Agenda packet — Colton City Council, March 1, 2022 (part 2 of 2)

In late 2021, CSD staff were contacted by Kareem Gorgora, a San Bernardino County Planning Commissioner for District 5, regarding the same project, this time with the additi onal partnership of Operation New Hope. Operation New Hope is a nonprofit that provides opportunities for undeserved youth throughout the greater San Bernardino area. Working together, Operation New Hope and Project Backboard have raised $55,000 toward renovation of the Davis Park basketball courts, including Blue Shield and Fentwood Hoops as sponsors.

This unique proposal has all renovation work contracted, funded, and paid by Operation New Hope, at no cost to the city, requiring a formal contract/a greement between the City of Colton and Operation New Hope. The work will include surface preparation, priming, crack repairs, two coats of acrylic resurfacing, striping with line paint, and installation of new backboards.

Project Backboard would oversee pro ject management and coordinate the volunteer effort to paint the artwork, proposed design is in attached proposal.

The project was presented to the Colton Parks & Recreation Commission on January 19, 2022 with representatives from all nonprofits in atten dance. Commission voted to r ecommend the project to City Council. City staff also recommend the project moving forward.

FISCAL IMPACTS

The donation value and any applicable fiscal impact to the general fund as a result of this action will be evaluated upon project completion.

ALTERNATIVES

1. Provide alternative direction to staff.

ATTACHMENT

1. ONH - LOI Colton Elizabeth Davis park

2. EDP Letter of Intent

3. Project Backboard Proposed SOW Elizabeth Davis Park 12.29.21

4. Colton - Davis Park Renovation Agreement - Operation New Hope-c1 6 Packet Pg. 191

www.onhcares.org 323 W. 7th St San Bernardino 92401 [email protected]

February 4, 2021
Subject: Elizabeth Davis Park Basketball Court Renovation RE: Letter of intent Operation New Hope
To: Deb Farrar
Community Service Director
City of Colton
Operation New Hope Board of Directors authorizes the negotiation power to Russell Degnan, Chief Executive Officer.

In accordance to the scope of work Operation New Hope submits our letter of intent to sponsor and collaborate with Blue Shield, Project Backboard and Fentwood Hoops in response to renovate Elizabeth Davis Parks basketball courts.

Sincerely,
Russell Degnan
Russell Degnan, CEO
Operation New Hope EIN# 95-3655541

6.a
Packet Pg. 192
Attachment: ONH - LOI Colton Elizabeth Davis park (3491 : Agreement - Operation New Hope) Daniel Peterson
Director, Project Backboard
53 Christamon S
Irvine, CA 92620
[email protected]
(512) 492-2062
December 29, 2021
Deb Farrar
Community Services Director
City of Colton, CA
[email protected]
(909) 370-6157
Dear Ms. Farrar,
As the Director of the 501(c)(3) non-profit Project Backboard, whose mission is to ensure that all communities have safe and inviting places to play basketball, I am happy to announce, in partnership with Fentwood Hoops, our commitment to fund to the renovation and resurfacing two basketball courts at Elizabeth Davis Park in accordance to the attached scope of work. Please let us know if you have any questions and we look forward to completing this project in early 2022.

Sincerely,
Dan Peterson
Founder & Director, Project Backboard

6.b
Packet Pg. 193
Attachment: EDP Letter of Intent (3491 : Agreement - Operation New Hope) SCOPE OF WORK: ELIZABETH DAVIS PARK

BASKETBALL COURT RENOVATION
Edwin Fregoso
S.A.V.E. Surfacing LLC
954 California Ave
Simi Valley, CA 93065
(323) 537 6020
[email protected]
Date: 12/29/21
Project Backboard
53 Christamon S
Irvine, CA 92620
(512) 492-2062
[email protected]
projectbackboard.org
This Scope of Work is for the repair and resurfacing of two basketball courts at Elizabeth Davis Park, 1055 West Laurel Drive, Colton, CA 92324.

S.A.V.E. Surfacing LLC will provide the following:
• Surface preparation, priming, crack repair;
• Two (2) coats of acrylic resurfacer
• Two (2) coats of acrylic sports specific color coating (Laykold or similar brand) in accordance with the base coat requirements of final approved design (acrylic color coating furnished by Project Backboard)
• Stripe court(s) with textured acrylic with line paint, two coats of paint • Oversee the installation of new or refurbished backboards and/or goals (backboard, goals and hardware provided by Project Backboard) Project Backboard provide the following:
• Two (2) coats acrylic sports specific color coating (Laykold or similar brand) in accordance with the final approved design (acrylic color coating furnished by Project Backboard)
• General project management and oversight.

6.c
Packet Pg. 194
Attachment: Project Backboard Proposed SOW Elizabeth Davis Park 12.29.21 (3491 : Agreement - Operation New Hope) Elizabeth Davis Park – Photos

6.c
Packet Pg. 195
Attachment: Project Backboard Proposed SOW Elizabeth Davis Park 12.29.21 (3491 : Agreement - Operation New Hope) Elizabeth Davis Park – Proposed Design

6.c
Packet Pg. 196
Attachment: Project Backboard Proposed SOW Elizabeth Davis Park 12.29.21 (3491 : Agreement - Operation New Hope) 23152.04000\34782459.1

1 AGREEMENT BETWEEN THE CITY OF COLTON, AND OPERATION NEW HOPE

FOR THE RENOVATION OF THE BASKETBALL COURTS AT ELIZABETH DAVIS PARK

1. Parties and Date.

This Agreement (“Agreement”) is made and entered into this 16th day of February, 2022 ("Effective Date”) by and between the Operation New Hope, a California nonprofit corporation (referred to herein as “ ONH”). ONH and City are sometimes individually referred to as “Party” and collectively as “Parties.”

2. Recitals.

2.1 The City is a municipal corporation organized under the laws of the State of California, with the power to contract for services necessary to achieve its purpose and to accept donations from the public;

2.2 ONH provides opportunities for undeserved youth throughout the greater San Bernardino area, and i s exempt from federal income taxation under Internal Revenue Code (“Code”) Section 501(c)(3) and not a private foundation under Code Section 509(a);

2.3 City is the owner of certain real property commonly referred to as Elizabeth Davis Park (“Park”), located at 1055 West Laurel Drive in Colton (the “Property”);

2.4 ONH desires to donate and provide volunteer services, including labor, material, and equipment for the rehabilitation of the basketball courts at the Park (“Project”);

2.5 The City desires to grant ONH a license and right of entry to access the Property in order to , in collaboration with Project Backboard, a California nonprofit corporation (“PB”) , construct the Project in exchange for the promises contained herein; and

2.6 The City and ONH desire to enter in to this Agreement to establish the terms of the Project by ONH and the procedures pursuant to which the Project will be accepted by the City upon completion.

3. Terms.

3.1 Incorporation of Documents . This Agreement includes and hereby incorporates in full by reference the following documents, including all exhibits, drawings, specifications and documents therein, and attachments and addenda thereto:
(i) Depiction of the Project Area and Proposed Design attached hereto as Exhibit “A” and incorporated herein by this reference.
(ii) Scope of Services, attached hereto as Exhibit “B” and incorporated herein by this reference.
(iii) Bonds attached hereto as Exhibit “C” and incorporated herein by this reference.

6.d
Packet Pg. 197
Attachment: Colton - Davis Park Renovation Agreement - Operation New Hope-c1 (3491 : Agreement - Operation New Hope) 23152.04000\34782459.1

2 (iv) Insurance requirements attached hereto as Exhibit “ D” and incorporated herein by this reference.

3.2 Term. Time is of the essence for each and every provision of this Agreement.

ONH shall perform and complete all work required for the Project by a date mut ually agreed to by the Parties unless otherwise agreed to by the Parties.

3.3 ONH’s Obligations.
(a) ONH’s Basic Obligation. ONH shall, at its own cost and expense, furnish all labor, equipment, and material for design and construction of the Project (“Services”) and perform and complete in a g ood and workmanlike manner, in accord ance with City approved plans and specifications . The Services are mor e particularly described in Exhibit “B”. All Services, including those by ONH’s consultant’s and contractors, shall be subject to the terms and provisions of this Agreement, the exhibits attached hereto, and all applicable local, state and federal laws, rules and regulations. All work related to the construction of the Project is for the convenience of and at the request of ONH, who shall be solely responsible for all costs and expenses in connection with the d esign and construction thereof . The City shall not be responsible to any consultant, contractor or its subcontractors, suppliers or materialmen for any such work.
(b) Independent Contractor; Responsibility of ONH. ONH will provide t he Services described herein and is not an employee of City. ONH will determine the means, methods and details of performing the Services. Any contractor performing the Services under this Agreement on behalf of ONH shall at all times be under ONH's ex clusive direction and control and ONH shall be fully responsible to the City for the acts and omissions of said contractor.
(c) ONH Contractor. The Services shall be performed by a qualified contractor (or subcontractor) holding a state -issued contractor’s li cense in good standing. ONH shall provide a contractor that has a current and active contractor’s license and the technical personnel required to perform the Services and complete the Project. ONH shall have a wri tten agreement executed by its contractor , which shall incorp orate and bind the contractor to the terms of this Agreement. ONH shall furnish its contractors with a copy of this Agreement, and approved plans, and any other incorporated documents. Nothing contained in this Agreement shall create any contractual relationship between any contractor and the City. (d) Bonds. ONH shall require its contractor to provide the following surety bonds: (1) a performance bond in an amount of one hundred (100%) of the cost to install the Project, to guarantee fait hful performance of the Project; and (2) a payment bond (labor and materials bond) in an amount of one hundred percent (100%) of the cost to install the Project, to secure payment to the contractors, subcontractors, laborers, materialmen and persons furnis hing equipment for the installation of the Project. City shall be added as an additional obligee to the bonds by providing a dual obligee rider. The bonds shall be provided by a California admitted surety as defined in Code of Civil Procedure section 995 .120, and shall be on City’s standard bond forms attached hereto as Exhibit “C.” Personal sureties and unregistered sureties are unacceptable.

6.d
Packet Pg. 198
Attachment: Colton - Davis Park Renovation Agreement - Operation New Hope-c1 (3491 : Agreement - Operation New Hope) 23152.04000\34782459.1

3 (e) Prevailing Wages. ONH is aware of the requirements of California Labor Code Section 1720 et seq., and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works” and “maintenance” projects.

If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, ONH agrees to fully comply with such Prevailing Wage Laws. ONH shall defe nd, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws, including any claims pursuant to California Labor Code Section 1781. (f) Permits, Licenses and Approvals . ONH shall be solely responsible for securing and paying for the necessary permits, licenses and approvals from the City or any other entity with jurisdiction over the Project. ONH shall provide verification that permits, licenses and approvals have been obtained promptly upon demand from the City. ONH shall ensure that all Services performed under this Agreement comply with all applicable federal, state, county and local government rules and regulations.
(g) Standard of Care. ONH and its contractor shall perform all Services under this Agreement in a skillful, competent and timely manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in California.

ONH further represents that it and its contractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained through out the term of this Agreement. Any of ONH's contractors who are determined by City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any of ONH's other contractors who fail or refuse to perform the Services in a manner acceptable to City, shall be p romptly removed from the Project by ONH and shall not be used to perform any of the Services or to work on the Project.
(h) Warranty/Guarantee. ONH shall provide the applicable warranty and guarantee obligations set forth in the Scope of Services attached hereto as Exhibit “B.” (i) Laws and Regulations . ONH shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and r egulations in any manner affecting the performance of the Project or the Services, including all California Code of Regulations Title 24 and Cal/OSHA requirements, and shall give all notices required by law.

ONH shall be liable for all violations of such laws and regulations in connection with Services. (j) Insurance. ONH shall not commence Services under this Agreement until it has provided evidence satisfactory to the City that it and its contractor has secured appropriate insurance to cover work on the Pro ject. The City shall have the right to review and approve all such insurance policies. Insurance requirements are attached hereto as Exhibit “D”. (k) Safety. ONH shall execute and maintain its Services so as to avoid injury or damage to any person or proper ty. In carrying out its Services, the ONH shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall

6.d
Packet Pg. 199
Attachment: Colton - Davis Park Renovation Agreement - Operation New Hope-c1 (3491 : Agreement - Operation New Hope) 23152.04000\34782459.1

4 exercise all necessary pr ecautions for the safety of all personnel under its supervision and control. This includes securing the Project and the Property during and after construction hours. (l) The Park. ONH accepts the Property in its “as is” condition, with all faults. ONH acknowledges and agrees that ONH is entering the Park and Project area under this Agreement based on ONH’s own investigations and knowledge of the Park and that, except as otherwise specifically stated in this Agreement, neither City nor any agent of City has made any representation or warranty whatsoever, express or implied, with regard to the physical condition of Project area or the suitability of the Project area for any particular purpose or use, including, without limitation, any representations or warranties regarding the applicability or non - applicability of any laws, the soil or subsoil, surface or subsurface conditions, topography, possible hazardous substances contamination, fill, drainage, applicability of or compliance with any environmental laws or any other matter of any nature whatsoever. The City is not responsible for damage to or loss by theft of ONH’s property located in or on the Park and Project area.

3.4 City's Basic Obligation.
(a) City does hereby grant ONH license and right of entry to access the Property as an independent contractor to furnish all material s and to perform all Services on a wholly volunteer basis according to the terms and conditions herein contained. City agrees to accept the Project upon completion, in City’s sole discretion, thereof in compliance with all obligations set forth herein.
(b) City agrees to recognize ONH and PB for their contributions, as well as their donors to the Project, through the placement of their names, logos, trademarks, and appropriate signage (collectively “ Recognition Signage ”) on the Park, which Recognition Signage shall be kept in place for five (5) years and, thereafter, shall continue until the later of:
(i) a Party objects; or (ii) the Park is no longer in operation. The content, design, size, and placement of all Recognition Signage at the Park shall be determined by mutual agreement of the Parties.

3.5 Publicity and Recognition.
(a) The Parties shall acknowledge one another as co -contributors in written material(s), news releases, and related marketing or publicity materials, including, but not limited to, an initial press conference and/or dedication ceremony for the completed Project. The Parties agree to assist and cooperate in a mutually acceptable re -opening event at the Park, if mutually agreed upon by Parties. The Parties also shall have the right to publicize, show photographs of, use the name of, and otherwise promote their respective contributions to the Park. (b) The Parties agree to cooperate and coordinate with respect to the nature, text, and timing of any press release or public announcement(s) concerning t he existence of the Project, the Park, and/or this Agreement; or the use or promotion of the Park, except as may be legally required by applicable laws, regulations, or judicial order. The Parties agree to notify each other in writing of any press release , public announcement, marketing or promotion of the Park. Further, any press release, public announcement, marketing materials, or brochures

6.d
Packet Pg. 200
Attachment: Colton - Davis Park Renovation Agreement - Operation New Hope-c1 (3491 : Agreement - Operation New Hope) 23152.04000\34782459.1

5 prepared by any of the Parties, shall appropriately acknowledge the contributions of all of the Parties.
(c) To the ex tent stipulated in any grant agreement, partnership agreement, donation agreement, or other agreement with respect to the Project, the Parties shall duly notify any grantors, donors, partners or other party, and each other, prior to any public or media ev ent publicizing the accomplishments funded by any grant agreement or other funding source, and shall provide the opportunity for attendance and participation by grantor, donor, partner, or other respective representatives.
(d) The Parties shall coordinate the scheduling and organization of any public or media event to provide the opportunity for attendance and participation by officials and/or representatives of City, ONH, or PB; including elected officials and public officials. Similarly, any document, written report, or brochure prepared by either City, ONH, PB or, in whole or in part, pursuant to the acquisition of property and/or installation of improvements, shall contain any acknowledgements required under any related grant agreement, partnership agreement , donation agreement or other agreement or funding source.

3.6 Suspension or Termination of Services . The City may, in its sole discretion, suspend or terminate all or any part of the Services if it determines that such a suspension or termination is in the best interest of the City. Such suspension or termination shall be effective immediately upon notice to ONH.

3.7 Ownership of Materials and Confidentiality. All materials and data, including but not limited to, data on magnetic media and any materials and data required to be made or kept pursuant to federal, state or local laws, rules or regulations, prepared or collected by ONH pursuant to this Agreement, shall be the sole property of the City.

3.8 Indemnification. ONH shall defend (with counsel reasonably satisfactory to the City), indemnify, and hold harmless City, its elected officials, officers, employees, agents, and volunteers from any and all actual or alleged claims, demands, causes of action, liability, loss, damage, or injury, to property or person s, including wrongful death, whether imposed by a court of law or by administrative action of any federal, state, or local governmental body or agency, arising out of or incident to any acts, omissions, negligence, or willful misconduct of ONH, its personnel, employees, agents, or contractors in connection with or arising out of installation of the Project, use of the Project, or performance of this Agreement. This indemnification includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attorneys’ fees, and related costs or expenses, and the reimbursement of City, its elected officials, officers, employees, and/or agents for all legal expenses and costs incurred by each of them. This indemnification excludes only such portion of any claim, demand, cause of action, liability, loss, damage, penalty, fine, or injury, to property or persons, including wrongful death, to the extent caused by the sole or active negligence or willful misconduct of City as determined by a court or administrative body of competent jurisdiction. ONH’s obligation to indemnify shall survive the expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by City, its elected officials, officers, employees, agents, or volunteers.

6.d
Packet Pg. 201
Attachment: Colton - Davis Park Renovation Agreement - Operation New Hope-c1 (3491 : Agreement - Operation New Hope) 23152.04000\34782459.1

6 3.9 Limitation of Liability. In no event and under no circumstances shall the City be liable to ONH, or any person claiming through ONH, for any claim, loss, damage, principal, interest, loss of anticipated revenues, or any consequential, punitive, special or similar damages.

3.10 Fee Title/Liens. The Parties agree that fee title to the Project and all other City property shall at all times remain fully vested in the City. ONH shall not file, record, nor permit the recording or fili ng of, any lien, including any mechanics or other lien(s), claim(s) or encumbrance(s) of any nature with respect to any portion of the Project or City property, nor shall the ONH use or permit to be used any portion of the Project or City property to be used as security for any transaction of any kind. The ONH shall immediately remove any lien(s), claim(s) or encumbrance(s) of any kind, including any security obligation of any nature, which the ONH may cause or permit to be filed or recorded against any p ortion of the Project or City property.

3.11 Notices. All notices hereunder and communications regarding interpretation of the terms of the Agreement or changes thereto shall be provided by the mailing thereof by registered or certified mail, return receipt requested, postage prepaid and addressed as follows:

ONH:

OPERATION NEW HOPE
323 WEST 7TH STREET
SAN BERNARDINO, CA 92401
ATTN: RUSSELL DEGNAN, CEO
[email protected]
CITY:

CITY OF COLTON
650 NORTH LA CADENA DRIVE
COLTON, CA 92401
ATTN: DEB FARRAR, DIRECTOR OF COMMUNITY SERVICES
[email protected]
Any notice so given shall be considered received by the other Party three (3) days after deposit in the U.S. Mail as stated above and addressed to the Party at the above address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

3.12 Entire Agreement. This Agreement contains the entire agreement of the Par ties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements.

3.13 Governing Law. This Agreement shall be governed by the laws of the State of California. Any action brought to enforce the terms of this Agreement shall be brought in a state or federal court located in the County of San Bernardino, State of California.

6.d
Packet Pg. 202
Attachment: Colton - Davis Park Renovation Agreement - Operation New Hope-c1 (3491 : Agreement - Operation New Hope) 23152.04000\34782459.1

7 3.14 Time of Essence . Time is of the essence for each and every provision of this Agreement.

3.15 Assignment Forbidden . ONH shall not, either vo luntarily or by action of law, assign or transfer this Agreement or any obligation, right, title or interest assumed by ONH herein without the prior written consent of City. If ONH attempts an assignment or transfer of this Agreement or any obligation, ri ght, title or interest herein, City may, at its option, terminate and revoke the Agreement and shall thereupon be relieved from any and all obligations to ONH or its assignee or transferee.

3.16 Successors. The Parties do for themselves, their heirs, executors, administrators, successors, and assigns agree to the full performance of all of the provisions contained in this Agreement.

3.17 Amendments. This Agreement may not be amended except by a writing signed by the City and ONH.

3.18 Interpretation. In interpreting th is Agreement, it shall be deemed that it was prepared jointly by the Parties with full access to legal counsel of their own. No ambiguity shall be resolved against any party on the premise that it or its attorneys were solely responsible for drafting this Agreement or any provision thereof.

3.19 Non-Waiver. None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is specifically specified in writing.

3.20 Authority to Enter Contract . Each Party warrants that the indivi duals who have signed this Agreement have the legal power, right and authority to make this Agreement and bind each respective Party.

3.21 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original and all of which shall constitute one agreement.

6.d
Packet Pg. 203
Attachment: Colton - Davis Park Renovation Agreement - Operation New Hope-c1 (3491 : Agreement - Operation New Hope) 23152.04000\34782459.1

8 IN WITNESS WHEREOF , the Parties hereto have executed this Agreement by their authorized officers as of the day and year first written above.

CITY OF COLTON OPERATION NEW HOPE

By: ____________________________ By: _________________________ WILLIAM R. SMITH RUSSELL DEGNAN

CITY MANAGER CEO

Attest:

CAROLINA PADILLA

CITY CLERK

6.d
Packet Pg. 204
Attachment: Colton - Davis Park Renovation Agreement - Operation New Hope-c1 (3491 : Agreement - Operation New Hope) 23152.04000\34782459.1

9 EXHIBIT "A"

DEPICTION OF PROJECT

6.d
Packet Pg. 205
Attachment: Colton - Davis Park Renovation Agreement - Operation New Hope-c1 (3491 : Agreement - Operation New Hope) 23152.04000\34782459.1

10 EXHIBIT "B"

SCOPE OF SERVICES

1. SCOPE OF WORK
ONH will provide the following as part of the Project:
• Surface preparation, priming, crack repair;
• Two (2) coats of acrylic resurfacer
• Two (2) coats of acrylic sports specific color coating (Laykold or similar brand) in accordance with the base coat requirements of final approved design (acrylic color coating furnished by Project Backboard)
• Stripe court(s) with textured acrylic with line paint, two coats of paint • Oversee the installation of new or refurbished backboards and/or goals (backboard, goals and hardware provided by Project Backboard)

2. CONSTRUCTION AND COMPLETION OF THE PROJECT.

2.1 Conditions Precedent. The Parties recognize and agree that several conditions precedent exist to commence construction of the Project, including, without limitation:

2.1.1 Plans and Specifications, Approval; Permits. ONH, at its own expense and at no cost to the City, shall develop plans and specifications for the Project in accordance with all applicable laws, regulations, rule, or guidelines.

ONH shall submit all plans and specifications to the City f or review and approval through the City’s standard administrative process. The final and approved plans and specifications (“Final Plans”) shall be used to construct the Project. ONH shall also obtain all permits as required by this Agreement. City shall obtain immediate possession of all of the documents prepared by ONH upon the donation of the completed Project to City, or upon the termination of this Agreement for any reason prior to completion of the Project.

2.1.2 Environmental Review . ONH shall certify that the environmental review process has been completed, as required by CEQA. The Project may constitute a “project” for purposes of compliance with the California Environmental Quality Act (“CEQA”). The City sh all be the lead agency for the Project, and the environmental review for the work to be performed pursuant to this Agreement shall be determined by the City, in its sole discretion.

2.1.3 Bonds; Insurance. ONH shall submit to the City certificates of insurance and copies of payment and performance bo nds in accordance with the requirements of this Agreement.

2.1.4 Contractor. ONH shall obtain the City’s approval of the selected contractor and a fully executed copy of the general contract between ONH and its contractor shall be delivered to the City.

6.d
Packet Pg. 206
Attachment: Colton - Davis Park Renovation Agreement - Operation New Hope-c1 (3491 : Agreement - Operation New Hope) 23152.04000\34782459.1

11 2.1.5 Pre-Construction Meeting . ONH shall hold a pre -construction meeting with the City.

2.1.6 Schedule for Co mpletion. Based on the Final Plans prepared pursuant to this Agreement, the City and ONH shall mutually agree on a schedule for completion of the Project, whic h shall be approved by City prior to commencement of construction on the Project. The schedule for completion is incorporated herein by this reference. Any and all changes to the schedule that will materially affect the estimated date of completion shall be subject to City approval.

2.2 Construction. ONH shall have the sole and exclusive right and responsibility to construct the Project, except that the City shall have the rights expressly provided in the Agreement. ONH warrants and agrees that it is aware of and familiar with the laws, rules and regulations of the City and the State of California and accepts sole responsibility for ensuring any such applicable laws, regulations, rules, or guidelines are met and otherwise managing the work, as required by law. ONH shall indemnify the City as set forth in the Agreement for any claim or matter arising from or in any way related to ONH’s obligations pursuant to this Section.

2.2.1 City Access During Construction . The City may designate in writing to ONH any number of persons who may have access to the Property during construction of the Project for purposes of monitoring the work. The City’s designees shall have the primary responsibility of mo nitoring ONH’s work on the Project and, except in emergency circumsta nces as reasonably determined by the City or the City’s designee(s), shall not have authority to direct the progress of the work. In the event of emergency circumstances, as reasonably determined by the City or the City’s designee(s), the City’s designee(s) sha ll have authority to direct ONH or ONH’s contractor to cease further work on the Project, or to take such other action as they determine to be reasonably necessary in light of the circumstances.

2.2.2 City’s Reasonable Approval of Material Design Changes . ONH shall have the sole and exclusive right to make and approve non -material design changes during construction of the Project. The City’s prior approval will be required, however, for any material design changes. A material design change is one that fundamentally alters the Project as described in the Final Plans developed and approved by the City pursuant to this Agreement.

2.2.3 Restoration of Property. ONH shall use commercially reasonable efforts to protect City property from any damage resulting from th e Project (with the exception of those demolition and/or reconstruction activities reasonably contemplated by the Parties as part of the Project), and shall repair any damage to such property resulting from the Project.

2.2.4 Status of the Project . ONH shall keep the City reasonably informed as to the status of the Project. ONH shall notify the City of any matter pertaining to the Project that may affect the Project not later than 24 hours after ONH’s discovery of such matter. Where an emergency condition e xists that may affect the Project, ONH shall notify the City of such condition

6.d
Packet Pg. 207
Attachment: Colton - Davis Park Renovation Agreement - Operation New Hope-c1 (3491 : Agreement - Operation New Hope) 23152.04000\34782459.1

12 immediately. ONH shall complete the Project without interfering with the City’s business operations, except as may be approved by the City in writing.

2.3 Costs of Construction. ONH shall be fully responsible for all costs of completion of the Project, and in no event shall any funds of the City be used for construction or completion of the Project. ONH shall indemnify City from any claims for payment from any volunteer, agent, contractor or subcontractor or other matters relating to or arising from ONH’s obligations as set forth in this Section. Notwithstanding the foregoing, in the event ONH fails to substantially complete the Project pursuant to the terms of this Agreement, or if at any time after commencement of construction the City determines ONH has abandoned the Project, the City shall have authority to pay outstanding costs of construction to the extent necessary to ensure completion of the Project, or, at the City’s sole option, to pay the costs to restore the Property to its original state prior to commencement of construction, from the bonds or other security posted by ONH pursuant to this Agreement; however, any such payment shall not constitute waiver of any other remedy under this Agreement, at law, or in equity for ONH’s breach or default under this Agreement. In no case shall the City be required to expend any City funds to complete the Project or to restore the Property in the event ONH abandons the Project prior to completion.

2.4 Project Inspection . ONH shall reimburse the City for any costs associated with inspection of the Project as required.

2.5 Project Completion.

2.5.1 Completion. On or before the scheduled date for completion of the Project, ONH shall notify City, in writing, of the date on which it considers the Project to be complete and shall request City to immediately thereafter inspect the work to confirm such Completion.

2.5.2 Final Walk-Through after Completion . Within ten (10) days or receipt of notice of completion as described above , City and the ONH’s designated representative(s) will participate jointly in a final walk -through for the Project.

2.5.3 Punchlist. ONH will document the final walk-through and prepare a punch list, subject to the approval of City or City’s representative(s), for the completion of the Project.

2.5.4 City’s Approval of Construction . If City determines that ONH has achieved completion, City shall so notify the ONH by issuance of a written certificate of completion.

2.5.5 Certificate of Final Acceptance. City shall issue a written Final Acceptance Certificate to ONH after its confirmation that:
(a) Punchlist and other work of a minor nature has been satisfactorily completed;

6.d
Packet Pg. 208
Attachment: Colton - Davis Park Renovation Agreement - Operation New Hope-c1 (3491 : Agreement - Operation New Hope) 23152.04000\34782459.1

13 (b) Complete operations and maintenance manuals have been submitted for applicable materials, machinery and equipment incorporated into the Project;
(c) All warranties from contractors, subcontractors, materials suppliers and manufacturers have been submitted;
(d) The final as-built drawings in have been submitted; (e) Labor and material releases fr om all contractors and subcontractors performing work on, or furnishing materials for, the Project have been provided by ONH.
(f) The City Council of the City has formally accepted the Project, by resolution or in such other manner as the City finds appropriate.

The issuance of the Final Acceptance Certificate shall commence the Warranty Period.

2.5.6 Notice of Completion . The City shall process and record a Notice of Completion for the Project after acceptance of the Project by the City Council of the City.

2.6 Transfer of Ownership. Upon issuance of the Final Acceptance Certificate by the City, ownership of all work and improvements constructed or installed by ONH pursuant to the obligations set forth in this Agreement shall automatically transfer to the City. ONH shall have no continuing right to enter the Property or to use the Project, except in the performance of its continuing obligations after completion of the Project, under this Agreement.

2.6.1 Liability for Project Prior to Formal Acceptance . Until the City has formally accepted the Project, ONH shall be solely responsible for any and all damage to the Project or any Project work, regardless of the cause and for all damages or injuries to any person or property from any cause related to the Project. City will not enter or use or permit others to enter or use any portion of the Property, except as otherwise permitted by this Agreement, until the City has formally accepted the Project and delivered to ONH a Certificate of Final Acceptance in accordance with this Agreement.

2.6.2 Liability After Acceptance of Project . After the City has formally accepted the Project, ONH and ONH’s successors shall remain liable for all injuries or damages caused to persons or property, including damage to the Project itself, arising from or related to the Project performed by ONH or any of ONH’s contractors, subcontractors, employees, representatives or agents provided, however, such liability shall not extend beyond any applicable statutes of limitation under state or federal law.

2.7 Warranties.

6.d
Packet Pg. 209
Attachment: Colton - Davis Park Renovation Agreement - Operation New Hope-c1 (3491 : Agreement - Operation New Hope) 23152.04000\34782459.1

14 2.7.1 Conforming Materials/ Project. ONH warrants that materials and equipment furnished in connection with the Project will be of good quality and new unless otherwise required or permitted by Final Plans , that the Project will be free of defects, and tha t the Project will conform to the requirements of the design development documents, accepted industry standards, and applicable governmental rules. Any work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. ONH shall be responsible and liable for the correction of any portion of the Project that is not in conformity with the requirements of the Final Plans . ONH shall also promptly take all action necessary to prevent similar d eficiencies from occurring in the future. If ONH fails to correct any nonconforming work within fourteen (14) days of receipt of notice from the City requesting correction, then the City may cause the nonconforming work to be remedied or removed and repla ced and may deduct the cost(s) of doing so from any bonds or other security posted by ONH pursuant to this Agreement or to and/or obtain reimbursement from ONH for such cost(s).

2.7.2 Warranty Period. ONH hereby warrants that the w ork will be constructed in acc ordance with the Final Plans and will be free from defects in workmanship and materials for a period of twelve (12) months from the date of issuance of the Final Acceptance Certificate (the “Warranty Period”).

2.7.3 Repair of Deficient Project. ONH shall, for a period of twelve (12) months following issuance of the Final Acceptance Certificate, promptly repair any defective or deficient work. Such repair work shall proceed within fourteen (14) days of receipt of written notice from the City of a defect in the Project. If ONH fails to correct any defective or deficient work within fourteen (14) days of receipt of notice from the City requesting correction, then the City may cause the nonconforming work to be remedied or removed and replaced and may deduct the co st(s) of doing so from any bonds or other security posted by ONH pursuant to this Agreement or to and/or obtain reimbursement from ONH for such cost(s).

2.7.4 The obligations of ONH under this Section are in addition to, and not in lieu of, the rights and remedi es available to the City under applicable law.

This Section shall not be deemed a waiver of any statues of limitation applicable to patent or latent defects in the Project.

6.d
Packet Pg. 210
Attachment: Colton - Davis Park Renovation Agreement - Operation New Hope-c1 (3491 : Agreement - Operation New Hope) 23152.04000\34782459.1

15 EXHIBIT "C"
BONDS

PERFORMANCE BOND

KNOW ALL PERSONS BY THESE PRESENTS:

THAT WH EREAS, Operation New Hope , (hereinafter referred to as “ONH”) has entered into an agreement with _________________________, (hereinafter referred to as the “Contractor”) for _______________________, (hereinafter referred to as the “Project”).

NOW, THEREFOR E, we, ______________________, the undersigned Contractor and ________________________________________________ as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto ONH in the sum of ___________________________ DOLLARS, ($____________), said sum being not less than one hundred percent (100%) of the total amount of the Contract, for which amount well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH, that, if the Contractor, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Contract Documents and any alteration thereof made as therein provided, on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their intent and meaning; and shall faithfully fulfill all obligations including the guarantee of all repairs and maintenance; and shall indemnify and save harmless ONH, its officials, officers, employees, and authorized volunteers, as stipulated in said Contract Documents, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.

As a part of the obligation secured hereby and in addition to the face amount specified therefore, there shall be included costs and reasonable expenses and fees including rea sonable attorney’s fees, incurred by ONH in enforcing such obligation.

As a condition precedent to the satisfactory completion of the Contract Documents, unless otherwise provided for in the Contract Documents, the above obligation shall hold good after th e acceptance of the work by ONH, during which time if Contractor shall fail to make full, complete, and satisfactory repair and replacements and totally protect ONH from loss or damage to the Project. The obligations of Surety hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall limit ONH; rights or the Contractor or Surety’s obligations under the Contract, law or equity, including, but not limited to, California Code of Civil Procedure Section 337.15.

6.d
Packet Pg. 211
Attachment: Colton - Davis Park Renovation Agreement - Operation New Hope-c1 (3491 : Agreement - Operation New Hope) 23152.04000\34782459.1

16 Whenever Contractor shall be, and is declared by ONH to be, in default under the Contract Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall promptly, at ONH’ option:
i. Take over and complete the Project in accordance with all te rms and conditions in the Contract Documents; or
ii. Obtain a bid or bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible bidder, arrange for a Contract between such bidder, the Surety and ONH, and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by ONH under the Contract and any modification thereto, less any amount previously paid by ONH to the Contractor and any other set offs pursuant to the Contract Documents. iii. Permit ONH to complete the Project in any manner consistent with California law and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by ONH under the Contract and any modification thereto, less any amount previously paid by ONH to the Contractor and any other set offs pursuant to the Contract Documents.

Surety expressly agrees that ONH may reject any contractor or subcontractor which may be proposed by Surety in fulfillment of its obligations in the event of default by the Contractor.

Surety shall not utilize Contractor in completing the Project nor shall Surety accept a bid from Contractor for completion of the Project if ONH, when declaring the Contractor in default, notifies Surety of ONH’ objection to Contractor’s further participation in the completion of the Project.

The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]

6.d
Packet Pg. 212
Attachment: Colton - Davis Park Renovation Agreement - Operation New Hope-c1 (3491 : Agreement - Operation New Hope) 23152.04000\34782459.1

17 IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__).
(Corporate Seal)
Contractor/Principal

By:

Title:

(Corporate Seal) Surety

By:

Attorney-in-Fact

(Attach Attorney-in-Fact Certificate) Title:

Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached.
(Attach Attorney-in-Fact Certificate) Title
The rate of premium on this bon d is ____________ per thousand. The total amount of premium charges, $_______________________________.
(The above must be filled in by corporate attorney.)

THIS IS A REQUIRED FORM

Any claims under this bond may be addressed to:
(Name and Address of Surety)

(Name and Address of Agent or
Representative for service of
process in California, if
different from above)

NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.

6.d
Packet Pg. 213
Attachment: Colton - Davis Park Renovation Agreement - Operation New Hope-c1 (3491 : Agreement - Operation New Hope) 23152.04000\34782459.1

18 Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally Date Name And Title Of Officer (e.g. “Jane Doe, Notary Public”) appeared , who proved to me on the basis of satisfactory Name(s) of Signer(s)
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Place Notary Seal Above Signature of Notary Public

OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form t o another document.

CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT  Individual
 Corporate Officer

Title(s) Title or Type of Document
 Partner(s)  Limited
 General Number of Pages
 Attorney-In-Fact
 Trustee(s)
 Guardian/Conservator Date of Document
 Other:

Signer is representing:

Name Of Person(s) Or Entity(ies)

Signer(s) Other Than Named Above

6.d
Packet Pg. 214
Attachment: Colton - Davis Park Renovation Agreement - Operation New Hope-c1 (3491 : Agreement - Operation New Hope) 23152.04000\34782459.1

19 PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS That
THAT WHEREAS, Operation New Hope , (hereinafter re ferred to as the “ ONH”) has entered into an agreement with _________________________, (hereinafter referred to as the “Contractor”) for _______________________, (hereinafter referred to as the “Project”).

WHEREAS, the work to be performed by the Contracto r is more particularly set forth in the Agreement dated ________________, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and WHEREAS, said Principal is required to furnis h a bond in connection with said contract; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contra cted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of empl oyees of said Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth.

NOW THEREFORE, we, the Principal and __________________________ as Surety, are held and firmly bound unto ONH in the penal sum of ______________ Dollars ($___________) lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assig ns, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in Civil Code Section 9100, fail to pay for any materials, provisions or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to Revenue and Taxation Code Section 18663, with respect to such work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified, and also, in case suit is brought upon this bond, all lit igation expenses incurred by ONH in such suit, including reasonable attorneys’ fees, court costs, expert witness fees and investigation expenses.

This bond shall inure to the benefit of any of the persons named in Civil Code Section 9100 so as to give a right of action to such persons or their assigns in any suit brought upon this bond.

It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for pe rformance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement

6.d
Packet Pg. 215
Attachment: Colton - Davis Park Renovation Agreement - Operation New Hope-c1 (3491 : Agreement - Operation New Hope) 23152.04000\34782459.1

20 herein above described, nor by any rescission or attempted rescissio n or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the b ond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstanc es shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or ONH and original contractor or on the part of any obligee named in such bond, but the sole conditions o f recovery shall be that claimant is a person described in Civil Code Section 9100, and has not been paid the full amount of his claim.

The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract to be performed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of Contract, including but not limited to, the provisions of Sections 2819 and 2845 of the California Civil Code.

IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__.
(Corporate Seal)
Contractor/Principal

By:

Title:

(Corporate Seal) Surety

By:

Attorney-in-Fact

(Attach Attorney-in-Fact Certificate) Title:

Signatures of those signing for the Contractor and Surety must be notified and evidence of corporate authority attached. A Power-of-Attorney authorizing the person signing on behalf of the Surety to do so much be attached hereto.

NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.

6.d
Packet Pg. 216
Attachment: Colton - Davis Park Renovation Agreement - Operation New Hope-c1 (3491 : Agreement - Operation New Hope) 23152.04000\34782459.1

21 Notary Acknowledgment
A notary pub lic or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally Date Name And Title Of Officer (e.g. “Jane Doe, Notary Public”) appeared , who proved to me on the basis of satisfactory Name(s) of Signer(s)
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entit y upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Place Notary Seal Above Signature of Notary Public

CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT  Individual
 Corporate Officer

Title(s) Title or Type of Document
 Partner(s)  Limited
 General Number of Pages
 Attorney-In-Fact
 Trustee(s)
 Guardian/Conservator Date of Document
 Other:

Signer is representing:

Name Of Person(s) Or Entity(ies)

Signer(s) Other Than Named Above

6.d
Packet Pg. 217
Attachment: Colton - Davis Park Renovation Agreement - Operation New Hope-c1 (3491 : Agreement - Operation New Hope) 23152.04000\34782459.1

22 EXHIBIT "D"

INSURANCE REQUIREMENTS
[CITY RISK MANAGER TO REVIEW]

1. Time for Compliance. ONH shall not commence Work under this Contract u ntil it has provided evidence satisfactory to the City that it and its contractor has secured all insurance required under this section. In addition, ONH shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Contract for cause.

2. Minimum Requirements. ONH shall, at its expense, procure and maintain for the duration of the Contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work hereunder by ONH, its agents, represen tatives, employees or subcontractors. ONH shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Contract. Such insurance shall meet at least the following minimum levels of coverage:

2.1 Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 00 01) OR Insurance Services Office Owners and ONH’s Pro tective Liability Coverage Form (CG 00 09 11 88) (coverage for operations of designated contractor); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 00 01, code 1 (any auto); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance . Policies shall not contain exclusions contrary to this Contract.

2.2 Minimum Limits of Insurance . ONH shall maintain limits no less than: (1) General Liability:$1,000,000 per occurrence and $2,000,000 general aggregate for bodily injury, personal injury and property damage; (2) Automobile Liability:$1,000,000 per accident for bodily injury and property damage; and (3) Workers’ Compensa tion and Employer’s Liability: Workers’ compensation limits as required by the Labor Code of the State of California. Employer’s Liability limits of $1,000,000 each accident, policy limit bodily injury or disease, and each employee bodily injury or diseas e. Defense costs shall be available in addition to the limits. Notwithstanding the minimum limits specified herein, any available coverage shall be provided to the parties required to be named as additional insureds pursuant to this Contract.

3. Professional Liability. All architects, engineers, consultants or design professionals retained by ONH shall also procure and maintain, for a period of three (3) years following completion of the contract, errors and omissions liability insurance with a limit of not less than $1,000,000 per occurrence.

This insurance shall name the City, its directors, officials, officers, employees, agents and volunteers as additional and insureds with respect to Services performed, and shall otherwise comply with all requirements of this Section.

4. Insurance Endorsements. The insurance policies shall contain the following provisions, or ONH shall provide endorsements (amendments) on forms supplied or approved by the City to add the following provisions to the insurance policies.

6.d
Packet Pg. 218
Attachment: Colton - Davis Park Renovation Agreement - Operation New Hope-c1 (3491 : Agreement - Operation New Hope) 23152.04000\34782459.1

23 4.1 General Liability. (1) Such policy shall give the City, its officials, employees, agents and authorized volunteers additional insured status using ISO endorsements CG20 10 10 01 plus CG20 37 10 01, or endorsements providing the exact same coverage, with res pect to the Work or operations performed by or on behalf of ONH, including materials, parts or equipment furnished in connection with such work; (2) all policies shall waive or shall permit ONH to waive all rights of subrogation which may be obtained by the ONH or any insurer by virtue of payment of any loss or any coverage provided to any person named as an additional insured pursuant to this Contract, and ONH agrees to waive all such rights of subrogation; and (3) the insurance coverage shall be primary i nsurance as respects the City, its officials, employees, agents and authorized volunteers, or if excess, shall stand in an unbroken chain of coverage excess of ONH’s scheduled underlying coverage. Any insurance or self -insurance maintained by the City, it s officials, employees, agents and authorized volunteers shall be excess of ONH’s insurance and shall not be called upon to contribute with it.

4.2 Automobile Liability. (1) Such policy shall give the City, its officials, employees, agents and authorized volu nteers additional insured status with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by ONH or for which ONH is responsible; (2) all policies shall waive or shall permit ONH to waive all rights of subrogation which may be obtained by the ONH or any insurer by virtue of payment of any loss or any coverage provided to any person named as an additional insured pursuant to this Contract, and ONH agrees to waive all such rights of subrogation; and (3) the insurance coverage shall be primary insurance as respects the City, its officials, employees, agents and authorized volunteers, or if excess, shall stand in an unbroken chain of coverage excess of ONH’s scheduled underlying coverage. Any insurance or self- insurance maintained by the City, its officials, employees, agents and authorized volunteers shall be excess of ONH’s insurance and shall not be called upon to contribute with it in any way.

4.3 Workers’ Compensation and Employer’s Liability Coverage. The insurer shall agree to waive all rights of subrogation against the City, its officials, employees, agents and authorized volunteers for losses paid under the terms of the insurance policy which arise from work performed by ONH.

4.4 All Coverages. Each insurance policy required by this Contract shall be endorsed to state that: (1) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been gi ven to the City; and (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its officials, employees, agents and authorized volunteers.

5. Deductibles and Self-Insurance Retentions. Any deductibles or self -insured retentions must be declared to and approved by the City. ONH shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self -insured re tentions as respects the City, its officials, employees, agents and authorized volunteers; or (2) the ONH shall procure a bond or other financial guarantee acceptable to the City guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.

6. Acceptability of Insurers . Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VII, licensed to do business in California, and satisfactory to the City. Exception may be made for the State Compensation Insurance Fund when not specifically rated.

7. Verification of Coverage . ONH shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Contract on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that

6.d
Packet Pg. 219
Attachment: Colton - Davis Park Renovation Agreement - Operation New Hope-c1 (3491 : Agreement - Operation New Hope) 23152.04000\34782459.1

24 insurer to bind coverage on its behalf, and shall be on forms supplied or approved by the City. All certificates and endorsements must be received and ap proved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.

8. Subcontractors. All contractors shall meet the requirements of this Section before commencing Work. ONH shall furnish separate certificates and endorsements for each contractor. Contractor policies of General Liability insurance shall name the City, its officials, employees, agents and authorized volunteers as additional insureds using form ISO 20 3 8 04 13 or endorsements providing the exact same coverage. All coverages for contractors shall be subject to all of the requirements stated herein except as otherwise agreed to by the City in writing.

9. Reporting of Claims . ONH shall report to the City, i n addition to ONH’s insurer, any and all insurance claims submitted by ONH in connection with the Services under this Agreement.

10. ONH shall ensure that its c ontractor is aware of the provisions of Section 3700 of the California Labor Code, which requires ev ery employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code. Each contractor shall comply with such provisions before commencing the performance of the Services under such c ontractor's agreement with ONH.

6.d
Packet Pg. 220
Attachment: Colton - Davis Park Renovation Agreement - Operation New Hope-c1 (3491 : Agreement - Operation New Hope)

ITEM NO. 7

STAFF REPORT

DATE: MARCH 1, 2022
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: BRIAN DICKINSON, PUBLIC WORKS AND UTILITY SERVICES

DIRECTOR
SUBJECT: APPROVE AND ADOPT RESOLUTION R-18-22, AN AMENDMENT NO. 1 TO COOPERATIVE AGREEMENT BETWEEN THE CITY OF

COLTON AND SAN BERNARDINO COUNTY TRANSPORTATION
AUTHORITY (SBCTA) FOR THE I-10 FREEWAY/MT. VERNON
AVENUE INTERCHANGE PROJECT, RESOLUTION NO. R-18-22.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

1. Approve Amendment No. 1 to the Cooperative Agreement between the City of Colton (City) and San Bernardino County Transportation Authority (SBCTA) for the I -10 Freeway/Mt. Vernon Avenue Interchange Project, and authoriz e the City Manager to execute the amended agreement.

2. Approve Resolution No. R-18-22 amending the Capital Improvement Program (CIP) budget, increasing appropriation for the I-10 Freeway/Mt. Vernon Avenue Interchange Project in the amount of $37,080.

BACKGROUND

Improvements of I -10 Freeway/Pepper Avenue Interchange Project and I -10 Freeway/Mt.

Vernon Avenue Interchange Project are identified in the Measure I 2010 -2040 Expenditure Plan and SBCTA Nexus Study. Both of the improvement s call for the replacemen t of the existing bridges for these interchanges. The Pepper Avenue Interchange Project was comp leted in October 2017. The Mt. Vernon Avenue Interchange Project is on -going and currently in the environmental and final design phase.

7 Packet Pg. 221
Staff Report to the Mayor and City Council
Agreement Amendment - SBCTA
March 1, 2022

Page 2 ends

ISSUES/ANALYSIS

On September 19, 2021, the City received the Final Project Expenditures Summary (FPES) for the I-10 Freeway/Pepper Avenue Interchange Project. The FPES (Exhibit A) indicated that the City still owes SBCTA $37,080. The City has the ability to pay this amount but SBCTA staff told City staff that the Pepper Interchange Project does n’t have the ability to absorb additional City fund s because they overpaid the Public Share (Measure I Arterial fund) by $37,080 to maximize grant fund usage. SBCTA staff recommendat ion is to increase the City of Colton Traffic Impact Share and decrease the Public Share for the I -10/Mount Vernon Avenue Interchange Project by $37,080 to offset the overpayment on the Pepper Avenue Interchange Project. Attached as Exhibit B is Amendment No. 1 to the Cooperative Agreement (No. 18- 1001904-02) for Mount Vernon Avenue Interchange Project between the City and SBCTA that will increase City’s share to the project by $37,080. The original reinstated Cooperative Agreement No. 18-1001904-01 was executed on March 21, 2019.

Resolution-R-18-22 (Exhibit C) will decrease the City’s traffic impact share for the Pepper Avenue Interchange Project and will increase the City’s traffic impact share for the Mount Vernon Avenue Interchange Project by $37,080.

FISCAL IMPACTS

The City’s cost share increased by $37,080 for the I -10/Mount Vernon Avenue Interchange Project will be funded by the Traffic Impact Fee F und. Approval of Resolution R-18-22 will re- appropriate $37,080 from Professional Services Account No. 249-1000-6900-2350-0000-000 (I- 10/Pepper Avenue I/C Project) to Traffic Impact Fund Capital Improvement Account No. 249- 6150-1503-3890-0000-000 (I-10/Mount Vernon Avenue Interchange Project).

ALTERNATIVES

1. Provide alternative direction to staff.

ATTACHMENT

1. Exhibit A - I-10 Pepper FPES letter 9-8-21

2. Exhibit B -Amendment No. 1- Coop bet. City and SBCTA-20220203

3. Resolution R-18-22
7 Packet Pg. 222

September 8, 2021

Victor Ortiz
Engineering Manager
City of Colton, Department of Public Works
160 S. 10
th Street
Colton, CA 92324

Subject: Interstate 1 0 (I‐10) Pepper Avenue Interchange Project‐Final Project Expenditure Summary (FPES)

Dear Mr. Ortiz:

Construction of the I‐10 Pepper Avenue Interchange Project has been completed. Accounting of eligible project expenditures a nd revenues indicate that a bala nce from the City of Colton (City) in the amount of $37,080 is due to SBCTA. Because the project e xpended additional Transportation Corridor Improvement Funds (TCIF) funds in the c onstruction phase, the project has no capacity to receive funds from the City. To reconcile the amount due under this FPES and to the Interchange Program as a whole, SBCTA will increase the City’s share by $37,080 in the upcoming cooperative agreement amendment for the nearby I‐10 Mt . Vernon Avenue Interchange project. SBCTA is re questing a signature from an a uthorized City representative on this form to certify receipt and approval of this final expendi ture and settlement amount and plan for the project.

This FPES includes the following:
 Summary of Cooperative Agreements and Amendments
 Calculation of City Nexus Share Based on Actual Costs  Actual Final Cost Summary of Eligible Project Costs
 Summary of Project Expenditures
 Final Settlement

Certification of this FPES will complete the parties’ obligations under agreement number C13040.

SBCTA truly appreciates the City’s partnership in delivering th is very important project for the region.

Should you have any questions, please contact Paul Melocoton, P roject Manager, at (909) 889‐ 8611 Ext. 196 or email [email protected].

Sincerely,

Hilda Flores
Chief Financial Officer

Cc: Brendan Biggs, San Bernardino County Public Works Department

7.a
Packet Pg. 223
Attachment: Exhibit A - I-10 Pepper FPES letter 9-8-21 (3510 : Agreement Amendment - SBCTA)

FPES for I‐10 Pepper Avenue Interchange

Page 2 of 4 ends

Final Project Expenditure Summary (FPES)
I‐10 Pepper Avenue Interchange Project

Summary of Cooperative Agreements and Amendments

C13040 – For all Project Phases1
Amendment Date Purpose Total Cost Buy Down WVWD
(non‐eligible) City Share Public
Share
0 2/12/2013
Authorizing
Document,
Funding
Agreement,
and
establishes
total cost

$7,655,000 $7,039,000 N/A $246,400 $369,600
1 6/03/2015
Update
funding
sources and
total cost
$10,102,000 $7,031,795 $700,000 $842,830 $1,527,375 1 Three party agreement between SBCTA, City, and County of San Bernardino

Calculation of City Nexus Share based on Project Costs

Project
Component TOTAL COST
Buy Down
and Non‐
Eligible1
Eligible Total
Cost
City Nexus
Share2
Project
Management $53,591 $0 $53,591 $53,591
Design and
Environmental $880,623 $42,307 $838,316 $285,027
Right of Way $0 $0 $0 $0
Construction $8,995,003 $7,540,464 $1,454,539 $494,543 Landscape N/A N/A N/A N/A
NET TOTAL $9,929,217 $7,58 2,771 $2,346,446 $833,162 1Buy down and Non‐Eligible costs are $6,061,363 of DEMO, $904,540 of IMD, and $616,868 of WVWD costs
2City Share is 100% of Project Management costs and 34% of Eligible costs

7.a
Packet Pg. 224
Attachment: Exhibit A - I-10 Pepper FPES letter 9-8-21 (3510 : Agreement Amendment - SBCTA)

FPES for I‐10 Pepper Avenue Interchange

Page 3 of 4 ends

Summary of Actual Project Expenditures

Project
Component TOTAL COST Buy Down1 WVWD1
(non‐eligible) City Share
Public Share2
TCIF Measure
Project
Management $53,591 $0 $0 $53,591 $0 $0
Design and
Environmental $880,623 $0 $42,307 $445,725 0 $392,591 Right of Way $0 $0 $0 $0 $0 $0
Construction $8,995,003 $6,965,903 $574,561 $296,766 $1,157,742 $31 Landscape N/A N/A N/A N/A N/A N/A
TOTAL $9,929,217 $6,965,903 $616,868 $796,082 $1,157,742 $392,622 1Buy down and Non‐Eligible costs are $6,061,363 of DEMO, $904,540 of IMD, and $616,868 of WVWD costs 2Public Share is exceeded in the Construction Phase; adjustments are made where fund sources allow in the Design and Environmental Phase to balance City and Public Share

Final Settlement

Project Total Eligible Total
Cost
City Nexus
Share
City Paid to
Date1
Amount Due
to SBCTA
$9,929,217 $2,346,446 $833,162 $796,082 $37,080
1Includes credits paid from Term Loan Agreement No. C14060 in the amount of $164,267, progress billing in the amount of $631,815.

The final settlement per Agreement C13040 is due to SBCTA in the amount of $37,080, which will be extended to the I‐10 Mt. Verno n Avenue Interchange Project. This settlement amount will fulfill all financial responsibilities and obligations of the City and SBCTA relative to the I‐10 Pepper Avenue Interchange under above referenced agreements.

7.a
Packet Pg. 225
Attachment: Exhibit A - I-10 Pepper FPES letter 9-8-21 (3510 : Agreement Amendment - SBCTA)

FPES for I‐10 Pepper Avenue Interchange

Page 4 of 4 ends

Reviewed by SBCTA Project Delivery

By: ____________________________ Date: _____________
Henry Stultz
Director of Project Delivery

Reviewed by SBCTA Fund Administration

By: ____________________________ Date: _____________
Andrea Zureick
Director of Fund Administration

City of Colton Concurrence

By: ____________________________ Date: _____________

Victor Ortiz
Engineering Manager

9/8/2021
9/14/2021

7.a
Packet Pg. 226
Attachment: Exhibit A - I-10 Pepper FPES letter 9-8-21 (3510 : Agreement Amendment - SBCTA)

18-1001904-02

AMENDMENT NO. 1 TO

AMENDED AND RESTATED

COOPERATIVE AGREEMENT NO. 18-1001904-02

BETWEEN

SAN BERNARDINO COUNTY TRANSPORTATION AUTHORITY

AND

CITY OF COLTON

FOR

PROJECT INITIATION DOCUMENT (PID), PROJECT APPROVAL AND

ENVIRONMENTAL DOCUMENT (PA/ED),

PLANS, SPECIFICATIONS AND ESTIMATE (PS&E), AND RIGHT OF WAY (ROW) PHASES
FOR THE MOUNT VERNON AVENUE AT INTERSTATE 10 (I-10) INTERCHANGE

IN THE CITY OF COLTON

THIS AMENDMENT No. 1 to AMENDED AND RESTATED COOPERATIVE AGREEMENT 18-1001904-01 is made and entered into by and between the San Bernardino County Transportation Authority ( “SBCTA”) and the City of Colton (“CITY ”). SBCTA and CITY may be referred to individually herein as a “Party” and collectively “Parties”.

WHEREAS, on March 9, 2016, the PARTIES entered into Cooperative Agreement No. 15-1001228 (Agreement No. 15- 1001228) which provided for SBCTA to be lead agency to study and document the P ROJECT as part of the Project Study Report/Project Developme nt Support (PSR/PDS) document; and

WHEREAS, on August 8, 2018, the PARTIES entered into Cooperative Agreement No. 18-1001904 (Agreement No. 18-1001904) which provided for SBCTA t o be lead agency on Project Management, PA/ED, PS&E, and ROW phases for the PROJECT; and

WHEREAS, on December 31, 2018, the term of Agreement No. 15-1001228 expired; and

WHEREAS, on March 21, 2019, the PARTIES amended and restated Agreement No. 18- 1001904 (“AGREEMENT”) to combine the roles and responsibilities of Agreement No. 15- 1001228 with Agreement No. 18 -1001904 and to delineate roles, responsibilities, and funding commitments relative to Project Manage ment, PID, PA/ED, PS&E, and ROW activities of the PROJECT; and

WHEREAS, the PARTIES desire to further amend this AGREEMENT to reconcile the underpayment and overpayment of Developer Share and Public Share funds, respectively, in the

7.b
Packet Pg. 227
Attachment: Exhibit B -Amendment No. 1- Coop bet. City and SBCTA-20220203 (3510 : Agreement Amendment - SBCTA)

18-1001904-02

amount of $37,080 identified in the November 2021 Final Project Expenditure S ummary (FPES) for the I-10/Pepper Avenue Interchange Project.

NOW, THEREFORE, the PARTIES agree to the amend the AGREEMENT as follows:

1. Delete Attachment A and replace it in its entirety with the revised Attachment A-1 attached to this Amendment No. 1.

2. Except as otherwise provided in this AMENDMENT NO. 1 , all other provision of the AGREEMENT, including all previous amendments, shall remain in full force and effect.

3. The AGREEMENT and all amendments are incorporated into this AMENDMENT NO. 1.

SAN BERNARDINO COUNTY

TRANSPORTATION AUTHORITY

CITY OF COLTON

By:___ ________________________

By:__________________________
Curt Hagman William R. Smith
President, Board of Directors City Manager

Date:__________________________

APPROVED AS TO FORM: APPROVED AS TO FORM:

By:____________________________

By:____________________________
Juanda Daniel ___________
Assistant General Counsel City Attorney

7.b
Packet Pg. 228
Attachment: Exhibit B -Amendment No. 1- Coop bet. City and SBCTA-20220203 (3510 : Agreement Amendment - SBCTA)

18-1001904-02

Attachment A-1

Project Scope:

Improve local traffic operations along Mount Vernon Avenue between East Valley Boulevard and south of the Interstate 10 (I-10) eastbound ramp intersection, by adding left -turn lanes at the five point intersection of Mount Vernon Avenue and East Valley Boulevard.

Project Cost Estimate and Funding Shares:

SBCTA’s Share: Public Share: 94.9%
City’s Share: Development Share or Local Share: 5.1% (City of Colton)

Phase Estimated Cost1 Public Share Development
Share
PID $539,000 $511,511 $27,489
PA/ED $1,967,803 $1,867,445 $100,358
PS&E $2,819,824 $2,676,013 $143,811
ROW $4,015,000 $3,810,235 $204,765
SBCTA Oversight $640,000 $607,360 $32,640 Adjustment for
I-10/Pepper FPES2 $0 -$37,080 $37,080
Total $9,981,627 $9,435,484 $546,143
1Estimated cost assumes analysis of one build alternative. 2The I-10/Pepper adjustment payment in the amount of $37,080 to be processed upon execution of this amendment.

Project Milestones:

Milestone1 Actual
(Forecast)
Start of Project Approval and Environmental Document Phase (PA/ED) (01/2019) Environmental Approval (05/2020)
Design Approved and ROW Certified (08/2021)
1Milestone assumes analysis of one build alternative with design variations. Anticipated environmental determination under CEQA is an IS/MND and under NEPA a Categorical Exclusion.

7.b
Packet Pg. 229
Attachment: Exhibit B -Amendment No. 1- Coop bet. City and SBCTA-20220203 (3510 : Agreement Amendment - SBCTA)

1 2

3 4

5 6

7 8

9 10

11 12

13 14

15 16

17 18

19 20

21 22

23 24

25 26

27 28

RESOLUTION NO. R-18-22

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COLTON TO AMEND THE FISCAL YEAR 2021/22022 CAPITAL IMPROVEMENT BUDGET TO APPROPRIATE $37,080 FOR THE I-10/MT. VERNON AVENUE INTERCHANGE

PROJECT

WHEREAS, the City Council of the City of Colton desires to improve the safety of the bridges and traffic circulation within City jurisdiction; and WHEREAS, the City of Colton and San Bernardino Transportation Commission (SBCTA) intends to improve the interchanges on Pepper Avenue and Mt. Vernon Avenue along the I-10 Freeway corridor in the City of Colton; and
WHEREAS, the Pepper Avenue and Mt. Vernon Avenue Interchange projects are jointly funded by SBCTA and the City of Colton thus providing an opportunity to complete the projects at a relatively low cost to the City; and
WHEREAS, the City of Colton needs to transfer local traffic impact funds in the amount of $37,080 from Pepper Avenue Interchange Project to Mt. Vernon Avenue Interchange to meet the City’s funding obligation for the Pepper Avenue Interchange Project; and WHEREAS, a budget appropriation for approved activities, not listed in the 2021-2022 Fiscal Year budget is required and must be approved by resolution of the City Council.

NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF COLTON DOES HEREBY RESOLVE AS FOLLOWS:

Section 1 The Recital preceding in this Resolution are true and correct and are incorporated into this Resolution by reference.

Section 2 The City Council authorizes the following amendment for the Fiscal Year 2021/2022 budget:
 Decrease appropriations in Traffic Impact Fee Fund Professional Services Account No. 249-1000-6900-2350-0000-000 ( I-10/Pepper Avenue Interchange Project) by $37,080; and

7.c
Packet Pg. 230
Attachment: Resolution R-18-22 (3510 : Agreement Amendment - SBCTA)

1 2

3 4

5 6

7 8

9 10

11 12

13 14

15 16

17 18

19 20

21 22

23 24

25 26

27 28

 Increase appropriations in the Traffic Impact Fee Fund Capital Improvement Account No. 249-6150-1503-3890-0000-000 (I-10/Mt. Vernon Avenue Interchange Project) by $37,080.

PASSED, APPROVED AND ADOPTED THIS 1st DAY OF MARCH 2022.

______________________________
FRANK J. NAVARRO, MAYOR
ATTEST:

_________________________________

CAROLINA PADILLA, CITY CLERK

7.c
Packet Pg. 231
Attachment: Resolution R-18-22 (3510 : Agreement Amendment - SBCTA)

ITEM NO. 8

STAFF REPORT

DATE: MARCH 1, 2022
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: BRIAN DICKINSON, PUBLIC WORKS AND UTILITY SERVICES

DIRECTOR
SUBJECT: APPROVE AGREEMENT WITH BLAIS & ASSOCIATES FOR
GRANT WRITING SERVICES.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

 Approve the professional services agreement not to exceed $11,440 to apply for the California Environmental Protection Agency Equitable Community Revitalization Grant, waiving the formal bidding process in accordance with Colton Municipal Code

3.08.140(e), and

 Authorize the City Manager signing authority to execute any agreements.

BACKGROUND

The Department of Toxic Substance Control is accepti ng applications for the Equitable Community Revitalization Grant. The purpose is for Brownfield properties the applicant owns or controls, which are in high poverty areas with the highest pollution burdens (CalEnviroScreen score of 75%+) and are slated for reuse. This year, there is $70 million in funding available.

Applications will be accepted ongoing until April 4, 2022.

The purpose of the grant is to fund the following:
 Community-Wide Assessments: To obtain information about environmental conditions at four or more sites within a study area. Recipients may use the funds for preliminary environmental planning, including All Appropriate Inquiries (AAI) or Phase I Environmental Site Assessments, Phase II Environmental Site Assessments, as well as 8 Packet Pg. 232
Staff Report to the Mayor and City Council
Agreement - Blais and Associates
March 1, 2022

Page 2 ends

for public engagement activities meant to elicit community input on cleanup and reuse of the sites.
 Environmental Investigations: Investigation and/or cleanup planning at a specific site that is slated for reuse. Work includes All Appropriate Inquiries (AAI) or Phase I Environmental Site Assessments, Phase II Environmental Site Assessments, Preliminary Endangerment Assessments (PEA), supplemental or other necessary site investigations, health and ecological risk assessments, work to evaluate different cleanup me thods, pilot tests to assess a potential remedial technology, and preparation of a cleanup plan.  Environmental Cleanups: Includes planning, implementation and reporting costs for the environmental cleanup, pilot tests and sampling/analysis to design the cl eanup, public engagement and cleanup -related California Environmental Quality Act (CEQA) activities. A regulatory-approved cleanup plan is required to submit an Environmental Cleanup Application. If you do not have an approved cleanup plan, submit an Environmental Investigation Application.
 Applicants must own property or have legal access.
 Sites that are the subject of the application must be of interest to the applicant for facilitating expansion or reuse, promoting the general welfare of the community (i.e., job creation, increase tax base, greenspace, housing), or demonstrate public input, and that the end use is the “highest and best use” for the property.

ISSUES/ANALYSIS

The City of Colton has been working on a preconstruction design for a future Zero Net Energy (ZNE) Public Works and Utilities building in the current location of 160 S. 10 th Street. During the initial Geotechnical request for bids (RFP) a land covenant/deed restriction was discovered on Assessor Parcel Number 163-041-38 in the City yard.

The City is eligible for Phase I Environmental Site Assessment for this grant and future Environmental Cleanup if required after Phase I investigation. This will allow the City to either have the covenant removed or mediate the issue to have future greenspace usability as the project proceeds.

The City of Colton currently has a contract with Blais and Associates for monitoring grant opportunities out of the City Manager’s Office. The current proposal for grant writing services to apply for the Equitable Community Revitalization Grant is for $ 11,440, which when combined with the existing contract, and other grant writing projects, exceeds the City Manager’s $ 50,000 limit for the fiscal year . Blais and Associates is familiar with the City’s operations and have worked with staff to provide the City with the best competitive grant writing services.

FISCAL IMPACTS

Sufficient appropriations for the proposed grant writing services are available in the FY2021-22 8 Packet Pg. 233
Staff Report to the Mayor and City Council
Agreement - Blais and Associates
March 1, 2022

Page 3 ends

adopted budget in Public Benefit Fun d Professional S ervices Account #526-8000-8039-2350- 0923-000.

ALTERNATIVES

1. Provide alternative direction to staff.
8 Packet Pg. 234

ITEM NO. 9

STAFF REPORT

DATE: MARCH 1, 2022
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: BRIAN DICKINSON, PUBLIC WORKS AND UTILITY SERVICES

DIRECTOR
SUBJECT: APPROVE AWARD OF CONTRACT TO MIKE'S CUSTOM
FLOORING INC. FOR COLTON POLICE DEPARTMENT PROJECT.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

1) Approve award of contract for the Colton Police Department and Information Systems Department Flooring Project to Mike’s Custom Flooring Inc., as the lowest responsive and responsible bidder in the amount of $59,237.57 and

2) Authorize the City Manager to execute the contract agreement.

BACKGROUND

The existing floor at the Colton Police Department was installed over 20 years ago. Carpet squares in the Information Systems Division were installed over 15 years ago. Flooring at both locations is in bad shape and poses a safety risk in some areas. The existing flooring is subject to heavy use by City employees and in need of replacement. Staff is recommending a vinyl laminate flooring system throughout the area that can handle the heavy use (foot traffic) and has a life span of 25 years.

ISSUES/ANALYSIS

In accordance with Colton Municipal Code (CMC) Section 3.08.100, a req uest for Notice Inviting Informal Bids was sent on December 29, 2021. A Mandatory Pre -Bid Meeting and Job Walk was held on January 5, 2022 at 10:00 am. On January 26, 2022, three (3) b ids were received from known flooring contractors in Southern California as follows:
9 Packet Pg. 235
Staff Report to the Mayor and City Council
Contract Award - Mike's Custom Flooring
March 1, 2022

Page 2 ends

1. New Image Commercial Flooring, Inc. $ 78,005.00

2. Mike’s Custom Flooring Inc. $ 59,237.57

3. Genesis $133,391.75

Staff reviewed and evaluated all three bids. Staff recommends awarding the contract to the lowest responsive and res ponsible bidder, Mike’s Custom F looring, Inc. for $59,237.57 for the project.

FISCAL IMPACTS

Sufficient funds for the project are available in the Building Maintenance Fund Capital Outlay Account No. 605-6150-6211-4950-000-000.

ALTERNATIVES

1. Provide direction to staff.

ATTACHMENTS

1. Exhibit A – Contract

ATTACHMENT

1. Exhibit A - Contract
9 Packet Pg. 236
BBK 2018
23152.06000\30612079.1

CITY OF COLTON

SHORT FORM CONSTRUCTION CONTRACT

POLICE DEPARTMENT AND IINFORMATION SYSTEM FLOORING PROJECT

1. PARTIES AND DATE.

This Contract is made and entered into this 2nd day of March. 2022 by and between the City of Colton, a municipal corporation organized under the laws of the State of California with its principal place of business at 650 North La Cadena Drive, Colton, California 92324 , County of San Bernardino, State of California (“City”) and Mike’s Custom Flooring Inc., a Corporation with its principal place of business at 1351 Park Ave Suite 102, Redlands, CA92373 (“Contractor”). City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties” in this Contract.

2. RECITALS.

2.1 City. City is a public agency organized under the laws of the State of California, with power to contract for services necessary to achieve its purpose.

2.2 Contractor. Contractor desires to perform and assume responsibility fo r the provision of certain construction services required by the City on the terms and conditions set forth in this Contract. Contractor represents that it is duly licensed and experienced in providing flooring in both departments related construction services to public clients, that it and its employees or subcontractors have all necessary licenses and permits to perform the services in the State of California, and that it is familiar with the plans of City. The following license classifications are required for this Project: Class “B” or “C-15”

2.3 Project. City desires to engage Contractor to render such services for the Police Department and Information Systems Department Flooring Project (“Project”) as set forth in this Contract.

2.4 Project Documents & Cert ifications. Contractor has obtained, and delivers concurrently herewith, as required by the Contract.

3. TERMS

3.1 Incorporation of Documents . This Contract includes and hereby incorporates in full by reference the following documents, including all exhibits, d rawings, specifications and documents therein, and attachments and addenda thereto:
 Services/Schedule (Exhibit “A”)
 Plans and Specifications (Exhibit “B”)
 Special Conditions (Exhibit “C”)
 Contractor’s Certificate Regarding Workers’ Compensation (Exhibit “D”)  Public Works Contractor Registration Certification (Exhibit “E”)  Payment and Performance Bonds (Exhibit “F”)
 Federal Requirements (Exhibit “G”)
 Addenda
 Change Orders executed by the City

9.a
Packet Pg. 237
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) 2 BBK 2018
23152.06000\30612079.1
 2021 Edition of the Standard Specifications for Public Works Construction (The Greenbook), Excluding Sections 1-9
 Notice Inviting Bids, if any
 Instructions to Bidders, if any
 Contractor’s Bid

3.1.1 Precedence. To the extent there is a conflict between any portions of this Contract, the order of precedence shall be as follow s: change orders, special conditions, technical specifications, plans/construction drawings, general contract terms, scope of work, standard plans, advertisements for bid/proposals, bids/proposals or other documents submitted by Contractor.

3.2 Contractor’s Basic Obligation; Scope of Work . Contractor promises and agrees, at its own cost and expense, to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately complete the Project, including all structures and facilities necessary for the Project or described in the Contract (hereinafter sometimes referred to as the “Work”), for a Total Contract Price as specified pursuant to this Contract. All Work shall be subject to, and performe d in accordance with the above referenced documents, as well as the exhibits attached hereto and incorporated herein by reference. The plans and specifications for the Work are further described in Exhibit “B” attached hereto and incorporated herein by this reference. Special Conditions, if any, relating to the Work are described in Exhibit “C” attached hereto and incorporated herein by this reference.

3.2.1 Change in Scope of Work . Any change in the scope of the Work, method of performance, nature of material s or price thereof, or any other matter materially affecting the performance or nature of the Work shall not be paid for or accepted unless such change, addition or deletion is approved in advance and in writing by a valid change order executed by the City.

3.2.1.1 Change Orders. Changes to the Contract Time (as defined in Section 3.3) or Total Contract Price shall be in the form of a written Change Order, either signed by both parties or issued unilaterally by the City. No adjustment shall be made to the Contract Time unless the delay impacts the critical path to completion and the delay was not caused in whole or in part by the Contractor. Failure to timely request a Change Order shall constitute a waiver of any right to adjust the Contract Time or the Total Contract Price. All requests for Change Orders shall be accompanied by detailed supporting documentation, including but not limited to payroll records, invoices, schedules, and any other documentation requested by the City for the purpose of determining the ad ditional costs or the impact of any delay. If the change involves Work bid at a unit price, then the Total Contract Price shall be increased at the unit price. If there is no unit price, then the Total Contract Price shall be adjusted to account for costs actually incurred plus an allowed mark-up of fifteen percent (15%), which shall constitute the entire amount of profit, mark-ups, field or home office overhead costs, including personnel, equipment or office space, any materials, or any costs of equipment idle time for such work. Nothing herein shall prevent the Parties from agreeing to a lump sum cost.
(A) Changes Ordered By City. City may at any time issue a written directive ordering additions, deletions, or changes to the Work. Contractor shall proceed with the work in accordance with the directive. To the extent the directive results in extra work or requires additional Contract Time, Contractor shall request a Change Order within seven (7) days of receiving the Work Directive. If any costs are not capable of being determined within

9.a
Packet Pg. 238
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) 3 BBK 2018
23152.06000\30612079.1
seven (7) days, then Contractor shall request a Change Order within seven (7) days of when the costs are capable of being determined. (B) Changes Requested By Contractor. With respect to any matter that may involve or require an adjustment to the Contract Time or the Contract Price, Contractor shall provide written notice of the underlying facts and circumstances that gave rise to the potential change within seven (7) days or prior to the alteration of conditions, whichever is earlier. Failure to give notice shall constitute a waiver of Contractor’s right to a change order. If any costs are not capable of being determined within seven (7) days, then Contractor shall request a Change Order within seven (7) days of when the costs are capable of being determined.

3.2.2 Substitutions/”Or Equal ”. Pursuant to Public Contract Code Section 3400(b), the City may make a finding that designates cert ain products, things, or services by specific brand or trade name. Unless specifically designated in this Contract, whenever any material, process, or article is indicated or specified by grade, patent, or proprietary name or by name of manufacturer, such Specifications shall be deemed to be used for the purpose of facilitating the description of the material, process or article desired and shall be deemed to be followed by the words “or equal.”
Contractor may, unless otherwise stated, offer for substituti on any material, process or article which shall be substantially equal or better in every respect to that so indicated or specified in this Contract. However, the City may have adopted certain uniform standards for certain materials, processes and articles. Contractor shall submit requests, together with substantiating data, for substitution of any “or equal” material, process or article no later than thirty-five (35) days after award of the Contract. To facilitate the construction schedule and sequencin g, some requests may need to be submitted before thirty-five (35) days after award of Contract. Provisions regarding submission of “or equal” requests shall not in any way authorize an extension of time for performance of this Contract. If a proposed “or equal” substitution request is rejected, Contractor shall be responsible for providing the specified material, process or article. The burden of proof as to the equality of any material, process or article shall rest with Contractor.

The City has the complete and sole discretion to determine if a material, process or article is an “or equal” material, process or article that may be substituted. Data required to substantiate requests for substitutions of an “or equal” material, process or article data shall include a signed affidavit from Contractor stating that, and describing how, the substituted “or equal” material, process or article is equivalent to that specified in every way except as listed on the affidavit.

Substantiating data shall include any and all illustrations, specifications, and other relevant data including catalog information which describes the requested substituted “or equal” material, process or article, and substantiates that it is an “or equal” to the material, process or article. The substantiating data must also include information regarding the durability and lifecycle cost of the requested substituted “or equal” material, process or article. Failure to submit all the required substantiating data, including the signed affidavit, to the City in a timely fashion will result in the rejection of the proposed substitution.

Contractor shall bear all of the City’s costs associated with the review of substitution requests. Contractor shall be responsible for all costs related to a substituted “or equal” material, process or article. Contractor is directed to the Special Conditions (if any) to review any findings made pursuant to Public Contract Code section 3400.

9.a
Packet Pg. 239
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) 4 BBK 2018
23152.06000\30612079.1

3.3 Period of Performance and Liquidated Damages . Contractor shall perform and complete all Work under this Contract within 90 days, beginning the effective date of the Notice to Proceed ( “Contract Time”). Contractor shall perform its Work in strict accordance with any completion schedule, construction schedule or project milestones developed by the City. Such schedules or milestones may be included as part of Exhibits “A” or “B” attached hereto, or may be provided separately in writing to Contractor. Contractor agrees that if such Work is not completed within the aforementioned Contract Time and/or pursuant to any such completion schedule, construction schedule or project milestones developed pursuant to provisions of the Contract, it is understood, acknowledged and agreed that the City will suffer damage. Pursuant to Government Code Section 53069.85, Contractor shall pay to the City as fixed and liquidated damages the sum of [One Hundred Dollars and Zero Cents] ($100.00) per day for each and every calendar day of delay beyond the Contract Time or beyond any completion schedule, construction schedule or Project milestones established pursuant to the Contract.

3.4 Standard of Performance; Performance of Employees . Contractor shall per form all Work under this Contract 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. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Work. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Work assigned to them. Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Work, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Contract. As provided for in the indemnification provisions of this Contract, Contractor shall perform, at its own cost and expense and without reimbursement from the City, any work necessary to correct errors or omissions which are caused by Contractor’s failure to comply with the standard of care provided for herein. Any employee who is determined by the City to be uncooperative, incompetent, a threat to the safety of persons or the Work, or any employee who fails or refuses to perform the Work in a manner acceptable to the City, shall be promptly removed from the Project by Contractor and shall not be re-employed on the Work.

3.5 Control and Payment of Subordinates; Contractual Relationship . City retains Contractor on an independent contrac tor basis and Contractor is not an employee of City. Any additional personnel performing the work governed by this Contract on behalf of Contractor shall at all times be under Contractor’s exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance under this Contract and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limite d to: social security taxes, income tax withholding, unemployment insurance, and workers’ compensation insurance.

3.6 City’s Basic Obligation . City agrees to engage and does hereby engage Contractor as an independent contractor to furnish all materials and to perform all Work according to the terms and conditions herein contained for the sum set forth above. Except as otherwise provided in the Contract, the City shall pay to Contractor, as full consideration for the satisfactory performance by Contractor of t he services and obligations required by this Contract, the below - referenced compensation in accordance with compensation provisions set forth in the Contract.

3.7 Compensation and Payment.

3.7.1 Amount of Compensation . As consideration for performance of the Work r equired herein, City agrees to pay Contrac tor the Total Contract Price of Fifty Nine

9.a
Packet Pg. 240
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) 5 BBK 2018
23152.06000\30612079.1
Thousand Two hundred Thirty Seven Dollars and Fifty Seven Cents ($59,237.57) (“Total Contract Price”) provided that such amount shall be subject to adjustment pursuant to the applicable terms of this Contract or written change orders approved and signed in advance by the City.

3.7.2 Payment of Compensation. If the Work is scheduled for completion in thirty (30) or less calendar days, City will arrange for payment of the Total Co ntract Price upon completion and approval by City of the Work. If the Work is scheduled for completion in more than thirty (30) calendar days, City will pay Contractor on a monthly basis as provided for herein.

On or before the fifth (5th) day of each mo nth, Contractor shall submit to the City an itemized application for payment in the format supplied by the City indicating the amount of Work completed since commencement of the Work or since the last progress payment. These applications shall be supported by evidence which is required by this Contract and such other documentation as the City may require. The Contractor shall certify that the Work for which payment is requested has been done and that the materials listed are stored where indicated. Contractor may be required to furnish a detailed schedule of values upon request of the City and in such detail and form as the City shall request, showing the quantities, unit prices, overhead, profit, and all other expenses involved in order to provide a basis for determining the amount of progress payments.

3.7.3 Prompt Payment . City shall review and pay all progress pay ment requests in accordance with the provisions set forth in Section 20104.50 of the California Public Contract Code. However, no progress payments will be made for Work not completed in accordance with this Contract. Contractor shall comply with all app licable laws, rules and regulations relating to the proper payment of its employees, subcontractors, suppliers or others.

3.7.4 Contract Retentions . From each approved progress estimate, five percent (5%) will be deducted and retained by the City, and the remain der will be paid to Contractor. All Contract retention shall be released and paid to Contractor and subcontractors pursuant to California Public Contract Code Section 7107.

3.7.5 Other Retentions . In addition to Contract retentions, the City may deduct from each progress payment an amount necessary to protect City from loss because of:
(1) liquidated damages which have accrued as of the date of the application for payment; (2) any sums expended by the City in performing any of Contractor’s obligations under the Contract which Contractor has failed to perform or has performed inadequately; (3) defective Work not remedied; (4) stop notices as allowed by state law; (5) reasonable doubt that the Work can be completed for the unpaid balance of the Total Contract Pric e or within the scheduled completion date; (6) unsatisfactory prosecution of the Work by Contractor; (7) unauthorized deviations from the Contract; (8) failure of Contractor to maintain or submit on a timely basis proper and sufficient documentation as req uired by the Contract or by City during the prosecution of the Work; (9) erroneous or false estimates by Contractor of the value of the Work performed; (10) any sums representing expenses, losses, or damages as determined by the City, incurred by the City for which Contractor is liable under the Contract; and (11) any other sums which the City is entitled to recover from Contractor under the terms of the Contract or pursuant to state law, including Section 1727 of the California Labor Code. The failure by the City to deduct any of these sums from a progress payment shall not constitute a waiver of the City’s right to such sums.

3.7.6 Substitutions for Contract Retentions . In accordance with California Public Contract Code Section 22300, the City will permit the substitution of securities for any monies withheld by the City to ensure performance under the Contract. At the request and expense of Contractor, securities equivalent to the amount withheld shall be deposited with the City, or with a state or federally chartered bank in California as the escrow agent, and thereafter

9.a
Packet Pg. 241
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) 6 BBK 2018
23152.06000\30612079.1
the City shall then pay such monies to Contractor as they come due. Upon satisfactory completion of the Contract, the securities shall be returned to Contractor. For purposes of this Sectio n and Section 22300 of the Public Contract Code, the term “satisfactory completion of the contract” shall mean the time the City has issued written final acceptance of the Work and filed a Notice of Completion as required by law and provisions of this Contract. Contractor shall be the beneficial owner of any securities substituted for monies withheld and shall receive any interest thereon.

The escrow agreement used for the purposes of this Section shall be in the form provided by the City.

3.7.7 Payment to Subcontractors. Contractor shall pay all subcontractors for and on account of work performed by such subcontractors in accordance with the terms of their respective subcontracts and as provided for in Section 7108.5 of the California Business and Professions Code. Such payments to subcontractors shall be based on the measurements and estimates made and progress payments provided to Contractor pursuant to this Contract.

3.7.8 Title to Work. As security for partial, progress, or other payments, title to Work for which such payments are made shall pass to the City at the time of payment. To the extent that title has not previously been vested in the City by reason of payments, full title shall pass to the City at delivery of the Work at the destination and time specified in this Contract. Such transferred title shall in each case be good, free and clear from any and all security interests, liens, or other encumbrances. Contractor promises and agrees that it will not pledge, hypothecate, or otherwise encumber the items in any manner that would result in any lien, security interest, charge, or claim upon or against said items. Such transfer of title shall not imply acceptance by the City, nor relieve Contractor from the responsibility to strictly comply with the Contract, and shall not relieve Contractor of responsibility for any loss of or damage to items.

3.7.9 Labor and Material Releases . Contractor shall furnish City with labor and material releases from all subcontractors performing work on, or furnishing materials for, the Work governed by this Contract prior to final payment by City.

3.8 Labor

3.8.1 Prevailing Wages . Contractor is aware of the requirements of California Labor Code Section 1720 et seq., and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works ” and “maintenance” projects. Since the Work is being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. City shall provide Contractor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Contract. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Work available to interested parties upon request, and shall post copies at Contractor’s principal place of business and at the project site. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. Contractor and any subcontractor shall forfeit a penalty of up to $200 per calendar day or portion thereof for each worker paid less than the prevailing wage rates.

3.8.2 Apprenticeable Crafts. When Contractor employs workmen in an apprenticeable craft or trade, Contractor shall comply with the provisions of Section 1777.5 of the

9.a
Packet Pg. 242
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) 7 BBK 2018
23152.06000\30612079.1
California Labor Code with respect to the employment of properly registered apprentices upon public works. T he primary responsibility for compliance with said section for all apprenticeable occupations shall be with Contractor. The Contractor or any subcontractor that is determined by the Labor Commissioner to have knowingly violated Section 1777.5 shall forfeit as a civil penalty an amount not exceeding $100 for each full calendar day of noncompliance, or such greater amount as provided by law.

3.8.3 Hours of Work . Contractor is advised that eight (8) hours labor constitutes a legal day’s work. Pursuant to Section 1813 of the California Labor Code, Contractor shall forfeit a penalty of $25.00 per worker for each day that each worker is permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week, except when payment for overtime is made at not less than one and one -half (1-1/2) times the basic rate for that worker.

3.8.4 Payroll Records . Contractor and each subcontractor shall keep an accurate payroll record, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by him or her in connection with the public work. The payroll records shall be certified and shall be available for inspection at all reasonable hours at the principal office of Contractor in the manner provided in Labor Code section 1776. In the event of noncompliance with the requirements of this section, Contractor shall have 10 days in which to comply subsequent to receipt of written notice specifying in what respects such Contractor must comply with this section. Should noncompliance still be evident after such 10-day period, Contractor shall, as a penalty to City, forfeit not more than $100.00 for each calendar day or portion thereof, for each worker, until strict compliance is effectuated. The amount of the forfeiture is to be determined by the Labor Commissioner. A contractor who is found to have violated the provisions of law regarding wages on Public Works with the intent to defraud shall be ineligible to bid on Public Works contracts for a period of one to three years as determined by the Labor Commissioner. Upon the request of the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement, such penalties shall be withheld from progress payments then due. The responsibility for compliance with this section is on Contractor.

In accordance with Labor Code section 1771.4, the Contractor and each subcon tractor shall furnish the certified payroll records directly to the DIR on a weekly basis and in the format prescribed by the DIR, which may include electronic submission. The requirement to submit certified payroll records directly to the Labor Commissio ner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.

3.8.5 Contractor and Subcontractor Registration . Pursuant to Labor Cod e sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. No bid will be accepted nor any contract entered into without proof of the contractor’s and subcontractors’ current registration with the Department of Industrial Relations to perform public work. Contractor is directed to review, fill out and execute the Public Works Contractor Reg istration Certification attached hereto as Exhibit “E” prior to contract execution. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public wor ks project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.

9.a
Packet Pg. 243
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) 8 BBK 2018
23152.06000\30612079.1

3.8.6 Labor Compliance; Stop Orders. This Project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be the Contractor’s sole responsibility to evaluate and pay the cost of complying with all labor compliance requirements under this Contract and applicable law. Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor’s performance of Work, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay subject to any applicable liquidated damages and shall not be compensable by the City.

Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor.

3.9 Performance of Work; Jobsite Obligations.

3.9.1 Water Quality Management and Compliance.

3.9.1.1 Water Quality Management and Compliance . Contractor shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Work including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter -Cologne Water Quality Control Act (Cal Water Code §§ 13000 -14950); local ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter -Cologne Water Quality Control Act, to any ground or surface water in the State.

3.9.1.2 Compliance with the Statewide Construction General Permit .

Contractor shall comply with all conditions of the most recent iteration of the National Pollutant Discharge Elimination System General Permit for Storm Water Discharges Associated with Construction Activity, issued by the California State Water Resources Control Board (“Permit”). It shall be Contractor’s sole responsibility to file a Notice of Intent and procure coverage under the Permit for all construction activity which results in the disturbance of more than one acre of total land area or which is part of a larger common area of development or sale. Prior to initiating work, Contractor shall be solely responsible for preparing and implementing a Storm Water Pollution Prevention Plan (SWPPP) as required by the Permit. Contractor shall be responsible for procuring, implementing and complying with the provisions of the Permit and the SWPPP, including the standard provisions, and monitoring and reporting requirements as required by the Permit. The Permit requires the SWPPP to be a “living document” that changes as necessary to meet the conditions and requirements of the job site as it progresses through difference phases of construction and is subject to different weathe r conditions. It shall be Contractor ’s sole responsibility to update the SWPPP as necessary to address conditions at the project site.

Without in any way diminishing Contractor's sole responsibility for obtaining coverage under, and complying with, the P ermit, the City will use reasonable efforts to assist Contractor in filing the Notice of Intent when the City's participation is required by the Permit.

3.9.1.3 Other Water Quality Rules , Regulations, and Policies .

Contractor shall comply with the lawful requirements of the Environmental Protection Agency, the State Water Resources Control Board, the Santa Ana Regional Water Quality Control Board, and the City, as well as any other applicable municipality, drainage district, or local agency regarding discharges of storm water to separate storm drain systems or other watercourses under their jurisdiction, including applicable requirements in municipal storm water management programs.

9.a
Packet Pg. 244
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) 9 BBK 2018
23152.06000\30612079.1

3.9.1.4 Cost of Compliance. Storm, surface, nuisance, or other waters may be encountered at various times during construction of the Work. Therefore, the Contractor, hereby acknowledges that it has investigated the risk arising from such waters and assumes any and all risks and liabilities arising therefrom.

3.9.1.5 Liability for Non-Compliance. Failure to comply with the Permit is a violation of federal and state law. Pursuant to the indemnification provisions of this Contract, Contractor hereby agrees to defend, indemnify and hold harmless the City and its directors, officials, officers, employee s, volunteers and agents for any alleged violations of this Section

3.9.1.5, including the Permit or any of the laws, rules, regulations and policies provided for herein..

In addition, City may seek damages from Contractor for any delay in completing the Work in accordance with the Contract, if such delay is caused by or related to Contractor ’s failure to comply with the Permit.

3.9.1.6 Reservation of Right to Defend. City reserves the right to defend any enforcement action brought against the City for Contractor’s failure to comply with the Permit or any other relevant water quality law, regulation, or policy. Pursuant to the indemnification provisions of this Contract, Contractor hereby agrees to be bound by, and to reimburse the City for the costs (including th e City’s attorney ’s fees) associated with, any settlement reached between the City and the relevant enforcement entity.

3.9.1.7 Training. In addition to the standard of performance requirements set forth in paragraph 3.4, Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform t he work assigned to them without impacting water quality in violation of the laws, regulations and pol icies described in paragraph 3.9.1. Contractor further warrants that it, its employees and subcontractors will receive adequate training, as determined by City, regarding the requirements of the laws, regulations and policies described in paragraph 3.9.1 as they may relate to the Work provided under this Contract.

Upon request, City will provide the Contractor with a list of training programs that meet the requirements of this paragraph.

3.9.2 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. Contractor shall comply with the requirements of the specifications relating to safety measures applicable in particular operations or kinds of work. In carrying out its Work, Contractor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the Work and the conditions under which the Work is to be performed. Safety precautions as applicable shall include, but shall not be limited to, adequate life protection and life saving equipment; adequate illumination for underground and night operations; instructions in accident prevention for all employees, such as machinery guards, safe walkways, scaffolds, ladders, bridges, gang planks, confined space procedures, trenching and shoring, fall protection and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and adequate facilities for the proper inspection and maintenance of al l safety measures. Furthermore, Contractor shall prominently display the names and telephone numbers of at least two medical doctors practicing in the vicinity of the Project, as well as the telephone number of the local ambulance service, adjacent to all telephones at the Project site.

3.9.3 Laws and Regulations. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Contract or the Work, including all Cal/OSHA requirements, and shall give

9.a
Packet Pg. 245
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) 10 BBK 2018
23152.06000\30612079.1
all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with the Work. If Contractor observes that the drawings or specifications are at variance with any law, rule or regulation, it shall promptly notify the City in writing. Any necessary changes shall be made by written change order. If Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without givin g written notice to the City, Contractor shall be solely responsible for all costs arising therefrom. City is a public entity of the State of California subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Contract to the same extent as though set forth herein and will be complied with. Contractor shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Contract, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.

3.9.4 Permits and Licenses. Contractor shall be responsible for securing City permits and licenses necessary to perform the Work described herein, including, but not limited to, a City Business License. While Contractor wil l not be charged a fee for any City permits, Contractor shall pay the City’s applicable business license fee. Any ineligible contractor or subcontractor pursuant to Labor Code Sections 1777.1 and 1777.7 may not perform work on this Project.

3.9.5 Trenching Work. If the Total Contract Price exceeds $25,000 and if the Work governed by this Contract entails excavation of any trench or trenches five (5) feet or more in depth, Contractor shall comply with all applicable provisions of the California Labor Code, including Section 6705. To this end, Contractor shall submit for City’s review and approval a detailed plan showing the design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excava tion of such trench or trenches. If such plan varies from the shoring system standards, the plan shall be prepared by a registered civil or structural engineer.

3.9.6 Hazardous Materials and Differing Conditions. As required by California Public Contract Code Section 7104, if this Contract involves digging trenches or other excavations that extend deeper than four (4) feet below the surface, Contractor shall promptly, and prior to disturbance of any conditions, notify City of: (1) any material discovered in exca vation that Contractor believes to be a hazardous waste that is required to be removed to a Class I, Class II or Class III disposal site; (2) subsurface or latent physical conditions at the site differing from those indicated by City; and (3) unknown physi cal conditions of an unusual nature at the site, significantly different from those ordinarily encountered in such contract work. Upon notification, City shall promptly investigate the conditions to determine whether a change order is appropriate.

In the event of a dispute, Contractor shall not be excused from any scheduled completion date and shall proceed with all Work to be performed under the Contract, but shall retain all rights provided by the Contract or by law for making protests and resolving the dispute.

3.9.7 Underground Utility Facilities. To the extent required by Section 4215 of the California Government Code, City shall compensate Contractor for the costs of: (1) locating and repairing damage to underground utility facilities not caused by the fa ilure of Contractor to exercise reasonable care; (2) removing or relocating underground utility facilities not indicated in the construction drawings; and (3) equipment necessarily idled during such work. Contractor shall not be assessed liquidated damages for delay caused by failure of City to provide for removal or relocation of such utility facilities.

9.a
Packet Pg. 246
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) 11 BBK 2018
23152.06000\30612079.1

3.9.8 Air Quality. Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, in cluding, but not limited to, emissions limits and permitting requirements imposed by the South Coast Air Quality Management District (SCAQMD) and/or California Air Resources Board (CARB). Although the SCAQMD and CARB limits and requirements are more broad , Contractor shall specifically be aware of their application to "portable equipment", which definition is considered by SCAQMD and CARB to include any item of equipment with a fuel -powered engine. Contractor shall indemnify City against any fines or pena lties imposed by SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Contractor, its subcontractors, or others for whom Contractor is responsible under its indemnity obligations provided for in this Contract.

3.9.9 State Recycling Mandates. Contractor shall comply with State Recycling Mandates. Any recyclable materials/debris collected by the contractor that can be feasibly diverted via reuse or recycling must be hauled by the appropriate ha ndler for reuse or recycling.

3.9.10 Inspection Of Site . Contractor has visited sites where Work is to be performed and has become acquainted with all conditions affecting the Work. Contractor warrants that it has made such examinations as it deems necessary to determine the condition of the Work sites, its accessibility to materials, workmen and equipment, and to determine the Contractor’s ability to protect existing surface and subsurface improvements. No claim for allowances–time or money–will be allowed as to such matters.

3.9.11 Field Measurements. Contractor shall make field measurements, verify field conditions and shall carefully compare such field measurements and conditions and other information known to Contractor with the Contract Documents before commencing activities.

Errors, inconsistencies or omissions discovered shall be reported to the City immediately and prior to performing any work or altering the condition.

3.10 Completion of Work. When Contractor determines that it has completed the Work required herein, Contractor shall so notify City in writing and shall furnish all labor and material releases required by this Contract. City shall thereupon inspect the Work. If the Work is not acceptable to the City, the City shall indicate to Contractor in writing the specific portions or items of Work which are unsatisfactory or incomplete. Once Contractor determines that it has completed the incomplete or unsatisfactory Work, Contractor may request a re-inspection by the City. Once the Work is acceptable to City, City shall pay to Contractor the Total Contract Price remaining to be paid, less any amount which City may be authorized or directed by law to retain.

Payment of retention proceeds due to Contractor shall be made in accordance with Section 7107 of the California Public Contract Code.

3.11 Claims; Government Code Claim Compliance.

3.11.1 Intent. Effective January 1, 1991, Section 20104 et seq., of the California Public Contract Code prescribes a process utilizing informal conferences, non-binding judicial supervised mediation, and judicial arbitrat ion to resolve disputes on construction claims of $375,000 or less. Effective January 1, 2017, Section 9204 of the Public Contract Code prescribes a process for negotiation and mediation to resolve disputes on construction claims.

The intent of this Sectio n is to implement Sections 20104 et seq. and Section 9204 of the California Public Contract Code. This Section shall be construed to be consistent with said statutes.

9.a
Packet Pg. 247
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) 12 BBK 2018
23152.06000\30612079.1

3.11.2 The following requirements apply to all contracts entered into after January 1, 1991, and all claims to which this section applies:

3.11.2.1 Prerequisites. If any dispute shall arise between the City and Contractor regarding performance of the work, or any alleged change in the work, Contractor shall timely perform the disputed work and shall give wri tten notice of a claim for additional compensation for the work to the City within three (3) days after commencement of the disputed work. Contractor ’s failure to give written notice within the three (3) -day period constitutes an agreement by Contractor that it will receive no extra compensation for the disputed work and shall constitute a waiver of the right to these procedures.

3.11.2.2 Claim Submittal. For purposes of this section, “Claim” means a separate demand by the Contractor, after a change order duly requested in accordance with the terms of this Contract has been denied by the City, for (A) a time extension, (B) payment of money or damages arising from Work done by or on behalf of the Contractor pursuant to the Contract, or (C) an amount the payment of which is disputed by the City. Claims governed by this section may not be filed unless and until the Contractor completes all procedures for giving notice of delay or change and for the requesting of a time extension or change order, including but not necessarily limited to the change order procedures contained herein, and Contractor’s request for a change has been denied in whole or in part. The claim shall be submitted in writing to the City and shall include on its first page the following in 16 point cap ital font: “THIS IS A CLAIM.” Claims governed by this procedure must be filed on or before the date of final payment. Nothing in this section is intended to extend the time limit or supersede notice requirements otherwise provided by contract for the filing of claims, including all requirements pertaining to compensation or payment for extra work, disputed work, and/or changed conditions. Failure to follow such contractual requirements shall bar any claims or subsequent lawsuits for compensation or payment thereon.

3.11.2.3 Supporting Documentation : The Contractor shall submit all claims in the following format:
(1) Summary of claim merit and price, reference Contract Document provisions pursuant to which the claim is made
(2) List of documents relating to claim:
(A) Specifications
(B) Drawings
(C) Clarifications (Requests for Information)
(D) Schedules
(E) Other
(3) Chronology of events and correspondence
(4) Analysis of claim merit
(5) Analysis of claim cost

9.a
Packet Pg. 248
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) 13 BBK 2018
23152.06000\30612079.1
(6) Time impact analysis in CPM format

3.11.2.4 City’s Response . Upon receipt of a claim pursuant to this section, City shall conduct a reasonable review of the claim and, within a period not to exceed 45 days, shall provide the Contractor a written statement identifying what portion of the claim is disputed and what portion is undisputed. Any payment due on an undisputed portion of the claim will be processed and made within 60 days after the public entity issues its written statement. (1) If the City needs approval from the City Council to provide the Contractor a writt en statement identifying the disputed portion and the undisputed portion of the claim, and the City Council does not meet within the 45 days or within the mutually agreed to extension of time following receipt of a claim sent by registered mail or certifie d mail, return receipt requested, the City shall have up to three days following the next duly publicly noticed meeting of the City Council after the 45 -day period, or extension, expires to provide the Contractor a written statement identifying the dispute d portion and the undisputed portion.
(2) Within 30 days of receipt of a claim, the City may request in writing additional documentation supporting the claim or relating to defenses or claims the City may have against the Contractor. If additional information is thereafter required, it shall be requested and provided pursuant to this subdivision, upon mutual agreement of City and the Contractor.
(3) The City’s written response to the claim, as further documented, shall be submitted to the Contractor within 30 days (if the claim is less than $50,000, within 15 days) after receipt of the further documentation, or within a period of time no greater than that taken by the Contractor in producing the additional information or requested documentation, whichever is greater.

3.11.2.5 Meet and Confer. If the Contractor disputes the City’s written response, or the City fails to respond within the time prescribed, the Contractor may so notify the City, in writing, either within 15 days of receipt of the City’s response or within 15 days of the City’s failure to respond within the time prescribed, respectively, and demand an informal conference to meet and confer for settlement of the issues in dispute. Upon receipt of a demand, the City shall schedule a meet and confer conference within 30 days for settlement of the dispute.

3.11.2.6 Mediation. Within 10 business days following the conclusion of the meet and confer conference, if the claim or any portion of the claim remains in dispute, the City shall provide the Contractor a written statement identifying the portion of the claim that remains in dispute and the portion that is undisputed. Any payment due on an undisputed portion of the claim shall be processed and made within 60 days after the City issues its written statement.

Any disputed portion of the claim, as identified by the contractor in writing, shall be submitted to nonbinding mediation, with the City and the Contractor sharing the associated costs equally. The City and Contractor shall mutually agree to a mediator within 10 business days after the disputed portion of the claim has been identified in writing, unless the parties agree to select a mediator at a later time.

9.a
Packet Pg. 249
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) 14 BBK 2018
23152.06000\30612079.1
(1) If the parties cannot agree upon a mediator, each party shall select a mediator and those mediators shall select a qu alified neutral third party to mediate with regard to the disputed portion of the claim. Each party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutral mediator. (2) For purposes of this section, me diation includes any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which an independent third party or board assists the parties in dispute resolution through negotiation or by issuance of an evaluation . Any mediation utilized shall conform to the timeframes in this section.
(3) Unless otherwise agreed to by the City and the contractor in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Section 20104.4 to me diate after litigation has been commenced.
(4) The mediation shall be held no earlier than the date the Contractor completes the Work or the date that the Contractor last performs Work, whichever is earlier. All unresolved claims shall be considered jointly in a single mediation, unless a new unrelated claim arises after mediation is completed.
(5) If following the mediation, the claim or any portion remains in dispute, the Contractor must file a claim pursuant to Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of Title 1 of the Government Code. For purposes of those provisions, the running of the period of time within which a claim must be filed shall be tolled from the time the Contractor submits his o r her written claim pursuant to subdivision (a) until the time the claim is denied, including any period of time utilized by the meet and confer conference or mediation.

3.11.2.7 Civil Actions. The following procedures are established for all civil actions filed to resolve claims subject to this section:
(1) Within 60 days, but no earlier than 30 days, following the filing or responsive pleadings, the court shall submit the matter to non - binding mediation unless waived by mutual stipulation of both parties or unless mediation was held prior to commencement of the action in accordance with Public Contract Code section 9204 and the terms of these procedures.. The mediation process shall provide for the selection within 15 days by both parties of a disinterested third person as mediator, shall be commenced within 30 days of the submittal, and shall be concluded within 15 days from the commencement of the mediation unless a time requirement is extended upon a good cause showing to the court.
(2) If the matter remains in dispute, the case shall be submitted to judicial arbitration pursuant to Chapter 2.5 (commencing with Section

9.a
Packet Pg. 250
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) 15 BBK 2018
23152.06000\30612079.1
1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, notwithstanding Section 1114.11 of that code. The Civil Discovery Act of 1986 (Article 3 (commencing with Section 2016) of Chapter 3 of Title 3 of Part 4 of the Code of Civil Procedure) shall apply to any proceeding brought under this subdivision consistent with the rules pertaining to judicial arbitration.
(A) In addition to Chapter 2.5 (commencin g with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, (A) arbitrators shall, when possible, be experienced in construction law, and (B) any party appealing an arbitration award who does not obtain a more favorable judgment shall, in addition to payment of costs and fees under that chapter, also pay the attorney’s fees on appeal of the other party.

3.11.2.8 Government Code Claims. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, construction claims and/or changed conditions, the Contractor must comply with the claim procedures set forth in Government Code Section 900, et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, construction claims, and/or changed conditions have been followed by Co ntractor. If no such Government Code claim is submitted, or if the prerequisite contractual requirements are not satisfied, no action against the City may be filed. A Government Code claim must be filed no earlier than the date the work is completed or the date the Contractor last performs work on the Project, whichever occurs first. A Government Code claim shall be inclusive of all unresolved claims unless a new unrelated claim arises after the Government Code claim is submitted.

3.11.2.9 City’s Responses. The City’s failure to respond to a claim from the Contractor within the time periods described in this section or to otherwise meet the time requirements of this section shall result in the claim being deemed rejected in its entirety. City’s failure to respond shall not waive City’s rights to any subsequent procedures for the resolution of disputed claims.

3.12 Loss and Damage. Except as may otherwise be limited by law, Contractor shall be responsible for all loss and damage which may arise out of the nature of the Wo rk agreed to herein, or from the action of the elements, or from any unforeseen difficulties which may arise or be encountered in the prosecution of the Work until the same is fully completed and accepted by City. In the event of damage proximately caused by an Act of God, as defined by Section 7105 of the Public Contract Code, the City may terminate this C ontract pursuant to Section 3.18 .3; provided, however, that the City needs to provide Contractor with only one (1) day advanced written notice.

3.13 Indemnification.

3.13.1 Scope of Indemnity. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold the City, its officials, employees, agents and volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, regardless of whether the allegations are false, fraudulent, or groundless, to

9.a
Packet Pg. 251
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) 16 BBK 2018
23152.06000\30612079.1
property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Contractor, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Contractor’s services, the Project or this Contract, including without limitation the payment of all expert witness fees, attorneys’ fees, and other related costs and expenses.

Notwithstanding the foregoing, to the extent requ ired by Civil Code section 2782, Contractor’s indemnity obligation shall not apply to liability for damages for death or bodily injury to persons, injury to property, or any other loss, damage or expense arising from the sole or active negligence or willful misconduct of the City or the City’s agents, servants, or independent contractors who are directly responsible to the City, or for defects in design furnished by those persons.

3.13.2 Additional Indemnity Obligations. Contractor shall defend, with counsel of City’s choosing and at Contractor’s own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against City or its officials, employees, agents and volunteers. In addition, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or its of ficials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Contractor shall also reimburse City for the cost of any settlement paid by City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for City’s attorney’s fees and costs, including expert witness fees. Contractor shall reimburse City an d its officials, employees, agents and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor’s obligation to indemnify shall survive expiration or te rmination of this Contract, and shall not be restricted to insurance proceeds, if any, received by the City, its officials, employees, agents and volunteers.

3.14 Insurance.

3.14.1 Time for Compliance. Contractor shall not commence Work under this Contract until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Contractor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Contract for cause.

3.14.2 Minimum Requirements. Contractor shall, at its expense, procure and maintain for the duration of the Contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work hereunder by Contractor, its agents, representative s, employees or subcontractors. Contractor shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Contract. Such insurance shall meet at least the following minimum levels of coverage:

3.14.2.1 Minimum Scope of Insurance . Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 00 01) OR Insurance Services Office Owners and Contract ors Protective Liability Coverage Form (CG 00 09 11 88) (coverage for operations of designated contractor); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 00 01, code 1 (any auto); (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance; and (4) Builders’/All Risk: Builders’/All Risk insurance covering for

9.a
Packet Pg. 252
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) 17 BBK 2018
23152.06000\30612079.1
all risks of loss, including explosion , collapse, underground excavation and removal of lateral support (and including earthquakes and floods if requested by the City). Policies shall not contain exclusions contrary to this Contract, including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 29); or (2) cross liability for claims or suits by one insured against another.

3.14.2.2 Minimum Limits of Insurance . Contractor shall maintain limits no less than: (1) General Liability[$1,000,000 MINIMUM; per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used including, but not limited to, form CG 2503, either the general aggregate limit shall apply separately to this Contract/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 MINIMUM per accident for bodily injury and property damage; (3) Workers’ Compensation and Employer ’s Liability:

Workers’ compensation limits as required by the Labor Code of the State of California. Employer’s Liability limits of : $1,000,000 MINIMUM each accident, policy limit bodily injury or disease, and each employee bodily injury or disease; and (4) Builders’/All Risk: Completed value of the project.

Defense costs shall be available in addition to the limits. Notwithstanding the minimum limits specified herein, any available coverage shall be provided to the parties required to be named as additional insureds pursuant to this Contract.

3.14.2.3 Notices; Cancellation or Reduction of Coverage. At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or materially reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insu rance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Contract does not comply with these specifications or is canceled a nd not replaced, the City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be promptly reimbursed by Contractor or the City may withhold amounts sufficient to pay premium from Contractor payments. In the alternative, the City may suspend or terminate this Contract.

3.14.3 Insurance Endorsements . The insurance policies shall contain the following provisions, or Contractor shall provide endorsements (amendments) on forms supplied or approved by the City to add the following provisions to the insurance policies:

3.14.3.1 General Liability. The general liability policy shall include or be endorsed (amended) to state that: (1) using ISO CG forms 20 10 and 20 37, or endorsements providing the exact same coverage, the City of Colton, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the Services or ongoing and completed operations performed by or on behalf of Contractor, including materials, parts or equipment furnished in connection with such work; and (2) using ISO form 20 01, or endorsements providing the exact same coverage, the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of Contractor’s scheduled underlying coverage. Any excess insurance shall contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of the City, before the City’s own primary insurance or self -insurance shall be called upon to protect it as a named insured. Any insurance or self -insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of Contractor’s insurance and shall not be called upon to contribute with it in any way. Notwithstanding the minimum limits set forth in Section 3.14.2.2,

9.a
Packet Pg. 253
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) 18 BBK 2018
23152.06000\30612079.1
any available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional insureds pursuant to this Section

3.14.3.1. 3.14.3.2 Automobile Liability. (1) The City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by Contractor or for which Contractor is responsible; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of Contractor’s scheduled underlying coverage. Any insurance or self -insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of Contractor’s insurance and shall not be called upon to contribute with it in any way. Notwithstanding the minimum limits set forth in Section 3.14.2.2, any available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional insureds pursuant to this Section 3.14.3.2.

3.14.3.3 Workers’ Compensation and Employer ’s Liability Coverage .

The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents and volunteers for losses paid under the terms of the insurance policy which arise from work performed by Contractor.

3.14.3.4 All Coverages. Each insurance policy required by this Contract shall be endorsed to state that: (1) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days (10 days for nonpayment of premium) prior written notice by certified mail, return receipt requested, has been given to the City; and (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents and volunteers.

Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officials, officers, employees, agents and volunteers, or any other additional insureds.

3.14.4 Builders’/All Risk Policy Requirements. The builders’/all risk insurance shall provide that the City be named as loss payee. In addition, the insurer shall waive all rights of subrogation against the City.

3.14.5 Separation of Insureds; No Special Limitations; Waiver of Subrogation.

All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents and volunteers. All policies shall waive any right of subrogation of the insurer against the City, its officials, officers, employees, agents, and volunteers, or any other additional insureds, 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, its officials, officers, employees, agents, and volunteers, or any other additional insureds, and shall require similar written express waivers and insurance clauses from each of its subcontractors.

3.14.6 Professional Liability Insurance. All architects, engineers, consultants or design professionals retained by Contractor shall also procure and maintain, for a period of five (5) years following completion of the Contract, errors and omissions liability insurance with a limit of not less than $1,000,000 : MINIMUM per occurrence. This insurance shall name the City, its

9.a
Packet Pg. 254
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) 19 BBK 2018
23152.06000\30612079.1
directors, officials, officers, employees, agents and volunteers as additional and insureds with respect to Work performed, and shall otherwise comply with all requirements of this Section.

Defense costs shall be paid in addition to the limits.

3.14.7 Deductibles and Self -Insurance Retentions . Any deductibles or self - insured retentions must be declared to and approved by the City. Contractor shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self- insured retentions as respects the City, its directors, officials, officers, employees, agents and volunteers; or (2) the Contractor shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.

3.14.8 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the City.

3.14.9 Verification of Coverage . Contractor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Contract on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms supplied or approved by the City. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.

3.14.10 Subcontractors. Contractor shall not allow any subcontractors to commence work on any subcontract relating to the work under the Contract until they have provided evidence satisfactory to the City that they have secured all insurance required under this Section. If requested by Contractor, the City may approve different scopes or minimum limits of insurance for particular subcontractors. The Contractor and the City shall be named as additional insureds on all subcontractors’ policies of Commercial General Liability using ISO form 20 38, or coverage at least as broad. In addition, Contractor shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor.

All coverages for subcontractors shall be subject to all of the requirements stated herein.

3.14.11 Reporting of Claims. Contractor shall report to the City, in addition to Contractor’s insurer, any and all insurance claims submitted by Contractor in connection with the Work under this Contract.

3.15 Bond Requirements.

3.15.1 Payment Bond. If required by law or otherwise specifically requested by City in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Contract a Payment Bond in an amount required by the City and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until the bond has been received and approved by the City.

3.15.2 Performance Bond . If specifically requested by City in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Contract a Performance Bond in an amount required by the City and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until the bond has been received and approved by the City.

9.a
Packet Pg. 255
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) 20 BBK 2018
23152.06000\30612079.1

3.15.3 Bond Provisions . Should, in City’s sole opinion, any bond become insufficient or any surety be found to be unsatisfactory, Contractor shall renew or replace the effected bond within (ten) 10 days of receiving notice from City. In the event the surety or Contractor intends to reduce or cancel any required bond, at least thirty (30) days prior written notice shall be given to the City, and Contractor shall post acceptable replacement bonds at least ten (10) days prior to expiration of the original bonds. No further payments shall be deemed due or will be made under this Contract until any replacement bonds required by this Section are accepted by the City. To the extent, if any, that the Total Contract Price is increased in accordance with the Contract, Contractor shall, upon request of the City, cause the amount of the bond to be increased accordingly and shall promptly deliver satisfactory evidence of such increase to the City. If Contractor fails to furnish any required bond, the City may terminate the Contract for cause.

3.15.4 Surety Qualifications . Only bonds executed by an admitted surety insurer, as defined in California Code of Civil Procedure Section 995.120, shall be accepted. If a California-admitted surety insurer issuing bonds does not meet these requirements, the insurer will be considered qualified if it is in conformance with Section 995.660 of the California Code of Civil Procedure, and proof of such is provided to the City.

3.16 Warranty. Contractor warrants all Work under the Contract (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the Work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year (or the period of time specified elsewhere in the Contract or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the Work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by the City of any defect in the Work or non -conformance of the Work to the Contract, commence and prosecute with due diligence all Work necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act sooner as requested by the City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the Work (or work of other contractors) damaged by its defective Work or which becomes damaged in the course of repairing or replacing defective Work. For any Work so corrected, Contractor’s obligation hereunder to correct defective Work shall be reinstated for an additional one year period, commencing with the date of acceptance of such corrected Work.

Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any portion of the Work, whether express or implied, are deemed to be obtained by Contrac tor for the benefit of the City, regardless of whether or not such warranties and guarantees have been transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Contract, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defe ctive or non-conforming Work and any work damaged by such work or the replacement or correction thereof at Contractor ’s sole expense.

Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand.

9.a
Packet Pg. 256
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) 21 BBK 2018
23152.06000\30612079.1

3.17 Employee/Labor Certifications.

3.17.1 Contractor’s Labor Certification. By its signature hereunder, Contractor certifies that he is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker’s Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Work. A certification form for this purpose, which is attached to this Contract a s Exhibit “D” and incorporated herein by reference, shall be executed simultaneously with this Contract.

3.17.2 Equal Opportunity Employment . Contractor represents that it is an equal opportunity employer and that it shall not discriminate against any employee o r applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to in itial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.

3.17.3 Verification of Employment Eligibility . By executing this Contract, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subcontractors and sub-subcontractors to comply with the same. The City shall not be responsible for any costs or expenses related to Contractor’s compliance with the requirements provided for in Section 3.17 or any of its sub-sections.

3.18 General Provisions.

3.18.1 City’s Representative. The City hereby designates the Public Works and Utility Services Director, Brian Dickinson, or his or her designee, to act as its representative for the performance of this Contract ( “City’s Representative”). City’s Representative shall have the power to act on b ehalf of the City for all purposes under this Contract. Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.

3.18.2 Contractor’s Representative. Before starting the Work, Contractor shall submit in writing the name, qualifications and experience of its proposed representative who shall be subject to the review and approval of the City (“′Contractor’s Representative”). Following approval by the City, Contractor’s Representative shall have full authority to represent and act on behalf of Contractor for all purposes under this Contract. Contractor ’s Representative shall supervise and direct the Work, using his best skill and attention, and shall be responsible for all construction means, metho ds, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Work under this Contract. Contractor ’s Representative shall devote full time to the Project and either he or his designee, who shall be acceptable to the City, shall be present at the Work site at all times that any Work is in progress and at any time that any employee or subcontractor of Contractor is present at the Work site. Arrangements for responsible supervision, acceptable to the City, shall be mad e for emergency Work which may be required. Should Contractor desire to change its Contractor’s Representative, Contractor shall provide the information specified above and obtain the City’s written approval.

3.18.3 Termination. This Contract may be terminated by City at any time, either with our without cause, by giving Contractor three (3) days advance written notice. In the

9.a
Packet Pg. 257
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) 22 BBK 2018
23152.06000\30612079.1
event of termination by City for any reason other than the fault of Contractor, City shall pay Contractor for all Work performed up to t hat time as provided herein. In the event of breach of the Contract by Contractor, City may terminate the Contract immediately without notice, may reduce payment to Contractor in the amount necessary to offset City’s resulting damages, and may pursue any other available recourse against Contractor. Contractor may not terminate this Contract except for cause. In the event this Contract is terminated in whole or in part as provided, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. Further, if this Contract is terminated as provided, City may require Contractor to provide all finished or unfinished documents, data, diagrams, drawings, materials or other matter prepared or built by Contractor in connection with its performance of this Contract.

Contractor shall be required to provide such document and other information within fifteen (15) days of the request.

3.18.4 Contract Interpretation . Should any question arise regarding the meaning or import of any of the provisions of this Contract or written or oral instructions from City, the matter shall be referred to City’s Representative, whose decision shall be binding upon Contractor.

3.18.5 Anti-Trust Claims. This provision shall be operative if this Contract is applicable to California Public Contract Code Section 7103.5. In entering into this Contract to supply goods, services or materials, Contractor hereby offers and agrees to assign to the City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Section 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700, of Part 2 of Division 7 of the Business and Prof essions Code) arising from purchases of goods, services, or materials pursuant to the Contract. This assignment shall be made and become effective at the time the City tender final payment to Contractor, without further acknowledgment by the Parties.

3.18.6 Notices. All notices hereunder and communications regarding interpretation of the terms of the Contract or changes thereto shall be provided by the mailing thereof by registered or certified mail, return receipt requested, postage prepaid and addressed as follows:

Contractor:

Mike’s Custom Flooring Inc.
1351 W. Park Ave Unit 102
Redlands, CA 92373
Attn: Eric Esparza, Owner
City:

City of Colton
650 North La Cadena Drive
Colton, California 92324
Attn: Brian Dickinson, Public Works Director

Any notice so given shall be considered received by the other Party three (3) days after deposit in the U.S. Mail as stated above and addressed to the Party at the above address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

9.a
Packet Pg. 258
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) 23 BBK 2018
23152.06000\30612079.1

3.18.7 Time of Essence . Time is of the essence in the performance of this Contract.

3.18.8 Assignment Forbidden. Contractor shall not, either voluntarily or by action of law, assign or transfer this Contract or any obligation, right, title or interest assumed by Contractor herein without the prior written consent of City. If Contractor attempts an assignment or transfer of this Contract or any obligation, right, title or interest herein, City may, at its option, terminate and revoke the Contract and shall thereupon be relieved from any and all obligations to Contractor or its assignee or transferee. .

3.18.9 No Third Party Beneficiaries . There are no intended third party beneficiaries of any right or obligation assumed by the Parties.

3.18.10 Laws, Venue. This Contract shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Contract, the action shall be brought in a state or federal court situated in th e County of San Bernardino, State of California.

3.18.11 Counterparts. This Contract may be executed in counterparts, each of which shall constitute an original.

3.18.12 Successors. The Parties do for themselves, their heirs, executors, administrators, successors, and as signs agree to the full performance of all of the provisions contained in this Contract.

3.18.13 Solicitation. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Contract. Further, Contractor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, City shall have the right to terminate this Contract without liability.

3.18.14 Conflict of Interest. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Contract. Further, Contractor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, City shall have the right to rescind this Contract without liability. For the term of this Contract, no director, official, officer or employee of City, during the term of his or her service with City, shall have any dir ect interest in this Contract, or obtain any present or anticipated material benefit arising therefrom. In addition, Contractor agrees to file, or to cause its employees or subcontractors to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Work.

3.18.15 Certification of License.

3.18.15.1 Contractor certifies that as of the date of execution of this Contract, Contractor has a current contractor’s license of the classification indicated below under Contractor’s signature.

9.a
Packet Pg. 259
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) 24 BBK 2018
23152.06000\30612079.1

3.18.15.2 Contractors are required by law to be licensed and regulated by the Contractors ’ State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed withi n four (4) years of the date of the alleged violation. A complaint regarding a latent act or omission pertaining to structural defects must be filed within ten (10) years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, Contractors’ State License Board, P.O.

Box 26000, Sacramento, California 95826.

3.18.16 Authority to Enter Contract . Each Party warrants that the individuals who have signed this Contract have the legal power, right and authority to make this Contract and bind each respective Party.

3.18.17 Entire Contract; Modification . This Contract contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Contract may only be modified by a writing signed by both Parties.

3.18.18 Non-Waiver. None of the provisions of this Contract shall be considered waived by either party, unless such waiver is specifically specified in writing.

3.18.19 City’s Right to Employ Other Contractors. City reserves right to employ other contractors in connection with this Project or other projects. [Signatures on Next Page]

9.a
Packet Pg. 260
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) 25 BBK 2018
23152.06000\30612079.1

SIGNATURE PAGE FOR CONSTRUCTION CONTRACT

BETWEEN THE CITY OF COLTON
AND MIKE’S CUSTOM FLOORING INC.

IN WITNESS WHEREOF, the Parties have entered into this Contract as of the 2nd day of March, 2022.

CITY OF COLTON Mike’s Custom Flooring Inc.
a Corporation

By: ____________________________ By: _________________________ William R. Smith Eric Esparza, Owner
City Manager

Attest:

____ By: _________________________
Carolina Padilla Name, Title
City Clerk

_______________________________
Contractor’s License Number/Classification

_______________________________
DIR Registration Number

Approved as to Form:

______________________________
Best Best & Krieger LLP
City Attorney

9.a
Packet Pg. 261
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) Exhibit A-1
23152.06000\30612079.1
EXHIBIT “A”

SERVICES / SCHEDULE

POLICE DEPARTMENT FLOORING

1. Remove and dispose of approximately 8,488 square feet of flooring.

2. Patchwork / prep work as needed.

3. Supply new flooring.

4. Skim coat existing

5. Install transitions and thresholds

6. Removal of existing base

7. Installation of 4” inch vinyl base in offices and 6” in corridors and common areas

8. Contractor will be required to attend a site visit prior to bidding

9. Contractor may be responsible for lifting, moving, relocating and placing back all furniture moved during install.

10. Provide information on working Friday, Saturday and Sunday in order to more easily facilitate the work during times the building will have less staff

11. Provide a schedule for project such as material lead-time, delivery, start and completion

INFORMATION SYSTEMS DEPARTMENT FLOORING

1. Remove and dispose of approximately 1,200 square feet of flooring.

2. Patchwork / prep work as needed.

3. Supply new flooring.

4. Skim coat existing

5. Install transitions and thresholds

6. Removal of existing base

7. Installation of 4” inch vinyl base in offices and 6” in corridors and common areas

8. Contractor will be required to attend a site visit prior to bidding

9. Contractor may be responsible for lifting, moving, relocating and placing back all furniture moved during install.

10. Provide information on working Friday, Saturday and Sunday in order to more easily facilitate the work during times the building will have less staff

11. Provide a schedule for project such as material lead-time, delivery, start and completion

Including any applicable Addenda.

NOTE: The description stated is to provide bidders with an approximate scope of work for the project and it is the bidder’s sole responsibility to accurately and completely determine the amount of material and labor necessary to complete the work. No additional costs or time delays will be considered by the City for bidder’s inaccurate determinations.

9.a
Packet Pg. 262
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) Exhibit B-1
23152.06000\30612079.1
EXHIBIT “B”

PLANS AND SPECIFICATIONS
(SEE NEXT PAGES)

9.a
Packet Pg. 263
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) Exhibit C-1
23152.06000\30612079.1
EXHIBIT “C”

SPECIAL CONDITIONS
ARTICLE 1. BONDS
Concurrently with this Contract, the Contractor shall deliver to the City four identical counterparts of the Performance Bond and Payment Bond on the forms supplied by the City and included as Exhibit “F” to the Contract. The surety supplying the bond must be an admitted surety insurer, as defined in Code of Civil Procedure Sectio n 995.120, authorized to do business as such in the State of California and satisfactory to the City. The Performance Bond and the Payment Bond shall be for one hundred percent (100%) of the Total Contract Price.

9.a
Packet Pg. 264
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) Exhibit D-1
23152.06000\30612079.1
EXHIBIT “D”

CERTIFICATION
LABOR CODE - SECTION 1861
I, the undersigned Contractor, am aware of the provisions of Section 3700, et seq., of the California Labor Code which require every employer to be insured against li ability for Worker’s Compensation or to undertake self-insurance in accordance with the provisions of the Code, and I, the undersigned Contractor, agree to and will comply with such provisions before commencing the performance of the Work on this Contract.

Mike’s Custom Flooring Inc.

By: _________________________
Signature
_________________________
Name (Print)
_________________________
Title (Print)

9.a
Packet Pg. 265
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) Exhibit E-1
23152.06000\30612079.1
EXHIBIT “E”

PUBLIC WORKS CONTRACTOR REGISTRATION CERTIFICATION
Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Depart ment of Industrial Relations. See http://www.dir.ca.gov/Public- Works/PublicWorks.html for additional information.

No bid will be accepted nor any contract entered into without proof of the contractor ’s and subcontractors’ current registration with the Department of Industrial Relations to perform public work.

Contractor hereby certifies that it is aware of the registration requirements set forth in Labor Code sections 1725.5 and 1771.1 and is currently registered as a contractor with the Department of Industrial Relations.1
Name of Contractor:

DIR Registration Number:

DIR Registration Expiration:__________________________
Small Project Exemption: _____ Yes or _____ No
Unless Contractor is exempt pursuant to the small project exemption, Contractor further acknowledges:

1. Contractor shall maintain a current DIR registration for the duration of the project.

2. Contractor shall include the requirements of Labor Code sections 1725.5 and 1771.1 in its contract with subcontractors and ensure that all subcontractors are registered at the time of bid opening and maintain registration status for the duration of the project.

3. Failure to submit this form or comply with any of the above requirements may result in a finding that the bid is non-responsive.

Name of Contractor:____________________
Signature:

Name and Title:

Dated:

1 If the Project is exempt from the contractor registration requirements pursuant to the small project exemption under Labor Code Sections 1725.5 and 1771.1, please mark “Yes” in response to “Small Project Exemption.”

9.a
Packet Pg. 266
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) Exhibit F-1
23152.06000\30612079.1
EXHIBIT “F”

PAYMENT AND PERFORMANCE BONDS

9.a
Packet Pg. 267
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) Exhibit F-2
23152.06000\30612079.1

PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:

THAT WHEREAS, the City of Colton (hereinafter referred to as “City”) has awarded to ____________________, (hereinafter referred to as the “Contractor”) _______________________ an agreement for ______________________________ (hereinafter referred to as the “Project”).

WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated ________________, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and
WHEREAS, the Contractor is required by said Contract Documents to perform the terms thereof and to furnish a bond for the faithful performance of said Contract Documents.

NOW, THEREFORE, we, _______________, the undersigned Contractor and _____________________________________________ as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto the City in the sum of ___________________________ DOLLARS, ($____________), said sum being not less than one hundred percent (100%) of the total amount of the Contract, for which amount well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH, that, if the Contractor, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Con tract Documents and any alteration thereof made as therein provided, on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their intent and meaning; and shall faithfully fulfill all obligations including the one-year guarantee of all materials and workmanship; and shall indemnify and save harmless the City, its officers and agents, as stipulated in said Contract Documents, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.

As a condition precedent to the satisfactory completion of the Contract Documents, unless otherwise provided for in the Contract Documents, the above obligation shall hold good for a period of one (1) year after the ac ceptance of the work by City, during which time if Contractor shall fail to make full, complete, and satisfactory repair and replacements and totally protect the City from loss or damage resulting from or caused by defective materials or faulty workmanship, Surety shall undertake and faithfully fulfill all such obligations. The obligations of Surety hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall limit the City’s rights or the Contractor or Surety ’s obligations under the Contract, law or equity, including, but not limited to, California Code of Civil Procedure section 337.15.

Whenever Contractor shall be, and is declared by the City to be, in default under the Contract Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall promptly, at the City’s option:

9.a
Packet Pg. 268
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) Exhibit F-3
23152.06000\30612079.1
(1) Take over and complete the Project in accordance with all terms and conditions in the Contract Documents; or
(2) Obtain a bid or bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible bidder, arrange for a Contrac t between such bidder, the Surety and the City, and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price ” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
(3) Permit the City to complete the Project in any manner consistent with local, California and federal law and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price ” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.

Surety expressly agrees that the City may reject any contractor or subcontractor which may be proposed by Surety in fulfillment of its obligations in the event of default by the Contractor.

Surety shall not utilize Contractor in completing the Project nor shall Surety accept a bid from Contractor for completion of the Project if the City, when declaring the Contractor in default, notifies Surety of the City’s objection to Contractor’s further participation in the completion of the Project.

Remainder of This Page is Intentionally Left Blank

9.a
Packet Pg. 269
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) Exhibit F-4
23152.06000\30612079.1
IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ da y of ______________, 20__).
(Corporate Seal)
Contractor/ Principal
By
Title

(Corporate Seal)
Surety
By
Attorney-in-Fact
Signatures of those signing for the Principal and Surety must be notarized and evidence of corporate authority attached. An original Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.

The rate of premium on this bond is ____________ per thousand. The total amount of premium charges, $_______________________________.
(The above must be filled in by corporate attorney.)

THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety)

(Name and Address of Agent or
Representative for service of
process in California, if different
from above)

(Telephone number of Surety
and Agent or Representative for
service of process in California)

9.a
Packet Pg. 270
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) Exhibit F-5
23152.06000\30612079.1

Notary Acknowledgment
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally

appeared , who proved to me on the basis of satisfactory

evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature of Notary Public

OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.

CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer

Title(s) Title or Type of Document
Partner(s)
Limited

General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:

Signer is representing:

Name Of Person(s) Or Entity(ies)

Signer(s) Other Than Named Above

9.a
Packet Pg. 271
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) Exhibit F-6
23152.06000\30612079.1

PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS That
WHEREAS, the City of Colton (hereinafter designated as the “City”), by action taken or a resolution passed ___________ , 20 ____has awarded to ________________ hereinafter designated as the “Principal,” a contract for the work described as follows:
_____________________________________________________ (the “Project”); and WHEREAS, the work to be performed by the Principal is more particularly set forth in the Contract Documents for the Project dated __________________ (“Contract Documents”), the terms and conditions of which are expressly incorporated by reference; and WHEREAS, said Principal is required to furnish a bond in connection with said contract; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done the reon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth.

NOW, THEREFORE, we, the Principal and __________________________, a corporation organized and existing under the laws of the State of _______ ________ and authorized to transact surety business under the laws of the State of California as Surety, are held and firmly bound unto City in the sum of ______________ Dollars ($___________) lawful money of the United States of America, the sum not being less than One Hundred Percent (100%) of the total amount of the Contract, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in Section 9100 of the Civil Code, fail to pay for any mate rials, provisions or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to Section 18663 of the Revenue and Taxation Code, with respect to such work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified, and also, in case suit is brought upon this bond, all litigation expenses incurred by City in such suit, including reasonable attorneys’ fees, court costs, expert witness fees and investigation expenses.

This bond shall inure to the benefit of any of the persons named in Section 9100 of the Civil Code so as to give a right of action to such persons or their assigns in any suit brought upon this bond.

It is further stipulated and agreed that the Surety on this bond shall not be exonerated or

9.a
Packet Pg. 272
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) Exhibit F-7
23152.06000\30612079.1
released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or pertaining or relating to the furnishing of labor, materials, or equipment therefor e, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement herein above described, nor by any rescission or attempted rescission of the contract, agreeme nt or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or City and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Section 9100 of the Civil Code, and has not been paid the full amount of his claim and that Surety does hereby waive notice of any such change, extension of time, addition, alteration or modification herein mentioned and the provisions of sections 2819 and 2845 of the California Civil Code.

The Remainder of this Page is Intentionally Left Blank

9.a
Packet Pg. 273
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) Exhibit F-8
23152.06000\30612079.1
IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__.
(Corporate Seal)
Contractor/ Principal
By
Title

(Corporate Seal) Surety
By

Attorney-in-Fact
Title
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached. An original Power-of-Attorney authorizing the person signing on behalf of the Surety to do so much be attached hereto.

The rate of premium on this bond is ____________ per thousand. The total amount of premium charges, $_______________________________.
(The above must be filled in by corporate attorney.)

THE FOLLOWING INFORMATION IS MANDATORY
Any claims under this bond may be addressed to:
(Name and Address of Surety) ___________________________________________ ___________________________________________
___________________________________________
(Name and Address of Agent or ___________________________________________ Representative for service of
process in California, if different ___________________________________________ from above)
___________________________________________
(Telephone number of Surety and ___________________________________________ Agent or Representative for service
of process in California)

9.a
Packet Pg. 274
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) Exhibit F-9
23152.06000\30612079.1
Notary Acknowledgment
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally

appeared , who proved to me on the basis of satisfactory

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature of Notary Public

OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.

CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer

Title(s) Title or Type of Document
Partner(s)
Limited

General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:

Signer is representing:

Name Of Person(s) Or Entity(ies)

Signer(s) Other Than Named Above

9.a
Packet Pg. 275
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring) Exhibit G-1
23152.06000\30612079.1

9.a
Packet Pg. 276
Attachment: Exhibit A - Contract (3507 : Contract Award - Mike's Custom Flooring)

ITEM NO. 10

STAFF REPORT

DATE: MARCH 1, 2022
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: BRIAN DICKINSON, PUBLIC WORKS AND UTILITY SERVICES

DIRECTOR
SUBJECT: APPROVE FIRST AMENDMENT TO THE PROFESSIONAL

SERVICES AGREEMENT WITH KRIEGER AND STEWART
ENGINEERING CONSULTANTS.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

1) Approve the First Amendment to the Professional Services Agreement with Krieger and Stewart Engineering Consultants, increasing the amount of compensation by $51,500 and the contract amount not to exceed $146,050, and

2) Authorize the City Manager to execute the agreement.

BACKGROUND

Currently, Well No. 30 is the largest well producer in the City and ha s the capacity of 3,000 GPM. The water pumped from Well No. 30 is approximately 35% of the total water supply.

Since it was built in 2013 the pumping plant is always running and the pump h as never been pulled for inspection. Both Well Pumping Plant No. 3 0 and Well 31 are located in the Central Pressure Zone on Fogg Street/Congress Street.

Water wells require regular maintenance to ensure adequate water flow and continued drinking water safety. In order for Well 30 to be inspected, an alternate source o f water is necessary to meet the daily water demand . Because of the need to put Well 30 to rest for maintenance, staff recommended the construction of Well 31 since the well was already drilled and is ready for well development. Construction of the new p roposed Well 31 will allow for the regular maintenance to Well 30 without supply interruption.
10 Packet Pg. 277
Staff Report to the Mayor and City Council
Contract Amendment - Krieger and Stewart
March 1, 2022

Page 2 ends

On April 21, 2020, City Council approved the award of Professional Services Agreement (PSA) contract to Krieger and Stewart Engineering Consultants, for the de sign and construction services for Well 31 Pumping Plant Project for amount of $94,550. The scope of services was for the preparation of construction drawings, provide construction inspection and support services during the development of the Well Pumping Plant No. 31.

ISSUES/ANALYSIS

The original plans and specifications for Well Pumping Plant No. 31 were completed in 2006. It required upgrades and to be re -designed to meet new codes . Due to changes to the seismic design considerations in the Californ ia Building Code, additional design services (geotechnical study and structural re -evaluation) were required that caused to exceed the original design engineering portion of the budget. It needed $25,206 of the construction budget to offset the design budget shortage, leaving $33,319 for construction support and inspection services.

On February 7, 2022, a Notice to Proceed was issued for the construction of Well Pumping Plant No. 31. Based on the current status of this project, staff recommends an increase of $51,500 to the contract of Krieger and Stewart Engineering Consultants for the remaining construction support and special inspections.

FISCAL IMPACTS

Sufficient appropriations for the contract amendment are available in Water Fund New Wells Capital Improvement Account Number 521-8100-8105-3890-0000-000.

ALTERNATIVES

Provide alternative direction to staff.

ATTACHMENT

1. First Amendment to Prof Svcs Agreemt
10 Packet Pg. 278
1 FIRST AMENDMENT TO

PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE CITY OF COLTON
AND

KRIEGER AND STEWART ENGINEERING CONSULTANTS

1. PARTIES AND DATE.

This First Amendment to the Professional Services Agreement (“First Amendment”) is made and entered into this 1st day of March, 2022 by and between the City of Colton (“City”) and Krieger and Stewart Engineering Consultants , (“Consultant”). City and Consultant are sometimes individually referred to as “ Party” and collectively as “Parties” in this First Amendment.

2. RECITALS.

2.1 Consultant.

Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set fo rth in this Agreement. Consultant represents that it is experienced in providing Engineering services to public clients, is licensed in the State of California, and is familiar with the plans of City.

2.2 Project.

City desires to engage Consultant to re nder such services for construction support and inspection services for the Well 31 Project (“Project”) as set forth in this Agreement.

2.3 Amendment. City and Consultant desire to amend the Agreement for the first time to increase the total amount of compensation for construction support and inspection services of Well 3 1 Project in an amount not to exceed $ 146,050 and extend the term of the Agreement for fifteen (15) additional months through June 30, 2023.

3. FEES AND PAYMENTS.

3.3 Compensation. Section 3. 3.1 of the Agreement is hereby deleted in its entirety and replaced with the following:

"3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements , for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The total compensation shall not exceed One Hundred Forty Six Thousand Fifty Dollars and No Cents ($146,050) without written approval of the City of Colton.

Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.”

10.a
Packet Pg. 279
Attachment: First Amendment to Prof Svcs Agreemt (3511 : Contract Amendment - Krieger and Stewart) 2 3.2 Continuing Effect of Agreement. Except as amended by this First Amendment, all provisions of the Agreement shall remain unchanged and in full force and effect.

From and after the date of this First Amendment, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this First Amendment.

3.3 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this First Amendment.

3.4 Counterparts. This First Amendment may be executed in duplicate originals, each of which is deemed to be an original , but when taken together shall constitute but one and the same instrument.

[SIGNATURES ON FOLLOWING PAGE]

10.a
Packet Pg. 280
Attachment: First Amendment to Prof Svcs Agreemt (3511 : Contract Amendment - Krieger and Stewart) 3 CITY OF COLTON

By: ___________________________ Attest: ___________________________ City Manager City Clerk

Recommended for Approval:

___________________________
Executive Director
Colton Utility Authority

KRIEGER AND STEWART ENGINEERING CONSULTANTS

A CORPORATION

By: ___________________________ By: ___________________________ Signature Signature

___________________________ ___________________________ Name (Print) Name (Print)

______________________ _________________________
Title (Print) Title (Print)

10.a
Packet Pg. 281
Attachment: First Amendment to Prof Svcs Agreemt (3511 : Contract Amendment - Krieger and Stewart)

ITEM NO. 11

STAFF REPORT

DATE: MARCH 1, 2022
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: BRIAN DICKINSON, PUBLIC WORKS AND UTILITY SERVICES

DIRECTOR
SUBJECT: APPROVE AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT WITH MONUMENT ROW, INC. FOR THE LA

CADENA DRIVE BRIDGE OVER SANTA ANA RIVER
REPLACEMENT PROJECT.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

 Approve Contract Amendment No. 1 with Monument Row, Inc. for the La Cadena Drive Bridge over Santa Ana River Replacement Project right of way services for $26,300; and

 Authorize City Manager to execute the amended agreement.

BACKGROUND

La Cadena Drive Bridge serves as a major link across the Santa Ana River for the residential and industrial communities in the City of Colton and the neighboring c ities of Grand Terrace and Riverside. It also serves as an alternative route for the I-10 and I-215 freeways. The existing 4- lane steel bridge was constructed in 1 929. It is currently listed on the Federal Eligible Bridge List (EBL) and rated "Structurally Deficient” (SD) with a very low “Sufficiency Rating” (SR) of

25.2. The 1ow SR indicates that the existing structure is seriously deteriorated and structurally deficient, requiring prompt structural corrections. In addition, the bridge's low rating on the deck geometry also meets the classification of be ing "Functionally Obsolete” (FO) . Observations from a recent field inspection indicated that the bridge is in its final years of service , as most of the steel members are severely corroded with thick rust, and some of the steel columns are cracked and tilted.

11 Packet Pg. 282
Staff Report to the Mayor and City Council
Contract Amendment - Monument Row Inc.

March 1, 2022

Page 2 ends

In May 2010, the City submitted an application to Caltrans for the replacement of La Cadena Bridge over Santa Ana River. Subsequently, in March 2011, the City received approval of Highway Bridge Program (HBP) funding for La Cadena Bridge over Santa Ana River Replacement Project (“Project”) in the amount of $24,376,736. This funding is intended for preliminary engineering, right of way, utility relocation and construction. As part of the right of way phase, the City received additional HBP funding for property and temporary construction easement acquisition in the amount of $752,505.

ISSUES/ANALYSIS

On No vember 19, 2019, the City awarded a professional services agreement contract to Monument Row, Inc. for the right of way phase of the La Cadena Drive Bridge over Santa Ana River Replacement Project in the amount of $61,590. Right of way phase for the Proje ct includes preparation of documents such as appraisals, legal description and plats, and negotiations for acquisition of properties, temporary costruction easements, utility relocation and railroad agreement. During the course of the right of way acquisition process and negotiation with the property owners, it was determined that adjustment to the location of a temporary construction easement is necessary due to request of the property owner (industrial project in the City of Grand Terrace). In addition, utility coordination took longer than anticipated due to the number of utilities that will be impacted by the bridge construction. Utilities that will be impacted include a Riverside Highland Water Company water line, a San Bernardino Municipal Water District sewer line, a SAWPA sewer manhole, an Empire Water open channel, a Sunesys cable for communication, an ATT line, a Colton Electric power line and a Colton Water transmission line. The ATT line is undergoing relocation but still need s coordination with the right of way consultant and the bridge designer. The e xisting 12” diameter Colton Water transmission line attached to the west side of the bridge will be relocated to the east side, and will be upgraded to 24” diameter. Existing Colton Electric ove rhead lines will be relocated and will be attached to the bridge by placing inside 5” diameter conduits.

Below is the breakdown for Amendment No. 1 to the Monument Row, Inc. contract:

1. Preparation of new Legals and Plats $ 1,200.00

2. New appraisals and review $ 4,100.00

3. Property acquisition $ 3,000.00

4. Utility coordination $18,000.00
Total $26,300.00

The new contract amount for Monument Row, Inc. is not to exceed $87,890 and the contract term will be extended to June 30, 2023. The right of way phase for the project is estimated to be completed by June 30. 2022 but utility relocation services of Monument Row, Inc. is still needed during the early stage of construction phase. Construction phase of the project is anticipated to be completed by December 2024.

11 Packet Pg. 283
Staff Report to the Mayor and City Council
Contract Amendment - Monument Row Inc.

March 1, 2022

Page 3 ends

FISCAL IMPACTS

Sufficient appropriations are available for Amendment No. 1 with Monument Row, Inc. (Monument) for the La Cadena Drive Bridge over Santa Ana River Replacement Project in the following accounts:

• 450-1306-6986-3890/Federal-HPP (High Priority Project) $ 23,293.91 • 450-1306-6972-3890/Arterial Measure I $ 1,695.43
• 450-1306-6900-3890/ Traffic Impact Fee $ 1,310.66 Total $ 26,300.00

HBP funding is a federal grant reimbursable through Caltrans and Arterial Me asure I is reimbursable thru SBCTA Measure I Valley Arterial Sub-program.

ATTACHMENT

Exhibit A – Amendment No. 1

ATTACHMENT

1. Exhibit A -Monument Contract Amendment No. 1
11 Packet Pg. 284
(BB&K: 2-12)
23152.06020\1435122.5
AMENDMENT NO. 1 TO

PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE CITY OF COLTON
AND
MONUMENT ROW, INC.

1. PARTIES AND DATE.

This Amendment No. 1 to the Professional Services Agreement (“1 st Amendment”) is made and entered into this 2nd day of March, 2022 by and between the City of Colton (“City”) and Monument Row, Inc. (“Consultant”) . City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this 1st Amendment.

2. RECITALS.

2.1 Agreement. City and Consultant entered into that certain Professional Services Agreement dated November 6 th, 2019 (“Agreement”), whereby Consultant agreed to provide services for the Right of Way Phase for the La Cadena Drive Bridge over Santa Ana River Replacement Project.

2.2 Amendment. City and Consultant desire to amend the Agreement for the 1st time to increase contract amount and to extend the term of the Agreement.

3. TERMS.

3.1 Scope of Services and Term. Compensation. Section 3.1.2.of the Agreement is hereby deleted in its entirety and replaced with the following:

3.1.2 Term. The term of this Agreement shall be extended to June 30, 2023, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.

3.2 Scope of Services and Term. Compensation . Section 3.3.1 of the Agreement is hereby deleted in its entirety and replaced with the following:

3.2.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit ”A” attached heret o and incorporated herein by reference. The total compensation shall not exceed Eighty Seven Thousand Eight Hundred Ninety Dollars and No Cents ($87,890.00) without written approval of City’s City Council. Extra Work may be authorized, as described

11.a
Packet Pg. 285
Attachment: Exhibit A -Monument Contract Amendment No. 1 (3508 : Contract Amendment - Monument Row Inc.) 2 (BB&K: 2-12)
23152.06020\1435122.5
below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.”

3.3 Continuing Effect of Agreement. Except as amended by this Amendment No. 1, all provisions of the Agreement shall remain unchanged and in full force and effect. From and after the date of this 1st Amendment, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this 1st Amendment.

3.4 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this 1st Amendment.

3.4 Counterparts. This Amendment No. 1 may be executed in duplicate originals, each of which is de emed to be an original, but when taken together shall constitute but one and the same instrument.

[SIGNATURES ON FOLLOWING PAGE]

11.a
Packet Pg. 286
Attachment: Exhibit A -Monument Contract Amendment No. 1 (3508 : Contract Amendment - Monument Row Inc.) 3 (BB&K: 2-12)
23152.06020\1435122.5
SIGNATURE PAGE FOR AMENDMENT NO. 1 TO

PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE CITY OF COLTON
AND MONUMENT ROW, INC.

IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 1 to Professional Services Agreement as of the 2nd day of March, 2022.

CITY OF COLTON

By: _________________________
William R. Smith
City Manager

Attest: _________________________
Carolina R. Padilla
City Clerk

MONUMENT ROW, INC.

By: _________________________
Signature

_________________________
Name (Print)

_________________________
Title (Print)
By: _________________________
Signature

_________________________
Name (Print)

_________________________
Title (Print)

EXHIBIT “A”

11.a
Packet Pg. 287
Attachment: Exhibit A -Monument Contract Amendment No. 1 (3508 : Contract Amendment - Monument Row Inc.)

4 (BB&K: 2-12)
23152.06020\1435122.5

COMPENSATION

Compensation to Monument Row, Inc. for the services of this Agreement shall not Eighty Seven Thousand Eight Hundred Ninety Dollars and No Cents ($87,890.00) without written approval of City’s City Council.

The additional task necessary to complete the right of way phase of the Project are as follows:

1. Preparation of new Legals and Plats $ 1,200.00

2. New appraisals and review $ 4,100.00

3. Property acquisition $ 3,000.00

4. Utility coordination $18,000.00
Total $26,300.00

11.a
Packet Pg. 288
Attachment: Exhibit A -Monument Contract Amendment No. 1 (3508 : Contract Amendment - Monument Row Inc.)

ITEM NO. 12

STAFF REPORT

DATE: MARCH 1, 2022
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: BRIAN DICKINSON, PUBLIC WORKS AND UTILITY SERVICES

DIRECTOR
SUBJECT: APPROVE NOTICE OF COMPLETION FOR RANCHO AVENUE AND N STREET INTERSECTION IMPROVEMENT PROJECT.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

It is recommended that the City Council authorize the execution and recordation of a Notice of Completion for the Rancho Avenue and N Street Intersection Improvement Project.

BACKGROUND

Rancho Avenue is one of the busiest arterial street s in the City of Colton , with average daily traffic of 16,072 vehicles per day. It is an undivided highway with a posted speed limit of 45 miles per hour. N Street intersects with Rancho Avenue a nd is utilized by motorist s as an east/west corridor in south Colton. Due to the unique geometrics of the intersection (situated in a horizontal curve area), several accidents and collisions have occurred at this location.

Intersection improvement was necessary to decrease the amount of accidents and collisions at the intersection. The scope of work included installation of raised median, curb and gutter, striping, new signage, and asphalt paving.

ISSUES/ANALYSIS

On January 21, 2021, the City Council awarded the construction contract to Hillcrest Contracting, Inc. for the Rancho Ave nue and N Street Intersection Improvement Project in the amount of $159,652.95. The Notice to Proceed for the Project was issued on June 29, 2021 and the Project was completed per plans and specification on October 21, 2021. The project plan is 12 Packet Pg. 289
Staff Report to the Mayor and City Council
Notice of Completion - Rancho/N Street Intersection Improvement Project March 1, 2022

Page 2 ends

shown as Exhibit A. The final contract amount for this project is $160,710.80 including Change Order No. 1 in the amou nt of $1,057.85 (less than 1% of contract amount, see Exhibit B).

Change Order No. 1 is for the addition of a stop bar and legend at “N” Street, a sign on the median, and painting of yellow and reflective markers.

FISCAL IMPACTS

The total amount for th e construction of the Rancho Avenue and N Street Intersection Improvement Project, including the Change Order is $160,710.80. The project was funded with the use of Traffic Impact Fee Funds in Capital Improvement Account #249-2019-6150-3890.

ALTERNATIVES

1. Provide alternative direction to staff.

ATTACHMENT

1. Exhibit A- Project Plans

2. Exhibit B - Change Order

3. Exhibit C- Notice of Completion

4. Exhibit D - Project Pictures
12 Packet Pg. 290

PUBLIC WORKS DEPARTMENT
Engineering Resources of Southern California
1861 W. Redlands Blvd.

Redlands, Ca. 92373
909.890.1255

CITY OF COLTON

COUNTY OF SAN BERNARDINO, CALIFORNIA

RANCHO AVENUE AND N STREET
“ ”
“
”
“ ”
“ ”
’ ”
’
"N" STREET
"M" STREET

THIRD STREET RANCHO AVENUE
SITE

RANCHO AVENUE &N STREET
11/12/20

12.a
Packet Pg. 291
Attachment: Exhibit A- Project Plans (3504 : Notice of Completion - Rancho/N Street Intersection Improvement Project)

PUBLIC WORKS DEPARTMENT
Engineering Resources of Southern California
1861 W. Redlands Blvd.

Redlands, Ca. 92373
909.890.1255

RANCHO AVENUE

N STREET

M STREET

THIRD STREET
SCALE: 1"= 20'
40 20 0
FEET
20 N

RANCHO AVENUE
N
TYPICAL SECTION:TYPICAL SECTION:
11/12/20

12.a
Packet Pg. 292
Attachment: Exhibit A- Project Plans (3504 : Notice of Completion - Rancho/N Street Intersection Improvement Project) SCALE: 1"= 40'

PUBLIC WORKS DEPARTMENT
Engineering Resources of Southern California
1861 W. Redlands Blvd.

Redlands, Ca. 92373
909.890.1255

RANCHO AVENUE
80 40 0
FEET
40 N

RANCHO AVENUE
N
10 FREEWAY

ENTRANCE
EAST
LEGEND

SIGN LEGEND
11/12/20

12.a
Packet Pg. 293
Attachment: Exhibit A- Project Plans (3504 : Notice of Completion - Rancho/N Street Intersection Improvement Project)

PUBLIC WORKS DEPARTMENT
Engineering Resources of Southern California
1861 W. Redlands Blvd.

Redlands, Ca. 92373
909.890.1255

RANCHO AVENUE

N STREET

O STREET
N

M STREET

THIRD STREET
SCALE: 1"= 40'
80 40 0
FEET
40 LEGENDSIGN LEGEND
11/12/20

12.a
Packet Pg. 294
Attachment: Exhibit A- Project Plans (3504 : Notice of Completion - Rancho/N Street Intersection Improvement Project)

12.b
Packet Pg. 295
Attachment: Exhibit B - Change Order (3504 : Notice of Completion - Rancho/N Street Intersection Improvement Project)

RECORDING REQUESTED BY

AND WHEN RECORDED MAIL TO

Name: City of Colton

Street 650 N. La Cadena Drive
Address

City & Colton, California
State California
Zip 92324

SPACE ABOVE THIS LINE FOR RECORDER’S USE
Notice of Completion
NOTICE IS HEREBY GIVEN THAT:

1. The City of Colton is the owner of the interest or estate stated below in the property hereinafter described.

2. The full name of the undersigned is Victor Ortiz, P.E

3. The full address of the undersigned is 650 N. La Cadena Drive, Colton, CA 92324

4. The nature of the title of the undersigned is City of Colton City Engineer (E.G. owner in fee OR vender under contract of purchase OR lessee OR OTHER APPROPRIATE DESIGNATION).

5. The full names and full addresses of all persons, if any, who holds title with the undersigned as joint tenants or as tenants in common are:

Names Addresses

N/A N/A

6. The names of the predecessors in interest of the undersigned, if the property was transferred subsequent to the commencement of the work of improvement herein referred to are (OR IF NO TRANSFER WAS MADE, INSERT THE WORD “none”):

Names Addresses

N/A N/A

7. A work of improvements on the property hereinafter described was completed on October 21, 2021

8. The name of the original contractor, if any, for the work of improvement was Hillcrest Contracting Inc.

The kind of work done or material furnished was improvement of intersection including installation of raised median, curb and gutter, striping, new signage, and asphalt paving.

9. 9. The property on which the work of improvement was completed is in the City of Colton, County of San Bernardino, State of California, and is described as follows: Rancho Ave and N Street Intersection Improvement Project.

10. The street address of the said property is located at Intersection of Rancho Ave. and N St., City of Colton CA 92324

Dated: ______________________________________(Signature) Victor Ortiz, P.E., City Engineer

VERIFICATION
I, the undersigned say:

I am the person who signed the foregoing notice. I have read the above notice and know its contents, and the facts stated therein are true of my own knowledge.

I declare under penalty of perjury that the foregoing is true and correct.

Executed at ___________________, California, this _____________ day of ______________________________.

____________________________________________________
(SIGNATURE)

12.c
Packet Pg. 296
Attachment: Exhibit C- Notice of Completion (3504 : Notice of Completion - Rancho/N Street Intersection Improvement Project)

12.d
Packet Pg. 297
Attachment: Exhibit D - Project Pictures (3504 : Notice of Completion - Rancho/N Street Intersection

ITEM NO. 13

STAFF REPORT

DATE: MARCH 1, 2022
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: STACEY DABBS, FINANCE DIRECTOR
SUBJECT: APPROVE AND ADOPT RESOLUTION NO. R-16-22 TO JOIN CAL CITIES TO OPPOSE INITIATIVE 21-0042A1, RESOLUTION NO. R- 16-22.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

Adopt Resolution R -16-22 to oppose Initiative 21 -0042A1 and join the growing coalition of public safety, labor, local governme nt, infrastructure advocates, and other organizations throughout the state.

BACKGROUND

In 2018, the “Tax Fairness, Transparency and Accountability Act” or (AG# 17-0050 Amdt. #1), was being circulated to qualify for the November 2018 ballot. This initiative would have drastically limited local revenue authority.

Through the successful work and advocacy of the League of California Cit ies and its coalition, the measure’s proponents withdrew the initiative from the ballot in June 2018.

On Jan. 4, 2022, the California Business Roundtable filed the Taxpayer Protection and Government Accountability Act or AG# 21-0042A1. This measure is far more detrimental to cities than the measure filed in 2018, because it would decimate vital local and state services to the benefit of wealthy corporations.

Cal Cities, along with a broad coalition of local governments, labor and public safety leaders, infrastructure advocates, and businesses, strongly oppose this initiative.

13 Packet Pg. 298
Staff Report to the Mayor and City Council
Resolution - CA Cities to Oppose Initiative 21-0042A1
March 1, 2022

Page 2 ends

ISSUES/ANALYSIS

The Taxpayer Protection and Government Accountability Act limits vote rs’ authority, adopts new and stricter rules for raising taxes and fees, and makes it more difficult to hold violators of state and local laws accountable.

Limiting Voter Authority and Accountability

 Limits voter input. Prohibits local voters from pr oviding direction on how local tax dollars should be spent by prohibiting local advisory measures.  Invalidates Upland decision that allows majority of local voters to pass special taxes.

Taxes proposed by the Initiative are subject to the same rules as taxes placed on the ballot by a city council. All measures passed between January 2022 and November 2022 would be invalidated unless reenacted within 12 months.

Restricting Local Fee Authority to Provide Local Services

 Franchise fees. Sets new standard for fees and charges paid for the use of local and state government property. The standard may significantly restrict the amount oil companies, utilities, gas companies, railroads, garbage companies, cable companies, and other corporations pay for the use of local public property. Rental and sale of local government property must be “reasonable” which must be proved by “clear and convincing evidence.”
 Except for licensing and other regulatory fees, fees and charges may not exceed the “actual cost” of pr oviding the product or service for which the fee is charged. “Actual cost” is the “minimum amount necessary.” The burden to prove the fee or charge does not exceed “actual cost” is changed to “clear and convincing” evidence.

Restricting Authority of St ate and Local Governments to Issue Fines and Penalties for Violations of Law.

 Requires voter approval of fines, penalties, and levies for corporations and property owners that violate state and local laws unless a new, undefined adjudicatory process is used to impose the fines and penalties.

Restricting Local Tax Authority to Provide Local Services

 Expanding existing taxes (e.g., UUT, use tax, TOT) to new territory (e.g., annexation) or expanding the base (e.g., new utility service) requires voter approval.  New taxes can be imposed only for a specific time period.  Taxes adopted after January 1, 2022, that do not comply with the new rules, are void unless reenacted.
 All state taxes require majority voter approval.
13 Packet Pg. 299
Staff Report to the Mayor and City Council
Resolution - CA Cities to Oppose Initiative 21-0042A1
March 1, 2022

Page 3 ends

 Prohibits any surcharge on property tax rate and allocation of property tax to state.

Other Changes

 No fee or charge or exaction regulating vehicle miles traveled can be imposed as a condition of property development or occupancy.

This measure would create major new loopholes that all ow corporations to avoid paying their fair share for the impacts they have on our communities; while also allowing corporations to evade enforcement when they violate environmental, health, safety and other state and local laws. If placed on the ballot and passed by voters, it:

1) Gives wealthy corporations a major loophole to avoid paying their fair share — forcing local residents and taxpayers to pay more
 The measure creates new constitutional loopholes that allow corporations to pay far less than their fa ir share for the impacts they have on our communities, including local infrastructure, our environment, water quality, air quality, and natural resources — shifting the burden and making individual taxpayers pay more.

2) Allows corporations to dodge enforcem ent when they violate environmental, health, public safety, and other laws
 The deceptive scheme creates new loopholes that makes it much more difficult for state and local regulators to issue fines and levies on corporations that violate laws intended to p rotect our environment, public health and safety, and our neighborhoods.

3) Jeopardizes vital local and state services
 This far -reaching measure puts at risk billions of dollars currently dedicated to critical state and local services.
 It could force cuts to public schools, fire and emergency response, law enforcement, public health, parks, libraries, affordable housing, services to support homeless residents, mental health services, and more.  It would also reduce funding for critical infrastructure like stre ets and roads, public transportation, drinking water, new schools, sanitation, and utilities.

4) Opens the door for frivolous lawsuits, bureaucracy, and red tape that will cost taxpayers and hurt our communities
 The measure will encourage frivolous lawsuits, bureaucracy, and red tape that will cost local taxpayers millions — while significantly delaying and stopping investments in infrastructure and vital services.

5) Undermines voter rights, transparency, and accountability 13 Packet Pg. 300
Staff Report to the Mayor and City Council
Resolution - CA Cities to Oppose Initiative 21-0042A1
March 1, 2022

Page 4 ends

 This misleading measure changes our constitution to make it more difficult for local voters to pass measures needed to fund local services and local infrastructure.  It also includes a hidden provision that would retroactively cancel measures that were passed by local voters — effectively undermining the rights of voters to decide for themselves what their communities need.
 It would limit voter input by prohibiting local advisory measures, where voters provide direction to politicians on how they want their local tax dollars spent.

FISCAL IMPACTS

Adopting Resolution R-16-22 has no direct fiscal impact to the City. However, i f Initiative 21- 0042A1 is placed on the ballot and passed by voters, it will result in:

 Billions of local government fee and charge revenues placed at heightened legal peril.

Related public service reductions across virtually every aspect of city, county, special district, and school services especially for transportation, and public facility use.

 Indeterminable legal and administrative burdens and costs on local govern ment from new and more empowered legal challenges, and bureaucratic cost tracking requirements.

 The delay and deterrence of municipal annexations and associated impacts on housing and commercial development.

 Service and infrastructure impacts including i n fire and emergency response, law enforcement, public health, drinking water, sewer sanitation, parks, libraries, public schools, affordable housing, homelessness prevention and mental health services.

ALTERNATIVES

1. Not take a position on Initiative 21-0042A1

2. Support Initiative 21-0042A1

3. Provide Alternative Direction

ATTACHMENT

1. Resolution R-16-22_Oppose Initiative 21-0042A1
13 Packet Pg. 301
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28

RESOLUTION NO. R-16-22

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
COLTON TO OPPOSE INITIATIVE 21 -0042A1 AND JOIN THE
“NO” ON INITIATIVE 21 -0042A1 COALITION, A GROWING

COALITION OF PUBLIC SAFETY, LABOR, LOCAL

GOVERNMENT, INFRSTRUCTURE ADVOCATES, AND OTHER
ORGANIZATIONS THROUGHOUT THE STATE.

WHEREAS, an association representing California’s wealthiest corporations is behind a deceptive proposition aimed for the November 2022 statewide ballot; and

WHEREAS, the measure creates new constitutional lo opholes that allow corporations to pay far less than their fair share for the impacts they have on our communities, including local infrastructure, our environment, water quality, air quality, and natural resources; and

WHEREAS, the measure includes undem ocratic provisions that would make it more difficult for local voters to pass measures needed to fund local services and infrastructure, and would limit voter input by prohibiting local advisory measures where voters provide direction on how they want their local tax dollars spent; and,

WHEREAS, the measure makes it much more difficult for state and local regulators to issue fines and levies on corporations that violate laws intended to protect our environment, public health and safety, and our neighborhoods; and

WHEREAS, the measure puts billions of dollars currently dedicated to state and local services at risk, and could force cuts to public schools, fire and emergency response, law enforcement, public health, parks, libraries, affordable housing, services to support homeless residents, mental health services, and more; and

WHEREAS, the measure would also reduce funding for critical infrastructure like streets and roads, public transportation, drinking water, new schools, sanitation, and utilities.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Colton does hereby find, determine and declare as follows:

SECTION 1. The City of Colton opposes Initiative 21-0042A1.

SECTION 2. The City of Colton will join the NO on Initiative 21-0042A1 coalition, a growing coalition of public safety, labor, local government, infrastructure advocates, and other organizations throughout the state.

SECTION 3. City Council directs staff to email a copy of this adopted resolution to the League of California Cities at [email protected].

PASSED, APPROVED AND ADOPTED this 1st day of March, 2022.

13.a
Packet Pg. 302
Attachment: Resolution R-16-22_Oppose Initiative 21-0042A1 (3505 : Resolution - CA Cities to Oppose Initiative 21-0042A1) 1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28

- 2 -

ATTEST: FRANK J. NAVARRO
Mayor

CAROLINA R. PADILLA,
City Clerk

13.a
Packet Pg. 303
Attachment: Resolution R-16-22_Oppose Initiative 21-0042A1 (3505 : Resolution - CA Cities to Oppose Initiative 21-0042A1)

ITEM NO. 14

STAFF REPORT

DATE: MARCH 1, 2022
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: CAROLINA PADILLA, CITY CLERK
SUBJECT: WAIVE FULL READING, READ BY TITLE ONLY AND PASS

SECOND READING OF AN ORDINANCE OF THE CITY COUNCIL

OF THE CITY OF COLTON, CALIFORNIA, ADDING SECTION

12.08.230 TO THE COLTON MUNICIPAL CODE, TO ENACT A

PAVEMENT CUT MORATORIUM TO PRESERVE NEWLY PAVED
STREETS, ORDINANCE NO. O-02-22.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

The City Council Waive Full Reading, and Approve Second Reading of an Ordinance of the City Council of the City of Colton, California, Adding Section 12.08.230 to the Colton Municipal Code, to Enact a Pavement Cut Moratorium to Preserve Newly Paved Streets.

ATTACHMENT

1. Ordinance No. O-02-22
14 Packet Pg. 304

1 1
2 3
4 5
6 7
8 9
10 11
12 13
14 15
16 17
18 19
20 21
22 23
24 25
26 27
28 ORDINANCE NO. O-02-22

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF COLTON, CALIFORNIA, ADDING SECTION 12.08.230 TO THE COLTON MUNICIPAL CODE TO ENACT A PAVEMENT CUT MORATORIUM TO PRESERVE NEWLY PAVED STREETS.

THE CITY COUNCIL OF THE CITY OF COLTON does hereby ordain as follows:

WHEREAS, pursuant to the California Constitution, Article, XI, section 7, the City of Colton may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general law; and
WHEREAS, Article X I, section 9 of the California Constitution proscribes that corporations which establish and operate works for supplying light, water, power, heat, transportation or means of communication, to residents of a municipal corporation shall establish and operate such services upon conditions and under regulations that municipal corporation may prescribe under its law; and
WHEREAS, the California Constitution grants the City the right to adopt reasonable regulations regarding its right -of-ways, which reasonable regulations would include the establishment of a street cut moratorium; and
WHEREAS, the public right -of-way is a unique public resource held in trust for the benefit of the public; this physically limited resource requires proper management to maximize its efficiency and minimize the costs to taxpayers, to protect against foreclosure of future economic expansion because of premature exhaustion of the public right -of-way, and to minimize the inconvenience to and negative effects on the public from use of the public right-of-way by contractors and utility companies; and
WHEREAS, to protect the integrity and quality of streets and public right -of-way, the Colton Municipal Code sets forth, in Chapter 12.08 (“Removal of Property--Excavations”), a permitting and fee system for encroachments and trench cuts to City streets; and

14.a
Packet Pg. 305
Attachment: Ordinance No. O-02-22 (3514 : Second Reading of Ordinance No. O-02-22)

2 1
2 3
4 5
6 7
8 9
10 11
12 13
14 15
16 17
18 19
20 21
22 23
24 25
26 27
28 WHEREAS, a street cut moratorium would protect the City’s investment in its infrastructure, preserve the life of streets, and provide a safe driving surface and a pleasing appearance to roadway surfaces that have undergone utility work; and WHEREAS, the City desires to establish a street cut moratorium through the adoption of this Ordinance to further the purposes stated herein.

NOW THEREFORE, THE CITY COUNCIL OF TH E CITY OF COLTON FINDS AND ORDAINS AS FOLLOWS:

Section 1. The above recitals are all true and correct and are hereby adopted as findings.

Section 2. A new Section 12.08.140 entitled “Moratorium on Trench Cuts in Newly Paved Streets,” is hereby added to Ch apter 12.08 (“Removal of Property -- Excavations”) of the Colton Municipal Code to adopt a street cut moratorium on newly improved streets, to read as follows:
“12.08.230 Moratorium on Trench Cuts in Newly Paved Streets.

A. Definitions. The following definitions are applicable within this section:
“Director” means Public Works and Utility Services Director or designee. “Excavate” or “Excavation” means any cutting, digging, potholing or otherwise disturbing the street surface with the right -of-way to access o r install a utility line or any related facility or for other reasons.
“Facility” means any fiber optic, coaxial, or copper cable; communication service equipment; telephone, telecommunications, electric or other wire, line or equipment; utility structure; oil, gas, or other pipeline; duct; conduit; cabinet; tunnel; vault; drain; manhole; splice box; surface location marker; pole; subsurface tiebacks; soil nails; stairs; access ramps; subsurface foundations; landscape features, including curbs around plant er areas; planter boxes; clocks; bus shelters; phone booths; bike racks; fencing; retaining walls;

14.a
Packet Pg. 306
Attachment: Ordinance No. O-02-22 (3514 : Second Reading of Ordinance No. O-02-22)

3 1
2 3
4 5
6 7
8 9
10 11
12 13
14 15
16 17
18 19
20 21
22 23
24 25
26 27
28 benches; stockpiles; building materials; and other appurtenances or tangible things located in, upon, above, beneath, or across any public right- of-way. “Moratorium street” means a street, alley, and public place that was (a) constructed, reconstructed, or overlaid within the past five (5) years or (b) slurry sealed within the past three (3) years.
”Permit” means written authorization from the Director to ex cavate, encroach upon, or obstruct a public right-of-way in compliance with this section. “Utility” means any person or entity providing electricity, gas, telephone, telecommunications, water, sanitary sewer or other services to customers, and which pursua nt to state law or local franchise is entitled to install its facilities in the public right-of-way.

B. Moratorium. For streets, alleys, and public places that were constructed, reconstructed, overlaid, or sealed, the following shall apply:

1. Non-emergency street excavation is prohibited for a period of five (5) years from the date of notice of completion of street construction, reconstruction, or overlay.

2. Non-emergency street excavation prohibited for a period of three (3) years from the date of notice of completion of slurry seal.

Utilities shall plan well enough in advance to determine alternate methods for making necessary repairs to avoid excavating newly resurfaced public streets.

C. Exceptions. Exceptions to the moratorium may be permitted in the following situations, at the discretion of Director:

1. Emergencies that create i mminent endangerment of life or property.

2. Interruption of essential utility service.

3. Work that is mandated by the city, state, or federal law.

14.a
Packet Pg. 307
Attachment: Ordinance No. O-02-22 (3514 : Second Reading of Ordinance No. O-02-22)

4 1
2 3
4 5
6 7
8 9
10 11
12 13
14 15
16 17
18 19
20 21
22 23
24 25
26 27
28 4. Service for new development or new cust omers where no other reasonable means of providing service exists.

5. Other situations deemed by the Director to be in the best interest of the general public.

Emergencies and other exceptions do not exempt the permittee from any requirements to repair the pa vement as included herein or as conditions of approval of a permit. The provisions of this section shall not apply to officers or employees of the City acting in the discharge of their official duties.

D. Waiver Application. To apply for a waiver t o excavate within a public street within five (5) years of the completion date of the street construction, reconstruction, or overlay or within three (3) years of the date of notice of completion of slurry seal , the applicant must submit a written request to the Director. The request must include the following:

1. The location of the excavation.

2. Description of the work to be performed.

3. A statement from the applicant setting forth good cause for why the work was not performed before the public street was resurfaced.

4. A statement from the applicant setting forth good cause for why the work cannot be deferred until after the five (5) year period.

5. A statement from the applicant setting forth good cause for why the work cannot be performed at another location.

E. Permit Conditions. In the event that a waiver is granted under subsection (C) of this section , any excavation in the public street shall be repaired in accordance with any and all conditions of the permit and the following standards:

14.a
Packet Pg. 308
Attachment: Ordinance No. O-02-22 (3514 : Second Reading of Ordinance No. O-02-22)

5 1
2 3
4 5
6 7
8 9
10 11
12 13
14 15
16 17
18 19
20 21
22 23
24 25
26 27
28 1. Construction, Reconstruction, Overlay:
i. For street cuts/trenches, on a moratorium street,
perpendicular to traffic lanes (a transverse street cut): The permittee will be required to grind and overl ay, two (2) inches of Asphalt Concrete (AC), twenty (20) feet on both sides of the trench line and for the full width of all impacted traffic lane(s) cut; but not less than five (5) feet from the end(s) of the trench. If the trench end(s) is less than or equal to five (5) feet from a lane line the adjacent lane shall be included, or as direct ed by the City Engineer. The full width of street shall be slurry sealed within the limits of the grind and overlay, or as directed by the City Engineer. All work requires a properly licensed contractor. All other criteria from the City of Colton Standard Drawing No. 124 are applicable.
ii. For street cuts/trenches, on a moratorium street, parallel to traffic lanes (a longitudinal street cut): The permittee will be required to grind and overlay two (2) inches of AC, one-half (1/2) street width minimum, for the length of the cut plus ten (10) feet on both ends, but not less than or equal to five (5) feet from trench edge both sides of trench, if this limit encroaches into adjacent lane, the other half of the street, then the full lane width shall be included, or as directed by the City Engineer. The full width of the street shall be slurry sealed, within the limits of the grind and overlay, or as directed by the City Engineer. All work requires a properly

14.a
Packet Pg. 309
Attachment: Ordinance No. O-02-22 (3514 : Second Reading of Ordinance No. O-02-22)

6 1
2 3
4 5
6 7
8 9
10 11
12 13
14 15
16 17
18 19
20 21
22 23
24 25
26 27
28 licensed contractor. All other criteria from City of Colton Standard Drawing No. 124 are applicable.

2. Slurry Seal
i. For street cuts/trenches, on a moratorium street,
perpendicular to traffic lanes (a transverse street cut): The permittee will be required to slurry seal, match existing slurry seal, twenty (20) fee t on both sides of the trench line and for the full width of all impacted traffic lane(s) cut; but not less than five (5) feet from the end(s) of the trench. If the trench end(s) is less than or equal to five (5) feet from a lane line the adjacent lane sha ll be included. All work requires a properly licensed contractor. All other criteria from City of Colton Standard Drawing No. 124 are
applicable.
ii. For street cuts/trenches, on a moratorium street, parallel to traffic lanes (a longitudinal street cut): The p ermittee will be required to slurry seal, match existing slurry seal, one -half (1/2) street width minimum, for the full length of the
cut/trench plus ten (10) feet on both ends, but not less than or equal to five (5) feet from trench edge both sides of trench, if this limit encroaches into adjacent lane, the other half of the street, then the full lane width shall be included.

All work requires a properly licensed contractor. All other criteria from Colton Standard Drawing No. 124 are
applicable.

14.a
Packet Pg. 310
Attachment: Ordinance No. O-02-22 (3514 : Second Reading of Ordinance No. O-02-22)

7 1
2 3
4 5
6 7
8 9
10 11
12 13
14 15
16 17
18 19
20 21
22 23
24 25
26 27
28 F. Violation and P enalties. Any street cut, trench, or condition caused or permitted to exist in violation of any of the provisions of this section is a threat to public health, safety, and welfare. Such condition is hereby declared and deemed to be a public nuisanc e and may be corrected or abated as directed by the Director. Any person creating a public nuisance is guilty of a misdemeanor and may also be subject to administrative citations and fines.”
Section 3. If any provision of the Ordinance is held inv alid, such invalidity shall not affect the remaining provisions of this Ordinance, which shall remain in effect absent the provision held to be invalid, and to this end, the provision of this Ordinance are declared to be severable.

Section 4. The City Clerk shall c ertify to the adoption of this Ordinance, and cause the same to be published in the local newspaper, and the same shall take effect thirty (30) days after its date of adoption:

PASSED, APPROVED, AND ADOPTED this 15th day of February, 2022.

_____________________________________
FRANK J. NAVARRO
Mayor

ATTEST:

_______________________________________
CAROLINA R. PADILLA
City Clerk

14.a
Packet Pg. 311
Attachment: Ordinance No. O-02-22 (3514 : Second Reading of Ordinance No. O-02-22)

ITEM NO. 15

STAFF REPORT

DATE: MARCH 1, 2022
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: TIM MCHARGUE, FIRE CHIEF
SUBJECT: SET PUBLIC HEARING FOR THE COUNCIL MEETING OF MARCH 15, 2022, TO APPROVE AND ADOPT RESOLUTION NO. R-17-22

REGARDING THE ANNUAL WEED ABATEMENT PROGRAM AS

ADMINISTERED BY THE COLTON FIRE DEPARTMENT,
RESOLUTION NO. R-17-22.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

Set the Public Hearing for the meeting of March 15, 2022 to consider approving and adopting Resolution No. R-17-22 for the Annual Weed Abatement Program.

BACKGROUND

Annually, each spring and fall, the Fire Department administers the City’s Weed Abatement Program. The attached reso lution simply sets the date for the necessary public hearing. As such, the act is considered ministerial.

ISSUES/ANALYSIS
The attached Resolution declares that weeds, rubbish and dirt upon the parkways, sidewalks, and private property in the City of Colto n, constitute a public nuisance and are subject to abatement.

The Resolution gives the Fire Chief the authority to give notice to property owners who own property where weeds or rubbish constitute a public nuisance and must be abated. Additionally, the R esolution authorizes the Fire Chief to approve a contractor to perform the abatement, to charge an administrative fee and to place all contractor fees plus the administrative fees on the County of San Bernardino Tax Rolls for collection.

15 Packet Pg. 312
Staff Report to the Mayor and City Council
Set Public Hearing - Weed Abatement
March 1, 2022

Page 2 ends

The Resolution al so sets the date for the Public Hearing for any objections to such proposed abatement and the charges therefore, to be heard by the City Council on March 15, 2022.

FISCAL IMPACTS

Total contractor fees for the Fiscal Year 2022-23 Weed Abatement Program ar e estimated at approximately $55,000. Additional associated operating costs are estimated at $2,000 and include items such as mailings and like incidental costs. These “pass -through” costs are recouped through direct billing and the County Tax Rolls. Fun ds budgeted in Fiscal Year 2021- 22 will cover the initial program costs associated with office supplies and any amounts billed through June 30, 2022 . Funds for the Fiscal Year 2022-23 expenses will be included in the FY2022-23 budget to cover those contractor costs related to the new fiscal year.

ALTERNATIVES

1. Provide alternative direction to staff.

ATTACHMENT

1. RESO 17-22 WEED ABATEMENT 03-15-22
15 Packet Pg. 313
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28

RESOLUTION NO. R-17-22

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

COLTON, CALIFORNIA TO SET THE PUBLIC HEARING FOR

THE ANNUAL WEED ABATEMENT PROGRAM FOR MARCH
15, 2022.

WHEREAS, there are weeds growing upon the streets, sidewalks, and private propert y within the City of Colton, and
WHEREAS, there is rubbish, refuse and dirt upon the parkways, sidewalks, and private property within the City of Colton, and
WHEREAS, said weeds and said rubbish, refuse and dirt constitute a public nuisance, and
WHEREAS, due to the extensive personnel, time and expertise needed to direct the abatement process, a fee must be charged for administrative procedures.

NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF COLTON DOES HEREBY RESOLVE AS FOLLOWS:

SECTION 1: The staff report accompanying this resolution is found to be true, adopted as findings and incorporated into this resolution.

SECTION 2: That all weeds growing upon the streets, sidewalks and private property within the City of Colton are declared to be a public nuisance and subject to abatement.

SECTION 3: That all rubbish, refuse and dirt, upon the parkways, sidewalks and private property within the City of Colton are declared a public nuisance and subject to abatement.

SECTION 4: That the Fire Chief of the Ci ty of Colton is hereby directed to give notice to the following described properties that there are on said premises, weeds or rubbish which constitute a public nuisance, and which must be abated.

SECTION 5: That said notices shall comply with Section 39 567.1 of the Government Code et. seq.

SECTION 6: That said premises will be abated by the contractor selected by the City of Colton, as directed by the Fire Chief and in a manner approved by him.

SECTION 7: That an administrative fee , according to mos t recent approved fee schedule, per parcel shall be charged.

15.a
Packet Pg. 314
Attachment: RESO 17-22 WEED ABATEMENT 03-15-22 (3512 : Set Public Hearing - Weed Abatement) 1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28

RVPUB\MXM\666167.1 - 2 -

SECTION 8: That upon the conclusion of the Abatement Program, all contractor fees, plus the administrative fee charged to those parcels requiring work and not collected through the normal billing process will be placed on the San Bernardino County Tax Rolls for collection.

SECTION 9: That a list of possible parcels to be abated is on file with the City Clerk.

SECTION 10: That objections to such proposed removal of weeds, rubbish, refuse an d dirt and the charges, therefore, will be heard by the City Council at 6:00 P.M., March 15, 2022 in the City of Colton Council Chambers.

PASSED, APPROVED AND ADOPTED this 1st day of March 2022.

FRANK NAVARRO, Mayor

ATTEST:

CAROLINA PADILLA, City Clerk

15.a
Packet Pg. 315
Attachment: RESO 17-22 WEED ABATEMENT 03-15-22 (3512 : Set Public Hearing - Weed Abatement)

Colton City CouncilMarch 1, 2022

Colton City Council
March 1, 2022