dbl lO' xIO' RCB Installed, including excavation. t> edding. backfill and pavement restoration S 1. 800. 00 $ 1. 150. 200. 00 2 £ A Brick and Morter Bulkhead $ 600. 00 S 1. 600. 00
EngCostEAImate Page 11 of 14 Effective Date: January 1, 2016 159 RESOLUTION NO 2015- 078
EXHIBIT C
CITY OFCHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM^ OOie
LOCATION : MerrlU Avanu* - Euclid to Grove
By: Sltra ItocKinnty
DATE: a/ 2/ 2022
Quantity Unit Item Unit
Price
Total Cost
Per item
36 EA RGB Stand pipe riser $ 4. 000. 00 $ 144. 000. 00
EngCostEstimate Page 12 of 14 Effective Date: January 1. 2016 160 RESOLUTION NO 2015- 078
EXHIBIT C
CITY OFCHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM- 20O16
LOCATION : M«rrm Avtnu* - EucBd to Grov»
By: Stif* ItecKinn^ y
DATE; •/ 2/ 2022
Quantity Unit Item Unit
Price
Total Cost
Per Item
STORM DRAIN
STORM DRAIN SUBTOTAL $ 2, 048, 077. 50
PROJECT ADOmVES Project Contingencies 10% S 204, 807. 7$ Construction Staklna 3%$ 61. 442. 33
Soils Testing 1% S 20. 480. 78
Material Testing 1% t 20. 480. 78
Construction Insoection 2% S 40. 961. SS
Contract Administration 1% S 20. 480. 78
GRAND TOTAL STORM DRAIN ONLY 2, 416, 731. 48
EngCostEstimate Page 13 of 14 Effective Date: January 1, 2016 161 RESOLUTION NO 2015- 078
EXHIBIT C
CITYOFCHINO
H
ENGINEERING COST ESTIMATE
PROJECT NO: PM- 2001S
LOCATION: MefTlli Avenue - Euclid to Grove
By: Slare MacKhney
DATE: 8/ 2/ 2022
Quantity Unit Item Unit Total Cost
Price Per item
ENGINEER' S ESTIMATE GRAND TOTAL 6, 241, 281. 75
BY ENGINEER
Prepared By:
R. C. E. Number:
Expiration:
85559
9/ 30/ 2024
09/ 30/ 24
Place R. C. E. Stamp Here
BY CITY
Faithful Performance Bond ( 100% of Construction Cos^
Labor A material Bond ( 50% of Construction Cos^
Warranty Bond ( 10% of Construction Cos^
6, 241, 300. 00
3, 120, 600. 00
624, 100. 00
EngCos£ stimate Page 14 of 14 Effecttve Date: January 1. 2016 162 Contract No.:
Approval Date:
7-10-20v2
CONSTRUCTION REIMBURSEMENT AGREEMENT
MERRILL AVENUE WIDENING, INTERCONNECT & EUCLID MEDIAN
(Euclid Land Venture, LLC Project / City of Ontario)
����������������������������������������������������������������������������������������Agreement���������������������������������������������� 30th �������� ������ ���������� ���������� ����Effective Date �������� ������ �������� ���������������� ���������� ������ ����������, a California municipal ������������������������ ����City�������� �������� �������������� ���������� ������������������ ���������� ����Delaware limited liability ���������������� ����Developer�������� ���������� �������� �������������������� �������� �������������������� ������������������������ ������������������ ������ �������������������������� ������ ��Party���������� ������������������������Parties����
RECITALS
A. On December 1, 2020, the City of Ontario ������������������������approved a subdivision of approximately 80.653 acres of land into eight parcels within the Ontario Ranch Business Park Specific plan area, located on the northeast corner of Merrill and Euclid Avenues as shown on Exhibit A . T h e development project consists of seven warehouse buildings ranging from 43,400 square feet to 1,099,000 square feet, totaling a maximum of 1,676,000 square feet of warehouse and office uses ������������������������������. In response to the EIR for the Project, the City submitted a comment letter requesting full width improvements on Euclid Avenue and Merrill Avenue and noted that it had funding to contribute to the costs relating thereto.
B. Pursuant to that certain Development Agreement No. PDA19-001, effective between Ontario and Developer ��������������������������������������������������, and the conditions of approval provided on Exhibit B for said Project, Developer was required to design and construct public improvements along the perimeter of Merrill Avenue to mitigate traffic impacts resulting from the Project as a condition of development approval.
C. Developer is obligated to construct full-width ultimate street improvements on the north side of Merrill Avenue within Ontario City limits, including curb, gutter, sidewalk, landscaping, and streetlights, as part of the Merrill Avenue Widening to be eligib ������ �������� ���������������������������� ���������� ������������������ Development Impact Fee �������������� program.
D. On the south side of Merrill Avenue within Chino City limits, fronting the San Bernardino County Airport, Developer is obligated to construct street improvements up to the curb, excluding sidewalk, landscaping, and streetlights ("Merrill Improvements").
E. On October 18, 2022, the Developer entered into a Public Improvement Agreement with City and provided necessary securities to ensure timely completion of the Merrill Improvements.
F. The Merrill Improvements are estimated to cost $7,015,250, based on competitive bids.
G. Subsequently, Developer and City reached an agreement for full-width ultimate street improvements on the south side of Merrill Avenue, which will include traffic signal interconnect, sidewalks, landscaping, and streetlights ("Additional Improvements"). 163
2 H. Developer has elected to construct the Additional Improvements in excess of those specifically required by the conditions of approval, which are estimated to cost $3,362,838.
I. The City received $5.0 million from the Scannell/Fed -Ex project ("Developer Deposit") which is designated for future improvements along the San Bernardino County Airport perimeter.
J. City completed a comprehensive airport right -of-way survey funded by the Developer ����������������������������������������������������������������������������������������������������������������������������������FAA�������������������������������������������������������������������������� the necessary ultimate right-of-way for the streets surrounding the airport.
K. Concurrently with this Agreement, the City entered into a Right of Entry Agreement with San Bernardino County to facilitate the construction of the Additional Improvements, while the City awaits approval from the FAA to proceed with the formal right-of-way dedications along Merrill Avenue.
L. The remaining Developer Deposit will fund additional enhancements on Merrill Avenue, including sidewalks, landscaping, and lighting.
M. The Preserve Circulation DIF program will offset costs not covered by the Developer Deposit for the construction of Merrill Avenue and the Additional Improvements, as established in Chapter ����������������������������������������������������������������������DIF Ordinance�������� N. DIFs have been established by City to finance public facilities in furtherance of the goals ������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������ ����������������������������������������������������������������������������������������������Nexus Reports������ O. The DIF Ordinance provides that if, as a condition of approval of a development project, a developer constructs a public facility identified in the Nexus Reports, Developer shall be entitled to reimbursement for eligible costs of constructing the public facility. The DIF Ordinance specifically requires that the Developer and City enter into a reimbursement agreement.
P. Additionally, pursuant to the terms of the Development Agreement and the conditions of approval for said Project, Developer was required to design and construct public improvements along the perimeter of Euclid Avenue to mitigate traffic impacts resulting from the Project as a condition to the development.
Q. As part of the Euclid Avenue widening efforts, the City is responsible for the west half of the street improvements and raised Euclid Median between Merrill and Eucalyptus Avenues (" Euclid Improvements")
R. Over the years, City developments along the Euclid Avenue corridor located in the Citywide DIF program paid an in -lieu-of-construction fee for the Euclid Median and Widening. The City will utilize these in-lieu deposits to offset costs associated with the Euclid Improvements.
S. The City will include a new project in the next update to the Nexus Report to cover costs not funded by the in-lieu fees for Euclid Avenue Improvements. DIF ensures adequate funding for regional infrastructure in the general City area.
T. The Euclid Improvements are estimated to cost $5,331,013 based on competitive bids.
U. Developer will proceed with finalizing engineering plans for the Additional Merrill Improvements concurrently with the commencement of construction for Merrill and Euclid Improvements ������������������������������������������������������������Public Improvements���� as shown on Exhibit C. This coordinated approach 164
3 is essential to avoid project delays, minimize road closures, and maintain the project schedule, thereby minimizing disruptions to traffic and the local community.
V. Developer agreed, at its own expense, to furnish all equipment and materials necessary to perform and complete in a good and workmanlike manner, the improvements and to advertise, publicly bid, and award a contract for construction of the Public Improvements in accordance with Public Contract Code and comply with all applicable provisions of California law, including but not limited to the prevailing wage provisions contained in the Labor Code.
W. The City and Developer are committed to expediting the completion of Public Improvements, which may require overtime pay for night and weekend work to meet this objective. City will allow additional expenses under the construction contract for this effort, recognizing its community benefits and the financial burdens faced by affected businesses in the area.
X. Allowances for soft costs related to engineering and inspection shall not exceed 25% of the construction costs. If these soft costs exceed the 25% threshold, the excess amount will be borne solely by the Developer.
Y. ������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������ reimbursement of funds from the Preserve Circulation DIF Fund, Citywide Circulation DIF Fund, and In - Lieu Fees in consideration of the construction of the Public Improvements.
Z. City and Developer desire to enter into this Agreement for the following purposes: (i) to provide for the timely construction and completion of the Public Improvements, (ii) to ensure that construction of the Public Improvements is undertaken in accordanc ���� ���������� �������� �������������� ������������ �������� Specifications, and the laws and ordinances pertaining to the construction of the Public Improvements, (iii) to provide the methodology for establishing the reimbursement amount to which Developer shall be entitled after completion of the Public Improvements.
NOW, THEREFORE, for the purposes set forth herein, Developer and City hereby agree as follows:
AGREEMENT:
1. Incorporation of Recitals . The Parties hereby affirm the facts set forth in the Recitals above and agree to the incorporation of the Recitals as though fully set forth herein.
2. Construction of Public Improvements. Developer shall construct the Public Improvements in accordance with the Plans and Specifications and the provisions set forth in th is Agreement. Developer shall provide all equipment, tools, materials, labor, tests, design work, and engineering services necessary to complete the Public Improvements fully and adequately.
2.1 Pre-approval of Plans and Specifications . Developer is prohibited from commencing work on any portion of the Public Improvements until all plans and specifications for the Public Improvements have been submitted to and approved in writing by City ����Plans and Specifications����. Approval by City shall not relieve Developer from ensuring that all Public Improvements conform to all applicable laws, ordinances and regulation under California and federal law.
2.2 Permits and Notices . Prior to commencing any work, Developer (through its contractors) shall, at its sole cost and expense, obtain all necessary permits and licenses and give all necessary and incidental notices required for the lawful construction of the Public Improvements and performance of Developer��s obligations under this Agreement. Developer shall conduct the work in full 165
4 compliance with the regulations, rules, and other requirements contained in this Agreement, any applicable law, and any permit or license issued to Developer.
2.3 Public Works Requirements. Developer shall ensure that the bidding, awarding, and construction of the Public Improvements are undertaken as if such Public Improvements were constructed as a public works project under the direction and authority of City , pursuant to all provisions of law applicable to governmental entities. Developer shall also comply with the requirements of City������ Bidding and Contract Requirements for Public Improvements Policy, as adopted by City Council, hereby incorporated by reference and made a part of hereof (as may be amended from time to time). (a) ������������������������ ���������������� ���������������������� �������� �������� �������������������������� ������ �������� �������������� ����������������������������General Contractor�������������������������������������������������������������������������������������������������������������������������������������������� Chapter 1, Part 7, Division 2 of the Labor Code) and otherwise comply with applicable provisions of the Labor Code, the Government Code, the Civil Code, and the Public Contract Code relating to public works projects of cities and as required by the procedures and standards of City with respect to the construction of its public works projects or as otherwise directed by City Engineer. (b) All contractors shall be required to provide proof of insurance coverage throughout the term of the construction of the Public Improvements which they will construct in conformance with Section 5 of this Agreement.
2.4 Schedule of Performance. Developer shall commence construction of the Public Improvements in accordance with the Schedule of Performance attached as Exhibit D.
2.5 Standard of Performance. Developer and its contractors shall perform all work required, constructing the Public Improvements in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Developer represents and maintains that it or its contractors shall be skilled in the professional calling necessary to perform the work. Developer warrants that all of its employees and contractors shall have sufficient skill and experience to perform the work assigned to them, and that they shall have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the work, and that such licenses, permits, qualifications and approvals shall be maintained throughout the term of their performance of the work.
2.6 Alterations to Public Improvements. All work shall be done and the Public Improvements completed as shown on the Plans and Specifications, and any subsequent material alterations thereto mutually agreed upon by City and Developer. If Developer desires to make any material alterations to the Plans and Specifications, it shall provide written notice to City of such proposed material alterations.
City shall have ten (10) business days after receipt of such written notice to administratively approve or disapprove such material alterations, which approval shall not be unreasonably wit hheld, conditioned or delayed. If City fails to provide written notice to Developer of its approval or disapproval of the material alterations within such ten (10) business day period, City will be deemed to have disapproved such material alterations to the Plans and Specifications. Any and all material alterations in the Plans and Specifications and the Public Improvements to be completed may be accomplished without first giving prior notice thereof to Developer��s surety for this Agreement.
2.7 Force Majeure. Developer agrees that the time within which it shall be required to perform any act under this Agreement shall not be extended except as follows: (i) Developer is delayed by City (including, without limitation, restrictions on priority, initiative or re ferendum, or moratoria), in which case Developer shall provide written notice to City specifically describing the nature and extent of ����������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������section �������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������� 166
5 shall be extended for such time as City deems reasonable as a result of the delay if and only if Developer provides such written notice to City within such time; or (ii) Developer is delayed due to war, insurrection, strikes, lock-outs, riots, floods, eart hquakes, fires, casualties, natural disasters, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, processing with any governmental agencies, unusually severe weather, or any other similar causes beyond the control of Developer or without the fault of Developer. An extension of time for any such cause shall be for the period of the enforced delay ������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������ run from the time of the commencement of the cause, if written notice by Developer claiming such extension is sent to City within twenty (20) days of knowledge of the commencement of the cause.
3. Security; Surety Bonds . Prior to the commencement of any work on the Public Improvements, Developer or its contractor shall provide City with surety bonds in the amounts and under the terms set forth below or, at City���������������������������������������������������������������������������������������������������������������������������������������������������������� issued by a banking institution with a rating to be approved by City and in the form and upon terms approved by City ����Security��������������������������������������������������������������������������������������������������������������������������������������������������������������Estimated Costs������ ������ �������������������� ����e Public Improvements, as determined by City after Developer has awarded a contract for construction of the Public Improvements to the lowest responsive and responsible bidder in accordance with this Agreement. If City determines, in its sole and absolute discretion, that the Estimated Costs have changed, Developer or its contractor shall adjust the Security in the amount requested by City.
Providing the Security shall not release Developer of its indemnification obligation in Section 4.
3.1 Performance Bond. To guarantee the construction of the Public Improvements and faithful performance of all the provisions of this Agreement, to protect City if Developer is in de fault as defined in Section 13, and to secure the Warranty of the Public Improvements pursuant to Section 10, Developer or its contractor shall provide City a faithful performance bond in an amount which sum shall be not less than one hundred percent (100%) of the Estimated Costs. City may, in its reasonable discretion, partially release a portion or portions of the security provided under this section as the Public Improvements are completed by Developer, provided that Developer is not in default on any provision of this Agreement and the total remaining security is not less than twenty percent (20%) of the Estimated Costs. All security provided under this section shall be released upon the final acceptance by the City Council of the City , provided that Developer is not in default of this Agreement.
3.2 Labor & Material Bond . To secure payment to the contractors, subcontractors, laborers, materialmen, and other persons furnishing labor, materials, or equipment for performance of the Public Improvements and this Agreement, Developer or its contractor shall provide City a labor a nd materials bond in an amount which sum shall not be less than fifty percent (50%) of the Estimated Costs.
All security provided under this section shall be released upon the final acceptance by the City Council of the City, provided that Developer is not in default of this Agreement.
3.3 Additional Requirements. The surety for any surety bonds provided as Security ��������������������������������������������������������������������������������������������������������������������������-VIII, shall be licensed to do business in California. As part of the obligation secured by the Security and in addition to the face amount of the Security, Developer and its contractor or the surety shall secure the costs and reasonable expenses and fees, �������������������� ���������������������� ���������������������� ���������� �������� �������������� ������������������ ������ ���������� ������ �������������������� �������� ������������������������ ������ ���������� Agreement. Developer and its contractor and the surety shall stipulate and agree that no change, extension of time, alteration, or addition to the terms of this Agreement, the Public Improvements, or the Plans and Specifications shall in any way affect its obligation on the Security.
4. Indemnification. Developer shall defend, indemnify, and hold harmless City, its elected officials, employees, and agents from any and all actual or alleged claims, demands, causes of action, liability, loss, damage, or injury to property or persons, including wrongful d eath, whether imposed by a court of law or by administrative action of any federal, state, or local governmental agency, arising out of 167
6 or incident to any acts, omissions, negligence or willful misconduct of Developer in connection with the ����������������������������������������������������������������Claims��������This indemnification includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, reasonable ������������������������������������������������������������������������������������������������ and the reimbursement of City, its elected officials, employees, and/or agents for all legal expenses and costs incurred by each of them. This indemnification excludes only such portion of any Claim which is caused by the negligence, fraud, or willful misconduct of City, as determined by a court or administrative body of competent jurisdiction and excludes any Claims arising out of incidents occurring after the date of ������������������������������������������������������������������������������������������������������������������������������������������������������������������������������regarding Claims ��������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������shall survive the expiration or termination of this Agreement, and shal l not be restricted to insurance proceeds, if any, received by City, its elected officials, employees, or agents.
5. Insurance.
5.1 Types; Amounts . Developer shall procure and maintain, and shall require its contractors to procure and maintain, during performance of this Agreement, insurance of the types and in ������������������������������������������������������������Required Insurance������������������������������������������������������������������������������������������������������������������ aggregate limit, such insurance shall apply separately to this Agreement or be no less than two times the specified occurrence limit.
5.1.1 General Liability . Occurrence version general liability insurance, or equivalent form, with a combined single limit of not less than Two Million Dollars ($2,000,000) per occurrence for bodily injury, personal injury, and property damage.
5.1.2 Business Automobile Liability. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than One Million Dollar s ($1,000,000) per occurrence. Such insurance shall include coverage for the ownership, operation, maintenance, use, loading, or unloading of any auto owned, leased, hired, or borrowed by the insured or for which the insured is responsible.
5.1.3 ������������������������������������������. ���������������������������������������������������������������������������������������� ���������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������� not less than One Million Dollars ($1,000,000) per occurrence, at all times during which insured retain s employees.
5.1.4 Professional Liability. For any consultant or other professional who will engineer or design the Public Improvements, liability insurance for errors and omissions with limits not less than One Million Dollars ($1,000,000) per occurrence, shall be procured and maintained for a period of five (5) years following completion of the Improvements. Such insurance shall be endorsed to include contractual liability.
5.2 Deductibles. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either: (a) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its elected officials, officers, employees, agents, and volunteers; or (b) Developer and its contractors shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigation costs, claims, and administrative and defense expenses.
5.3 Additional Insured; Separation of Insureds . The Required Insurance, except �������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������� with respect to work performed by or on behalf of Developer or its contractors, including any materials, parts, or equipment furnished in connection therewith. The Required Insurance shall contain standard 168
7 separation of insureds provisions and shall contain no special limitations on the scope of its protection to City, its elected officials, officers, employees, or agents.
5.4 Primary Insurance; Waiver of Subrogation. The Required Insurance shall be primary with respect to any insurance or self -insurance programs covering City, its elected officials, ������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������ the insurance company waives all right of recovery by way of subrogation against City in connection with any damage or harm covered by such policy.
5.5 Certificates; Verification. Developer and its contractors shall furnish City with original certificates of insurance and endorsements effecting coverage for the Required Insurance. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by City before work pursuant to this Agreement can begin. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
5.6 Term; Cancellation Notice . Developer and its contractors shall maintain the Required Insurance for the term of this Agreement and shall replace any certificate, policy, or endorsement which will expire prior to that date. All policies shall, to the extent available from commercially reasonable insurance providers, be endorsed to provide that the Required Insurance shall not be suspended, voided, ��������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������
5.7 Insurer Rating. Unless approved in writing by City, all Required Insurance shall be placed with insurers licensed to do business in the State of California and with a current A.M. Best rating ����������������������������-������������������-VIII.
6. Maintenance of Improvements . City shall not be responsible or liable for the maintenance or care of , and shall exercise no control over, the Public Improvements until such Public Improvements are accepted by City. Developer shall have no obligation to make the Public Improvements available for public use at any time before the Public Improvements are accepted by City. Any use by any person of the Public Improvements, or any portion thereof, shall be at the sole and exclusive risk of Developer at all times prior to City��s acceptance of the Improvements. Developer shall maintain all of the Public Improvements in a state of good repair until they are completed by Developer and accepted by City.
Prior to acceptance by the City, it shall be Developer��s responsibility to initiate all maintenance work, but if it shall fail to do so, it shall promptly perform such maintenance work when notified to do so by City. If Developer fails to properly prosecute its maintenance obligation under this section, City may, upon written �������������� �������� ������������������������ ���������������� ������remedy as provided in Section 1 3, do all work necessary for suc h maintenance, and the cost thereof shall be the responsibility of Developer and its surety under this Agreement. City shall not be responsible or liable for any damages or injury of any nature in any way related to or caused by the Public Improvements or their condition prior to acceptance, except to the extent such damage or injury is caused by the negligence, fraud, or willful misconduct of City, its elected officials, employees, and/or agents.
7. City Inspection of Public Improvements. Developer shall, at its sole cost and expense, and at all times during construction of the Public Improvements, maintain reasonable and safe facilities and provide safe access for inspection by City of the Public Improvements and areas where construction of the Public Improvements is occurring or will occur. Developer shall give notice to City when the construction of all or a portion of the Public Improvements is complete. Upon receiving such notice, City may inspect the Public Improvements and request any modific ations or corrections as may be deemed reasonably necessary by City Engineer, in his or her sole discretion, to bring the Public Improvements into conformity ���������� �������� ������������ �������� �������������������������������� �������������������� �������� ������������������ �������������������� ������������������ �������������������� ������ ������������������������ contractors shall make all such modifications and corrections requested by City Engineer. 169
8 8. Liens. Developer shall not permit any liens to be filed against the Public Improvements and indemnifies City with respect to any such liens. Upon the expiration of the time for the recording of claims of liens as prescribed by Sections 8412 and 8414 of the Civil Code with respect to the Public Improvements, Developer shall provide to City such evidence or proof as City shall reasonably require that all persons, firms, and corporations supplying work, labor, materials, supplies, and equipment to the construction of the Public Improvements have been paid, and that no claims of liens have been recorded by or on behalf of any such person, firm, or corporation. Rather than await the expiration of the said time for the recording of claims of liens, Developer may elect to provide to City a title insurance policy or other security acceptable to City guaranteeing that no such claims of liens will be recorded or become a lien upon any of the subject property.
9. Acceptance of Improvements; As -Built or Record Drawings . If the Public Improvements are completed by Developer in accordance with the Plans and Specifications, as reasonably determined by City Engineer, City shall accept the Public Improvements. City may, in its reasonable discretion, accept fully completed portions of the Public Improvements prior to such time as all of the Public �������������������������� �������� �������������������� ������������ ������������ �������� ���������������� ������ �������������� ������������������������ ���������������������� ������ ������������������ �������� remainder of the Public Improvements. Upon the total or partial acceptance of the Public Improvements ������ ������������ �������������������� ������������ ���������� ���������� �������� ���������������������� �������������� ������ �������� �������������� ������ �������� ���������������������� ���� �������������� ������ completion for the accepted Improvements in accordance with California Civil Code Section 9204 ����Notice of Completion������������������������������������������������������������������������������������������������������������������������������������������������������������������������������ property of City without any payment therefor , except as expressly set forth herein . Notwithstanding the foregoing, City may not accept any Public Improvements (or the applicable portion thereof) unless and until Developer provides the ������-����������������������������������������������������������������������������City for all such Public Improvements (or the applicable portion thereof). The drawings shall be certified and shall reflect the condition of the Public Improvements as constructed, with all changes incorporated therein.
10. Warranty and Guaranty . Developer warrants and guarantees all the Public Improvements against any defective work or labor done, or defective materials furnished in the performance of this Agreement, including the maintenance of the Public Im provements, for a period of one (1) year ��������������������������������������������������������������������������������������������������������������������Warranty������������������������������������������������������������������������ shall repair, replace, or reconstruct any defective or otherwise materially unsatisfactory portion of the Improvements, in accor dance with the Plans and Specifications. All repairs, replacements, or reconstruction during the Warranty period shall be at the sole cost and expense of Developer, and shall not be eligible for reimbursement . As to any Public Improvements which have been repaired, replaced, or reconstructed during the Warranty, Developer hereby agree to provide a warranty for a one (1) year period following City acceptance of the repaired, replaced, or reco nstructed Public Improvements. ������������������������ warranty obligation under this section shall survive the expiration or termination of this Agreement.
11. Reimbursement.
11.1 The City Engineer has determined that the total cost of the Public Improvements that are eligible for reimbursement are estimated to be Fifteen Million Seven Hundred Nine Thousand One Hundred dollars ($15,709,100) ����Estimated ��������������. The Estimated Costs shall be subject to adjustment based on the final accepted and approved "as-built�� plans and specifications and the review of actual cost documentation by the City Engineer upon the final acceptance of the Public Improvements by the City ������������������������������.
11.2 Developer shall be reimbursed for the Actual Cost that the Developer incurs to construct the Public Improvements pursuant to the procedure set forth in this section.
11.3 Reasonable Soft Costs. City Engineer shall, in his or her reasonable discretion, determine the amount of reasonable soft costs eligible for reimbursement. Such amounts may include 170
9 professional engineering and design services, construction management, soils testing, permits, plan check �������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������� Developer pursuant to this Agreement, City must be able to verify that such soft costs are specifically attributable to the specified Public Improvements for which reimbursement is being made, by reference to separate subcontract(s) or by another means approved by City in writing. The total amount of the soft costs shall not exceed twenty-five percent (25%) of the construction costs. Any soft costs incurred by Developer in excess of such twenty -five percent (25%) of the construction costs, as approved by the City Engineer shall be the sole responsibility of Developer. Additionally, City Engineer may, in his or her reasonable discretion, reduce or disallow reimbursement for any costs he finds excessive or unreasonable.
11.4 Developer may submit to the City payment requests during the course of construction based on completed work. Developer shall provide documentation supporting each payment request, including but not limited to progress reports, material receipts, and any other relevant documentation requested by City.
11.5 City shall, within ten (10) days after the submittal of such payment request, review and approve the invoice or deliver to Developer a request for revisions to such invoice along with a detailed explanation of the reasons for such request for revision. Cit y may extend this review for a period not to exceed an additional ten (10) days if more time is reasonably needed in light of the submittal. In the event of the delivery by City to Developer of a request for revision, Developer, City and the applicable contractor shall then promptly cooperate to revise and resubmit such invoice, as appropriate, and City shall then, within five (5) days after the resubmittal of such invoice, review and approve the invoice or deliver to Developer an additional request for revisions to such invoice along with a detailed explanation of the reasons for such request for revision. Such process shall continue until the invoice is approved by the City and, thereafter, the City shall provide payment of the invoice to Developer within �������������������������������������������������������������������������������������� ������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������ withheld, conditioned, or delayed.
11.6 The City shall retain five percent (5%) of each progress payment as retention until final completion and acceptance of the Public Improvements by the City. The retention amount shall serve as security for the satisfactory completion of all obligations under this contract, including rectification of defects and outstanding workmanship prior to the final acceptance of Public Improvements. Acceptance of the Public Improvements shall be subject to the procedures in Section 9 of this Agreement.
11.7 Final Payment. City shall reimburse the remaining balance of the Actual Cost s to Developer, including any withheld amounts, upon satisfaction of the following:
11.7.1 Completion of Construction . Developer shall have completed the construction of the Public Improvements acceptable to City, and thirty (30) days have elapsed since notices of completion have been recorded in relation to the Public Improvements, in accordance with California Civil Code Sections 9204 and/or 8182 (as applicable). The purpose of this provision is to ensure that the Public Improvements will be independently functional and to maintain consistency with vesting rights, and nothing herein shall be deemed to make any part of the Project a public work other than the Public Improvements.
11.7.2 Submission of Documents. Developer shall have made full and complete payment of all undisputed claims for work performed on the Public Improvements, or in the event of a dispute between Developer and the General Contractor or a subcontractor, Developer shall have obtained a commercially reasonable bond reasonably satisfactory to City ������������������������������������������������������������������������������������������ stop notice, and Developer shall have submitted and City shall have approved a written request for the 171
10 reimbursement, including copies of all bills and/or invoices evidencing the costs of constructing the Public Improvements actually incurred by Developer and any other documents reasonably required by City.
11.7.3 As-Built Drawings . Pursuant to Section 9, Developer shall have submitted final as-built drawings for the Public Improvements to City Engineer.
11.7.4 Acceptance of Required Public Improvements by City. The City Council shall have accepted title to the Public Improvements.
11.8 No Default. Developer shall not be in d efault in any of its obligations under the terms of this Agreement, and all representations and warranties of Developer contained herein shall be true and correct in all material respects.
11.9 City Ability to Reimburse . The City represents and warrants that it has the financial ability and means to pay all reimbursements described in this Agreement. The City further warrants that it has allocated sufficient funds and identified future funding sources and obtained all necessary approvals to fulfill its payment obligations under this Agreement.
12. Assignment. Prior to completion of the Public Improvements, Developer may assign this ����������������������������������������������������������Assignment��������������������������������������������������������������City������������������������������������������������������ ������������������ ����Director���� in his/her reasonable discretion. If Developer desires to assign this Agreement, Developer shall provide detailed information as to the proposed assignee ����Assignee������as requested by City ����������������������������������������������������������������������������������������������������������������������������������������������subject property, its background and financial information evidencing the ability of Assignee to complete the Public Improvements . Any assignment of this Agreement shall not release the assignor.
13. Default; Notice; Remedies.
13.1 Notice. If Developer neglects, refuses, or fails to fulfill or timely complete any obligation, term, or condition of this Agreement, or if City determines there is a violation of any federal, state, or local law, ordinance, regulation or code, City may at any ti me thereafter declare Developer to be in default or violation of this Agreement and make written demand upon Developer or its surety, or both, to immediately remedy the default or violation ( ��Notice of Default ��). Developer shall substantially commence the work required to remedy the default or violation within five (5) business days after its receipt of the Notice of Default, or such longer period as is reasonably necessary to substantially commence such remedial work. If the default or violation constitutes an immediate threat to the public health, safety, or welfare, City may provide the Notice of Default verbally, and Developer shall substantially commence the required work within twenty-four (24) hours thereof. Immediately upon City ��s issuance of the N otice of Default, Developer and its surety shall be liable to City for all costs of construction and installation of the Public Improvements and all other administrative costs or expenses, as provided for in Section 15 of this Agreement.
13.2 Failure to Remedy; City Action . If the work required to remedy the noticed default or violation is not commenced within the time required under Section 13.1 of this Agreement and diligently prosecuted to completion, City may complete all remaining work, arrange for the completion of all remaining work, and/or conduct such remedial activity as in its reasonable discretion it believes is required to remedy th e default or violation. All such work or remedial activity shall be at the sole and absolute cost and expense of Developer and its surety, without the necessity of giving any further notice to Developer or surety. In the event City elects to complete or arrange for completion of the remaining work and the Public Improvements, City may require all work by Developer or its surety to cease in order to allow adequate coordination by City.
172
11 13.3 Other Remedies. No action by City pursuant to this Section 13 shall prohibit City from exercising any other right or pursuing any other legal or equitable remedy available under this Agreement or any federal, state, or local law. City may exercise its rights and remedies independently or cumulatively, and City may pursue inconsistent remedies. City may institute an action for damages, injunctive relief, or specific performance.
14. Administrative Costs. If Developer fails to construct and install all or any part of the Public Improvements, or if Developer fails to comply with any other obligation contained herein, Developer and its surety shall be jointly and severally liable to City for all administra tive expenses, fees, and costs, ���������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������� processing any legal action or for any other remedies permitted by law.
15. Miscellaneous.
15.1 Relationship between the Parties. The Parties hereby mutually agree that this Agreement shall not operate to create the relationship of partnership, joint venture, or agency between City and Developer. Developer ��s contractors are exclusively and solely under the control and dominion of Developer. Nothing herein shall be deemed to make Developer or its contractors an agent or contractor of City.
15.2 Authority to Enter Agreement. Each person executing this Agreement on behalf of Developer represents and warrants that he or she has the legal power, right and authority to execute this Agreement on behalf of Developer and that this Agreement is binding upon Developer.
15.3 Notices. Any notice, demand, request, consent, approval, or communication either Party desires or is required to give to the other P arty or any person shall be in writing and either served personally, communicated electronic mail (with a receipt requested), or sent by prepaid, first-class mail to the address set forth below. Notice shall be deemed communicated immediately upon personal delivery, fax or email receipt, or forty-eight (48) hours from the time of mailing if mailed as provided in this Section:
To City: City of Chino
13220 Central Avenue
Chino, CA 91710
Attn: Hye Jin Lee, P.E.
Director of Public Works
Email: [email protected]
With Copy to: Aleshire & Wynder, LLP
1 Park Plaza, Suite 1000
Irvine, CA 92614
Attn: Fred Galante, Esq.
Email: [email protected]
To Developer:
Euclid Land Venture, LLC
c/o Real Estate Development Associates, LLC
4450 MacArthur Blvd., Suite 100
Newport Beach, California 92660
Attn: Jeff Johnston
Email: [email protected]
173
12 With Copy To:
Allen Matkins Leck Gamble Mallory & Natsis LLP
2010 Main Street, Eighth Floor
Irvine, California 92614
Email: [email protected]
15.4 Cooperation; Further Acts. The Parties shall fully cooperate with one another and shall take any additional acts or sign any additional documents as may be necessary, appropriate, or convenient to attain the purposes of this Agreement.
15.5 Construction; References; Captions. The Parties agree that the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party.
Any term referencing time, days, or period for performance shall be deemed calendar days and not work days, unless specified therein . All references to Developer include all personnel, employees, agents, and contractors of Developer, except as otherwis e specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and voluntee rs except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
15.6 Amendment; Modification. No supplement, modification, or amend-mint of this Agreement shall be binding unless executed in writing and executed by both Parties.
15.7 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any con tractual right by custom, estoppel, or otherwise.
15.8 Binding Effect. Each and all of the covenants and conditions shall be binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal representatives, or assigns.
This section shall not be construed as an authorization for any Party to assign any right or obligation.
15.9 No Third-Party Beneficiaries. There are no intended third-party beneficiaries of any right or obligation assumed by the Parties.
15.10 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
15.11 Governing Law; Consent to Jurisdiction and Venue. This Agreement shall be construed in accordance with and governed by the laws of the State of California. Any legal action or proceeding brought to interpret or enforce this Agreement, or which in any way arises out of the Parties �� activities undertaken pursuant to this Agreement, shall be filed and prosecuted in the appropriate California State Court in the County of San Bernardino, California.
15.12 Time is of the Essence. Time is of the essence in this Agreement, and the Parties agree to execute all documents and proceed with due diligence to complete all covenants and conditions.
15.13 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original and which collectively shall constitute one instrument.
15.14 City Officers and Employees. No officer or employee of City shall be personally liable to Developer or any successors in interest in the event of any default or breach by City or for any amount that may become due to Developer or any successor(s) in interest or for breach of any obligation of the terms of this Agreement. No officer or employee of Developer shall be personally liable to City or 174
13 any successor(s) in interest in the event of any default or breach by Developer or for any amount that may become due to City or their successors in interest or for breach of any obligation of the terms of this Agreement.
15.15 Entire Agreement. This Agreement contains the entire agreement between City and Developer and supersedes any prior oral or written statements or agreements between City and Developer.
15.16 ���������������������� ��������. Notwithstanding the provisions of Section 14 above, i n the event of any litigation arising from or relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs of litigation
15.17 Exhibits. The following exhibits are attached hereto and incorporated herein by reference:
Exhibit A Location Map
Exhibit B Conditions of Approval
Exhibit C Public Improvements
Exhibit D
Exhibit E
Schedule of Performance
Estimated Costs
[SIGNATURES ON FOLLOWING PAGE]
175
14 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written.
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
ALESHIRE & WYNDER, LLP
Fred Galante Hye Jin Lee, P.E.
City Attorney Director of Public Works
EUCLID LAND VENTURE, LLC,
a Delaware limited liability company:
By: RBV Euclid, LLC,
a Delaware limited liability company,
its managing member
By: REDA Bascom Ventures, LLC,
a Delaware limited liability company,
its managing member
By: Real Estate Development Associates, LLC,
a California limited liability company,
its administrative member
By: ________________________________
Carl W. Goltermann
Authorized Signatory
CITY OF CHINO
Dr. Linda Reich
City Manager
Dated:
ATTEST:
By:
Natalie Gonzaga
City Clerk
176
01225
177
EXHIBIT A
LOCATION MAP
[ATTACHED]
178
ORBP
LEGEND:
EXHIBIT "A"
4150 CONCOURS, ONTARIO, CA 91764PHONE: (909) 989-9789 FAX: (909) 989-9660Engineering Geospatial Land Planning A-1
179
EXHIBIT B
CONDITIONS OF APPROVAL
[ATTACHED]
180
B-1
181
B-2
182
B-3
183
B-4
184
B-5
185
EXHIBIT C
PUBLIC IMPROVEMENTS
[ATTACHED]
186
PROJECT SITE
EUCLID AVENUE
EUCALYPTUS AVENUE
MERRILL AVENUE
C-1
187
LEGEND
SHEET 1 OF 2
EUCLID AVENUE
4150 CONCOURS, ONTARIO, CA 91764PHONE: (909) 989-9789 FAX: (909) 989-9660Engineering Geospatial Land Planning
INFRASTRUCTURE EXHIBITCITY OF CHINO
EUCALYPTUS AVENUE
MATCHLINE - SEE ABOVE RIGHT
MATCHLINE - SEE BELOW LEFT
MATCHLINE - SEE SHEET 2EUCLID AVENUE
C-2
188
SHEET 2 OF 2
EUCLID AVENUE
4150 CONCOURS, ONTARIO, CA 91764PHONE: (909) 989-9789 FAX: (909) 989-9660Engineering Geospatial Land Planning INFRASTRUCTURE EXHIBITCITY OF CHINOMATCHLINE - SEE SHEET 1
MERRILL AVENUE
LEGEND
C-3
189
MERRILL AVENUE
PROJECT SITE
GROVE AVENUE
EUCLID AVENUE
BON VIEW AVENUE
EUCALYPTUS AVENUE
SULTANA AVENUE
C-4
190
LEGEND
SHEET 1 OF 2 4150 CONCOURS, ONTARIO, CA 91764PHONE: (909) 989-9789 FAX: (909) 989-9660Engineering Geospatial Land Planning
INFRASTRUCTURE EXHIBITCITY OF CHINO
MATCHLINE - SEE ABOVE RIGHT
MATCHLINE - SEE BELOW LEFTMATCHLINE - SEE SHEET 2
EUCLID AVENUE
SULTANA AVENUE
CAMPUS AVENUE
MERRILL AVENUE
MERRILL AVENUE
C-5
191
LEGEND
SHEET 2 OF 2
4150 CONCOURS, ONTARIO, CA 91764PHONE: (909) 989-9789 FAX: (909) 989-9660Engineering Geospatial Land Planning
INFRASTRUCTURE EXHIBITCITY OF CHINO
MATCHLINE - SEE ABOVE RIGHT
MATCHLINE - SEE BELOW LEFT
BON VIEWAVENUE
GROVE AVENUE
MATCHLINE - SEE SHEET 1
MERRILL AVENUE
MERRILL AVENUE
C-6
192
EXHIBIT D
SCHEDULE OF PERFORMANCE
[ATTACHED]
193
ID Task Name Duration Start Finish Predecessors
1 ORBP OVERALL SUMMERY SCHEDULE 361 days Thu 5/23/24 Mon 7/28/25 2 Merrill Ave. Imp North Side Street (Euclid to Grove) 71 days Mon 6/10/24 Sat 8/31/24 3 Storm Drain Delta 5 Approval (PC 2 Submitted 6/10/24) 38 days Mon 6/10/24 Wed 7/24/24 4 Norstar - Bon View / Merrill Additional CB + Upsized CB 15 days Thu 7/25/24 Sat 8/10/24 3 5 Norstar - Bon View Intersection DW Line Construction 5 days Mon 7/15/24 Fri 7/19/24 6 Norstar - Bon View Intersection RW Line Construction 5 days Thu 7/18/24 Tue 7/23/24 5FS-2 days 7 DW/RW Testing and Acceptance 12 days Sat 7/20/24 Fri 8/2/24 5 8 Norstar - Bon View CL MH + CBs (no Impact to Str. Imp.) 10 days Mon 8/12/24 Thu 8/22/24 4 9 Bon View/Merrill Intersection Paving (Including Soil Cement) 15 days Tue 8/6/24 Thu 8/22/24 5,6,4FS-5 days 10 54" JS - SOLC Construction 10 days Tue 6/11/24 Fri 6/21/24 11 60" JS - Merrill Ave. East Sultana ORBP2 JS Upsize from 36" to 60" 23 days Mon 7/8/24 Fri 8/2/24 12 60" JS - Reconstruct PCC Pavement 5 days Sat 8/17/24 Thu 8/22/24 11,9FF 13 Form/Pour Sidewalk 3 days Fri 8/23/24 Mon 8/26/24 11,9 14 DG Trail 5 days Fri 8/23/24 Wed 8/28/24 13SS
15 Sign and Striping 3 days Fri 8/23/24 Mon 8/26/24 9
16 Traffic Control Switch South Side to North Side 3 days Thu 8/29/24 Sat 8/31/24 14,9,12,13,15 17 North Side Merrill Ave. Base Pavement / Parkway Complete 0 days Sat 8/31/24 Sat 8/31/24 16,10 18 Merrill Ave. Imp South Side (Euclid to Grove) 161 days Mon 6/17/24 Thu 12/26/24 19 City Chino / County Encroachment Agreement (Placeholder) 1 day Thu 8/1/24 Thu 8/1/24 20 Northside Traffic Control Plan (Pending from All American) 50 days Mon 6/17/24 Wed 8/14/24 21 South Side Road Improvements (Excluding Euclid Intersection) 90 days Tue 9/3/24 Wed 12/18/24 22 Clear & Grub / Roadway Excavation 15 days Tue 9/3/24 Thu 9/19/24 19,20,16 23 Grading / Build Parkway 10 days Fri 9/20/24 Tue 10/1/24 22 24 Chino - Irrigation - Water Services 5 days Wed 10/2/24 Mon 10/7/24 23 25 Construct C&G 5 days Wed 10/2/24 Mon 10/7/24 23
26 Chino - Street Lights 15 days Tue 10/8/24 Thu 10/24/24 25 27 Chino - Sidewalk 15 days Fri 10/25/24 Mon 11/11/24 26 28 Chino - Landscaping and Irrigation 30 days Tue 11/12/24 Wed 12/18/24 27 29 Subgrade Construction 5 days Tue 10/8/24 Sat 10/12/24 25 30 Soil Cement (Pursuing R-Value now) 4 days Mon 10/14/24 Thu 10/17/24 29 31 Aggregate Base Construction 8 days Fri 10/18/24 Sat 10/26/24 30 32 Chino - Fencing Improvements 15 days Mon 10/28/24 Wed 11/13/24 31 33 Sultana PCC Intersection Paving 10 days Mon 10/28/24 Thu 11/7/24 31 34 Campus PCC Intersection Paving 10 days Sat 11/2/24 Wed 11/13/24 33FS-5 days 35 Bon View PCC Intersection Paving 10 days Fri 11/8/24 Tue 11/19/24 34FS-5 days 8/31
M J J A S O N D J F M A M J J A S O
2024 2025
Task
Split
Milestone
Summary
Project Summary
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Inactive Milestone
Inactive Summary
Manual Task
Duration-only
Manual Summary Rollup
Manual Summary
Start-only
Finish-only
External Tasks
External Milestone
Deadline
Progress
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ORBP
Offsite Improvements Schedule
ORBP / SOLC Summary Schedule
6/26/24
D-1
194
ID Task Name Duration Start Finish Predecessors
36 SOLC PCC Intersection Paving 10 days Thu 11/14/24 Wed 11/27/24 35FS-5 days 37 Asphalt Base Paving 3 days Thu 11/28/24 Sat 11/30/24 36 38 Asphalt Cap Paving 2 days Mon 12/2/24 Tue 12/3/24 37 39 Sign & Striping 5 days Wed 12/4/24 Mon 12/9/24 38
40 Merrill Ave. Open to Traffic 0 days Mon 12/9/24 Mon 12/9/24 39 41 Merrill Ave. Signals @ Sultana Ave. 6 mons Mon 8/5/24 Thu 12/26/24 42 Merrill Ave. Signals @ Campus Ave, bon View Ave. & SOLC Entry 6 mons Mon 8/5/24 Thu 12/26/24 43 Merrill Ave. Complete 0 days Thu 12/26/24 Thu 12/26/24 41,42 44 Eucalyptus Ave Improvements 209 days Thu 5/23/24 Wed 1/29/25 45 Temporary Asphalt Paving at Eucalyptus / Euclid Open to Traffic 1 day Thu 7/25/24 Thu 7/25/24 46 Traffic Control Implementation/Open to Traffic 1 day Thu 7/25/24 Thu 7/25/24 47 SCE Pole Relocation, North Side 75 days Mon 7/22/24 Thu 10/17/24 48 Cal West Underground East 10 days Mon 7/22/24 Thu 8/1/24 49 Cal West Underground West 10 days Fri 8/2/24 Tue 8/13/24 48 50 SCE Power Switch Over 25 days Wed 8/14/24 Thu 9/12/24 48,49 51 Frontier Overhead Line Removal 5 days Wed 8/14/24 Mon 8/19/24 48,49 52 SCE WO#1.B Pole Removal / Relocation 10 days Mon 10/7/24 Thu 10/17/24 50FS+20 days 53 Eucalyptus Ave. Closure / Complete Water Improvements 209 days Thu 5/23/24 Wed 1/29/25 66 Temp Euclid / Eucalyptus Signal Imp. Approved (Pending Authorization to Proceed)
15 days Mon 8/12/24 Wed 8/28/24
69 Euclid Ave Improvements 347 days Mon 6/10/24 Mon 7/28/25 70 Euclid Ave Street Imp. North to Eucalyptus South BCR 56 days Mon 6/10/24 Wed 8/14/24 78 Euclid Avenue Street Imp - Merrill Ave. Street Closure 1 day Thu 7/25/24 Thu 7/25/24 79 Traffic Control Street Closure 1 day Thu 7/25/24 Thu 7/25/24 46SS 80 Euclid Avenue Street Imp - Merrill Intersection East 107 days Thu 7/25/24 Sat 11/30/24 79 81 County Easement Approval - Possible Approval Date 0 days Thu 7/25/24 Thu 7/25/24 82 Excavation / Subgrade 15 days Fri 7/26/24 Mon 8/12/24 79 83 Relocate Signal Equipment Behind Proposed C&G 15 days Thu 8/1/24 Sat 8/17/24 82FS-10 days 84 Chino Water Vault Submittal Approval / Construction 70 days Tue 8/13/24 Sat 11/2/24 83FS-5 days 85 Complete SD / Catch Basins on South Side 20 days Tue 8/13/24 Thu 9/5/24 83FS-5 days 86 Place CAB 15 days Tue 9/3/24 Thu 9/19/24 85FS-3 days 87 Fine Grade + Pour Curb & Guter 10 days Fri 9/20/24 Tue 10/1/24 86 88 Fine Grade for PCC Paving 10 days Wed 10/2/24 Sat 10/12/24 87 89 PCC Pavement 20 days Mon 10/14/24 Tue 11/5/24 88
90 AC Base Paving (Including Transition from Existing) 5 days Wed 11/6/24 Mon 11/11/24 89,84 91 Adjust Utilities / Cattrack 10 days Tue 11/12/24 Mon 11/25/24 90 12/9
12/26
7/25
M J J A S O N D J F M A M J J A S O
2024 2025
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Inactive Summary
Manual Task
Duration-only
Manual Summary Rollup
Manual Summary
Start-only
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External Tasks
External Milestone
Deadline
Progress
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ORBP
Offsite Improvements Schedule
ORBP / SOLC Summary Schedule
6/26/24
D-2
195
ID Task Name Duration Start Finish Predecessors
92 Striping & Signage 5 days Tue 11/26/24 Sat 11/30/24 91 93 Complete Intersection Ready to Open Full Intersection 0 days Sat 11/30/24 Sat 11/30/24 92 94 Reopen Merrill Ave. at Euclid Ave. for Eucalyptus Closure 2 days Mon 12/2/24 Tue 12/3/24 95 Traffic Control Implementation 2 days Mon 12/2/24 Tue 12/3/24 93 96 Euclid Avenue Street Improvements - Median / Eucalyptus Intersection Completion
97 days Thu 1/30/25 Fri 5/23/25
110 Signal Improvements @ Eucalyptus 6 mons Mon 7/29/24 Wed 12/18/24 111 Signal Improvements @ Merrill 6 mons Mon 7/29/24 Wed 12/18/24 112 Euclid Avenue Street Improvements - Merrill Intersection Completion 72 days Mon 5/5/25 Mon 7/28/25 11/30
M J J A S O N D J F M A M J J A S O
2024 2025
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Split
Milestone
Summary
Project Summary
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Inactive Milestone
Inactive Summary
Manual Task
Duration-only
Manual Summary Rollup
Manual Summary
Start-only
Finish-only
External Tasks
External Milestone
Deadline
Progress
Manual Progress
ORBP
Offsite Improvements Schedule
ORBP / SOLC Summary Schedule
6/26/24
D-3
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EXHIBIT E
ESTIMATED COSTS
[ATTACHED]
197
RESOLUTION NO 2022-007
EXHIBIT C
CITY OF CHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM-20016
LOCATION : Merrill Avenue - Euclid to Grove
By: Siara MacKinney
DATE: 7/23/2024
Quantity Unit Item Unit Total Cost
Price Per Item
STREETS
EA Tree Removal 800.00 $ -$
CY Concrete Removal 325.00 $ -$
5328 CY AC Pavement Removal 100.00 $ 532,800.00 $ CY Imported Common Fill (Incl. Compaction) 34.00 $ -$ 103700 SF Preparation of Subgrade, Sidewalk and Paving 1.00 $ 103,700.00 $ 5880 LF PCC 8" Curb & 24" Gutter on 6" AB 26.00 $ 152,880.00 $ LF PCC 6" Curb & 24" Gutter on 6" AB 24.00 $ -$ LF PCC Curb Only 20.00 $ -$
2330 LF 8" A.C. Berm 20.00 $ 46,600.00 $
SF 8" PCC Cross Gutter on 6" AB 16.00 $ -$ 26405 SF 4" PCC Sidewalk 5.80 $ 153,149.00 $ 6421 SF 6" PCC Thick Drive Approach on 6" AB 12.50 $ 80,262.50 $ SF 8" PCC Thick Drive Approach on 6" AB 15.00 $ -$ LF 2" x 6" Redwood Header 7.50 $ -$
EA Street Sign and Post 475.00 $ -$
9 EA Traffic Sign and Post 400.00 $ 3,600.00 $ EA Reflector Sign and Post 175.00 $ -$
EA Painted Legend 6.50 $ -$
67233 SF PCC Pavement 5.00 $ 336,165.00 $ TON AC Variable - <300T 130.00 $ -$
4317 TON AC Variable - >300T 120.00 $ 518,040.00 $ TON CAB Variable - <300T 100.00 $ -$
7159 TON 5 90.00 $ 644,310.00 $
EngCostEstimate Page 1 of 10 Effective Date: January 1, 2021 198
RESOLUTION NO 2022-007
EXHIBIT C
CITY OF CHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM-20016
LOCATION : Merrill Avenue - Euclid to Grove
By: Siara MacKinney
DATE: 7/23/2024
Quantity Unit Item Unit Total Cost
Price Per Item
STREETS
6 EA Adjust Sewer Manhole to Grade 950.00 $ 5,700.00 $ EA Adjust Sewer Cleanout to Grade 500.00 $ -$ 9 EA Adjust Water Valve and Can to Grade 525.00 $ 4,725.00 $ 19 EA Street Light (City Owner) 7,700.00 $ 146,300.00 $ EA Electrical Pedestal 6,500.00 $ -$
EA Lot Monument Setting Fee 550.00 $ -$
LF Sawcut A.C. 3.00 $ -$
LF Sawcut Concrete 3.00 $ -$
SF Cold Plane A.C. 2" Thick 0.28 $ -$
LF Signing & Striping for
Arterial 19.00 $ -$
Collector 13.00 $ -$
Local 7.00 $ -$
5 EA Traffic Signal (8 - Phase Controller) 350,000.00 $ 1,750,000.00 $ EA Modify existing Traffic Signal per Quadrant 75,000.00 $ -$ LF Chain Link Fence
6 foot School fence (Add $9.00/LF for Removal of
Existing Fence) 44.00 $ - $
6 foot School fence (Add $9.00/LF for Removal of
Existing Fence) 35.00 $ - $
EA Utility Poles
Transmission 11,500.00 $ -$
Distribution 8,000.00 $ -$
Service 3,000.00 $ -$
EngCostEstimate Page 2 of 10 Effective Date: January 1, 2021 199
RESOLUTION NO 2022-007
EXHIBIT C
CITY OF CHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM-20016
LOCATION : Merrill Avenue - Euclid to Grove
By: Siara MacKinney
DATE: 7/23/2024
Quantity Unit Item Unit Total Cost
Price Per Item
STREETS
28919 SF
Landscape (Including shrubs, Hardscape, Irrigation, Ground Cover, Lighting, Installation Labor and Connection to
Existing Systems) 15.00 $ 433,785.00 $
LF
14 foot Median with Landscape, Irrigation, Lighting,
Hardscape, Curb, Gutter & Pavement 300.00 $ - $ Rail Road Crossing
LS
Safety Equipment (Complete Including Crossing Gates,
Signs, and Lights) 500,000.00 $ - $
SF Track Crossing (Concrete) 175.00 $ -$
SF Approach 4.00 $ -$
5 EA S.W. Ramps (A.D.A. Compliant) 4,000.00 $ 20,000.00 $ 22 EA Traffic Signal Loops 600.00 $ 13,200.00 $ 7080 LF SIGNAL INTERCONNECT CONDUIT & CABLE $20.00 141,600.00 $
STREETS
STREET SUBTOTAL 5,086,816.50 $
LS Mobilzation (5% of Construction Cost) 5% 254,340.83 $ LS Traffic Control (5% of Construction Cost) 5% 254,340.83 $ LS Clear & Grub Site (5% of Construction Cost) 5% 254,340.83 $ LS Excavation (Clean Material) (5% of Construction Cost) 5% 254,340.83 $ GRAND TOTAL STREETS ONLY 6,104,179.80 $
EngCostEstimate Page 3 of 10 Effective Date: January 1, 2021 200
RESOLUTION NO 2022-007
EXHIBIT C
CITY OF CHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM-20016
LOCATION : Merrill Avenue - Euclid to Grove
By: Siara MacKinney
DATE: 7/23/2024
Quantity Unit Item Unit Total Cost
Price Per Item
WATER
LF Trench Support/Shoring (6 foot depth) 15.00 $ -$ CY Pipe Bedding & Compaction (Imported) 90.00 $ -$ LF
6" Pipe & Fittings Installed, including excavation, bedding, backfill and pavement restoration 80.00 $ - $ LF
8" Pipe & Fittings Installed, including excavation, bedding, backfill and pavement restoration. 100.00 $ - $ LF
12" Pipe & Fittings Installed, including excavation, bedding, backfill and pavement restoration 135.00 $ - $ LF
18" Pipe & Fittings Installed, including excavation, bedding, backfill and pavement restoration 175.00 $ - $ LF Removal, Disposal of ACP and Backfill 150.00 $ -$ EA 6" Gate Valve 2,000.00 $ -$
EA 8" Gate Valve 2,600.00 $ -$
EA 12" Gate Valve 4,500.00 $ -$
EA 18" Gate Valve 7,500.00 $ -$
EA Fire Hydrant Assembly per City Std. 7,500.00 $ -$ EA Blow-off Assembly 4" per City Std. 8,600.00 $ -$ EA 2" Air Relief Assembly 4,500.00 $ -$
EA 1" Water Service/Meter 3,500.00 $ -$
EA 2" Water Service/Meter 4,500.00 $ -$
WATER
WATER SUBTOTAL -$
LS Mobilzation (5% of Construction Cost) 5% -$
LS Traffic Control (5% of Construction Cost) 5% -$
GRAND TOTAL WATER ONLY -$
EngCostEstimate Page 4 of 10 Effective Date: January 1, 2021 201
RESOLUTION NO 2022-007
EXHIBIT C
CITY OF CHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM-20016
LOCATION : Merrill Avenue - Euclid to Grove
By: Siara MacKinney
DATE: 7/23/2024
Quantity Unit Item Unit Total Cost
Price Per Item
RECYCLED WATER
LF Trench Support/Shoring (6 foot depth) 15.00 $ -$ CY Pipe Bedding (Imported) 90.00 $ -$
LF
6" Pipe & Fittings Installed, including excavation, bedding, backfill and pavement restoration 80.00 $ - $ LF
8" Pipe & Fittings Installed, including excavation, bedding, backfill and pavement restoration. 100.00 $ - $ LF
12" Pipe & Fittings Installed, including excavation, bedding, backfill and pavement restoration 135.00 $ - $ LF
18" Pipe & Fittings Installed, including excavation, bedding, backfill and pavement restoration 175.00 $ - $ EA 6" Gate Valve 2,000.00 $ -$
EA 8" Gate Valve 2,600.00 $ -$
EA 12" Gate Valve 4,500.00 $ -$
EA 18" Gate Valve 7,500.00 $ -$
EA Fire Hydrant Assembly per City Std. 7,500.00 $ -$ EA Blow-off Assembly 5" per City Std. 8,600.00 $ -$ EA 2" Air Relief Assembly 4,500.00 $ -$
EA 1" Water Service/Meter 3,500.00 $ -$
EA 2" Water Service/Meter 4,500.00 $ -$
RECYCLED WATER
RECYCLED WATER SUBTOTAL -$
LS Mobilzation (5% of Construction Cost) 5% -$
LS Traffic Control (5% of Construction Cost) 5% -$
GRAND TOTAL RECYCLED WATER ONLY -$
EngCostEstimate Page 5 of 10 Effective Date: January 1, 2021 202
RESOLUTION NO 2022-007
EXHIBIT C
CITY OF CHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM-20016
LOCATION : Merrill Avenue - Euclid to Grove
By: Siara MacKinney
DATE: 7/23/2024
Quantity Unit Item Unit Total Cost
Price Per Item
SEWER
LF Trench Support/Shoring 15.00 $ -$
LF
4" Installed, including excavation, bedding, backfill and pavement restoration $75.00 - $
LF
8" Installed, including excavation, bedding, backfill and pavement restoration $93.00 - $
LF
10" Installed, including excavation, bedding, backfill and pavement restoration $103.00 - $
LF
12" Installed, including excavation, bedding, backfill and pavement restoration $123.00 - $
LF
15" Installed, including excavation, bedding, backfill and pavement restoration $143.00 - $
LF
18" Installed, including excavation, bedding, backfill and pavement restoration $163.00 - $
LF
21" Installed, including excavation, bedding, backfill and pavement restoration $193.00 - $
LF
24" Installed, including excavation, bedding, backfill and pavement restoration $208.00 - $
EA Sewer Saddle $450.00 -$
EA Wyes 4" x 8" Typical $225.00 -$
EA 48" Sewer Manhole $4,700.00 -$
EA 60" Sewer Manhole $7,500.00 -$
EA Sewer Cleanout $1,800.00 -$
SEWER
SEWER SUBTOTAL -$
LS Mobilization (5% of Construction Cost) 5% -$
LS Traffic Control (5% of Construction Cost) 5% -$
GRAND TOTAL SEWER ONLY -$
EngCostEstimate Page 6 of 10 Effective Date: January 1, 2021 203
RESOLUTION NO 2022-007
EXHIBIT C
CITY OF CHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM-20016
LOCATION : Merrill Avenue - Euclid to Grove
By: Siara MacKinney
DATE: 7/23/2024
Quantity Unit Item Unit Total Cost
Price Per Item
STORM DRAIN
LF 24" X 36" C.M.P.A. (10 Gauge) 230.00 $ -$ LF 27" x 43" C.M.P.A (10 Gauge) 250.00 $ -$ EA Storm Drain Manhole #1 10,000.00 $ -$
EA Junction Structure #2 (24" or larger) 8,850.00 $ -$ EA Junction Structure #4 (24" or smaller) 4,000.00 $ -$ EA Outlet Structure 7,000.00 $ -$
EA Catch Basin 3.5' Width 7,200.00 $ -$
EA Catch Basin 7' Width/L.D. 7,900.00 $ -$
7 EA Catch Basin 10' Width/L.D. 9,950.00 $ 69,650.00 $ EA Catch Basin 14' Width/L.D. 11,000.00 $ -$
EA Catch Basin 21' Width/L.D. 13,000.00 $ -$
306 LF
18 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 200.00 $ 61,200.00 $ LF
24 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 240.00 $ - $ LF
27 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 260.00 $ - $ LF
30 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 280.00 $ - $ LF
33 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 295.00 $ - $ LF
36 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 310.00 $ - $ LF
39 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 320.00 $ - $ LF
42 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 330.00 $ - $ LF
45 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 360.00 $ - $ LF
48 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 385.00 $ - $ LF
54 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 440.00 $ - $ LF
60 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 500.00 $ - $ EngCostEstimate Page 7 of 10 Effective Date: January 1, 2021 204
RESOLUTION NO 2022-007
EXHIBIT C
CITY OF CHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM-20016
LOCATION : Merrill Avenue - Euclid to Grove
By: Siara MacKinney
DATE: 7/23/2024
Quantity Unit Item Unit Total Cost
Price Per Item
STORM DRAIN
LF
66 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 560.00 $ - $ LF
72 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 625.00 $ - $ LF
78 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 690.00 $ - $ LF
84 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 765.00 $ - $ LF
90 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 830.00 $ - $ LF
96 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 920.00 $ - $ LF
102 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 1,000.00 $ - $ LF
108 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 1,075.00 $ - $ LF
7' x 6' RCB Installed, including excavation, bedding, backfill and pavement restoration 700.00 $ - $
LF
7' x 8.5' RCB Installed, including excavation, bedding, backfill and pavement restoration 820.00 $ - $ LF
7' x 9.5' RCB Installed, including excavation, bedding, backfill and pavement restoration 870.00 $ - $ LF
8' x 11' RCB Installed, including excavation, bedding, backfill and pavement restoration 1,000.00 $ - $
LF
8' x 13' RCB Installed, including excavation, bedding, backfill and pavement restoration 1,100.00 $ - $
LF
9' x 9' RCB Installed, including excavation, bedding, backfill and pavement restoration 1,000.00 $ - $
LF
9' x 12' RCB Installed, including excavation, bedding, backfill and pavement restoration 1,100.00 $ - $
LF
4' x 6' RCB Installed, including excavation, bedding, backfill and pavement restoration 680.00 $ - $
STORM DRAIN
STORM DRAIN SUBTOTAL 130,850.00 $
LS Mobilization (5% of Construction Cost) 5% 6,542.50 $ LS Traffic Control (5% of Construction Cost) 5% 6,542.50 $ GRAND TOTAL STORM DRAIN ONLY 143,935.00 $
EngCostEstimate Page 8 of 10 Effective Date: January 1, 2021 205
RESOLUTION NO 2022-007
EXHIBIT C
CITY OF CHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM-20016
LOCATION : Merrill Avenue - Euclid to Grove
By: Siara MacKinney
DATE: 7/23/2024
Quantity Unit Item Unit Total Cost
Price Per Item
DIRECT COSTS GRAND TOTAL STREETS ONLY 6,104,179.80 $
GRAND TOTAL WATER ONLY -$
GRAND TOTAL RECYCLED WATER ONLY -$
GRAND TOTAL SEWER ONLY -$
GRAND TOTAL STORM DRAIN ONLY 143,935.00 $
GRAND TOTAL (FOR PLAN CHECK & INSPECTION FEE
DETERMINATION)
6,248,114.80 $
PROJECT ADDITIVES Project Contingencies 10% 624,811.48 $ Construction Staking 3% 187,443.44 $
Soils Testing 1% 62,481.15 $
Material Testing 1% 62,481.15 $
Construction Inspection 4.8% 299,909.51 $
Contract Administration 1% 62,481.15 $
GRAND TOTAL (FOR BOND AMOUNTS) 7,547,722.68 $
EngCostEstimate Page 9 of 10 Effective Date: January 1, 2021 206
RESOLUTION NO 2022-007
EXHIBIT C
CITY OF CHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM-20016
LOCATION : Merrill Avenue - Euclid to Grove
By: Siara MacKinney
DATE: 7/23/2024
Quantity Unit Item Unit Total Cost
Price Per Item
BY ENGINEER
Prepared By:
R.C.E. Number:
Expiration:
Place R.C.E. Stamp and Signature Here (required)
BY CITY
Faithful Performance Bond (100% of Construction Cost) 7,547,700.00 $ Labor & Material Bond (50% of Construction Cost) 3,773,900.00 $ Warranty Bond (10% of Construction Cost) 754,800.00 $
EngCostEstimate Page 10 of 10 Effective Date: January 1, 2021 85559
9/30/24
207
RESOLUTION NO 2022-007
EXHIBIT C
CITY OF CHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM-20016
LOCATION : Euclid Avenue
By: Siara MacKinney
DATE: 7/23/2024
Quantity Unit Item Unit Total Cost
Price Per Item
STREETS
EA Tree Removal 800.00 $ -$
CY Concrete Removal 325.00 $ -$
3090 CY AC Pavement Removal 100.00 $ 309,000.00 $ CY Imported Common Fill (Incl. Compaction) 34.00 $ -$ 242566 SF Preparation of Subgrade, Sidewalk and Paving 1.00 $ 242,566.00 $ 357 LF PCC 8" Curb & 24" Gutter on 6" AB 26.00 $ 9,282.00 $ LF PCC 6" Curb & 24" Gutter on 6" AB 24.00 $ -$ 3326 LF PCC Curb Only 20.00 $ 66,520.00 $ LF 8" A.C. Berm 20.00 $ -$
SF 8" PCC Cross Gutter on 6" AB 16.00 $ -$ SF 4" PCC Sidewalk 5.80 $ -$
SF 6" PCC Thick Drive Approach on 6" AB 12.50 $ -$ SF 8" PCC Thick Drive Approach on 6" AB 15.00 $ -$ LF 2" x 6" Redwood Header 7.50 $ -$
EA Street Sign and Post 475.00 $ -$
EA Traffic Sign and Post 400.00 $ -$
EA Reflector Sign and Post 175.00 $ -$
EA Painted Legend 6.50 $ -$
15487 SF PCC Pavement 5.00 $ 77,435.00 $ TON AC Variable - <300T 130.00 $ -$
2062 TON AC Variable - >300T 120.00 $ 247,440.00 $ TON CAB Variable - <300T 100.00 $ -$
4273 TON CAB Variable - >300T 90.00 $ 384,570.00 $ EngCostEstimate Page 1 of 10 Effective Date: January 1, 2021 208
RESOLUTION NO 2022-007
EXHIBIT C
CITY OF CHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM-20016
LOCATION : Euclid Avenue
By: Siara MacKinney
DATE: 7/23/2024
Quantity Unit Item Unit Total Cost
Price Per Item
STREETS
EA Adjust Sewer Manhole to Grade 950.00 $ -$ EA Adjust Sewer Cleanout to Grade 500.00 $ -$ EA Adjust Water Valve and Can to Grade 525.00 $ -$ EA Street Light (City Owner) 7,700.00 $ -$
EA Electrical Pedestal 6,500.00 $ -$
EA Lot Monument Setting Fee 550.00 $ -$
LF Sawcut A.C. 3.00 $ -$
LF Sawcut Concrete 3.00 $ -$
SF Cold Plane A.C. 2" Thick 0.28 $ -$
LF Signing & Striping for
Arterial 19.00 $ -$
Collector 13.00 $ -$
Local 7.00 $ -$
EA Traffic Signal (8 - Phase Controller) 350,000.00 $ -$ 4 EA Modify existing Traffic Signal per Quadrant 75,000.00 $ 300,000.00 $ LF Chain Link Fence
6 foot School fence (Add $9.00/LF for Removal of
Existing Fence) 44.00 $ - $
6 foot School fence (Add $9.00/LF for Removal of
Existing Fence) 35.00 $ - $
EA Utility Poles
Transmission 11,500.00 $ -$
Distribution 8,000.00 $ -$
Service 3,000.00 $ -$
EngCostEstimate Page 2 of 10 Effective Date: January 1, 2021 209
RESOLUTION NO 2022-007
EXHIBIT C
CITY OF CHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM-20016
LOCATION : Euclid Avenue
By: Siara MacKinney
DATE: 7/23/2024
Quantity Unit Item Unit Total Cost
Price Per Item
STREETS
63731 SF
Landscape (Including shrubs, Hardscape, Irrigation, Ground Cover, Lighting, Installation Labor and Connection to
Existing Systems) 15.00 $ 955,965.00 $
LF
14 foot Median with Landscape, Irrigation, Lighting,
Hardscape, Curb, Gutter & Pavement 300.00 $ - $ Rail Road Crossing
LS
Safety Equipment (Complete Including Crossing Gates,
Signs, and Lights) 500,000.00 $ - $
SF Track Crossing (Concrete) 175.00 $ -$
SF Approach 4.00 $ -$
2 EA S.W. Ramps (A.D.A. Compliant) 4,000.00 $ 8,000.00 $ 13 EA Traffic Signal Loops 600.00 $ 7,800.00 $ 3300 LF SIGNAL INTERCONNECT CONDUIT & CABLE $20.00 66,000.00 $
STREETS
STREET SUBTOTAL 2,674,578.00 $
LS Mobilzation (5% of Construction Cost) 5% 133,728.90 $ LS Traffic Control (5% of Construction Cost) 5% 133,728.90 $ LS Clear & Grub Site (5% of Construction Cost) 5% 133,728.90 $ LS Excavation (Clean Material) (5% of Construction Cost) 5% 133,728.90 $ GRAND TOTAL STREETS ONLY 3,209,493.60 $
EngCostEstimate Page 3 of 10 Effective Date: January 1, 2021 210
RESOLUTION NO 2022-007
EXHIBIT C
CITY OF CHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM-20016
LOCATION : Euclid Avenue
By: Siara MacKinney
DATE: 7/23/2024
Quantity Unit Item Unit Total Cost
Price Per Item
WATER
LF Trench Support/Shoring (6 foot depth) 15.00 $ -$ CY Pipe Bedding & Compaction (Imported) 90.00 $ -$ LF
6" Pipe & Fittings Installed, including excavation, bedding, backfill and pavement restoration 80.00 $ - $ LF
8" Pipe & Fittings Installed, including excavation, bedding, backfill and pavement restoration. 100.00 $ - $ LF
12" Pipe & Fittings Installed, including excavation, bedding, backfill and pavement restoration 135.00 $ - $ LF
18" Pipe & Fittings Installed, including excavation, bedding, backfill and pavement restoration 175.00 $ - $ LF Removal, Disposal of ACP and Backfill 150.00 $ -$ EA 6" Gate Valve 2,000.00 $ -$
EA 8" Gate Valve 2,600.00 $ -$
EA 12" Gate Valve 4,500.00 $ -$
EA 18" Gate Valve 7,500.00 $ -$
EA Fire Hydrant Assembly per City Std. 7,500.00 $ -$ EA Blow-off Assembly 4" per City Std. 8,600.00 $ -$ EA 2" Air Relief Assembly 4,500.00 $ -$
EA 1" Water Service/Meter 3,500.00 $ -$
EA 2" Water Service/Meter 4,500.00 $ -$
WATER
WATER SUBTOTAL -$
LS Mobilzation (5% of Construction Cost) 5% -$
LS Traffic Control (5% of Construction Cost) 5% -$
GRAND TOTAL WATER ONLY -$
EngCostEstimate Page 4 of 10 Effective Date: January 1, 2021 211
RESOLUTION NO 2022-007
EXHIBIT C
CITY OF CHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM-20016
LOCATION : Euclid Avenue
By: Siara MacKinney
DATE: 7/23/2024
Quantity Unit Item Unit Total Cost
Price Per Item
RECYCLED WATER
LF Trench Support/Shoring (6 foot depth) 15.00 $ -$ CY Pipe Bedding (Imported) 90.00 $ -$
LF
6" Pipe & Fittings Installed, including excavation, bedding, backfill and pavement restoration 80.00 $ - $ LF
8" Pipe & Fittings Installed, including excavation, bedding, backfill and pavement restoration. 100.00 $ - $ LF
12" Pipe & Fittings Installed, including excavation, bedding, backfill and pavement restoration 135.00 $ - $ LF
18" Pipe & Fittings Installed, including excavation, bedding, backfill and pavement restoration 175.00 $ - $ EA 6" Gate Valve 2,000.00 $ -$
EA 8" Gate Valve 2,600.00 $ -$
EA 12" Gate Valve 4,500.00 $ -$
EA 18" Gate Valve 7,500.00 $ -$
EA Fire Hydrant Assembly per City Std. 7,500.00 $ -$ EA Blow-off Assembly 5" per City Std. 8,600.00 $ -$ EA 2" Air Relief Assembly 4,500.00 $ -$
EA 1" Water Service/Meter 3,500.00 $ -$
EA 2" Water Service/Meter 4,500.00 $ -$
RECYCLED WATER
RECYCLED WATER SUBTOTAL -$
LS Mobilzation (5% of Construction Cost) 5% -$
LS Traffic Control (5% of Construction Cost) 5% -$
GRAND TOTAL RECYCLED WATER ONLY -$
EngCostEstimate Page 5 of 10 Effective Date: January 1, 2021 212
RESOLUTION NO 2022-007
EXHIBIT C
CITY OF CHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM-20016
LOCATION : Euclid Avenue
By: Siara MacKinney
DATE: 7/23/2024
Quantity Unit Item Unit Total Cost
Price Per Item
SEWER
LF Trench Support/Shoring 15.00 $ -$
LF
4" Installed, including excavation, bedding, backfill and pavement restoration $75.00 - $
LF
8" Installed, including excavation, bedding, backfill and pavement restoration $93.00 - $
LF
10" Installed, including excavation, bedding, backfill and pavement restoration $103.00 - $
LF
12" Installed, including excavation, bedding, backfill and pavement restoration $123.00 - $
LF
15" Installed, including excavation, bedding, backfill and pavement restoration $143.00 - $
LF
18" Installed, including excavation, bedding, backfill and pavement restoration $163.00 - $
LF
21" Installed, including excavation, bedding, backfill and pavement restoration $193.00 - $
LF
24" Installed, including excavation, bedding, backfill and pavement restoration $208.00 - $
EA Sewer Saddle $450.00 -$
EA Wyes 4" x 8" Typical $225.00 -$
EA 48" Sewer Manhole $4,700.00 -$
EA 60" Sewer Manhole $7,500.00 -$
EA Sewer Cleanout $1,800.00 -$
SEWER
SEWER SUBTOTAL -$
LS Mobilization (5% of Construction Cost) 5% -$
LS Traffic Control (5% of Construction Cost) 5% -$
GRAND TOTAL SEWER ONLY -$
EngCostEstimate Page 6 of 10 Effective Date: January 1, 2021 213
RESOLUTION NO 2022-007
EXHIBIT C
CITY OF CHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM-20016
LOCATION : Euclid Avenue
By: Siara MacKinney
DATE: 7/23/2024
Quantity Unit Item Unit Total Cost
Price Per Item
STORM DRAIN
LF 24" X 36" C.M.P.A. (10 Gauge) 230.00 $ -$ LF 27" x 43" C.M.P.A (10 Gauge) 250.00 $ -$ EA Storm Drain Manhole #1 10,000.00 $ -$
EA Junction Structure #2 (24" or larger) 8,850.00 $ -$ EA Junction Structure #4 (24" or smaller) 4,000.00 $ -$ EA Outlet Structure 7,000.00 $ -$
EA Catch Basin 3.5' Width 7,200.00 $ -$
EA Catch Basin 7' Width/L.D. 7,900.00 $ -$
EA Catch Basin 10' Width/L.D. 9,950.00 $ -$
EA Catch Basin 14' Width/L.D. 11,000.00 $ -$
EA Catch Basin 21' Width/L.D. 13,000.00 $ -$
LF
18 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 200.00 $ - $ LF
24 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 240.00 $ - $ LF
27 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 260.00 $ - $ LF
30 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 280.00 $ - $ LF
33 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 295.00 $ - $ LF
36 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 310.00 $ - $ LF
39 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 320.00 $ - $ LF
42 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 330.00 $ - $ LF
45 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 360.00 $ - $ LF
48 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 385.00 $ - $ LF
54 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 440.00 $ - $ LF
60 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 500.00 $ - $ EngCostEstimate Page 7 of 10 Effective Date: January 1, 2021 214
RESOLUTION NO 2022-007
EXHIBIT C
CITY OF CHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM-20016
LOCATION : Euclid Avenue
By: Siara MacKinney
DATE: 7/23/2024
Quantity Unit Item Unit Total Cost
Price Per Item
STORM DRAIN
LF
66 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 560.00 $ - $ LF
72 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 625.00 $ - $ LF
78 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 690.00 $ - $ LF
84 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 765.00 $ - $ LF
90 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 830.00 $ - $ LF
96 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 920.00 $ - $ LF
102 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 1,000.00 $ - $ LF
108 inch RCP Installed, including excavation, bedding,
backfill and pavement restoration 1,075.00 $ - $ LF
7' x 6' RCB Installed, including excavation, bedding, backfill and pavement restoration 700.00 $ - $
LF
7' x 8.5' RCB Installed, including excavation, bedding, backfill and pavement restoration 820.00 $ - $ LF
7' x 9.5' RCB Installed, including excavation, bedding, backfill and pavement restoration 870.00 $ - $ LF
8' x 11' RCB Installed, including excavation, bedding, backfill and pavement restoration 1,000.00 $ - $
LF
8' x 13' RCB Installed, including excavation, bedding, backfill and pavement restoration 1,100.00 $ - $
LF
9' x 9' RCB Installed, including excavation, bedding, backfill and pavement restoration 1,000.00 $ - $
LF
9' x 12' RCB Installed, including excavation, bedding, backfill and pavement restoration 1,100.00 $ - $
LF
4' x 6' RCB Installed, including excavation, bedding, backfill and pavement restoration 680.00 $ - $
STORM DRAIN
STORM DRAIN SUBTOTAL -$
LS Mobilization (5% of Construction Cost) 5% -$
LS Traffic Control (5% of Construction Cost) 5% -$
GRAND TOTAL STORM DRAIN ONLY -$
EngCostEstimate Page 8 of 10 Effective Date: January 1, 2021 215
RESOLUTION NO 2022-007
EXHIBIT C
CITY OF CHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM-20016
LOCATION : Euclid Avenue
By: Siara MacKinney
DATE: 7/23/2024
Quantity Unit Item Unit Total Cost
Price Per Item
DIRECT COSTS GRAND TOTAL STREETS ONLY 3,209,493.60 $
GRAND TOTAL WATER ONLY -$
GRAND TOTAL RECYCLED WATER ONLY -$
GRAND TOTAL SEWER ONLY -$
GRAND TOTAL STORM DRAIN ONLY -$
GRAND TOTAL (FOR PLAN CHECK & INSPECTION FEE
DETERMINATION)
3,209,493.60 $
PROJECT ADDITIVES Project Contingencies 10% 320,949.36 $ Construction Staking 3% 96,284.81 $
Soils Testing 1% 32,094.94 $
Material Testing 1% 32,094.94 $
Construction Inspection 4.8% 154,055.69 $
Contract Administration 1% 32,094.94 $
GRAND TOTAL (FOR BOND AMOUNTS) 3,877,068.27 $
EngCostEstimate Page 9 of 10 Effective Date: January 1, 2021 216
RESOLUTION NO 2022-007
EXHIBIT C
CITY OF CHINO
ENGINEERING COST ESTIMATE
PROJECT NO: PM-20016
LOCATION : Euclid Avenue
By: Siara MacKinney
DATE: 7/23/2024
Quantity Unit Item Unit Total Cost
Price Per Item
BY ENGINEER
Prepared By:
R.C.E. Number:
Expiration:
Place R.C.E. Stamp and Signature Here (required)
BY CITY
Faithful Performance Bond (100% of Construction Cost) 3,877,100.00 $ Labor & Material Bond (50% of Construction Cost) 1,938,500.00 $ Warranty Bond (10% of Construction Cost) 387,700.00 $
EngCostEstimate Page 10 of 10 Effective Date: January 1, 2021 85559
9/30/24
217
San Bernardino County
Real Estate Services Department
385 N. Arrowhead Ave., 3rd Floor
San Bernardino, CA 92415-0180
PROJECT: Street Improvement Plan
in the City of Chino on Merrill
Avenue and East of Euclid
LOCATION: Chino Airport
7000 Merrill Avenue, Chino
RIGHT OF ENTRY AGREEMENT
In consideration of the mutual covenants and agreements herein set forth, San Bernardino County (“Licensor”) and City of Chino ("Licensee") hereby enter into this Right of Entry Agreement ("Agreement ”) effective on the date the last of the parties executes this Agreement (“Effective Date”) on the following terms and conditions:
1. Licensor owns certain real property on which Licensor operates the Chino Airport with an address of 7000 Merrill Avenue in the City of Chino, State of California ("Property").
Licensee desires to enter onto certain portions of the Property to construct certain public street improvements as set forth in Paragraph 2 of this Agreement.
2. Licensor hereby agrees to allow Licensee and its employees, contractors, subcontractors, material suppliers, agents, and consultants (collectively, “Licensee Agents”) to enter onto certain portions of the Property, comprising a total of approximately 106,658 square feet,(“Access Area”), as more particularly described and depicted in Exhibit “A” , which is attached hereto and incorporated herein by reference, for the following specific and limited purpose and for no other purposes than public street improvements along Merrill Avenue, which includes roadway pavement, signing & striping, curb & gutter, ADA ramps, storm drain catch basins, and dry utility conduit (“Licensee’s Work”), as more particularly depicted in Exhibit “ B”, which is attached hereto and incorporated herein by reference.
Licensee Agents may perform Licensee’s Work as described in and reasonably regarded as incidental to such Exhibit “B”, provided that such incidental work shall first be coordinated with and approved by the Licensor’s Director of the Department of Airports . Neither Licensee nor Licensee Agents shall have the right to perform any other activities that involve digging, drilling, cutting, or boring into the ground of the Access Area without the prior written consent of Licensor in its sole and absolute discretion. Licensee acknowledges that, prior to the Effective Date, Licensor installed an existing lighted monument sign along Highway 83 (“County’s Sign”) , which will be removed as part of the Licensee’s Work. The parties acknowledge and agree that, as Licensor’s material consideration for entering into this Agreement, Licensor shall have the right to re-install and operate a digital County Sign at its desired location along Highway 83 but otherwise in substantially the same form as the original County Sign, notwithstanding any changes in land-use restrictions enacted after the original County Sign was installed.
3. The term of this Agreement (“Entry Period”) shall commence on the Effective Date and shall terminate on the earliest to occur of: (a) five (5) years thereafter, (b) the date this Agreement is earlier terminated in accordance with its terms; (c) the day immediately preceding the date Licensor, in its sole and absolute discretion, grants and records one or more easements to the Licensee for the Access A rea or relevant portion(s) thereof for Licensee’s Work, provided that nothing herein or otherwise shall obli gate the Licensor to grant any such easements to the Licensee; or (d) Licensor’s written notice to Licensee, given at least thirty (30) days prior to the effective termination date, that use of the Access Area is required exclusively for aviation purposes or for Licensor’s airport operations. 218
4. Entry onto the Access Area by Licensee and Licensee Agents during the Entry Period , including but not limited to the time and date of each entry, the requirement for any Licensor escort, and any other logistical requirements, shall be coordinated between Licensee and Licensor. Specifically, Licensee shall give the Licensor at least two (2) business days’ notice prior to its initial entry onto the Access Area to perform the Licensee’s Work , which shall be given orally by telephone at (909) 465 -5201 or electronically to Maureen Snelgrove at [email protected]. At the time such notice of initial entry is given, Licensee shall also provide a written construction schedule to the Licensor, which shall also include the dates of each planned entry onto the Access Area for the duration of the Entry Period. If, during the Entry Period, the construction schedule and any planned entry dates change, Licensee shall provide a revised construction schedule with revised entry dates in writing to the Licensor at least two (2) business days prior to any such changes. Beginning one week after the date of Licensee’s initial entry onto the Access Area, Licensee agrees to attend weekly construction meetings with the Licensor regarding Licensee’s Work, which meetings shall continue weekly thereafter until the Licensee’s Work is completed. Licensor shall have the right to be present during each entry.
5. Licensee shall pay Licensor a fee in the amount of five thousand dollars ($ 5,000) monthly (“Monthly Fee”) for use of the Access Area for the Licensee’s Work. If the period from the Effective Date through the end of the calendar month in which the Effective Date occurs is not a full calendar month, Licensee shall pay a pro-rated Monthly Fee based on the number of days in said period to the number of days in sai d calendar month. Thereafter, the Monthly Fee shall be due on or before the first of the calendar month during the Entry Period (including any extension permitted pursuant to Paragraph 8). If the period from the first of the month through the date this Agreement expires or is earlier terminated is not a full calendar month, Licensee shall pay a pro -rated Monthly Fee based on the number of days in said period to the number of days in said calendar month.
6. The Licensee’s Work shall be performed at Licensee’s sole cost and expense and in a good and workmanlike manner by licensed and insured Licensee employees or Licensee Agents.
Licensee shall provide Licensor with a certificate of insurance from Licensee and Licensee Agents meeting the requirements of Paragraph 10 prior to their respective initial entry of the Access Area.
7. Notwithstanding anything to the contrary in this Agreement, Licensee acknowledges and agrees that the Licensee’s Work contemplated herein shall be performed at Licensee’s sole risk and there is no guarantee whatsoever that any easements will be granted by Licensor to the Licensee for the Access Area or relevant portion(s) thereof for Licensee’s Work nor shall there be any obligation whatsoever by Licensor to grant any easements. The election to grant any easements and the terms and conditions of such easement, if any, shall be at Licensor’s sole and absolute discretion.
8. In the event this Agreement expires or is earlier terminated without the grant of an y easements to the Licensee, Licensor shall notify Licensee whether it elects , in its sole and absolute discretion, to: (i) accept a conveyance of a ll then existing Licensee’s Work (“Installed Work”), which shall be at no cost to Licensor, or (ii) require that Licensee remove all such Installed Work. If Licensor elects that the Installed Work be removed, then : (a) Licensee shall, at its sole cost and expense, remove or ensure Licensee’s Agents remove all Installed Work, promptly repair any and all damage to the Access Area , and restore the Access Area to substantially the same condition as existed on the Effective Date, reasonable 219 wear and tear excluded , and leave the Access Area free of all trash and debris ; and (b) complete such removal work on or prior to the expiration or earlier termination of the Agreement, provided that should Licensee have commenced such removal work and diligently pursued such work to completion but reasonably requires additional tim e to complete such removal work, upon Licensee’s written request, Licensor, through its Board of Supervisors, may, in its sole and absolute discretion, extend the Entry Period solely for the limited purpose of removing the Installed work by the amount of Licensor deems reasonably necessary for Licensee and Licensee Agents to diligently complete such removal. If Licensor elects to accept a conveyance of the Installed Work at no cost to Licensor, then Licensee shall promptly execute a bill of sale conveying the same to Licensor on a form acceptable to Licensor. This provisions of this Paragraph 8 shall survive the expiration or earlier termination of this Agreement.
9. Licensee shall indemnify, defend (with counsel approved by Licensor) and hold harmless the Licensor and its authorized officers, employees, agents and volunteers from any and all claims, actions, losses, damages, and/or liability arising out of this Agreement from any cause whatsoever, and including the acts, errors or omissions of any person and for any costs or expenses incurred by the Licensor on account of any claim except where such indemnification is prohibited by law. This indemnification provision shall apply rega rdless of the existence or degree of fault of indemnitees. The Licensee’s indemnification obligation applies to the Licensor’s “active” as well as “passive” negligence but does not apply to the Licensor’s “sole negligence” or “willful misconduct” within the meaning of Civil Code Section 2782. This indemnity shall survive the expiration or earlier termination of this Agreement.
10. Insurance Requirements.
A. Licensee shall comply and shall ensure that Licensee Agents comply with the insurance requirements set forth below. If Licensee or Licensee Agents use existing coverage to comply with these requirements and that coverage does not meet the specified requirements of this Agreement, Licensee shall ensure that Licensee Agents shall amend, supplement, or endorse their respective existing coverage to do so. Without in anyway affecting the indemnity herein provided and in addition thereto, Licensee shall secure and maintain and shall ensure that Licensee Agents secure and maintain throughout the Agreement the following types of insurance with limits as shown below.
(1) Workers' Compensation/Employers Liability - A program of Workers' Compensation insurance or a state -approved Self -Insurance Program in an amount and form to meet all applicable requirements of the Labor Code of the State of California, including Employer's Liability with $250,000 limits covering all persons including volunteers providing services on behalf of Licensee and all risks to such persons under this Agreement.
If Licensee has no employees, it may certify or warrant to the Licensor that is does not currently have any employees or individuals who are defined as “employees” under the Labor Code and the requirement for Workers’ Compensation coverage will be waived b y the Licensor’s Director of Risk Management.
If, Licensee is a non -profit corporation, organized under California or Federal law, volunteers for Licensee are required to be covered by Workers’ Compensation insurance.
(2) Commercial/General Liability Insurance – The Licensee shall carry General 220 Liability Insurance covering all operations performed by or on behalf of the Licensee providing coverage for bodily injury and property damage with a combined single limit of not less than one million dollars ($1,000,000), per occurrence. The policy coverage shall include:
(a) Premises operations and mobile equipment.
(b) Products and completed operations.
(c) Broad form property damage (including completed operations). (d) Explosion, collapse and underground hazards.
(e) Personal injury
(f) Contractual liability.
(g) $2,000,000 general aggregate limit.
(3) Commercial Property Insurance providing all risk coverage for the Access Area, building, fixtures, equipment and all property constituting a part of the Access Area. Coverage shall be sufficient to insure One Hundred percent (100%) of the replacement cost.
(4) Automobile Liability Insurance – Primary insurance coverage shall be written on ISO Business Auto coverage form for all owned, hired and non -owned automobiles or symbol 1 (any auto). The policy shall have a combined single limit of not less than one million dollars ($1,000,000) for bodily injury and property damage, per occurrence.
If the Licensee is transporting one or more non -employee passengers for this Agreement, the automobile liability policy shall have a combined single limit of two million dollars ($2,000,000) for bodily injury and property damage per occurrence.
If the Licensee owns no autos, a non -owned auto endorsement to the General Liability policy described above is acceptable.
(5) Umbrella Liability Insurance - An umbrella (over primary) or excess policy may be used to comply with limits or other primary coverage requirements. When used, the umbrella policy shall apply to bodily injury/property damage, personal injury/advertising injury and shall include a “d ropdown” provision providing primary coverage for any liability not covered by the primary policy. The coverage shall also apply to automobile liability.
(6) Environmental Liability Insurance. Environmental liability insurance with a combined single limit of not less than Two Million and 00/100 Dollars ($ 2,000,000.00) per occurrence and Four Million and 00/100 Dollars ($4,000,000.00) aggregate.
B. Additional Insured – All policies, except for the Workers’ Compensation, shall contain endorsements naming the Licensor and its officers, employees, agents and volunteers as additional insureds with respect to liabilities arising out of this Agreement. The additional insured endorsements shall not limit the scope of coverage for the Licensor to vicarious liability but shall allow coverage for the Licensor to the full extent provided by the policy. Such additional insured coverage shall be at least as broad as Additional Insured (Form B) endorsement form ISO, CG 2010.11
85. C. Waiver of Subrogation Rights – The Licensee shall require the carriers of required coverages to waive all rights of subrogation against the Licensor, its officers, employees, agents, volunteers, contractors and subcontractors. All general or auto liability insurance coverage provided shall not prohibit the Licensee and Licensee’s employees or agents from waiving the right of subrogation prior to a loss or claim. The Licensee hereby waives all rights of subrogation against the 221 Licensor.
D. Policies Primary and Non-Contributory – All policies required herein are to be primary and non-contributory with any insurance or self-insurance programs carried or administered by the Licensor.
E. Deductibles and Self -Insurance Retention – Any and all deductibles or self -insured retentions in excess of $10,000 shall be declared to and approved by Licensor’s Risk Management.
F. Severability of Interests – The Licensee agrees to ensure that coverage provided to meet these requirements is applicable separately to each insured and there will be no cross liability exclusions that preclude coverage for suits between the Licensee and the Licensor or between th e Licensor and any other insured or additional insured under the policy.
G. Proof of Coverage – The Licensee shall furnish Certificates of Insurance to the Licensor evidencing the insurance coverage, including endorsements, as required, prior to any entry of the Access Area, which certificates shall provide that such insurance shall not be termina ted or expire without thirty (30) days written notice to Licensor, and Licensee shall maintain such insurance from the time the Agreement commences until the expiration or earlier termination of the Agreement.
Prior to its initial entry hereunder, the Licensee shall furnish a copy of the Declaration page for all applicable policies and will provide complete certified copies of the policies and endorsements immediately upon request.
H. Acceptability of Insurance Carrier – Unless otherwise approved by the Licensor’s Department of Risk Management, insurance shall be written by insurers authorized to do business in the State of California and with a minimum “Best” Insurance Guide rating of “A- VII”.
I. Insurance Review – Insurance requirements are subject to periodic review by the Licensor. The Licensor’s Director of Risk Management or designee is authorized, but not required, to reduce, waive or suspend any insurance requirements whenever the Licensor’s Department of Risk Management determines that any of the required insurance is not ava ilable, is unreasonably priced, or is not needed to protect the interests of the Licensor. .
Any failure, actual or alleged, on the part of Licensor 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 Licensor.
J. Failure to Procure Insurance. All insurance required must be maintained in force at all times by Licensee. Failure to maintain said insurance, due to expiration, cancellation, etc., shall be cause for the Licensor to give notice to immediately suspend all Licensee’s ingress and egres s of the Access Area or any Drainage Work . Failure to reinstate said insurance within ten (10) days of notice by Licensor to do so shall be cause for termination and for forfeiture of this Agreement, and/or Licensor, at its di scretion, may procure or renew such insurance and pay any and all premiums in connection therewith, and all monies so paid by Licensor shall be repaid by Licensee to Licensor upon demand.
K. Licensor shall have no liability for any premiums charged for such coverage(s). The inclusion of Licensor as additional named insured is not intended to and shall not make Licensor a partner or joint venturer with Licensee in Licensee's activities. 222
L. Licensee agrees to require all parties or subcontractors, or others it hires or contracts with related to this Agreement, including Licensee Agents, to provide the insurance coverages as required in this Agreement and naming the Licensor as additional insu red. Licensee agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided as required herein.
M. All of the indemnity and insurance provisions set forth in Paragraphs 9 and 10 of this Agreement, respectively, are hereby deemed to be material provisions of this Agreement. However, any failure, actual or alleged, on the part of Licensor to monitor or enforce compliance with any of the insurance and indemnification requirements will not be deemed as a waiver of any rights on part of Licensor.
11. Licensee and Licensee Agents must abide by all pertinent laws, rules, and regulations of the United States of America, State of California, County of San Bernardino, or any other duly constituted public authority having jurisdiction for the Access Area and Licensee’s Work .
Licensee shall, at its sole cost and expense, obtain all necessary permits and authorizations from all relevant authorities prior to the performance of Licensee’s Work at the Access Area.
12. This Agreement is subject to any easements, rights, and restrictions affecting the Access Area that exist as of the Effective Date (whether recorded or not). Licensee acknowledges, and understands that the Access Area is provided in its "AS IS" condition without any representations or warranties by Licensor. Licensee and Licensee Agents assume all risk of loss, damage, or injury in its use of the Access Area. Licensee, on behalf of itself and for Licensee Agents, waives all claims, actions, losses, damages, and/or liability of any kind or nature against Licensor arising out of the condition of the Access Area or Licensee’s use of the Access Area. Licensee acknowledges that, in the event Licensor has provided any documentation related to the condition of the Access Area or the Property, Licensor has not made and does not make any warranty or representation regarding the truth, accuracy, or completeness of said documents and Licensee shall rely on its own inspections of the Access Area.
13. This Agreement is intended by the parties as a final expression of their understanding with respect to the matters herein and is a complete and exclusive statement of the terms and conditions thereof and supersedes all other prior agreement or understanding pertaining to the matters covered in this Agreement.
14. This Agreement shall not be changed, modified, or amended except as agreed in a written amendment to this Agreement executed by the parties.
15. Licensee shall be in default of this Agreement if the Licensee or Licensee Agents fail to perform any of its obligations in this Agreement. Any time Licensee is in default and does not remedy such default within (3) business days after written notice to Licensee, or sooner in the case of an emergency, Licensor may, in its sole discretion, terminate this Agreement immediately upon written notice to Licensee.
16. If any legal action is instituted to enforce or declare any party's rights hereunder, each party in such action, including the prevailing party, must bear its own costs and attorneys' fees.
This paragraph shall not apply to those costs and attorneys' fees arising from any third - 223
party legal action against Licensor, including such costs and attorneys’ fees payable pursuant to the indemnification set forth in Paragraph 9 of this Agreement.
17. Licensee agrees that it does not have and will not claim at any time any interest or estate of any kind or extent whatsoever in the Access Area or the Property by virtue of this Agreement.
18. Licensee shall not have the right to assign or transfer this Agreement or the rights herein to any other person or entity. Any attempt to do so shall be deemed ineffective and shall be deemed a default under this Agreement.
19. Licensee recognizes and understands that this Agreement may create a possessory interest subject to property taxation and that Licensee may be subject to payment of property taxes levied on such interest.
20. Each party hereby represents and acknowledges on behalf of itself that it has been provided with the opportunity to discuss and review the terms of this Agreement with its respective attorneys before signing it and that each party is freely and voluntarily signing this Agreement in exchange for the benefits provided herein. Each individual executing this Agreement on behalf of a party represents and warrants that he or she is duly authorized to execute this Agreement on behalf of its respective party and that such execution will bind the respective party to the terms of this Agreement.
21. This Agreement 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 agreement. For purposes of this Agreement, the parties shall be entitled to sign and transmit an electronic signature of this Agreement (whether by facsimile , PDF, or email transmission), which signature shall be binding on the party whose name is contained therein. Each party providing an electronic signature agrees to execute and deliver to the other party an original signed Agreement promptly upon request . Unless expressly otherwise set forth in an amendment, any subsequent am endments to the Agreement shall be executed by original signatures only.
REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY
224
LICENSOR:
SAN BERNARDINO COUNTY
By_______________________________________________
Name: Terry Thompson
Title: Director of Real Estate Services
Department
Dated:___________________________
Licensor Notice Address:
San Bernardino County
Real Estate Services Department
385 North Arrowhead Avenue, Third
Floor
San Bernardino, CA 92415-0180
APPROVED AS TO LEGAL FORM:
TOM BUNTON,
County Counsel
By: ______________________
Name: Agnes Cheng
Title: Deputy County Counsel
Dated: ___________
LICENSEE:
By:
Name: Linda Reich
Title: City Manager
Dated:___________________________
Licensee Notice Address:
City of Chino
Development Services Department
13220 Central Avenue,
Chino CA 91710
225
Exhibit “A” – ACCESS AREA
(Legal Description and Depiction)
226
Exhibit “B” – LICENSEE’S WORK
227
228
Contract No.:
Approval Date:
MEMORANDUM OF UNDERSTANDING
BETWEEN THE CITY OF CHINO AND EUCLID LAND VENTURE, LLC
FOR PUBLIC STREET IMPROVEMENTS
THIS MEMORANDUM OF UNDERSTANDING FOR PUBLIC STREET IMPROVEMENTS (“Agreement”) by and between the CITY OF CHINO, a California City (“City”) and the EUCLID LAND VENTURE, LLC, a Delaware limited liability company (“ELV”) is made and entered into, on this 30th day of July, 2024. City and ELV are sometimes individually referred to as “Party” and collectively as “Parties.”
RECITALS
A. City has entered into an agreement with San Bernardino County (“County”), which is attached hereto as Exhibit “ 1” and incorporated by reference, (“City-County Agreement”), for an encroachment permit to enter onto portions of the County’s property, comprising a total of approximately 106,658 square feet, (“Access Area”), as more particularly described and depicted in Exhibit “A” of the City-County Agreement, for the following specific and limited purpose and for no other purposes than public street improvements along Merrill Avenue, which includes roadway pavement, signing & striping, curb & gutter, ADA ramps, storm drain catch basins, and dry utility conduit, as more particularly depicted in Exhibit “B” of the City-County Agreement (“Work”).
B. ELV is a Delaware limited liability company which acquires and develops industrial and office properties in Southern California.
C. The Parties desire to formalize the selection of ELV for performance of those improvements, defined and described particularly in Exhibit 1 of this Agreement and Exhibit “B” of the City-County Agreement, on behalf of City and desire that the terms of that performance be as particularly defined and described herein.
D The City Council considered and approved the City-County Agreement on July 30, 2024.
NOW, THEREFORE, City and ELV agree as follows:
1. Scope of Services.
a. Subject to reimbursement by the City, ELV shall perform the Work in accordance with the terms set forth in the City-County Agreement, and in accordance with the terms of this Agreement, in a workmanlike manner by licensed and insured ELV employees, contractors or agents (“ELV Parties”).
Any costs for City’s share of public improvements comprising the Work shall be subject to separate consideration and approval by the City Council of City and, if approved, shall be separately memorialized in writing by the Parties (“Reimbursement Agreement”). If the Reimbursement Agreement is not approved by the City, ELV shall not perform the Work. ELV shall provide City with a certificate of insurance from ELV and ELV agents meeting the requirements of the terms set forth in Paragraph 10 of Exhibit 1 prior to their respective entry of the Access Area.
b. The ELV Parties shall perform the Work, which is more particularly described in the approved plans for the Work during the term set forth in Paragraph 3 of this Agreement.
229
01225.0005/942435.2 Page 2 of 5
2. Performance.
a. In performing the Work, the ELV Parties shall comply wi th all pertinent laws, rules, and regulations of the United States of America, State of California, County of San Bernardino, City of Chino, or any other duly constituted public authority having jurisdiction for the Access Area and ELV’s Work. ELV shall, at its sole cost and expense, obtain all necessary permits and authorizations from all relevant authorities prior to the performance of Licensee’s (as defined in the City-County Agreement) Work at the Access Area.
b. City shall oversee ELV’s performance of the Work. City shall monitor the Work and notify ELV of any substandard performance in accordance with the Reimbursement Agreement. ELV shall correct any identified substandard performance as provided in the Reimbursement Agreement and use commercially reasonable efforts to work with City to address any deficiencies.
c. Subject to the City’s approval of the Reimbursement Agreement, the ELV Parties shall complete the public street improvements within the term period as set forth in Paragraph 3 of this Agreement and enter the property in accordance with the terms set forth in the City-County Agreement.
3. Term of Agreement.
This Agreement shall begin on July 30, 2024, and shall expire in accordance with the terms set forth in Paragraph 3 of the City-County Agreement.
4. Suspension and Termination.
a. City may suspend or terminate this Agreement if City determines that the ELV Parties materially failed to comply with any term of this Agreement.
b. ELV shall be in default of this Agreement if the ELV Parties fail to perform any of ELV’s obligations in this Agreement. Any time ELV is in default and does not initiate remedial action for such default within ten (10) business days after written notice to ELV to initiate the remedial action and diligently and expeditiously complete such remedial action, City may terminate this Agreement as more particularly described in Paragraph 15 of the City-County Agreement.
5. Costs.
a. ELV agrees to pay for all labor, materials, and services to construct public street improvements per County and City standards, including but not limited to, the monthly fee in the amount of Five Thousand and 00/100 Dollars ($5,000.00) for use of the Access Area for the Work, which shall be payable on or before the first of the calendar month as more particularly described in Paragraph 5 of the City-County Agreement.
b. In the event this Agreement or the City -County Agreement expires or is earlier terminated, City will notify ELV. City may elect, in its sole and absolute discretion to accept a conveyance of all then existing Work (“Installed Work”), which shall be at no cost to City except as provided in the Reimbursement Agreement.
6. Contracting.
a. As further set forth in the Public Improvement Agreement (“PIA”) between City and ELV, ELV shall consult with City and provide City with information regarding any contracts ELV 230
01225.0005/942435.2 Page 3 of 5
enters into to perform the Work set forth in the City-County Agreement and the approved plans for the Work.
7. Indemnification.
ELV agrees that the work contemplated herein shall be performed at ELV’s sole risk and ELV agrees to undertake all indemnification and liability terms set forth in the City-County Agreement.
8. Rights.
a. ELV agrees that it does not have and will not claim at any time any interest or estate of any kind or extent whatsoever in the Access Area or the subject property by virtue of this Agreement.
b. ELV shall not have the right to assign or transfer this Agreement or the rights herein to any other person or entity. Any attempt to do so shall be deemed ineffective and shall be deemed a default under this Agreement.
c. If any legal action is instituted to enforce or declare any party's rights hereunder, each party in such action, including the prevailing party, must bear its own costs and attorneys' fees. This paragraph shall not apply to those costs and attorneys' fees arising from any third-party legal action against City, including such costs and attorneys’ fees payable pursuant to the indemnification set forth in Paragraph 7 of this Agreement.
d. Each party hereby represents and acknowledges on behalf of itself that it has been provided with the opportunity to discuss and review the terms of this Agreement with its respective attorneys before signing it and that each party is freely and voluntarily signing this Agreement in exchange for the benefits provided herein. Each individual executing this Agreement on behalf of a party represents and warrants that he or she is duly authorized to execute this Agreement on behalf of its respective party and that such execution will bind the respective party to the terms of this Agreement.
9. Amendment.
Any modifications to this Agreement shall be effective only when agreed to in writing by the duly authorized representatives of both City and ELV.
10. Entire Agreement.
This Agreement constitutes the entire agreement of the Parties regarding the subject matter described herein and supersedes all prior communications, agreements, and promises, either oral or written.
In case of conflict between the terms of the City-County Agreement and this Agreement, the terms of this Agreement shall control.
[SIGNATURES ON FOLLOWING PAGE]
231
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written.
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
ALESHIRE & WYNDER, LLP
Fred Galante Hye Jin Lee, P.E.
City Attorney Director of Public Works
EUCLID LAND VENTURE, LLC,
a Delaware limited liability company:
By: RBV Euclid, LLC,
a Delaware limited liability company,
its managing member
By: REDA Bascom Ventures, LLC,
a Delaware limited liability company,
its managing member
By: Real Estate Development Associates, LLC,
a California limited liability company,
its administrative member
By: ________________________________
Carl W. Goltermann
Authorized Signatory
CITY OF CHINO
Dr. Linda Reich
City Manager
Dated:
ATTEST:
By:
Natalie Gonzaga
City Clerk
01225.0005/942435.2 Page 4 of 5
232
01225.0005/942435.2 Page 5 of 5
EXHIBIT 1
RIGHT OF ENTRY AGREEMENT BETWEEN THE CITY OF CHINO AND SAN BERNARDINO COUNTY ENTERED INTO AS OF JULY 30, 2024
[See following pages]
233
RED = CLOSURE
GREEN = DETOUR ROUTE (SULTANA & EUCALYPTUS)
Exhibit F Detour Plan
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MEMORANDUM
CITY OF CHINO
PUBLIC WORKS DEPARTMENT
CITY COUNCIL MEETING DATE: JULY 30, 2024
TO: LINDA REICH, CITY MANAGER
FROM: HYE JIN LEE, PE, DIRECTOR OF PUBLIC WORKS
SUBJECT
..titl e
Amendment to the Construction Reimbursement Agreement with LS College Park, LLC for the design/construction of public improvements on Edison Avenue between Central Avenue to Oaks Avenue in the amount of $2,500,000 for a total contract amount not to exceed $16,200,000. ..end
RECOMMENDATION
..recommendation
1) Appropriate $2,500,000 to the Transportation Fund (320 Fund) and schedule a corresponding year-end transfer from the Citywide Circulation (Streets, Signals, & Bridges) Development Impact Fee program (220 Fund); 2) increase the project budget for ST163, Edison Avenue between Central and Oaks Avenues, by $2,500,000 bringing the total project budget to $16,200,000; 3) approve an amendment to the construction reimbursement agreement with LS College Park, LLC for the design and construction of public improvements on Edison Ave between Central Avenue and Oaks Avenue, increasing the agreement amount by $2,500,000, for a total not to exceed $16,200,000; and 4) authorize the City Manager to execute all the necessary documents of behalf of the City.
..body
FISCAL IMPACT
Requires an appropriation to the Transportation Fund. There is sufficient balance in the Citywide Circulation (Streets, Signals, & Bridges) Development Impact Fee program (220 Fund) for the year end transfer of $2,500,000 to offset the costs to the Transportation Fund (320 Fund). There is no fiscal impact to the General Fund with the approval of this amendment.
Funding Type Budget Expenditures Remaining Successor Agency Funds $ 8,431,000 $ (8,431,000) $ - Measure I CPNA $ 2,000,000 $ (342,463) $ 1,657,537 Citywide Circulation DIF $ 5,769,000 $ - $ 5,769,000 Total $ 16,200,000 $ (8,773,463.43) $ 7,426,537
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
235
CITY COUNCIL MEETING DATE: JULY 30, 2024
TITLE: AMENDMENT TO THE CONSTRUCTION REIMBURSEMENT AGREEMENT WITH LS
COLLEGE PARK, LLC FOR THE DESIGN/CONSTRUCTION OF PUBLIC IMPROVEMENTS
ON EDISON AVENUE BETWEEN CENTRAL AVENUE TO OAKS AVENUE IN THE AMOUNT OF $2,500,000 FOR A TOTAL CONTRACT AMOUNT NOT TO EXCEED $16,200,000.
PAGE: 2
Revenue:
Expenditure: 3207100-40010-ST163
Transfer In: 3201000-50000 Transfer Out: 2201000-40001 236
CITY COUNCIL MEETING DATE: JULY 30, 2024
TITLE: AMENDMENT TO THE CONSTRUCTION REIMBURSEMENT AGREEMENT WITH LS
COLLEGE PARK, LLC FOR THE DESIGN/CONSTRUCTION OF PUBLIC IMPROVEMENTS
ON EDISON AVENUE BETWEEN CENTRAL AVENUE TO OAKS AVENUE IN THE AMOUNT OF $2,500,000 FOR A TOTAL CONTRACT AMOUNT NOT TO EXCEED $16,200,000.
PAGE: 3
BACKGROUND
On September 7, 2004, the City of Chino entered into the College Park Development Agreement (“Development Agreement”) with SCC/College Park, LLC (“SunCal”), the City of Chino Redevelopment Agency, and the State of California. Subsequently, SunCal filed for bankruptcy and the rights and interests to the Development Agreement were transferred with the sale of the property to LS College Park, LLC (“Developer”).
The Development Agreement outlines the various terms and conditions associated with constructing public improvements within and surrounding the College Park Specific Plan area.
These public improvements include the ultimat e street widening of Edison Avenue adjacent to Ayala Park, from Central Avenue to Oaks Avenue, and other associated improvements such as the construction of a master -planned storm drain, a recycled water main, and traffic signal modifications at the Centra l/Edison Avenue intersection (collectively referred to as the “Edison Avenue Improvements”).
On August 2, 2016, the City, as Successor Agency to the Redevelopment Agency ( “RDA”), and the Developer entered into a reimbursement agreement for the Edison Aven ue Improvements for a not exceed amount of $8,431,000. Shortly thereafter, the Developer began the preliminary field activities in preparation to begin the design and construction of the Edison Avenue Improvements. The Developer was able to complete the construction of the recycled water main improvements on Edison Avenue in short order; however, during the construction of the storm drain, the contractor encountered a dry utility conflict across Edison Avenue, which resulted in significant construction delays.
In 2021, the Developer formally bid the landscape, street improvements, traffic signal modifications, interconnect, and the remaining storm drain work. Upon the Developer bidding the remaining work, it was discovered that the costs associated with the perimeter landscape, sidewalk, relocation of trees, and a marquee at and around Ayala Park, were not included in the reimbursement agreement’s original cost estimate. As a result, the City Council approved an amendment to the reimbursement agreement in th e amount of $3,976,140 for the additional work for a total estimated project cost of $12,407,140.
On October 17, 2023, the City Council approved a second amendment to the reimbursement agreement totaling $1,292,860. This amendment covered expenses for ext ra storm drain improvements and various project -related field change orders essential for project completion.
The additional work increased the total estimated project cost to $13,700,000.
Currently, within the last 8 months, the contractor hired by the Developer has encountered additional delays attributed to unforeseen tasks required to complete the project. These tasks have included significant efforts such as relocating Southern California Edison underground utilities, which conflicted with the proposed storm drain, as well as conducting extensive grading and landscape improvements at Ayala Park spanning from 12th Street to the YMCA entrance.
These delays have led to increased project expenditures, exacerbated by rising costs of labor and materials. Ad ditionally, both City staff anticipates additional field change orders to finalize the project, which are estimated to cost $2,500,000 . These change orders encompass several major items, including:
237
CITY COUNCIL MEETING DATE: JULY 30, 2024
TITLE: AMENDMENT TO THE CONSTRUCTION REIMBURSEMENT AGREEMENT WITH LS
COLLEGE PARK, LLC FOR THE DESIGN/CONSTRUCTION OF PUBLIC IMPROVEMENTS
ON EDISON AVENUE BETWEEN CENTRAL AVENUE TO OAKS AVENUE IN THE AMOUNT OF $2,500,000 FOR A TOTAL CONTRACT AMOUNT NOT TO EXCEED $16,200,000.
PAGE: 4
Full pavement rehabilitation of Edison Avenue from Central Avenue to Oaks Avenue. Removal and replacement of street pavement at the intersection of Central and Edison Avenues to ensure compliance with accessibility standards for crosswalks. Relocation and reconstruction of the existing monument sign located at the southeast corner of Edison Avenue and Central Avenue.
To cover the additional work required to close out the project, staff proposes amending the current agreement by $2,500,000. The breakdown is summarized as follows:
$ 8,431,000 Original Agreement
$ 3,976,140 Amendment No. 1
$ 1,292,860 Amendment No. 2
$ 13,700,000 Subtotal before proposed Amendment No. 3 $ 2,500,000 Proposed Amendment No. 3
$ 16,200,000 Total Contract not to Exceed
This amendment, if approved, will bring the total contract amount to $16,200,000, ensuring sufficient funding to complete the Edison Avenue Improvements project
ISSUES/ANALYSIS
According to the Development Agreement, the Edison Avenue Improvements are eligible for reimbursement by the Successor Agency (City of Chino). These improvements have been included in each of the City’s Recognized Obligation Payment Schedules (ROPS) and validated by the State of California Department of Finance as an enforceable obligation to taling $8,431,000. The Successor Agency funds allocated by the State of California Department of Finance to the City have been fully utilized. To cover the remaining project costs, the City plans to utilize Measure I CPNA funds and the Citywide Circulation (Streets, Signals, & Bridges) DIF program as outlined in the table below:
Funding Type Budget
Successor Agency Fund 401 $8,431,000
Measure I CPNA Fund 328 $2,000,000
Citywide Circulation DIF Fund 220 $5,769,000
Total $16,200,000
Therefore, staff recommends that the City Council approve an amendment to the existing agreement for an additional $2,500,000, making the total not to exceed $16,200,000 for the Edison Avenue Improvements.
Attachments:
Fully Executed Reimbursement Agreement
Amendment No. 1
Amendment No. 2
238
CITY COUNCIL MEETING DATE: JULY 30, 2024
TITLE: AMENDMENT TO THE CONSTRUCTION REIMBURSEMENT AGREEMENT WITH LS
COLLEGE PARK, LLC FOR THE DESIGN/CONSTRUCTION OF PUBLIC IMPROVEMENTS
ON EDISON AVENUE BETWEEN CENTRAL AVENUE TO OAKS AVENUE IN THE AMOUNT OF $2,500,000 FOR A TOTAL CONTRACT AMOUNT NOT TO EXCEED $16,200,000.
PAGE: 5
Amendment No. 3
239
S. Ramos
PW/ ADMIN
Contract No. 20/ 7-/ SZ
Approved 21 f/ ZqZb , y//
REIMBURSEMENT AGREEMENT
FOR
EDISONA VENUE IMPROVEMENTS
L. S., COLLEGE PARK, LLC
THIS REIMBURSEMENT AGREEMENT FOR EDISON AVENUE IMPROVEMENTS Agreement") is made and entered into this
2nd
day of August, 2016, by and between the CITY
OF CHINO, AS SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF CHINO, a public body, corporate and politic, hereinafter called the " SUCCESSOR AGENCY", and LS COLLEGE PARK, LLC, a Delaware limited liability company, hereinafter called the " DEVELOPER".
WITNESSETH
WHEREAS, the City of Chino, a California general law municipal corporation ( the " City"), the former Redevelopment Agency of the City of Chino (" Agency"), the State of California, acting by and through the Department of General Services (" State"), and SCC/ College Park, LLC, a Delaware limited liability company (" SCC/ College Park"), entered into that certain College Park Development Agreement on September 7, 2004 ( Contract No. 2004- 197), which was recorded in the Official Records of San Bernardino County on October 13, 2004, as Instrument No. 2004- 0743851 ( the " Development Agreement"); and
WHEREAS, DEVELOPER purchased Tract Map No. 16837 at a foreclosure sale, and is the successor- in- interest to SCC/ College Park; and
WHEREAS, pursuant to the Development Agreement, DEVELOPER agreed to construct certain public improvements, including the widening of Edison Avenue from Central Avenue to Oaks Avenue, including utilities and utility pole relocations, installation of storm drain and recycled water lines, and traffic signal modifications ( collectively, the " Edison Avenue Public Improvements") in accordance with plans and specifications approved by the City Engineer of the City if Chino (" City Engineer"); and
WHEREAS, pursuant to the Development Agreement, the Agency agreed to reimburse DEVELOPER for all verified third party expenses incurred by DEVELOPER in connection with the design, permitting and construction of the Edison Avenue Public Improvements; and WHEREAS, pursuant to the Development Agreement, all verified third party expenses incurred by DEVELOPER in connection with the design, permitting and construction of the Edison Avenue Public Improvements are eligible for reimbursement by SUCCESSOR AGENCY, as the legal successor to the Agency; and
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WHEREAS, the Development Agreement has been listed on each of SUCCESSOR AGENCY' S Recognized Obligation Payment Schedules ( each, a " ROPS"), and has been approved by the Department of Finance ( the " DOF") as an enforceable obligation; and WHEREAS, the current ROPS lists the outstanding obligation for completion of the Edison Avenue Public Improvements as Eight Million Four Hundred Thirty- One Thousand Dollars ($ 8, 431, 000) ( the " Estimated Amount"), which is the current estimate of the cost to design, permit, construct and/ or install the Edison Avenue Public Improvements; and WHEREAS, SUCCESSOR AGENCY has Seven Million Dollars ($ 7, 000, 000) in bond and other funds on- hand ( collectively, the " Cash Portion"), and anticipates that it will receive the remaining One Million Four Hundred Thirty- One Thousand Dollars($ 1, 431, 000) of the Estimated Amount ( the " RPPTF Portion") from the San Bernardino County Auditor Controller in January, 2017, out of the SUCCESSOR AGENCY' S redevelopment property tax trust fund (the" RPPTF"); and
WHEREAS, DEVELOPER and SUCCESSOR AGENCY now wish to set forth the parties' obligations with respect to the construction and/ or installation of the Edison Avenue Public Improvements by DEVELOPER and reimbursement of the costs incurred by DEVELOPER in connection therewith by SUCCESSOR AGENCY.
NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated herein by this reference, and for other valuable consideration, the sufficiency of which is hereby acknowledged, the following mutual promises and obligations are agreed to as follows:
1. Compliance with Public Contract Code. DEVELOPER shall advertise, publicly bid, and award a contract for construction and/ or installation of the Edison Avenue Public Improvements in accordance with all applicable requirements of the Public Contract Code.
2. Construction/ Installation of Edison Avenue Public Improvements; Reimbursement.
DEVELOPER shall complete all work incidental to the construction and/ or installation of the Edison Avenue Public Improvements according to the specifications of the City of Chino.
Construction of the Edison Avenue Public Improvements shall be completed under the inspection, and to the satisfaction, of the City Engineer, and any change orders shall be approved by the City Engineer. The cost to construct the Edison Avenue Public Improvements is estimated to be Eight Million Four Hundred Thirty- One Thousand Dollars ($ 8, 431, 000).
DEVELOPER shall be reimbursed for the actual costs DEVELOPER incurs to construct the Edison Avenue Public Improvements pursuant to the procedure set forth in Section 4 below.
3. Compliance with Law: Public Works Requirements. DEVELOPER shall perform under this Agreement and carry out its performance under this Agreement, including without limitation the construction of the Edison Avenue Public Improvements, in conformity with all approved plans and permits, all applicable federal and state laws and regulations, including all applicable federal, state and local labor and wage standards, as to the Edison Avenue Public Improvements. Further, with respect to the development and construction activities undertaken by DEVELOPER pursuant to this Agreement, DEVELOPER acknowledges and agrees that DEVELOPER shall ( i) be required to, and shall be required to cause all of its contractors and 882/ 060895- 0058
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their contractors to, pay prevailing wages in compliance with California Health and Safety Code Sections 33423 through 33426 and California Labor Code Section 1770 et seq., and shall be responsible for the keeping of all records required pursuant to Labor Code Section 1770 et seq., including but not limited to Labor Code Section 1776, and complying with the maximum hours requirements of Labor Code Sections 1810 through 1815, and complying with all regulations and statutory requirements pertaining thereto; and (ii) prepare and retain, for a period of one ( 1) year following recordation of a Notice of Completion, a certified and completed Public Works Payroll Reporting Form(s) as published by the California Department of Industrial Relations, Division of Labor Standards Enforcement(" P. W. Form"). Upon the request of SUCCESSOR AGENCY or any other public entity, DEVELOPER shall provide to SUCCESSOR AGENCY or such other public entity, as applicable, a true and correct copy of any such certified and completed P. W. Form. DEVELOPER acknowledges and agrees that it shall be independently responsible for reviewing the applicable law and regulations with respect to the payment of prevailing wages and complying therewith. In addition to any other DEVELOPER indemnifications of SUCCESSOR AGENCY and the City set forth in this Agreement, DEVELOPER shall indemnify, defend and hold SUCCESSOR AGENCY and the City, and their respective officers, officials, employees, members, representatives, and agents ( collectively, the Indemnitees") harmless from and against any liability, loss, damage, cost or expenses including reasonable attorneys' fees, expert witness fees, and court costs) arising from the failure of DEVELOPER or its contractors or subcontractors to pay the applicable prevailing wages in accordance with applicable law.
4. Reimbursement Procedure. DEVELOPER may submit reimbursement requests to SUCCESSOR AGENCY no more than once per calendar quarter. Each such submittal shall include documentation that properly supports the reimbursement request and shall request a reimbursement for only those costs associated with the portion of the Edison Avenue Public Improvements that can be, or will be, used by the public immediately adjacent to, or abutting, or determined as receiving benefit from said Edison Avenue Public Improvements. Each such submittal shall also include an updated budget itemizing the funds spent to date and the remaining estimated cost to complete the Edison Avenue Public Improvements. Within thirty 30) days after SUCCESSOR AGENCY' s approval of a reimbursement request, SUCCESSOR AGENCY shall provide the reimbursement payment to DEVELOPER, at the address set forth below. Notwithstanding the foregoing, however, DEVELOPER acknowledges and agrees that i) SUCCESSOR AGENCY will not receive the RPTTF Portion until January 2017, and ( ii) SUCCESSOR AGENCY' s obligation to provide reimbursement payments pursuant to this paragraph shall be subject to SUCCESSOR AGENCY' s receipt of the RPTTF Portion from the San Bernardino County Auditor Controller ( the " Controller").
SUCCESSOR AGENCY and DEVELOPER shall meet regularly, pursuant to a schedule acceptable to both parties, to manage construction activity and costs, including for purposes of enabling DEVELOPERto constructthe EdisonAvenue Public Improvementsat a cost that does not exceed the Estimated Amount; provided, however, that if (a) it is not reasonably feasible to complete the Edison Avenue public Improvements for a cost that does not exceed the Estimated Amount, and/ or ( b) SUCCESSOR AGENCY approves change orders that result in the cost of constructing the Edison Avenue Public Improvements to increase above the Estimated Amount, then ( 1) SUCCESSOR AGENCY will be required to request additional funds from the RPTTF, 882/ 060895- 0058
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by listing such additional amount on the next ROPS, or by amending the then current ROPS (as applicable, depending upon when SUCCESSOR AGENCY is made aware of the need for such additional funds), and ( 2) SUCCESSOR AGENCY' s obligation to provide reimbursement payments for such additional funds pursuant to this paragraph shall be subject to SUCCESSOR AGENCY' s receipt of such additional funds from the Controller. SUCCESSOR AGENCY agrees, however, at no cost to SUCCESSOR AGENCY, to diligently pursue the receipt of such additional funds.
5. Source of Funds for Reimbursement; No Charge on City' s General Funds. It is agreed and understood between SUCCESSOR AGENCY and DEVELOPER that ( i) the reimbursement obligations provided for in this Agreement shall not be a charge against the general funds of the City or any other funds of the CITY and shall not bear interest, and ( ii) DEVELOPER shall look only to the Cash Portion, RPTTF Portion, and other funds from the RPTTF with respect to SUCCESSOR AGENCY' s reimbursement obligations pursuant to this Agreement.
6. Indemnification. DEVELOPER shall indemnify, defend, and hold harmless the Indemnitees from all claims or suits for, and damages to, property and injuries to persons, including accidental death ( including expert witness fees, attorneys' fees, and costs), which may be caused by any of the activities of DEVELOPER or any of DEVELOPER' s affiliates, successors, assigns, and successors- in- interest in and to this Agreement, the area described as Tract Map No. 16837, and the Edison Avenue Public Improvements under this Agreement.
7. Notices Between Parties. Written notices, demands and communications between SUCCESSOR AGENCY and DEVELOPER shall be sufficiently given if( i) delivered by hand, ( ii) delivered by reputable same- day or overnight messenger service that provides a receipt showing date and time of delivery, or ( iii) dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of SUCCESSOR AGENCY and DEVELOPER at the addresses specified below. Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate by mail as provided in this Section 7. Any written notice, demand, or communication shall be deemed received immediately if delivered by hand or delivered by messenger in accordance with this Section 7, and shall be deemed received on the third ( 3rd) day from the date it is postmarked if delivered by registered or certified mail in accordance with this Section 7.
Notices to SUCCESSOR AGENCY: City of Chino, as Successor Agency to the City of Chino
13220 Central Avenue
Chino, CA 91710
Attn: Executive Director
Notices to DEVELOPER: L. S. College Park, LLC
980 Montecito Drive, Suite 300
Corona, CA 92879
Attn: Jeff Clemens, Vice President
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8. Conflicts of Interest. No member, officer, official, or employee of SUCCESSOR AGENCY shall have any personal interest, direct or indirect, in this Agreement, nor shall any member, official or employee participate in any decision relating to the Agreement which affects his or her personal interests or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested.
9. Non- Liability of Officials and Employees of SUCCESSOR AGENCY or City. No member, official or employee of SUCCESSOR AGENCY or City shall be personally liable to DEVELOPER, or any successor in interest, in the event of any default or breach by SUCCESSOR AGENCY, or for any amount which may become due to DEVELOPER or its successors, or on any obligations under the terms of this Agreement.
10. Interpretation; Entire Agreement, Waivers; Attachments. 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 that might otherwise apply.
This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties or their predecessors in interest with respect to all or any part of the subject matter hereof.
All waivers of the provisions of this Agreement must be in writing by the appropriate authorities of SUCCESSOR AGENCY and DEVELOPER, and all amendments hereto must be in writing by the appropriate authorities of SUCCESSOR AGENCY and DEVELOPER. Except as otherwise expressly provided, in any circumstance where under this Agreement either party is required to approve or disapprove any matter, approval shall not be unreasonably withheld.
The exhibits and attachments to this Agreement are incorporated herein and made a part hereof.
11. Defaults — General. Failure or delay by either party to perform any term or provision of this Agreement constitutes a default under this Agreement. If either party defaults with regard to any of the provisions of this Agreement, the non-defaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty ( 30) days after service of the notice of default ( or within such other period as is set forth herein), the non- defaulting party shall be entitled to pursue whatever remedies to which such party is entitled under this Agreement; provided however that if the default cannot reasonably be cured within such thirty ( 30) day period, the defaulting party shall have such additional time to cure as is reasonable under the circumstances, as long as the defaulting party commences to cure within such thirty ( 30) day period and diligently prosecutes such cure to completion.
12. Legal Actions.
12. 1 Specific Performance. The non- defaulting party, upon expiration of applicable notice and cure periods, shall be permitted, but not obligated, to commence an action for specific performance of the terms of this Agreement, or to cure, correct or remedy any default hereunder or to obtain any other legal or equitable remedy consistent with the purpose of this 882/ 060895- 0058
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Agreement. SUCCESSOR AGENCY shall also have the right to pursue damages for DEVELOPER' s defaults but in no event shall DEVELOPER be entitled to damages of any kind from SUCCESSOR AGENCY, including, without limitation, damages for economic loss, lost profits, or any other economic or consequential damages of any kind. The foregoing sentence shall not affect the right of DEVELOPER to receive attorney' s fees pursuant to Section 12.2 below.
12. 2 Institution of Legal Actions; Attorney' s Fees. Any legal actions must be instituted in the Superior Court of the County of San Bernardino, State of California, or in the Federal District Court in the Southern District of California. In the event of any litigation between the parties hereto, the prevailing party shall be entitled to receive, in addition to the relief granted, its reasonable attorney' s fees and costs and such other costs incurred in investigating the action and prosecuting the same, including costs for expert witnesses, costs on appeal, and for discovery.
12. 3 Applicable Law. The internal laws of the State of California shall govern the interpretation and enforcement of this Agreement, without regard to conflict of law principles.
12. 4 Acceptance of Service of Process. In the event that any legal action is commenced by DEVELOPER against SUCCESSOR AGENCY, service of process on SUCCESSOR AGENCY shall be made by personal service upon the Executive Director in such other manner as may be provided by law. In the event that any legal action is commenced by SUCCESSOR AGENCY against DEVELOPER, service of process on DEVELOPER shall be made by personal service upon any officer or director of DEVELOPER and shall be valid whether made within or withput the State of California or in such other manner as may be provided by law.
12. 5 Rights and Remedies Are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
13. Maintenance of Books and Records. DEVELOPER shall prepare and maintain all books, records, and reports necessary to substantiate DEVELOPER' s compliance with the terms of this Agreement.
14. Right to Inspect. SUCCESSOR AGENCY shall have the right, upon not less than forty-eight( 48) hours' notice, at all reasonable times during business hours, to inspect the books and records of DEVELOPER pertinent to the purposes of this Agreement.
15. Binding Effect of Agreement. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their legal representatives, successors, and assigns.
16. Severability. Wherever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If, however, any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision 882/ 060895- 0058
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shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
17. Counterparts. This Agreement may be executed in counterparts, each of which, when this Agreement shall have been signed by both of the parties hereto, shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.
18. Amendments to this Agreement. SUCCESSOR AGENCY' s Executive Director the " Executive Director") shall have the authority to approve, on behalf of SUCCESSOR AGENCY, amendments to this Agreement that would not substantially alter the basic business terms or substantially increase the cost or risk of this Agreement to SUCCESSOR AGENCY. All other amendments shall require the action of the Successor Agency Board of Directors. All amendments, including those authorized to be approved by the Executive Director, shall be in writing and shall be signed by authorized representatives of SUCCESSOR AGENCY and DEVELOPER.
19. Assignment. SUCCESSOR AGENCY shall have the right to assign this Agreement without the consent of DEVELOPER. DEVELOPER shall not assign this Agreement without prior written consent of SUCCESSOR AGENCY. Any assignment without such prior written consent shall be null and void.
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IN WITNESS WHEREOF, DEVELOPER has signed and the SUCCESSOR AGENCY Board of Directors has authorized this Agreement to be executed on' j 2016, at Chino, California. pll-& L 3
ATTEST: CITY OF CHINO, AS SUCCESSOR AGENCY
TO THE REDEVELOPMENT AGENCY OF
THE CITY OF CHINO, a public body, corporate
and
olU
Angeladkioles, Successor Agency Secretary Matte C. Ba ntyne, Executive Director P OVED AS TO FORM:
rr t n & T cker, LLP
Successor Agency Counsel
APPROVED AS TO CONTENT:
e A ' , ssistant City Manager/ PW
LS COLLEGE PARK, LLC, a Delaware limited
liability company
By: Lennar Homes of California, Inc.
Its: Mana Members
By:
lemens
Its: Vice President
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