Colton City Council
February 7, 2023

FISCAL IMPACTS

None.

ALTERNATIVES

1. Provide alternative direction to staff.

ATTACHMENT

1. Fund Number and Title Legend

2. Voucher lists

3. Payroll Registers
5 Packet Pg. 253
City of Colton
Fund Number and Title Legend
Fund Title Fund Title
100 GENERAL FUND 701 LLMD #2
150 TREASURERS ACCOUNT GROUP 702 LLMD #1
206 COMMUN ITY CHILD CARE 703 CFO 87-1 DEBT SERV ICE
209 DSF FLY CONSERVATION 704 CFO 87-1 CONSTRUCT ION
210 SPECIAL GAS TAX 707 CFO 88-1 DEBT SERV ICE
211 LIBRARY GRANT FUND 708 CFO 88-1 CONSTRUCTION
212 STATE TRAFFIC RELIEF FUND 709 DSF FLY CONSERVATION
213 S.Y.E.T .P. GRANT 722 STORM WATER
214 POLLUT ION REDUCT ION FUND 733 CFO 89-1 CONSTRUCT ION 215 COMMUNITY DEV ACT FUND 734 CFO 89-2 CONSTRUCT ION
216 CDBG HOUS ING REHAB FUND 744 CFO 89-1 DEBT SERV ICE 217 DRUG/GANG INTERVENTION 745 CFO 89-2 DEBT SERV ICE
218 MEASURE I FUND 750 AQUA MANSA CFO
219 STATE AID- CAPITAL PROJECTS 754 SB COUNTY HOSPITAL
220 Vi Tep 762 TRUST AND AGENCY
225 MISC GRANTS 766 DEFERRED COMPENSAT ION
240 HOST CITY FEES - CIP 781 CFO 90-1 DEBT SERVICE
247 Quimby In Lieu Fees 782 CFO 90-1 CONSTRUCT ION
248 PARK DEVELOPMENT FUND 850 Redeve lopment Obligation Retirement Fund 249 TRAFF IC IMPACT FUND 851 Successor Agency Administration 250 NEW FAC ILITIES DEVELOPMENT FEE 855 Hous ing Auth - RM PARK DEVELOPMENT 251 CIVIC CENTER DEVELOPMENT FEE 856 Housing Auth - RANCHO MED BOND PROCEEDS 252 FIRE FAC ILITY DEVELOPMENT FEE 857 LMI Asset Fund
253 POLICE FACILITY DEVELOPMENT FEE 864 Housing Auth - LOW/MOD BOND PROCEEDS 261 ASSET FORFEITURE 865 Housing Auth - RANCHO MED CHFA 326 AD 94-1 DEBT SERVICE 866 ECONOM IC DEVELOPMENT
332 1971 SEWER BONDS, A & C 867 Consolidation Proj_08 -09 350 PFA Debt Fund 870 Housing Auth - RM PARK OPERAT IONS 357 POB-Non Enterprise 871 Successor Agcy-RANCHO/M ILL PROJECT AREA 358 PENS ION OBLIGATION DEBT SERV ICE 872 Succe ssor Agcy-RANCHO/MILL DEBT SERV ICE 359 CORP YARD DEBT SERV ICE 873 Successor Agcy-RDA II PROJECT FUND 363 1978-2 ASSESSMENT DIST . 874 Housing Auth - LOW/MOD DEBT SERV ICE 364 WATER IMPRVMNT DIST A 875 Housing Auth - LOW/MOD BOND PROCEEDS 379 AD 1979-1 DEBT SERV ICE 876 Successor Agcy-SANTA ANA RIV BND PROCEED 427 AD 94-1 CONSTRUCT ION 877 Successor Agcy-SANTA ANA RIVER CIP 450 Capita l Improvement Project s 878 RDA FIXED ASSETS GROUP 451 Colton Crossing Fund 879 Successor Agcy-WEST VALLEY CIP 453 STREET IMPROVEMENTS PRGM 881 Successor Agcy-MT VERNON BOND PROCEEDS 457 CAP ITAL IMPROVEMENT 882 Successo r Agcy-MT VERNON CIP 469 EQU IPMENT REPLACEMENT 885 Successor Agcy -MT VERNON DEBT SERV ICE 520 ELECTR IC UTILITY 886 RDA ADM INISTRAT ION
521 WATER UTILITY 887 COOLEY RANCH - now 894
522 WAS TEWATER UTILITY 888 MT VERNON - now 882
523 SOLID WASTE 889 WEST VALLEY - now 879
524 CEMETERY 890 Successor Agcy-RDA - LONG TERM DEBT GRP 525 RECYCLING 891 Successo r Agcy-RDA I DEBT SERV ICE FUND 526 PUBLIC BENEFIT FUND 892 Successor Agcy-RDA I - CAP ITAL PROJECTS 527 WASTEWATER UTILITY - GRAND TERRACE 893 Successor Agcy -RDA II DEBT SERV ICE FUND 551 WATER DEVELOPMENT 894 Successor Agcy -COOLEY RANCH PRO JECT 552 SEWER DEVELOPMENT 895 Successor Agcy-COOLEY RANCH DEBT SERV 560 CEMETARY ENDOWMENT CARE 896 SANTA ANA RIVER - now 877 605 Facility & Equipment Maintenance Fund 897 Successor Agcy-SANTA ANA RIVER DEBT SVC 606 INFORMATION SERV ICES FUND 898 Housing Auth - LOW/MOD CAPITAL PROJECTS 607 INSURANCE FUND 899 Successor Agcy-WEST VALLEY PRJ - DBT SV 608 AUTOMOT IVE SHOP 941 GENERAL LONG -TERM DEBT
610 AUTOMOT IVE SHOPS 958 GENERAL FIXED ASSETS
990 GASB 34

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ITEM NO. 6

STAFF REPORT

DATE: FEBRUARY 7, 2023
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: AURELIO DE LA TORRE, CITY TREASURER
SUBJECT: RECEIVE AND FILE TREASURER'S REPORT FOR OCTOBER 2022.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

Receive and File City Treasure’s Report for October 2022.

ATTACHMENT

1. Treasurer's report October 2022.xls
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ITEM NO. 7

STAFF REPORT

DATE: FEBRUARY 7, 2023
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: BRIAN DICKINSON, PUBLIC WORKS AND UTILITY SERVICES

DIRECTOR
SUBJECT: APPROVE ADDITIONAL FUNDS FOR RDO EQUIPMENT CO. FOR THE AMOUNT OF $29,600 FOR CURRENT AND FUTURE REPAIR
AND SERVICE NEEDS.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

1. Approve aggregate total of $61,600 with RDO Equipment Company (RDO) for Water and Wastewater heavy equipment maintenance for FY22/23 pursuant to Colton Municipal Code Section 3.08.140(E).

BACKGROUND

The City operates and maintains various pieces of heavy equipment within the Public Works and Utility Services Department. Heavy equipment is u sed in the day to day operations of the Water and Wastewater Utility. Equipment like backhoe loaders and front wheel loaders are essential pieces of equipment for maintaining the water and wastewater systems. Due to continue d use of these pieces of equipme nt, routine maintenance is required at intervals recommended by the manufacturer. Unforeseen issue s occasionally happen as well , requiring these pieces of equipment to be sent to current maintenance vendor RDO Equipment Company (RDO) . This fiscal year, multiple pieces of equipment have been sent in for service requiring additional funds be allocated to RDO. In FY 22/23, total cost for repairs to heavy equipment has totaled just under $30,000.

ISSUES/ANALYSIS

7 Packet Pg. 351
Staff Report to the Mayor and City Council
Contract Amendment - RDO Equipment Company
February 7, 2023

The estimated aggregate cost ($ 61,600) for R DO will exceed the $50,000 authority of the City Manager. Colton Municipal Code 3.08. 140(E) allows for the City Manager to determine that it is in the best interest of the City and its administrative operations to dispense with public bidding for non-public projects under this chapter. Since RDO is an authorized dealer and service center for John Deere equipment and, due to their proximity to the City of Colton, this allows the City to receive better service, quicker turnaround times for repairs, and mini mizes or eliminates costs associated with transportation of heavy equipment when repairs or services are needed.

FISCAL IMPACTS

Sufficient appropriations for the maintenance services amount are available in the FY 2022/23 approved budget in the following accounts.

1. Wastewater Division, Capital Outlay Automobile Account Number 522 -8200-8200-4910 - $16,600.00

2. Automotive Shop, Wastewater Operations Vehicle Operating Expense Account Num ber 608-6150-8700-2210-8200-000 - $5,000.00

3. Automotive Shop, Water Operati ons Vehicle Operating Expense Account Num ber 608- 6150-8700-2210-8101-000 - $8,000.00

ALTERNATIVES

1. Provide Alternative Direction to Staff.
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ITEM NO. 8

STAFF REPORT

DATE: FEBRUARY 7, 2023
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: BRIAN DICKINSON, PUBLIC WORKS AND UTILITY SERVICES

DIRECTOR
SUBJECT: AWARD CONSTRUCTION CONTRACT TO PERFORMANCE

CONSTRUCTION & PAINTING FOR RESTROOM/SHOWER ROOM
REMODEL AT FIRE STATION 212.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

Approve a Construction Contract for the Restroom/Shower Room Remodel at Fire Station 212 in the amount of $71,195.00 and authorize the City Manager to execute the associated documentation.

BACKGROUND

Fire Station 212, located at 1511 North Rancho Avenue, recently completed an ADA compliant women’s restroom addition. The existing lavatory is a bathroom and shower combination currently shared among all fire personnel staffed there. It was built with the original building in 1959 and is in need of a remodel. The addition of the previously completed ADA compliant women’s restroom along with the proposed remodel of the existing non -ADA compliant restroom/shower shall accommodate the needs of multiple fire department staff for rotating shifts.

ISSUES/ANALYSIS

In accordance with Colton Municipal Code (CMC) Section 3.08.050 (C) – Bidding requirements – Public Projects, Fifty Thousand One Dollars to One Hundred Thousand Dollars. Public Projects of more than twenty -five thousand dollars, but less than or equal to one hundred thousand dollars Shall, except as otherwise provided in this chapter or the Act, be awarded by the 8 Packet Pg. 353
Staff Report to the Mayor and City Council
Contract Award - Performance Construction & Painting
February 7, 2023

City Council pursuant to the Public Project Informal Bidding Procedure. The City emailed three (3) known contractors the scope of work for a proposed restroom remodel at Fire Station 212.

Additionally, a job walk was conducted with all three (3) potential contractors. The City received three (3) informal bids on Wednesday, November 16, 2022. They are summarized below:

The selection of the contractor was made based on the lowest responsible cost proposal.

FISCAL IMPACTS

Sufficient appropriations for the project are available in the adopted FY2022 -23 budget in Building Maintenance Fund Capital Outlay Building Account No. 605 -6150-6211-4950-0000- 000.

ALTERNATIVES

1. Provide direction to staff.

ATTACHMENT

1. Contract

2. FS 212 - Three Informal Bids
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BBK 2018
23152.06000\30612079.1

CITY OF COLTON

SHORT FORM CONSTRUCTION CONTRACT
FIRE STATION 212 RESTROOM REMODEL

1. PARTIES AND DATE.

This Contract is made and entered into this 3rd day of January, 2023 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 Performance Construction & Painting , a Sole Ownership with its principal place of business at 9185 W. Rochelle, Las Vegas, NV 89147-7831 (“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 for the provision of certain construction services required by the City on the terms a nd conditions set forth in this Contract. Contractor represents that it is duly licensed and experienced in providing (see Exhibit “A” – Scope of Services) 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: License Classification “B”.

2.3 Project. City desires to engage Contractor to render such services for the Fire Station 212 Restroom Remodel Project (“Project”) as set forth in this Contract.

2.4 Project Documents & Certifications . Contractor has obtained, and delivers concurrently herewith, Performance Bond, Payment B ond, Insurance Documents and Other Certifications 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, drawings, specifications and documents therein, and attachments and addenda thereto:
 Services/Schedule (Exhibit “A”)
 Plans and Specifications (Exhibit “B”)
 Contractor’s Certificate Regarding Workers’ Compensation (Exhibit “D”)  Public Works Contractor Registration Certification (Exhibit “E”)  Payment and Performance Bonds (Exhibit “F”)
 Change Orders executed by the City
 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 follows: change orders, special conditions, technical specifications, plans/construction drawings, general contract terms, sc ope of work,

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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 performed 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 materials or price thereof, or any other matter materially affecting the performance or nature of the Work shall not be paid fo r 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 additional 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 Co ntract 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 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

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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 certain 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 otherw ise stated, offer for substitution 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 con struction schedule and sequencing, 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 t his 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.

3.3 Period of Performance and Liquidated Damag es. Contractor shall perform and complete all Work under this Contract within 60 Working Days, beginning the effective date of the Notice to Proceed (“Contract Time”). Contractor shall perform its Work in strict accor dance 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. Co ntractor 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

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to Government Code Section 53069.85, Contractor shall pay to the City as fixed and liquidated damages the sum of ($175.00) per day for each and eve ry 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 perform all Work und er 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 contractor basis and Con tractor 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 limited to: social secu rity 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 the services and o bligations 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 required herein, City agrees to pay Contrac tor the Total Contract Price of Seventy One Thousand One Hundred Ninety Five Dollars ($71,195.00) (“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 Contract 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 month, Contractor shall submit to the City an itemized

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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 Paym ent. City shall review and pay all progress payment 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 applicable 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 d educted and retained by the City, and the remainder 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 Price 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 required 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 deposi ted with the City, or with a state or federally chartered bank in California as the escrow agent, and thereafter the City shall then pay such monies to Contractor as they come due. Upon satisfactory completion of the Contract, the securities shall be retu rned to Contractor. For purposes of this Section 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.

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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 71 08.5 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 pl edge, 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 a s 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 Prev ailing 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 portio n 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 California Labor Code with respect to the employment of properly registered apprentices upon public works. The 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 advis ed that eight (8) hours labor constitutes a legal day’s work. Pursuant to Section 1813 of the California Labor Code, Contractor

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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 Lab or 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 subcontractor 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 Commissioner 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 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 re gistered 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 Registration 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 works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.

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 f rom 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

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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 weather 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 Permit, the City will us e 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.

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 Pe rmit 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,

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officials, officers, employees, volunteers and agents fo r 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 the City’s attorney ’s fees) a ssociated 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 wit h 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 lifesaving 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 all safety measures. Further more, 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 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 giving 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

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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 will 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 excavation 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 excavation 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 physical conditions of an unusua l 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, Contra ctor 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 failure 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.

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, including, 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 specific ally 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 penalties imposed by SCAQMD, CA RB, or any other

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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 handler 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 not ify 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 a rbitration 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 Section 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.

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 g ive written notice of a claim for additional compensation for the work to the City within three (3) days after commencement of the disputed

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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 po int capital 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 o r 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
(6) Time impact analysis in CPM format

3.11.2.4 City’s Response . Upon receipt of a claim pursuant t o 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

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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 written 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 certified 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 disputed 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 Contracto r 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 th e 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.
(1) If the parties cannot agree upon a mediator, each party shall select a mediator and those mediators shall select a qualified 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.

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(2) For purposes of this section, mediation 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 confor m 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 mediate 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 or her written claim pursuant to subdi vision (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 w ithin 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 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 Chap ter 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.

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(A) In addition to Chapter 2.5 (commencing 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 upo n 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 Contractor. 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 fro m 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 Work 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 Sect ion 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, re gardless of whether the allegations are false, fraudulent, or groundless, to 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 misco nduct 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 fee s, attorneys’ fees, and other related costs and expenses.

Notwithstanding the foregoing, to the extent required by Civil Code section 2782, Contractor’s indemnity obligation shall not apply to liability for damages for death or bodily injury to persons,

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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 paym ent for City’s attorney’s fees and costs, including expert witness fees. Contractor shall reimburse City and 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 termination 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, representatives, 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 Contractors Protective Liability Coverage Form (CG 00 09 11 8 8) (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 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.

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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 o ther 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 prop erty 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 insurance 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 and 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 no t 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 na med 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

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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 vo lunteers 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 Ci ty, 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 fa ilure 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 reportin g 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 per occurrence. This insurance shall name the City, its directors, officials, officers, employees, agents and volunteers as additional and insureds with respec t 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,

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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. Bes t’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 certifica tes 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 subcon tractors 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 requ ired 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 i ncorporated 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.

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

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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 qualit y 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 Contra ctor 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 def ective 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.

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,

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which is attached to this Contract as 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 or 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 i nitial 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 Brian A.

Dickinson, Director of Public Works and Utility Services, 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 behalf of the City for all purposes under thi s 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, methods, 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 made 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 event of termination by City for any reason other than the fault of Contractor, City shall pay Contractor for all Work performed up to that 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

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similar to those terminated. Further, if this Contract is terminated as provided, City may require Contractor to provide all fin ished 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 fift een (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, w hose 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 Professions 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 re ceipt requested, postage prepaid and addressed as follows:

CONTRACTOR:

PERFORMANCE CONSTRUCTION & PAINTING
9185 W. ROCHELLE
LAS VEGAS, NV 89147-7831
ATTN: PATRICK CARNELL, MANAGING MEMBER
CITY:

CITY OF COLTON
650 NORTH LA CADENA DRIVE
COLTON, CA 92324
ATTN: BRIAN A. DICKINSON, DIRECTOR OF PUBLIC WORKS AND

UTILITY SERVICES
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.

3.18.7 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

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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 o r federal court situated in the 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 assigns 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 empl oyee 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, p ercentage, 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 direct 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.

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 fil ed within 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

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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 agreement s. 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]

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SIGNATURE PAGE FOR CONSTRUCTION CONTRACT

BETWEEN THE CITY OF COLTON

AND PERFORMANCE CONSTRUCTION & PAINTING
IN WITNESS WHEREOF, the Parties have entered into this Contract as of the 3rd day of January, 2023.

CITY OF COLTON Performance Construction & Painting
Sole Ownership

By: ____________________________ By: _________________________ William R. Smith Patrick Carnell
City Manager Managing Member

Attest:

____
Carolina R. Padilla
City Clerk

_613472____________________________
Contractor’s License Number/Classification

_PW-LR-1000752855_________________
DIR Registration Number

Approved as to Form:

______________________________
Best Best & Krieger LLP
City Attorney

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EXHIBIT “A”

SCOPE OF SERVICES
Remodel of bathroom

Work to include:

1. Provide bonds as required.

2. Demolish items as required.

3. Demolish approximately 7' of wall.

4. Remove and cap plumbing for one toilet.

5. Frame wall and install new window at existing location. Approximately 36"xl2" Vinyl slider.

6. Relocate plumbing for showers. Supply and drainage.

7. Frame wall between new showers.

8. Install plywood around exterior window as required, painted to match existing trim.

9. Install 6' bathroom vanity with a double sink. Allowance item.

10. Install new door at entrance. Flat board door with push/pull hardware and closer.

11. Install seven can lights in ceiling. Eliminate existing lighting as required.

12. Re-route A/C ducting. Allowance item. Further investigation required.

13. Install tile on floor. Approximately 170 sq. ft.

14. Install tile on shower walls. Approximately 150 sq. ft.

15. Install 4' high tile wainscot around bathroom. Approximately 260 sq. ft.

16. Paint walls and ceiling complete with one coat semi-gloss finish.

17. Paint toilet partitions with one coat gloss finish.

18. Clean work area and haul debris.

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EXHIBIT “B”

PLANS AND SPECIFICATIONS

SEE NEXT SHEETS

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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 liability 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.

Performance Construction & Painting

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

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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 Department 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.”

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EXHIBIT “F”

PAYMENT AND PERFORMANCE BONDS

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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 Cont ract 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 acc eptance 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:

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(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 accorda nce 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 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 an y 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.

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, including but not limited to the provisions of sections 2819 and 2845 of the California Civil Code.

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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
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)

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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) who se 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

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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 awa rded 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 wit h 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 an y 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 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 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 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 ex penses 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

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released from the obligation of this bond by any change, extension of time for perf ormance, 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, material s, 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 herein above described, nor by any rescission 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 bond, nor by any fraud prac ticed 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 t he provisions of sections 2819 and 2845 of the California Civil Code.

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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)

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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, _______________________________, Notar y 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 cap acity(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 foreg oing 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 remov al 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

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ITEM NO. 9

STAFF REPORT

DATE: FEBRUARY 7, 2023
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: BRIAN DICKINSON, PUBLIC WORKS AND UTILITY SERVICES

DIRECTOR
SUBJECT: AWARD OF ENGINEERING DESIGN CONTRACT TO
ENGINEERING RESOURCES OF SOUTHERN CALIFORNIA, INC.

FOR THE COLTON AVENUE BIKE PATH IMPROVEMENT
PROJECT.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

1. Award professional services agreement to Engineering Resources of S outhern California, Inc. (ERSC, Inc.) for the preparation of engineering design for the Colton Avenue Bike Path Improvement Project for $70,659.75; and

2. Authorize the City Manager to execute the agreement.

BACKGROUND

On March 11, 2021, the American Rescue Plan Act (ARPA) was signed into law and established the $350 billion Coronavirus State and Local Fiscal Recovery Fund to distribute much needed resources to state and local governments throughout the nation. Of that amount, San Bernardino County was allocated $423.5 million, creating an unprecedented opportunity to not only rebuild from the pandemic, but also to immediately invest in transformative public service projects that would otherwise remain far into the future.

On June 8, 2021 (amended on August 24, 2021), the County Board of Supervisors took its initial step towards investing the funds by passing the San Bernardino County Local Fiscal Recovery Fund Spending Plan. This plan allocated the County’s full $423.5 million through December 31, 2024 i nto three distinct spending categories and numerous subcategories that aligned with the 9 Packet Pg. 406
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overarching goal of rebuilding stronger communities in response to the pandemic, through Pandemic Response, Economic Recovery and Government Operations.

One of the projects that was approved is the Colton Avenue Bike Path Improvement Project. The bike path was constructed in 2008 on an abandoned train route. The project is a 2.0 mile long Class I bike and pedestrian route along Colton Avenue (1.20 mi.) in the City of Colton and Inland Center Drive (0.80 mi.) in the City of San Bernardino. Colton Bike Path is situated adjacent to various point s of interest such as Alice Birney Elementary School, Chavez Park, Gonzalez and Hutton Community Center, and several commercial centers. The Colton segment is located along residential and commercial neighborhood s within a designated census tract with low to moderate income percentage ranges from 32.5 to 71.19 percent. The estimated cost of the project is $575,000 and the project limit is from 10th/G Street intersection to Colton City limit with the City of San Bernardino. Attached as Exhibit A is the project map.

The project will upgrade the Colton bike path from F Street to the City limit with San Bernardino. The project will r ehabilitate the landscaping with low maintenance and drought tolerant plants, striping, signage, and concrete improvements such as ADA ramps and replace damaged concrete path. Upgrade of bike lane striping and signs are anticipated to enhance the safety of the bike lane crossings on seven street intersections. The path initially had minimal landscaping and the irrigation system deteriorated over the years and resulted in the path landscaping deteriorating. Pedestrians and bicyclists heavily use the path as a safe route through the City for walking and cycling.

ISSUES/ANALYSIS

On September 16, 2022, City staff issued the Request for Proposal (RFP) for the preparation of plans, specifications and estimate for the Colton Avenue Bike Path Improvement Project. The RFP was advertised on September 16 and September 23, 2022. On October 13, 2022, the City received proposals from the following engineering firms:

1. ERSC, Inc. $ 70,659.75

2. KOA Corp. $153,843.00

3. STC Traffic, Inc. $158,040.00

City engineering and planning staff evaluated the three proposals. Evaluation criteria include firm and key personnel qualifications, similar projects design experience, work plan and technical approach, and cost competitiveness. After review and deliberation, ERSC, Inc. was determined as the most qualified consultant to perform work needed for the preparation of plans, specifications and estimate for the Colton Avenue Bike Path Improvement Project. ERSC, Inc ’s experience includes engineering services of various bike path p rojects and street improvement projects in the C ities of Temecula, Highland, Moreno Valley and Colton. In Colton, they 9 Packet Pg. 407
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February 7, 2023

completed the design and engineering for the North La Cadena Drive/8 th Street Intersection Improvement Project and the Rancho Avenue/N Street Intersection Improvement Project.

Due to the large discrepancy of cost proposals between ERSC, Inc. and the other two proposers, staff further evaluated the ERSC, Inc. cost submittal. The company confirmed that they could complete the necessary work for $70,659.75 since the City will provide the existing CAD drawings for the project as stated on the RFP. The professional service agreement contract is attached as Exhibit B.

FISCAL IMPACTS

Sufficient appropriations for the engineering contract are av ailable in the FY2022 -23 adopted budget in Miscellaneous Grants Fund Colton Bike Path Capital Improvement Account Number 225-6200-6235-3890-0000-000.

Account Number Available Funding ERSC, Inc. Contract
Funding
225-6200-6235-3890-0000-000 $574,783.36 $ 70,659.75
Total $574,783.36 $ 70,659.75

ENVIRONMENTAL IMPACTS

Preparation of documents for the California Environmental Quality Act (CEQA) and National Environmental Protection Act (NEPA) is part of the Preliminary Engineering phase for this Project

ALTERNATIVES

1. Provide alternative direction to staff.

ATTACHMENT

1. Exhibit A - Project Map

2. Exhibit B -ERSC, Inc. Professional Service Agreement 9 Packet Pg. 408
C o lt o n A v e . C la s s I B ik e T r a il P r o je c t S a n B e r n a r d in o C o u n t y , M a x a r , M ic r o s o f t C it y L im it s
P a r c e ls
8 / 3 1 / 2 0 2 2 1 : 4 3 : 3 2 P M
0 0 . 1 5 0 . 30 . 0 7 m i
0 0 . 3 0 . 60 . 1 5 k m
1 : 9 , 0 2 8
E a r t h s t a r G e o g r a p h ic s |
Start o f Project
End of Project
Colton Avenu
e Bike Path Project

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Attachment: Exhibit A - Project Map (3919 : Contract Award - Engineering Resources of Southern California, Inc.) (BB&K 2018)
23152.06000\30453088.2 Exhibit “A”-1

CITY OF COLTON

PROFESSIONAL SERVICES AGREEMENT

1. PARTIES AND DATE.

This Agreement is made and entered into this 8th day of February 2023, 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 ("City") and Engineering Resources of Southern California, Inc. a corporation, with its principal place of business at 1861 W. Redlands Blvd., Redlands, CA 92373 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."

2. RECITALS.

2.1 Consultant.

Consultant desires to perform and assume responsibility for the provision of certain professional consulting services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing engineering, design consulting 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 render such professional engineering design and environmental services for the Colton Avenue Bike Path Improvement Project ("Project") as set forth in this Agreement.

3. TERMS.

3.1 Scope of Services and Term.

3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional engineering design consulting services for the Colton Avenue Bike Path Improvement Project ("Project"). The scope of services are more particularly described in Exhibit "A" attached heret o and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.

3.1.2 Term. The term of this Agreement shall be from April 1, 2023 to March 31, 2024, unless earlier terminated as provided herein. Consultant shall complete the Project 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 Responsibilities of Consultant.

3.2.1 Independent Contractor; Control and Payment of Subordinates . The Services shall be performed by Consultant or under its supervision. Consultant will determine the

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Attachment: Exhibit B -ERSC, Inc. Professional Service Agreement (3919 : Contract Award - Engineering Resources of Southern California, (BB&K 2018)
23152.06000\30453088.2 Exhibit “A”-2

means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee.

Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, nor any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents, except as set forth in this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disabil ity insurance, and workers' compensation insurance.

3.2.2 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, City shall respond to Consultant's submittals in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.

3.2.3 Conformance to Applicable Requirements . All work prepared by Consultant shall be subject to the approval of City.

3.2.4 Substitution of Key Personnel . Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Consultant at the request of the City. The key personnel for performance of this Agreement are as follows: John M. Brudin, P.E., President

3.2.5 City's Representative. The City hereby designates Brian Dickinson, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Work or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the Scope of Work or change the Consultant's total compensation subject to the provisions contained in Section 3.3 of this Agreement. Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee.

3.2.6 Consultant's Representative. Consultant hereby Lori Askew , Project Manager, or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent

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Attachment: Exhibit B -ERSC, Inc. Professional Service Agreement (3919 : Contract Award - Engineering Resources of Southern California, (BB&K 2018)
23152.06000\30453088.2 Exhibit “A”-3

and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.

3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times.

3.2.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional cal ling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subconsultant s 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 throughout the term of this Agreement.

As provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub-consultants who is determined by the 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 employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re -employed to perform any of the Services or to work on the Project.

3.2.9 Period of Performance. Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”).

Consultant shall also perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Project Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.

3.2.10 Laws and Regulations ; Employee/Labor Certification. Consultant 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 Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If Consultant performs any work knowing it to be contrary to such laws, rules and regulations, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees, agents, and volunteers free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.

3.2.10.1 Employment Eligibility; Consultant . By executing this Agreement, Consultant 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,

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Attachment: Exhibit B -ERSC, Inc. Professional Service Agreement (3919 : Contract Award - Engineering Resources of Southern California, (BB&K 2018)
23152.06000\30453088.2 Exhibit “A”-4

the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such requirements and restrictions include, but are not limited to, examination and retention of documentation confirming the identity and immigration status of each employee of the Consultant.

Consultant also verifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement. Consultant shall avoid any violation of any such law during the term of this Agreement by participating in an electronic verification of work authorization program operated by the United States Department of Homeland Security, by participating in an equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, or by some other legally acceptable method. Consultant shall maintain records of each such verification, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses related to Consultant’s compliance with the requirements provided for in Section 3.2.10 or any of its sub- sections.

3.2.10.2 Employment Eligibility; Subcontractors, Consultants, Sub- subcontractors and Subconsult ants. To the same extent and under the same conditions as Consultant, Consultant shall require all of its subcontractors, consultants, sub-subcontractors and subconsultants performing any work relating to the Project or this Agreement to make the same verifications and comply with all requirements and restrictions provided for in Section 3.2.10.1.

3.2.10.3 Employment Eligibility; Failure to Comply . Each person executing this Agreement on behalf of Consultant verifies that they are a duly authorized officer of Consultant, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Consultant or its subcontractors, consultants, sub- subcontractors or subconsultants to meet any of the requirements provided for in Sections

3.2.10.1 or 3.2.10.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Consultant under Section

3.2.10.2); or (3) failure to immediately remove from the Project any person found not to be in compliance with such requirements.

3.2.10.4 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non -discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.

3.2.10.5 Air Quality . To the extent applicable, Consultant must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, 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, Consultant shall specifically be aware of their application to "portabl e equipment", which definition is considered by SCAQMD and CARB to include any item of equipment with a fuel - powered engine. Consultant shall indemnify City against any fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory ag ency for violations of applicable

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Attachment: Exhibit B -ERSC, Inc. Professional Service Agreement (3919 : Contract Award - Engineering Resources of Southern California, (BB&K 2018)
23152.06000\30453088.2 Exhibit “A”-5

laws, rules and/or regulations by Consultant, its sub-consultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement.

3.2.10.6 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant 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, where applicable, shall include, but shall not be limited to: (A) adequate life protection and lifesaving equipment and procedures; (B) instructions in accident prevention for all employees and subconsultants, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.

3.2.11 Insurance.

Time for Compliance . Consultant shall not commence Work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this Section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this Section.

3.2.11.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subconsultants.

Consultant shall also require all of its subconsultants to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage:
(A) 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 0001); (2) Automobile Liability :

Insurance Services Office Business Auto Coverage form number CA 0001, 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. The policy shall not contain any exclusion contrary to the Agreement, 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. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used including, but not limited to, form CG 2503, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Liability

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Attachment: Exhibit B -ERSC, Inc. Professional Service Agreement (3919 : Contract Award - Engineering Resources of Southern California, (BB&K 2018)
23152.06000\30453088.2 Exhibit “A”-6

limits $1,000,000 per accident for bodily injury or disease. Defense costs shall be paid in addition to the limits.
(C) 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, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with t he City evidence of insurance 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 Agreement does not comply with these specif ications or is canceled and 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 Consultant or the City may withhold amounts sufficient to pay premi um from Consultant payments. In the alternative, the City may suspend or terminate this Agreement.

3.2.11.3 Professional Liability . Consultant shall procure and maintain, and require its sub- consultants to procure and maintain, for a period of five (5) years following completion of the Project, errors and omissions liability insurance appropriate to their profession. Such insurance shall be in an amount not less than $1,000,000 per claim, and shall be endorsed to include contractual liability. Defense costs shall be paid in addition to the limits.

3.2.11.4 Insurance Endorsements . The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies:
(A) 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 insured with respect to the Services or ongoing and completed operations performed by or on behalf of the Consultant, 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 the Consultant’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 the Consultant’s insurance and shall not be called upon to contribute with it in any way. Notwithstanding the mini mum limits set forth in Section

3.2.11.2(B), 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 3.2.11.4(A).
(B) Automobile Liability . The automobile liability policy shall include or be endorsed (amended) to state that: (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 the Consultant or for which the Consultant 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

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Attachment: Exhibit B -ERSC, Inc. Professional Service Agreement (3919 : Contract Award - Engineering Resources of Southern California, (BB&K 2018)
23152.06000\30453088.2 Exhibit “A”-7

excess of the Consultant’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 the Consultant’s insurance and shall not be called upon to contribute with it in any way.

Notwithstanding the minimum limits set forth in Section 3.2.11.2(B), 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 3.2.11.4(B). (C) 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 the Consultant. (D) All Coverages . Each i nsurance policy required by this Agreement shall be endorsed to state that: (A) 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 (B) 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.

3.2.11.5 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 li mitations 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 Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own ri ght 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 subconsultants.

3.2.11.6 Deductibles and Self-Insurance Retentions . Any deductibles or self-insured retentions must be declared to and approved by the City. Consultant 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 Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims, and administrative and defense expenses.

3.2.11.7 Subconsultant Insurance Requirements. Consultant shall not allow any subconsultants to commence work on any subcontract relating to the work under the Agreement until they have provided evidence satisfactory to the City that they have secured all insurance required under this Section. If requested by Consultant, the City may approve different scopes or minimum limits of insurance for particular subconsultants. The Consultant and the City shall be named as additional insureds on all subconsultants’ policies of Commercial General Liability using ISO form 20 38, or coverage at least as broad.

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Attachment: Exhibit B -ERSC, Inc. Professional Service Agreement (3919 : Contract Award - Engineering Resources of Southern California, (BB&K 2018)
23152.06000\30453088.2 Exhibit “A”-8

3.2.11.8 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.

3.2.11.9 Verification of Coverage. Consultant shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement 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 provided by the City if requested. 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.

3.2.11.10 Reporting of Claims. Consultant shall report to the City, in addition to Consul tant’s insurer, any and all insurance claims submitted by Consultant in connection with the Services under this Agreement.

3.2.12 Water Quality Management and Compliance.

3.2.12.1 Storm Water Management. Storm, surface, nuisance, or other waters may be encountered at var ious times during the Services. Consultant hereby acknowledges that it has investigated the risk arising from such waters, and assumes any and all risks and liabilities arising therefrom.

3.2.12.2 Compliance with Water Quality Laws, Ordinances and Regulations. Co nsultant 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 Services including, without limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.); the California Porter -Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority. Consultant must additionally comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges.

3.2.12.3 Standard of Care. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the work assigned to them without impacting water quality in violation of the laws, regulations an d policies described in Section 3.2.12.2 of this Agreement. Consultant further warrants that it, its employees and subcontractors have or will receive adequate training, as determined by the City, regarding these requirements as they may relate to the Services.

3.2.12.4 Liability for Non-compliance.
(A) Indemnity: Failure to comply with laws, regulations, and ordinances listed in Section 3.2.14.2 of this Agreement is a violation of federal and state law.

Notwithstanding any other indemnity contained in this Agreement, Consultant agrees to indemnify and hold harmless the City, its officials, officers, agents, employees and authorized volunteers from and against any and all claims, demands, losses or liabilities of any kind or nature which the City, its officials, officers, agents, employees and authorized volunteers may sustain or incur for noncompliance with the laws, regulations, and ordinances listed above, arising out of or in

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23152.06000\30453088.2 Exhibit “A”-9

connection with the Services, except for liability resulting from the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers.
(B) Defense: City reserves the right to defend any enforcement action or civil action brought against the City for Consultant’s failure to comply with any applicable water quality law, regulation, or policy. Consultant hereby agrees to be bound by, and to reimburse the City for the costs assoc iated with, any settlement reached between the City and the relevant enforcement entity.
(C) Damages: City may seek damages from Consultant for delay in completing the Services caused by Consultant’s failure to comply with the laws, regulations and policies described in Section 3.2.12.2 of this Agreement, or any other relevant water quality law, regulation, or policy.

3.3 Fees and Payments.

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 Seventy Thousand Six Hundred Fifty Nine and 75/100 Dollars ($70,659.75) without written approval of the City Council or City Manager as applicable. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.

3.3.2 Payment of Compensation. Consultant shall submit to City a monthly invoice which indicates work completed and hours of Services rendered by Consultant. The invoice shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice.

City shall, within 30 days of receiving such invoice, review the invoice and pay all non -disputed and approved charges thereon. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein.

3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit "C" of this Agreement.

3.3.4 Extra Work . At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement.

Consultant shall not perform, nor be compensated for, Ext ra Work without written authorization from the City.

3.3.5 Rate Increases. In the event that this Agreement is renewed pursuant to Section 3.1.2, the rate set forth in Exhibit “C” may be adjusted each year at the time of renewal as set forth in Exhibit “C.”

3.4 Labor Code Requirements.

3.4.1 Prevailing Wages. Consultant is aware of the requirements of California

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Attachment: Exhibit B -ERSC, Inc. Professional Service Agreement (3919 : Contract Award - Engineering Resources of Southern California, (BB&K 2018)
23152.06000\30453088.2 Exhibit “A”-10

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, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's p rincipal place of business and at the project site. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents, and volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.

3.4.2 Registration/DIR Compliance. If the Services are being performed on a public works project of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the project and require the same of any subconsultants. This project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the Department of Industrial Relations against Consultant or any subconsultant that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant 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 Consultant or any subconsultant.

3.4.3 Labor Certification. By its signature hereunder, Consultant certifies that it 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 Services.

3.5 Accounting Records.

3.5.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.

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Attachment: Exhibit B -ERSC, Inc. Professional Service Agreement (3919 : Contract Award - Engineering Resources of Southern California, (BB&K 2018)
23152.06000\30453088.2 Exhibit “A”-11

3.6 General Provisions.

3.6.1 Termination of Agreement.

3.6.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consul tant may not terminate this Agreement except for cause.

3.6.1.2 Effect of Termination . If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.

3.6.1.3 Additional Services. In the event this Agreement i s terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.

3.6.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:

Consultant: Engineering Resources of Southern California, Inc. 1861 W. Redlands Blvd.,
Redlands, CA 92373
Attn: John M Brudin, P.E., President

City: City of Colton
650 North La Cadena Drive
Colton, CA 92324
Attn: Brian Dickinson, PW/Utility Director
Such notice shall be deemed made when personally delivered or when mailed, forty -eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

3.6.3 Ownership of Materials and Confidentiality.

3.6.3.1 Documents & Data; Licensing of Intellectual Property . This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall

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Attachment: Exhibit B -ERSC, Inc. Professional Service Agreement (3919 : Contract Award - Engineering Resources of Southern California, (BB&K 2018)
23152.06000\30453088.2 Exhibit “A”-12

be and remain the property of City, and shall not be used in whole or in substantial part by Consultant on other projects without the City’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant shall have no ri ght to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.

3.6.3.2 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non -exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or its subconsultants, or those provided to Consultant by the City.

3.6.3.3 Right to Use . City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of thi s Project or another project, provided that any such use not within the purposes intended by this Agreement or on a project other than this Project without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than this Project, it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Documents & Data on such other project. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or l iable, or anyone approved by the Consultant.

3.6.3.4 Indemnification. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by City of the Documents & Data, including any method, process, product, or concept specified or depicted.

3.6.3.5 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any

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Attachment: Exhibit B -ERSC, Inc. Professional Service Agreement (3919 : Contract Award - Engineering Resources of Southern California, (BB&K 2018)
23152.06000\30453088.2 Exhibit “A”-13

purposes other than the performanc e of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.

3.6.3.6 Confidential Information. The City shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the City's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information.

Consultant shall have five (5) working days after receipt of the Release Notice to give City written notice of Consultant's objection to the City's release of Proprietary Information. Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of the Objection Notice unless either: (1) Consultant fails to fully indemnify, defend (with City's choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a final and non-appealable order by a court of competent jurisdiction requires that City release such information.

3.6.4 Cooperation; Further Acts . The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.

3.6.5 Indemnification.

3.6.5.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subconsultants or agents in connection with the performance of the Consultant’s Servi ces, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.

3.6.5.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to t he negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.

3.6.6 Entire Agreement. This Agreement contains the entire Agreement of the

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Attachment: Exhibit B -ERSC, Inc. Professional Service Agreement (3919 : Contract Award - Engineering Resources of Southern California, (BB&K 2018)
23152.06000\30453088.2 Exhibit “A”-14

parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties.

3.6.7 Governing Law; Government Code Claim Compliance. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County.

In addition to any and all contract req uirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Consultant must comply with the claim procedures set forth in Government Code sections 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, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.

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

3.6.9 City's Right to Employ Other Consultants . City reserves right to employ other consultants in connection with this Project.

3.6.10 Successors and Assigns . This Agreement shall be binding on the successors and assigns of the parties.

3.6.11 Assignment or Transfer . Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.

3.6.12 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and d o not define, limit, augment, or describe the scope, content, or intent of this Agreement.

3.6.13 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.

3.6.14 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.

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Attachment: Exhibit B -ERSC, Inc. Professional Service Agreement (3919 : Contract Award - Engineering Resources of Southern California, (BB&K 2018)
23152.06000\30453088.2 Exhibit “A”-15

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

3.6.16 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

3.6.17 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant 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 Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subconsultants to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

3.6.18 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.

3.6.19 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.

3.6.20 Federal Provisions. When funding for the Services is provided, in whole or in part, by an agency of the federal government, Consultant shall also fully and adequately comply with the provisions included in Exhibit “A -1” (Federal Requirements) attached hereto and incorporated herein by reference (“Federal Requirements”). With respect to any conflict between such Federal Requirements and the terms of this Agreement and/or the provisions of state law, the more stringent requirement shall control

3.7 Subcontracting.

3.7.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
[SIGNATURES ON NEXT PAGE]

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Attachment: Exhibit B -ERSC, Inc. Professional Service Agreement (3919 : Contract Award - Engineering Resources of Southern California, (BB&K 2018)
23152.06000\30453088.2 Exhibit “A”-16

SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE CITY OF COLTON
AND ENGINEERING RESOURCES OF SOUTHERN CALIFORNIA, INC.

IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the 8th day of February 2023.

CITY OF COLTON Engineering Resources of Southern
California, Inc., a Corporation

By: ____________________________ By: _________________________ William R. Smith Name:

City Manager Title:

Attest:

____ By: _________________________
City Clerk Name:

Title:

Approved as to Form:

______________________________
Best Best & Krieger LLP
City Attorney

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Attachment: Exhibit B -ERSC, Inc. Professional Service Agreement (3919 : Contract Award - Engineering Resources of Southern California, (BB&K 2018)
23152.06000\30453088.2 Exhibit “A”-17

EXHIBIT "A"

SCOPE OF WORK
(Per detail work plan and technical approach of ERSCI proposal dated October 13, 2022) Task A - Project Management
Deliverables:
• Meeting Agenda and Minutes
• Monthly Invoices with Progress Reports
• Quality Control Program
• Schedule Updates

Task B - Utility Research, Utility Base Map Preparation and Utility Coordination Deliverables:
• Copies of all correspondence/notices with affected utility agencies • Copies of maps and record data provided from the affected utility agencies. • Copies of correspondence regarding utility relocations (if any). • Matrix of Utility Company Notices and Responses

Task C- Filed Review
Deliverables:
• Correspondence regarding any potential conflicts between as -builts and existing conditions
Task D – Survey and Mapping
Deliverables
• Topography in DWG format

Task E – Bike Path Improvement Plans, Specifications and Estimates (PS$E) a. Bike Path Improvement plans (30%, 60%, 90% and 100%) b. Landscape and Irrigation plans (30%, 60%, 90% and 100%)

Deliverables:
• Hardcopy and/or electronic format (ACAD and PDF) of plans • Construction cost estimates - Hardcopy and electronic format (PDF and Excel) • Specifications - Hardcopy and electronic format (PDF and Word) • Project Schedule – PDF and MS Project Format

Task F – Construction Bid Phase
Deliverables:
• Written response to all inquiries and preparation and assist on all bid addenda

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Attachment: Exhibit B -ERSC, Inc. Professional Service Agreement (3919 : Contract Award - Engineering Resources of Southern California, (BB&K 2018)
23152.06000\30453088.2 Exhibit “A”-18

EXHIBIT "A-I"

FEDERALLY REQUIRED PROVISIONS FOR SERVICES
(Not Applicable)

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Attachment: Exhibit B -ERSC, Inc. Professional Service Agreement (3919 : Contract Award - Engineering Resources of Southern California, (BB&K 2018)
23152.06000\30453088.2 Exhibit “B”-1

EXHIBIT "B"

SCHEDULE OF SERVICES
April 1, 2023 to March 31, 2024, a detailed schedule for engineering design, estimate, specifications and construction bid support will be submitted upon issuance of Notice to Proceed

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Attachment: Exhibit B -ERSC, Inc. Professional Service Agreement (3919 : Contract Award - Engineering Resources of Southern California, (BB&K 2018)
23152.06000\30453088.2 Exhibit “C”-1

EXHIBIT "C"

COMPENSATION
The total compensation is Not to Exceed Amount of $70,659.75 with the following breakdown:

Task No. Task Description Proposed Fee
A Project Administration $ 6,730.00
B Utility Research, Mapping and Coordination $ 2,290.00 C Field Review $ 2,600.00
D Survey and Mapping $ 9,700.00
E Prepare Plans, Specifications, and Estimates
(PS&E)
$45,384.75
F Construction Bid Support $ 3,455.00
G Reimbursable Expenses (Shipping, plotting,
mailing and mileage)
$ 500.00
Total $70,659.75

HOURLY RATE SCHEDULE

PRINCIPAL-IN-CHARGE ............................................ $275.00

SENIOR PRINCIPAL ENGINEER ................................. $235.00

PROJECT MANAGER ................................................. $195.00

PROJECT ENGINEER ................................................. $150.00

DESIGN ENGINEER ................................................... $115.00

SENIOR ENGINEERING ASSOCIATE ......................... $115.00

ENGINEERING ASSOCIATE I .................................... $105.00

ADMINISTRATIVE SUPPORT ...................................... $85.00

2-MAN SURVEY CREW ............................................ $295.00

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Attachment: Exhibit B -ERSC, Inc. Professional Service Agreement (3919 : Contract Award - Engineering Resources of Southern California,

ITEM NO. 10

STAFF REPORT

DATE: FEBRUARY 7, 2023
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: MARK TOMICH, DIRECTOR
SUBJECT: APPROVE AND ADOPT A FIRST AMENDMENT TO THE

PROFESSIONAL SERVICES AGREEMENT (PSA) TO LILBURN

CORPORATION FOR ENVIRONMENTAL SERVICES ON BEHALF

OF HOSSANA VILLAGE APARTMENTS AND AMENDMENT TO
REIMBURSEMENT AGREEMENT WITH APPLICANT.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

1. Authorize the City M anager to execute the attached First Amendment to Professional Services Agreement (PSA) with Lilburn Corporation for $15,351.00 to provide additional environmental services and extend the time on behalf of Iglesia De Cristo Elim, Riverside, Inc. – (DAP-001-687), as per the terms of the PSA, including exhibits attached thereto.

2. Authorize the City Manager to execute the attached Reimbursement Agreement with Iglesia de Cristo -Elim, Riverside, Inc. to fund consultant services for Hossana Village Apartments (DAP-001-687).

BACKGROUND

The Hossana Village Apartment project consists of an Architectural and Site Plan Review application to allow construction of 60 residential units within 11 apartment buildings (with 20% allocated for affordable housing) and a Varia nce to allow less than required development standards for landscaping, and side & rear setbacks on the property on a property measuring approximately 3.72-acres (net), 5.12-acres (gross) located at 2971 S. La Cadena Drive within the R-3/R-4 (High Density Residential) Zone.

10 Packet Pg. 430
Staff Report to the Mayor and City Council
Contract Amendment - Lilburn Corporation and Reimbursement Agreement Amendment February 7, 2023

On April 6, 2021, the City Council approved the Professional Service Agreement (PSA) with Lilburn Corporation. The environmental documents for the project are almost complete pending Vehicle Miles Traveled (VMT) Analysis update, update of the biological resources assessment, and update of the Initial Study. The project was stalled due to various reasons , including removal of the subject site from the 5 th Cycle Housing Element Update Vacant Sites Survey, and completion of the traffic analysis. The proposed First Amendment to the project would allow the environmental documentation to be completed and for the project to move forward to Planning Commission hearing.

ISSUES/ANALYSIS
The cost of the additional VMT analysis, biological report update, and update to the Initial Study is $ 15,351. The applicant has agreed to deposit additional funds for this contract amendment, which will be deposited into the assigned deposit account prior to amending the Professional Services Agreement. The n ew cumulative contract amount for this project will be $65,851 ($50,500 + $15,351). Therefore, the PSA must be amended to allow for the change order request and extension of time – to August 31, 2023 . (Attachment 1)

The Reimbursement Agreement for this project also needs to be updated to reflect budget changes and reimbursements necessary to move forward with the project (Attachment 2). The original deposits for the original contract and the First Amendment have been collected, and the additional amount pursuant to this Second Amendment will be collected from the applicant prior to execution of the contract amendment.

The additional proposed environmental analysis will ensure that the project environmental impacts are fully analyzed. If authorized to proceed with the additional analysis, we anticipate that the environmental services authorized by the original contract and the First Amendment to be completed by, if not before, August 31, 2023.

FISCAL IMPACTS
City staff ensure that funds are on deposit with the City prior to entering into or amending any contract for professional services. Revenue from the reimbursement agreement are receipted in General Fund Developer Reimbursement Agreement Revenue Account Number 100 -6799-000.

Sufficient appropriatio ns are available in the FY2022 -23 adopted budget in General Fund Planning Professional Services Account Number for the $15,351 contract amendment. No additional appropriations are necessary to execute the contract amendment.

ALTERNATIVES

1. Provide alternative direction to staff.

ATTACHMENT
10 Packet Pg. 431
Staff Report to the Mayor and City Council
Contract Amendment - Lilburn Corporation and Reimbursement Agreement Amendment February 7, 2023

1. Attachment 1_PSA First Amendment_Lilburn_Hosanna Village Apts_2971 S. La Cadena Drive

2. Attachment 2_Reimbursement Agreement_First Amendment_DAP-001-687 10 Packet Pg. 432
(BB&K: 10-19)
23152.06000\32391457.2

FIRST AMENDMENT TO

PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE CITY OF COLTON
AND LILBURN CORPORATION, INC.

1. PARTIES AND DATE.

This First Amendment to the Professional Services Agreement ( “First Amendment”) is made and entered into this _____day of February, 202 3 by and between the City of Colton (“City”) and First Carbon Solutions , Inc. (“Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this First Amendment.

2. RECITALS.

2.1 Agreement. City and Consultant entered into that certain Professional Services Agreement dated April 29, 2021 (“Agreement”), whereby Consultant agreed to provide environmental consu lting services on behalf of Iglesia de Cristo -Riverside, California (Applicant).

2.2 Amendment. City and Consultant desire to amend the Agreement for the first time to revise the scope of services , term of the agreement, and increase compensation requiring City Council approval.

2.3 Amendment Authority. This First Amendment is authorized pursuant to Section

3.6.13 of the Agreement.

3. TERMS.

3.1 General Scope of Services . Section 3.1.1 of the Agreement is hereby deleted in its entirety and replaced with the following:

“Exhibit A is hereby amended by the addition of Exhibit A- 1, attached hereto and incorporated herein by reference"

Section 3.1.2 of the Agreement is hereby deleted in its entirety and replaced with the following:

“The term of this Agreement shall be from April 29, 2022 to August 31, 202 3, unless earlier termi nated as provided he rein.

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 by six months, if necessary.”

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Attachment: Attachment 1_PSA First Amendment_Lilburn_Hosanna Village Apts_2971 S. La Cadena Drive (3929 : Contract Amendment - 2 (BB&K: 10-19)
23152.06000\32391457.2

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

“Consultant shall receive co mpensation, including authorized reimbursements, for al l 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 Sixty- Five Thousand , Eight Hundred Fifty One Dollars and no cents ($50,500 + $15,351 = $65,851) without written approval of City Manager. The City Manager may authorize up to 5% in
compensation without returning to City Council for authorization.

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

3.3 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.

3.4 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 First Amendment.

3.5 Severability. If any portion of this First Amendment is declared invalid, illegal, or otherwise unenforceable by a court of compe tent jurisdiction, the remaining provisions shall continue in full force and effect.

3.6 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 o ne and the same instrument.

[SIGNATURES ON FOLLOWING PAGE]

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Attachment: Attachment 1_PSA First Amendment_Lilburn_Hosanna Village Apts_2971 S. La Cadena Drive (3929 : Contract Amendment - 3 (BB&K: 10-19)
23152.06000\32391457.2

SIGNATURE PAGE FOR FIRST AMENDMENT TO

PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE CITY OF COLTON
AND LILBURN CORPORATION, INC.

IN WITNESS WHEREOF, the Parties have entered into this First Amendment to the Professional Services Agreement as of the day and year first above written.

CITY OF COLTON

By: _________________________
William R. Smith
City Manager

Attest: _________________________
Carolina R. Padilla
City Clerk

Lilburn Corporation, Inc.

A CORPORATION

By: _________________________

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EXHIBIT "A-1” – FIRST AMENDMENT

AMENDED SCOPE OF SERVICES

SCOPE OF WORK
Update Biological Resources Assessment
ELMT, subcontractor, will update the 2021 B iological Assessment as the California Department of Fish and Wildlife typically will not deem reports over a year old as valid. Following an updated literature review, the project site will be surveyed to reconfirm existing site conditions previously docu mented in the 2021 Biological Technical Report to ensure no changes to the onsite habitats have occurred. The biological technical report prepared in 2021 will be updated to include the results from the updated literature review and field investigation. An y changes to the onsite habitats will be noted in the revised report.

Update VMT Analysis
We previously held several discussions with the City and the Applicant representatives to discuss the Project’s exceedance of VMT Thresholds The Application is for development of a 60 -unit apartmentcomplex at 2971 S. La Cadena Drive. The 5.12 -acre site (APN 1167 -021-20) and is currently zoned for Multi-Family Residential use. It has been determined that the project does not satisfy any of the established screening c riteria for Vehicle Miles Traveled (VMT) and exceeds the VMT Thresholds as established by the City.

Ganddini Group shall prepare VMT analysis consisting of the following tasks:
 Calculate the proposed project trip generation (including existing and net ne w trips, if applicable) based on weekday AM/PM peak hour and daily trip generation rates from the Institute of Transportation Engineers (ITE) Trip Generation Manual (11th Edition, 2021).  Document project VMT based on the SBCTA VMT Screening Tool (travel d emand modeling is not necessary per City comments and excluded from this scope of work).  Assess the project VMT impact based on the City-established threshold of 15% below the City of Colton VMT per capita.
 Identify mitigation measures to reduce any significant impacts to a less than significant level or to the extent feasible. Reduction in VMT associated with any proposed mitigation measures shall be quantified based on guidance from the California Air Pollution Control Officers Association (CAPCOA) Handbook for Analyzing Greenhouse Gas Emission Reductions, Assessing Climate Vulnerabilities, and Advancing Health and Equity (December 2021).  Prepare a technical letter -report that incorporates the methodology, findings, and all supporting calculations and a ssumptions. Review one compiled set of City of Colton comments and make minor revisions, if necessary. The final report will be signed and stamped by a Professional Engineer registered in the State of California.

Update Initial Study
The final Project D escription, which will be different from that used in the entire Initial Study analysis will need to be used in the above studies as well as potentially re-running energy and other utility demand calculations. The entire document will need to be reviewed for consistency and updated as necessary.

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EXHIBIT "C-1”- FIRST AMENDMENT

ADDITIONAL COMPENSATION
FEES
The total cost for the above work would be Fifteen Thousand Three Hundred Fifty-One Dollars ($15,351.00) – Worksheet of tasks details below:

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CITY OF COLTON

REIMBURSEMENT AGREEMENT FOR DEVELOPMENT PROJECT

ARCHITECTURAL AND SITE PLAN REVIEW, VARIANCE,

FOR FIRST AMENDMENT TO
HOSANNA VILLAGE APARTMENTS AT 2971 SOUTH LA CADENA DRIVE (DAP-001-687)

1. PARTIES AND DATE.

This Reimbursement Agreement ("Agreement") is made this ___ day of February, 2023, by and between the City of Colton, a California municipal corporation ("City"), and IDI Logistics, a Limited Liability Corporation with its principal place of business at 840 Apollo Street, Suite 343, El Segundo, CA 90245 (“Applicant”). City and Applicant are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement

2. RECITALS.

2.1. Property. The owner , Riverside Construction Company , of that certain real property located within the City of Colton, County of San Bernardino , California , and more particularly described in Exhibit “A” attached hereto and incorporated herein by reference (“Property”).

2.2 Project. The Applicant is con templating the development of the Property as described in Exhibit “ B” attached hereto and incorporated herein by reference (“Project”) . The Applicant has submitted an application for discretionary land use approvals for the Project, including those listed in Exhibit “C” attached hereto and incorporated herein by reference, as well as all related environmental review pursuant to the California Environmental Quality Act ("CEQA") and other applicable laws, rules and regulations.

2.3 Consultants. To pr ovide the City with the needed expertise and information necessary for the City's review process concerning the Project, it is or may become necessary for the City to access the services of certain outside legal, environmental, planning and other experts for the Project ("Consultants").

2.4 Reimbursement. As a condition to the City's completion of the Project review process, the Applicant has agreed to reimburse the City for the Consultants’ costs and expenses related to the City's Project review process, as well as any other out -of-pocket expenses incurred by the City, in the manner and amounts set forth in this Agreement. The Applicant's reimbursement of City under this Agreement will ensure that the City has the necessary resources to diligently and efficiently process the Applicant's Project.

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3. TERMS.

3.1 Incorporation of Recitals. The Parties agree that the Recitals constitute the factual basis upon which the City and the Applicant have entered into this Agreement. The City and the Applicant each acknowledge the accuracy of the Recitals and agree that the Recitals are incorporated into this Agreement as though fully set forth at length.

3.2 City Selection of Consultants. As a necessary and indispensable part of its fact finding process relating to the review of the Applicant's proposed Project and uses of the Property, the City shall retain the services of Consultants to provide advice as the City may deem necessary in its reasonable and sole discretion. The City has thus far retained or is prepared to retain (either directly or as subconsultants) those Consultants listed in Exhibit “D” attached hereto and incorporated herein by reference, but shall have the right to retain any additional consultants or sub-consultants pursuant to this Agreement. The contemplated general scope of work of the Consultants for the Project is also described in Exhibit "D" attached hereto, but the City reserves the right, in its reasonable and sole discretion, to amend the scope of work as it deems necessary and appropriate to the City's proper review and consideration of the Applicant's Project.

The Applicant agrees that, notwithstanding the Applicant's reimbursement obligations under this Agreement, Consultants shall be the contractors exclusively of the City and not of the Applicant. Except for those disclosures required by law, including, without limitation, the Public Records Act, all conversations, notes, memoranda, correspondence and other forms of communication by and between the City and its Consultants shall be, to the extent permissible by law, privileged and confidential and not subject to disclosure to the Applicant. The Applicant agrees that it shall have no claim to, nor shall it assert any right in any reports, correspondence, plans, maps, drawings, news releases or any and all other documents or work product produced by the Consultants.

3.3 Applicant to Cooperate with Consultants. The Applicant agrees to cooperate in good faith with the Consultants The Applicant agrees that it will instruct its agents, employees, consultants, contractors and attorneys to reasonably cooperate with the Consultants and to provide all necessary documents or information reasonably requested of them by the City and/or the Consultants; provided, however, that the foregoing shall not require the disclosure of any documents or information of the Applicant which by law is privileged, proprietary, confidential, and exempt from disclosure under the Public Records Act.

3.4 Applicant's Reimbursement of Costs and Expenditures . The Applicant shall reimburse the City for one hundred percent (100%) of the actual fees, costs and other expenditures incurred by the City relative to the Consultant costs, as well as staff services associated with the Project, other out-of-pocket expenses incurred by the City ("Costs"). The City has reviewed the scope(s) of work for this project first amendment and has estimated the aggregate Costs for all Consultants and City staff to be approximately fifteen thousand and three hundred fifty one dollars ($15,351). Within ten (10) calendar days of the execution of this Agreement, the Applicant shall submit full deposit in the amount of $15,351.00, which amount the City shall separately account for in a Project deposit account ("Deposit Account").

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As the Consultants invoice the City for fees, costs, and expenditures associated with the Project, staff charge their time for services associated with the Project, and City Attorney charges for legal services associated with the Project, the City may draw upon the Deposit Account to make the required payments. At any time that the Deposit Account drops below ($10,000), the City may make demand on Applicant to replenish the Deposit Account to reach the minimum Ten Thousand Dollars ($10,000), or alternative minimum amount upon City entering contract(s) with environmental consultant(s) for Project, and Applicant shall submit the required amount of funds to City within ten (10) calendar days. In the event Applicant fails to make any required deposit, City shall have the righ t to consider Applicant's Project applications as withdrawn and cease processing such applications.

City shall not exceed the Estimated Costs without consulting with Applicant regarding the need for additional services which cause the Costs to exceed the Estimated Costs ("Excess Costs").

The City shall use reasonable good faith efforts to consult with the Applicant prior to amending any scope of services to be provided by the Consultants and incurring Excess Costs. The Applicant's obligation to reimburse the City for Excess Costs shall be contingent upon the City providing Applicant with written notice of the amendment of the scope of services to be performed by any Consultant and the estimated cost thereof prior to the commencement of work. Once the City provides such notice, Applicant shall be obligated to pay the Excess Costs in the same manner as the Estimated Costs provided above, including, but not limited to, replenishing the Deposit Account.

For purposes of this Section, the City shall be deemed to have consulted with the Applicant when the City has provided written notice to the Applicant that the City reasonably anticipates that it will incur, or has incurred, Excess Costs. If, after consultation, the Applicant disagrees with the City's incur ring of Excess Costs, then the Applicant's sole and exclusive remedy will be to terminate this Agreement pursuant to Section 3.6 of this Agreement, subject to the Applicant's obligation to reimburse the City for all Costs incurred by the City prior to the date of termination, whether or not yet paid by the City to any Consultants.

The City shall maintain accurate records of invoices received from, and payments made to, the Consultants resulting from the Project, and will provide a payment summary to Appli cant within a reasonable time upon request. In the event that excess funds remain in the Deposit Account upon conclusion of the Project and after all final payments to the Consultants have been made, the City agrees to refund that excess amount, if any, t o Applicant within fifteen (15) days of final payment to the Consultants. Alternatively, if the Costs of the services of the Consultants exceed the Estimated Costs and Excess Costs, if any, then Applicant shall remain obligated to pay for all such Costs. Applicant shall pay any such amount within ten (10) calendar days of demand for payment by City.

3.5 Term. The term of this Agreement shall commence on the date that this Agreement is approved by the City Council and fully executed by the Parties, and shall terminate when all services required for the project by Consultants have been completed to the City's reasonable satisfaction and the Applicant has satisfied all of its obligations under this Agreement . For purposes of this section, Applicant's obligations shall include, but shall not be limited to, its obligation to reimburse the City for Estimated Costs and Excess Costs, whether or not paid by the

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City to Consultants prior to the date of termination. The Applicant's obligation to reimburse th e City as provided in this Agreement shall survive the natural expiration of this Agreement pursuant to this section, as well as the termination of this Agreement pursuant to Section 3.6.

3.6 Early Termination.

3.6.1 By City. The City may, in its reasonable and sole discretion, terminate this Agreement prior to the term set forth in Section 3.5 above, without cost or liability to the City, upon thirty (30) days prior written notice to the Applicant in the event that Applicant either: (1) fails to s atisfy any obligation of this Agreement; or (2) fails to reasonably prosecute its application(s) for the Project.

3.6.2 By Applicant. The Applicant may, in its reasonable and sole discretion, terminate this Agreement prior to the end of the term set forth in Section 3. 5 above, upon thirty (30) days' prior written notice to the City; provided, however, that Applicant's right to so terminate this Agreement is expressly contingent upon Applicant satisfying both of the following: (1) Applicant shall give City written notice withdrawing its application(s) for the Project; and (2) Applicant shall satisfy all of its obligations under this Agreement up through the proposed effective date of termination. For purposes of this section, Applicant's obligations sh all include, but shall not be limited to, its obligation to reimburse the City for Estimated Costs and Excess Costs, whether or not paid by the City to Consultants prior to the date of termination.

3.6.3 Notice to Consultants . Within two (2) working days following either the City's decision to terminate this Agreement or the City's receipt of written notice indicating the Applicant's decision to terminate this Agreement, the City shall notify all Consultants and instruct them to cease work on the Pro ject. Consultants shall also be instructed to bill the City for any services completed prior to the date of termination.

3.7 Assignability. This Agreement may not be assigned by either Party without the prior and express written consent of the other Party, which consent shall not be unreasonably withheld. In determining whether to approve a request by the Applicant to assign this Agreement, the City may consider, among other things, the proposed assignee's financial status and commitment to the Project. Any attempted assignment of this Agreement not in compliance with the terms of this Agreement shall be null and void and shall confer no rights or benefits upon the assignee.

3.8 No Oral Modifications. This Agreement represents the entire understanding of the City and the Applicant and supersedes all other prior or contemporaneous written or oral agreements pertaining to the subject matter of this Agreement. This Agreement may be modified, only by a writing signed by both the authorized representatives of both the City and the Applicant.

All modifications to this Agreement must be approved by the City Council.

3.9 Binding Upon Successors. This Agreement and each of its terms shall be binding upon the City, the Applicant and their respective officers, elected officials, employees, agents, contractors, and permitted successors and assigns.

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3.10 Legal Challenges. Nothing herein shall be construed to require City to defend any third party claims and suits challenging any action taken by the City with regard to any procedural or substantive aspect of the City ’s approval of development of the Property, the environmental process, or the proposed Project. The Applicant may, however, in its sole and absolute discretion appear as real party in interest in any such third party action or proceeding, and in such event, it and the City shall defend such action or proceeding and the Applicant shall be responsible and reimburse the City for whatever legal fees and expert or other costs, in their entirety, including actual attorneys' fees, which may be incurred by the City in defense of such action or proceeding.

This City shall have the absolute right to retain such legal counsel as the City deems necessary and appropriate and the Applicant shall reimburse the City for any and all attorneys' fees and expert or other costs incurred by the City as a result of such third party action or proceeding . Applicant may, at any time, notify City in writing of its decision to terminate such reimbursement obligation and, thereafter, the City may choose, in its sole discretion, to defend or not defend such third party action or proceeding. In the event that the City decides not to continue the defense of such third party action or proceeding, Applicant shall be obligated to reimburse City for any and all costs, fees, penalties or damages associated with dismissing the action or proceeding. In the event that the City decides to continue the defense of such third party action or proceeding, Applicant shall have no further obligation to reimburse City for its attorney fees and expert or other costs.

3.11 Attorneys' Fees. In the event that any action or proceeding, including arbitration, is commenced by either the City or the Applicant against the other to establish the validity of this Agreement or to enforce any one or more of its terms, the prevailing Party in any such action or proceeding shall be entitled to recover from the other, in addition to all other legal and equit able remedies avail able to it, its actual attorneys' fees and costs of litigation, including, without limitation, filing fees, service fees, deposition costs, arbitration costs and expert witness fees, including actual costs and attorneys' fees on appeal.

3.12 Jurisdiction and Venue. This Agreement is executed and is to be performed in the City of Colton, San Bernardino County, California, and any action or proceeding brought relative to this Agreement shall be heard in the appropriate court in the Co unty of San Bernardino , California. The City and the Applicant each consent to the personal jurisdiction of the court in any such action or proceeding.

3.13 Severability. If any term or provision of this Agreement is found to be invalid or unenforceable, the City and the Applicant both agree that they would have executed this Agreement notwithstanding the invalidity of such term or provision. The invalid term or provision may be severed from the Agreement and the remainder of the Agreement may be enfor ced in its entirety.

3.14 Headings. The headings of each Section of this Agreement are for the purposes of convenience only and shall not be construed to either expand or limit the express terms and language of each Section.

3.15 Representations of Au thority. Each Party signing this Agreement on behalf of a Party which is not a natural person hereby represents and warrants to the other Party that all necessary legal prerequisites to that Party's execution of this Agreement have been satisfied and

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that he or she has been authorized to sign this Agreement and bind the Party on whose behalf he or she signs.

3.16 Notices. Notices required under this Agreement shall be sent to the following:

City: City of Colton
650 N La Cadena Drive
Colton, CA 92324
Attn: Mark Tomich, Development Services Director

Applicant: Attn: Jose F. Lemus, Secretary
Iglesia de Cristo-Elim, Riverside, Inc.
115 W. La Cadena Drive, Suite 200
Riverside, CA 92501

Notices given pursuant to this Agreement shall be deemed received as follows: (1) if sent by United States Mail, five (5) calendar days after deposit into the United States Mail, first class postage prepaid; (2) i f sent by facsimile, upon transmission and actual receipt by the receiving Party; (3) if by express courier service or hand delivery , on the date of receipt by the receiving Party. The addresses for notices set forth in this Section may be changed upon written notice of such change to either the City or the Applicant, as appropriate.

[SIGNATURES ON NEXT TWO PAGES]

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CITY’S SIGNATURE PAGE FOR

ARCHITECTURAL AND SITE PLAN REVIEW, VARIANCE,

FOR FIRST AMENDMENT TO
HOSANNA VILLAGE APARTMENTS AT 2971 SOUTH LA CADENA DRIVE (DAP-001-687)

CITY OF COLTON

By: _________________________
William R. Smith
City Manager

Attest:

_________________________
Carolina R. Padilla
City Clerk

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APPLICANT’S SIGNATURE PAGE FOR

ARCHITECTURAL AND SITE PLAN REVIEW, VARIANCE,

FOR FIRST AMENDMENT TO
HOSANNA VILLAGE APARTMENTS AT 2971 SOUTH LA CADENA DRIVE (DAP-001-687)

CARLOS MONROY, SENIOR PASTER

By: _________________________
Signature

_________________________
Name: Carlos A. Monroy

_________________________
Title: Senior Pastor

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EXHIBIT "A"

LEGAL DESCRIPTION OF THE PROPERTY

2971 South La Cadena Drive

Assessor Parcel Nos.: 1167-021-20

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APN: 1167-021-20

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EXHIBIT "B"

PROJECT DESCRIPTION

DAP-001-687 – The Application is for an Architectural and Site Plan Review to allow construction of 60 residential units within 11 apartment buildings (20% allocated for affordable housing – 12 units ) and Variance to allow less than required development standards for landscaping, and side & rear setbacks on property identified in Vacant Lots Survey of the current Certified Housing Element. The 5.12-acre site is located at 2971 S. La Cadena Drive (APN 1167-021-20) and is currently zoned for R-3/R-4 (High Density Residential) Zone

The environmental review includes the preparation of an Initial Study/Mitigated Negative Declaration that will provide for future development of the proposed project.

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EXHIBIT "C"

PERMITS AND OTHER APPROVALS

- Conditional Use Permit
- Architectural and Site Plan Review
- Variance
- Initial Study - CEQA

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EXHIBIT "D"

CONSULTANTS

BEST BEST & KRIEGER LLP
Legal Services: Environmental (CEQA, water and other applicable environmental legal issues), planning, and other need legal services.

LILBURN CORPORATION, INC.

Environmental consultant to prepare required CEQA document. Contract amount for first amendment for Environmental Services is not to exceed $15,351, without prior approval by each party.

OTHER CONSULTANTS
Any and all other consultants, including but not limited to traffic engineering/transportation planning consultant, and CEQA consultant, determined by the City to be reasonably necessary for its review and processing of the Project application(s).

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ITEM NO. 11

STAFF REPORT

DATE: FEBRUARY 7, 2023
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: MARK TOMICH, DIRECTOR
SUBJECT: APPROVE AND ADOPT A SECOND AMENDMENT TO THE

AGREEMENT FOR ENVIRONMENTAL SERVICES WITH FIRST
CARBON SOLUTIONS, INC. FOR THE AGUA MANSA LOGISTICS

CENTER PROJECT, INCLUDING AMENDMENT TO
REIMBURSEMENT AGREEMENT.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

1. Authorize the City Manager to execute the attached Second Amendment to Professional Services Agreement (PSA) with First Carbon Solutions, Inc. for and additional $11,005 to provide further environmental services and extend the time on behalf of the Agua Mansa Logistics Center project for DAP -001-668, as per the terms of the PSA, including exhibits attached thereto.

2. Authorize the City Manager to approve Amendment to the Reimbursement Agreement with IDI Logistics, LLC to fund additional environmental consulting service, as needed, for processing entitlements for the Agua Mansa Logistics Center (DAP-001-668).

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Staff Report to the Mayor and City Council
Contract Amendment - First Carbon Solutions
February 7, 2023

BACKGROUND

On November 17, 2020, the City entered into a Professional Service Agreement (PSA) with First Carbon Solutions, Inc. (dba “FCS”) to prepare environmental documentation and as sociated technical studies for the Agua Mansa Logistics Center Project (DAP -001-668) including a Reimbursement Agreement with the applicant to pay for the full cost of environmental analysis ($285,955, plus 15% Planning Administrative Fee of $42,893.25).

Since the initial approval of the FCS professional service agreement contract, FCS’s first request was to extend the contract to November 17, 2022, as allowed by the contract, to complete additional work in reaching out to outside agencies, including the City of Rialto and CalTrans.

In addition, on February 3, 2022, staff approved a request for “extra work” which was 3.38% or $9,670.00 of the budget, within the 5% maximum permitted by the approved contract agreement to be approved by the City Manager, and therefore, did not require a contract amendment. The new budget of the project, with the 3.38% increase, was approved for 285,955 + 9,670 = $295,625.

May 17, 2022, a First Amendment to the PSA was approved by the City Council, extending the contract to December 31, 2022 and increasing the contract amount from $295,625 to $396,955.

The project delays are due primarily to Development Agreement (DA) negotiations for the project, which is being processed concurrent with the Conditional Use Permit, Archi tectural and Site Plan Review, Variance and Tentative Parcel Map No. 20358. The negotiated terms for the two Development Agreements are nearing conclusion which are planned to be reviewed concurrently with the aforementioned zoning entitlements or shortly after the review by the Planning Commission.

The project requires and additional field survey for biological resources, as recommended by the City Attorney, since it has been more than 18 months since the initial surveys were conducted.

The additional tasks include updating biological field survey, preparing an environmental presentation for the Planning Commission, and updating fees for FCS Project Management fee for preparing the environmental document.

The cost of the additional analysis, presentati on materials, and project management is $11,005.

The applicant has agreed to deposit additional funds for this contract amendment, which will be deposited into the assigned deposit account prior to amending the professional services agreement. The new cumulative amount budgeted for this project will be $407,960 ( $396,955 + $11,005).

The Reimbursement Agreement for this amendment is updated to reflect budget changes and reimbursements necessary to move forward with the project (Attachment 2). The origina l deposits for the original contract and the First Amendment have been collected, and the additional amount pursuant to this Second Amendment will be collected from the applicant prior 11 Packet Pg. 452
Staff Report to the Mayor and City Council
Contract Amendment - First Carbon Solutions
February 7, 2023

to execution of the contract amendment. An extension of time is requested from January 1, 2023 to October 31, 2023.

The additional proposed environmental analysis will ensure that the project environmental impacts are fully analyzed, including recently updated project features. If authorized to proceed with the additional analysis, we anticipate that the environmental services authorized by the original contract and the Second Amendment to be completed by, if not before, October 31, 2023.

FISCAL IMPACTS
City staff ensure that funds are on deposit with the City prior to ent ering into or amending any contract for professional services. Revenue from the reimbursement agreement are receipted in General Fund Developer Reimbursement Agreement Revenue A ccount Number 100 -6799-000.

Sufficient appropriations are available in the FY 2022-23 adopted budget in General Fund Planning Professional Services Account Number for the $11,005 contract amendment. No additional appropriations are necessary to execute the contract amendment.

ALTERNATIVES

1. Provide alternative direction to staff.

ATTACHMENT

1. Attachment 1_PSA Second Amendment_FCS_IDI Logistics_1400-1500 Agua Mansa Road

2. Attachment 2_Reimbursement Agreement_Second Amendment_DAP-001-668 11 Packet Pg. 453
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SECOND AMENDMENT TO

PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE CITY OF COLTON
AND FIRST CARBON SOLUTIONS, INC. (FCS)

1. PARTIES AND DATE.

This Second Amendment to the Professional Services Agreement ( “Second Amendment”) is made and entered into this _____day of February, 202 3 by and between the City of Colton (“City”) and First Carbon Solutions, Inc. (“Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this Second Amendment.

2. RECITALS.

2.1 Agreement. City and Consultant entered into that certain Professional Services Agreement dated November 17 , 2020 (“Agreement”), whereby Consultant agreed to provide environmental consulting services on behalf of the IDI Logistics, a Limited Liability Corporation with its principal place of business at 840 Apollo Street, Suite 343, El Segundo, CA 90245 (Applicant).

2.2 Amendment. City and Consultant desire to amend the Agreement for the second time to revise the scope of services , term of the ag reement, and increase compensation requiring City Council approval.

2.3 Amendment Authority. This Second Amendment is authorized pursuant to Section 3.6.13 of the Agreement.

3. TERMS.

3.1 General Scope of Services . Section 3.1.1 of the Agreement is h ereby deleted in its entirety and replaced with the following:

“Exhibit A is hereby amended by the addition of Exhibit A - 1, attached hereto and incorporated herein by reference"

Section 3.1.2 of the Agreement is hereby deleted in its entirety and replaced with the following:

“The term of this Agreement shall be from January 1, 2023 to October 31, 2023, unless earlier terminated as provided he rein.

Consultant shall complete the Services within the term of this Agreement, and shall meet any other establish ed schedules and

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deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.”

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

“Consultant shall receive co mpensation, 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 compensation for the second amendment shall not exceed Eleven Thousand and Five Dollars and no cents ($11,005.00) without written approval of City Manager. The City Manager may authorize up to 5% in compensation without returning to City Council for authorization. Extra Work may be authorized, as described 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 Second Amendment, all provisions of the Agreement shall remain unchanged and in full force and effect.

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

3.4 Adequate Consideration. The Parties he reto 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 Second Amendment.

3.5 Severability. If any portion of this Second Amendment is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

3.6 Counterparts. This Second 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]

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SIGNATURE PAGE FOR SECOND AMENDMENT TO

PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE CITY OF COLTON
AND FIRST CARBON SOLUTIONS, INC.

IN WITNESS WHEREOF, the Parties have entered into this Second Amendment to the Professional Services Agreement as of the day and year first above written.

CITY OF COLTON

By: _________________________
William R. Smith
City Manager

Attest: _________________________
Carolina R. Padilla
City Clerk

First Carbon Solutions, Inc.

A CORPORATION

By: _________________________
Robert Francisco,
President

C. Patrick Schultz,
COO

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EXHIBIT "A-1” – SECOND AMENDMENT

AMENDED SCOPE OF SERVICES

SCOPE OF WORK

Task 1: Biological Field Survey
An FCS Biologist will resurvey the project site to confirm whether the existing biological conditions are consistent with the last field survey conducted in February 20 21, and whether they remain consistent with the site conditions documented in the 2017 Jericho Biological Resources Assessment (BRA). If conditions have changed, the FCS Biologist will document the changes accordingly. The results of the field survey will be summarized in the Biological Resources section of the Agua Mansa 15183 Consistency Checklist.

This proposal does not include focus ed surveys for special‐status plants or animals that may be detected on‐site during the field survey, although these surveys would be warranted if special‐status species or suitable habitat for those species are found on‐site.

Task 2: Environmental Presentation at Planning Commission The FCS Project Manager will prepare a brief PowerPoint for the Planning Commission on CEQA Guideline Section 15183, to be presented at the February 14, 2023 hearing. The preparation of the PowerPoint Presentation and the attendance by FCS staff at a third public hearing is outside the original Scope of Work. This task includes one round of revisions on the PowerPoint presentation based on one consolidated set of comments from City staff.

Task 3: Project Management
FCS is firm ly committed to developing and maintaining close working relationships with the City. This Scope of Work assumes regular interaction with the City, as necessary, and also assumes frequent information sharing among Project Team members. This task assumes 8 hours of staff time. Should project management hours and meeting attendance exceed the anticipated hours, a separate work authorization may be required.

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EXHIBIT "C-1”- FIRST AMENDMENT

ADDITIONAL COMPENSATION
FEES
The proposed fees are based upon the scope of work described above; they include all labor and direct costs.

Fees
Task Fee
Task 1: Biological Field Survey $3,120
Task 2: Environmental Presentation at Planning Commission $5,465 Task 3: Project Management $1,760
Direct Costs $600
Total FCS Professional Fee $11,005

Assumptions
The assumptions used in calculating the above fees are:

If project design changes or revisions to the Traffic Impact Study (TIS) occur such that remodeling for the purposes of the air quality, GHG emissions, energy, and noise analyses is required, any additional modeling would be completed under an augment.

Reimbursable expenses have been included in the table above. These direct costs, including, but not limited to those items presented below, will be reimbursable upon provision of proper documentation:
‐ Purchases of project materials
‐ Reproduction, reprographics, document production, printing, and photographic ‐ Postage, messenger, delivery, and overnight mailing
‐ Mileage, noticing, and record searches
‐ Other miscellaneous costs directly related to the project There will be no significant revisions to the development application. If there is a change in the project description by the applicant, a budget and schedule adjustment will be required to account for the project revisions.

The fee is valid for up to 30 days from the date of this scope, after which it may be subject to revision.

This price is based on completion of the work within the proposed schedule. If delays occur, an update to the schedule and amendment of the budget would be warranted to accommodate additional project management and other costs and to reflect the adjustments.

Costs have been allocated to tasks based upon FCS’s proposed approach. During the work, FCS may, on its sole authority, re‐allocate costs among tasks and/or direct costs, as circumstances warrant, so long as the adjustments maintain the total price within its authorized amount.

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The FCS Project Manager will be the primary representative at the project meeting and public hearing.

This scope of work assumes that all deliverables will be submitted electronically. Printing costs are based on the method of printing and binding proposed, numbers of copies proposed as work products, and estimated page lengths.

Invoice Billing
Invoices will be submitted monthly and will identify project progress on a percent complete basis.

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CITY OF COLTON

REIMBURSEMENT AGREEMENT FOR DEVELOPMENT PROJECT

CONDITIONAL USE PERMIT, ARCHITECTURAL AND SITE PLAN REVIEW, VARIANCE, AND TENTATIVE PARCEL MAP NO. 20358

FOR SECOND AMENDMENT TO
AGUA MANSA LOGISTICS CENTER (DAP-001-668)

1. PARTIES AND DATE.

This Reimbursement Agreement ("Agreement") is made this ___ day of February, 2023, by and between the City of Colton, a California municipal corporation ("City"), and IDI Logistics, a Limited Liability Corporation with its principal place of business at 840 Apollo Street, Suite 343, El Segundo, CA 90245 (“Applicant”). City and Applicant are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement

2. RECITALS.

2.1. Property. The owner , Riverside Construction Com pany, of that certain real property located within the City of Colton, County of San Bernardino , California , and more particularly described in Exhibit “A” attached hereto and incorporated herein by reference (“Property”).

2.2 Project. The Applicant is contemplating the development of the Property as described in Exhibit “ B” attached hereto and incorporated herein by reference (“Project”) . The Applicant has submitted an application for discretionary land use approvals for the Project, including those listed in Exhibit “C” attached hereto and incorporated herein by reference, as well as all related environmental review pursuant to the California Environmental Quality Act ("CEQA") and other applicable laws, rules and regulations.

2.3 Consultants. To provide the City with the needed expertise and information necessary for the City's review process concerning the Project, it is or may become necessary for the City to access the services of certain outside legal, environmental, planning and other experts for the Project ("Consultants").

2.4 Reimbursement. As a condition to the City's completion of the Project review process, the Applicant has agreed to reimburse the City for the Consultants’ costs and expenses related to the City's Project review process, as well as any other out -of-pocket expenses incurred by the City, in the manner and amounts set forth in this Agreement. The Applicant's reimbursement of City under this Agreement will ensure that the City has the necessary resources to diligently and efficiently process the Applicant's Project.

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3. TERMS.

3.1 Incorporation of Recitals. The Parties agree that the Recitals constitute the factual basis upon which the City and the Applicant have entered into this Agreement. The City and the Applicant each acknowledge the accuracy of the Recitals and agree that the Recitals are incorporated into this Agreement as though fully set forth at length.

3.2 City Selection of Consultants. As a necessary and indispensable part of its fact finding process relating to the review of the Applicant's proposed Project and uses of the Property, the City shall retain the services of Consultants to provide advice as the City may deem necessary in its reasonable and sole discretion. The City has thus far retained or is prepared to retain (either directly or as subconsultants) those Consultants listed in Exhibit “D” attached hereto and incorporated herein by reference, but shall have the right to re tain any additional consultants or sub-consultants pursuant to this Agreement. The contemplated general scope of work of the Consultants for the Project is also described in Exhibit "D" attached hereto, but the City reserves the right, in its reasonable a nd sole discretion, to amend the scope of work as it deems necessary and appropriate to the City's proper review and consideration of the Applicant's Project.

The Applicant agrees that, notwithstanding the Applicant's reimbursement obligations under this Agreement, Consultants shall be the contractors exclusively of the City and not of the Applicant. Except for those disclosures required by law, including, without limitation, the Public Records Act, all conversations, notes, memoranda, correspondence and other forms of communication by and between the City and its Consultants shall be, to the extent permissible by law, privileged and confidential and not subject to disclosure to the Applicant. The Applicant agrees that it shall have no claim to, nor shall it assert any right in any reports, correspondence, plans, maps, drawings, news releases or any and all other documents or work product produced by the Consultants.

3.3 Applicant to Cooperate with Consultants. The Applicant agrees to cooperate in good faith with the Consultants The Applicant agrees that it will instruct its agents, employees, consultants, contractors and attorneys to reasonably cooperate with the Consultants and to provide all necessary documents or information reasonably requested of them by the City and/or the Consultants; provided, however, that the foregoing shall not require the disclosure of any documents or information of the Applicant which by law is privileged, proprietary, confidential, and exempt from disclosure under the Public Records Act.

3.4 Applicant's Reimbursement of Costs and Expenditures . The Applicant shall reimburse the City for one hundred percent (100%) of the actual fees, costs and other expenditures incurred by the City relative to the Consultant costs, as well as staff services associated with the Project, other out-of-pocket expenses incurred by the City ("Costs"). The City has reviewed the scope(s) of work for this project second amendment and has estimated the aggregate Costs for all Consultants and City staff to be approximately eleven thousand and five dollars ($11,005). Within ten (10) calendar days of the execution of this Agreement, the Applicant shall submit full deposit in the amount of $11,005.00, which amount the City shall separately account for in a Project deposit account ("Deposit Account").

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As the Consultants invoice the City for fees, costs, and expenditures associated with the Project, staff charge their time for services associated with the Project, and City Attorney charges for legal services associated with the Project, the City may draw upon the Deposit Account to make the required payments. At any time that the Deposit Account drops below ($10,000), the City may make demand on Applicant to replenish the Deposit Account to reach the minimum Ten Thousand Dollars ($10,000), or alternative minimum amount upon City entering contract(s) with environmental consultant(s) for Project, and Applicant shall submit the required amount of funds to City within ten (10) calendar days. In the event Applicant fails to make any required deposit, City shall have the right to consider Applicant's Project applications as withdrawn and cease processing such applications.

City shall not exceed the Estimated Costs without consulting with Applicant regarding the need for additional services which cause the Costs to exceed the Estimated Costs ("Excess Costs").

The City shall use reasonable good faith efforts to consult with the Applicant prior to amending any scope of services to be provided by the Consultants and incurring Excess Costs. The Applicant's obligation to reimburse the City for Excess Costs shall be contingent upon the City providing Applicant with written notice of the amendment of the scope of services to be performed by any Consultant and the estimated cost thereof prior to the commencement of work. Once the City provides such notice, Applicant shall be obligated to pay the Excess Costs in the same manner as the Estimated Costs provided above, including, but not limited to, replenishing the Deposit Account.

For purposes of this Section, the City shall be deemed to have consulted with the Applicant when the City has provided written notice to the Applicant that the City reasonably anticipates that it will incur, or has incurred, Excess Costs. If, after consultation, the Applicant disagrees with the City's incurring of Excess Costs, then the Appl icant's sole and exclusive remedy will be to terminate this Agreement pursuant to Section 3.6 of this Agreement, subject to the Applicant's obligation to reimburse the City for all Costs incurred by the City prior to the date of termination, whether or not yet paid by the City to any Consultants.

The City shall maintain accurate records of invoices received from, and payments made to, the Consultants resulting from the Project, and will provide a payment summary to Applicant within a reasonable time upon request. In the event that excess funds remain in the Deposit Account upon conclusion of the Project and after all final payments to the Consultants have been made, the City agrees to refund that excess amount, if any, to Applicant within fifteen (15) day s of final payment to the Consultants. Alternatively, if the Costs of the services of the Consultants exceed the Estimated Costs and Excess Costs, if any, then Applicant shall remain obligated to pay for all such Costs. Applicant shall pay any such amount within ten (10) calendar days of demand for payment by City.

3.5 Term. The term of this Agreement shall commence on the date that this Agreement is approved by the City Council and fully executed by the Parties, and shall terminate when all services required for the project by Consultants have been completed to the City's reasonable satisfaction and the Applicant has satisfied all of its obligations under this Agreement . For purposes of this section, Applicant's obligations shall include, but shal l not be limited to, its obligation to reimburse the City for Estimated Costs and Excess Costs, whether or not paid by the

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City to Consultants prior to the date of termination. The Applicant's obligation to reimburse the City as provided in this Agreement shall survive the natural expiration of this Agreement pursuant to this section, as well as the termination of this Agreement pursuant to Section 3.6.

3.6 Early Termination.

3.6.1 By City. The City may, in its reasonable and sole discretion, terminate this Agreement prior to the term set forth in Section 3.5 above, without cost or liability to the City, upon thirty (30) days prior written notice to the Applicant in the event that Applicant e ither: (1) fails to satisfy any obligation of this Agreement; or (2) fails to reasonably prosecute its application(s) for the Project.

3.6.2 By Applicant. The Applicant may, in its reasonable and sole discretion, terminate this Agreement prior to the end of the term set forth in Section 3. 5 above, upon thirty (30) days' prior written notice to the City; provided, however, that Applicant's right to so terminate this Agreement is expressly contingent upon Applicant satisfying both of the following: (1) Applicant shall give City written notice withdrawing its application(s) for the Project; and (2) Applicant shall satisfy all of its obligations under this Agreement up through the proposed effective date of termination. For purposes of this section, Appli cant's obligations shall include, but shall not be limited to, its obligation to reimburse the City for Estimated Costs and Excess Costs, whether or not paid by the City to Consultants prior to the date of termination.

3.6.3 Notice to Consultants . W ithin two (2) working days following either the City's decision to terminate this Agreement or the City's receipt of written notice indicating the Applicant's decision to terminate this Agreement, the City shall notify all Consultants and instruct them to cease work on the Project. Consultants shall also be instructed to bill the City for any services completed prior to the date of termination.

3.7 Assignability. This Agreement may not be assigned by either Party without the prior and express written co nsent of the other Party, which consent shall not be unreasonably withheld. In determining whether to approve a request by the Applicant to assign this Agreement, the City may consider, among other things, the proposed assignee's financial status and commitment to the Project. Any attempted assignment of this Agreement not in compliance with the terms of this Agreement shall be null and void and shall confer no rights or benefits upon the assignee.

3.8 No Oral Modifications. This Agreement represents the entire understanding of the City and the Applicant and supersedes all other prior or contemporaneous written or oral agreements pertaining to the subject matter of this Agreement. This Agreement may be modified, only by a writing signed by both the authorized representatives of both the City and the Applicant.

All modifications to this Agreement must be approved by the City Council.

3.9 Binding Upon Successors. This Agreement and each of its terms shall be binding upon the City, the Applicant and their respective officers, elected officials, employees, agents, contractors, and permitted successors and assigns.

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3.10 Legal Challenges. Nothing herein shall be construed to require City to defend any third party claims and suits challenging any action taken by the City with regard to any procedural or substantive aspect of the City ’s approval of development of the Property, the environmental process, or the proposed Project. The Applicant may, however, in its sole and absolute discretion appear as real party in interest in any such third party action or proceeding, and in such event, it and the City shall defend such action or proceeding and the Applicant shall be responsible and reimburse the City for whatever legal fees and expert or other costs, in their entirety, including actual attorneys' fees, which may be incurred by the City in defense of such action or proceeding.

This City shall have the absolute right to retain such legal counsel as the City deems necessary and appropriate and the Applicant shall reimburse the City for any and all attorneys' fees and expert or other costs incurred by the City as a result of such third party action or proceeding . Applicant may, at any time, notify City in writing of its decision to terminate such reimbursement obligation and, thereafter, the City may choose, in its sole discretion, to defend or not defend such third party action or proceeding. In the event that the City decides not to continue the defense of such third party action or proceeding, A pplicant shall be obligated to reimburse City for any and all costs, fees, penalties or damages associated with dismissing the action or proceeding. In the event that the City decides to continue the defense of such third party action or proceeding, Appli cant shall have no further obligation to reimburse City for its attorney fees and expert or other costs.

3.11 Attorneys' Fees. In the event that any action or proceeding, including arbitration, is commenced by either the City or the Applicant against the other to establish the validity of this Agreement or to enforce any one or more of its terms, the prevailing Party in any such action or proceeding shall be entitled to recover from the other, in addition to all other legal and equitable remedies avail able to it, its actual attorneys' fees and costs of litigation, including, without limitation, filing fees, service fees, deposition costs, arbitration costs and expert witness fees, including actual costs and attorneys' fees on appeal.

3.12 Jurisdiction and Venue. This Agreement is executed and is to be performed in the City of Colton, San Bernardino County, California, and any action or proceeding brought relative to this Agreement shall be heard in the appropriate court in the County of San Bernardin o, California. The City and the Applicant each consent to the personal jurisdiction of the court in any such action or proceeding.

3.13 Severability. If any term or provision of this Agreement is found to be invalid or unenforceable, the City and the A pplicant both agree that they would have executed this Agreement notwithstanding the invalidity of such term or provision. The invalid term or provision may be severed from the Agreement and the remainder of the Agreement may be enforced in its entirety.

3.14 Headings. The headings of each Section of this Agreement are for the purposes of convenience only and shall not be construed to either expand or limit the express terms and language of each Section.

3.15 Representations of Authority . Each Party signing this Agreement on behalf of a Party which is not a natural person hereby represents and warrants to the other Party that all necessary legal prerequisites to that Party's execution of this Agreement have been satisfied and

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that he or she has been a uthorized to sign this Agreement and bind the Party on whose behalf he or she signs.

3.16 Notices. Notices required under this Agreement shall be sent to the following:

City: City of Colton
650 N La Cadena Drive
Colton, CA 92324
Attn: Mark Tomich, Development Services Director

Applicant: IDI Logistics, LLC
840 Apollo Street, Suite 343
El Segundo, CA 90245
Attn: Charlie McPhee
Senior Vice President and Regional Director

Notices given pursuant to this Agreement shall be deemed received as follows: (1) if sent by United States Mail, five (5) calendar days after deposit into the United States Mail, first class postage prepaid; (2) i f sent by facsimile, upon transmission and actual receipt by the receiving Party; (3) if by express courier service or hand delivery , on the date of receipt by the receiving Party. The addresses for notices set forth in this Section may be changed upon written notice of such change to either the City or the Applicant, as appropriate.

[SIGNATURES ON NEXT TWO PAGES]

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CITY’S SIGNATURE PAGE FOR

REIMBURSEMENT AGREEMENT FOR DEVELOPMENT PROJECT

TO FUND SECOND AMENDMENT FOR
AGUA MANSA LOGISTICS CENTER (DAP-001-668)

CITY OF COLTON

By: _________________________
William R. Smith
City Manager

Attest:

_________________________
Carolina R. Padilla
City Clerk

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APPLICANT’S SIGNATURE PAGE FOR

CITY OF COLTON

REIMBURSEMENT AGREEMENT FOR DEVELOPMENT PROJECT

TO FUND SECOND AMENDMENT FOR
AGUA MANSA LOGISTICS CENTER (DAP-001-668)

MICHAEL CLINE

By: _________________________
Signature

_________________________
Name: Michael Cline

_________________________
Title: Senior Project Manager

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EXHIBIT "A"

LEGAL DESCRIPTION OF THE PROPERTY

1400 – 1500 Agua Mansa Road

Assessor Parcel Nos.: 0260-072-08, 0260-072-12 to -14, 0275-041-27 to -31 0275-041-07 to -09

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EXHIBIT "B"

PROJECT DESCRIPTION

This augment request is for the additional work required to revise the technical studies and 15183 Consistency Checklist to be consistent with the revised site plan. An Architectural and Site Plan Review to allow the construction of two new warehouse/office buildings, totaling 930,466 square feet and associated site improvements. Building 1 contains 472,021 square feet of floor area and Building 2 contains 456,445 square feet of floor area, Conditional Use Permit to allow Building 1 with 130 feet building height instead of 50 foot maximum height limit; Variance to allow 114 parking stalls for Building 1 when 314 parking stalls are required; Tentative Parcel Map No. 20358 to consolidate lots from 11 to 2 lots for each building site; Historic Major Certificate of Appropriateness to determine if the project is consistent with requirements of the Historic Preservation Ordinance; and two Development Agreements (process separately) for each project lot site measuring 35 acres for lot 1 and 24 acres for lot 2, located within the Heavy Industrial (M-2) Zone.

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EXHIBIT "C"

PERMITS AND OTHER APPROVALS

- Conditional Use Permit
- Architectural and Site Plan Review
- Variance
- Tentative Parcel Map No. 20358
- Initial Study - CEQA

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EXHIBIT "D"

CONSULTANTS

BEST BEST & KRIEGER LLP
Legal Services: Environmental (CEQA, water and other applicable environmental legal issues), planning, and other need legal services.

FIRST CARBON SOLUTIONS, INC.

Environmental consultant to prepare required CEQA document. Contract amount for Environmental Services is not to exceed $11,005.00 without prior approval by each party.

OTHER CONSULTANTS
Any and all other consultants, including but not limited to traffic engineering/transportation planning consultant, and CEQA consultant, determined by the City to be reasonably necessary for its review and processing of the Project application(s).

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ITEM NO. 12

STAFF REPORT

DATE: FEBRUARY 7, 2023
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: MARK TOMICH, DIRECTOR
SUBJECT: APPROVE FOURTH AMENDMENT OF A PROFESSIONAL

SERVICES AGREEMENT WITH LSA ASSOCIATES FOR

ENVIRONMENTAL SERVICES ON BEHALF OF THE RECHE

CANYON PLAZA PROJECT AND AMENDMENT TO
REIMBURSEMENT AGREEMENT WITH APPLICANT.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

1. Authorize the City Manager to execute the attached fourth amendment to Professional Services Agreement (PSA) with LSA and Associates, in the amount of $ 66,080 to provide environmental services on behalf of Fahim Tanios and Ramzy Hanna for Reche Canyon Plaza Project (DAP -001-453), as per the te rms of the PSA, incl uding exhibits attached thereto.

2. Authorize the City Manager to execute the attached fourth amendment Reimbursement Agreement with Fah im Tanios and Ramzy Hanna to fund consultant services for Reche Canyon Plaza Project (DAP-001-453).

BACKGROUND

The applicant desires to move forward with the Project, which requires a new contract with the environmental consultant, LSA Associates, to complete preparation of an Environmental Impact Report. A summary of the previous work and amounts are included in the table below:

Contract Start Date Contract Contract End Date Contract Amount 12-27-2016 LSA and Associates 6-30-2017 $70,000
11-7-2017 Amendment: LSA and 7-31-2018 $104,000
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Associates
8-20-2019 Amendment: LSA and
Associates
6-30-2020* No change*
4-20-2021 LSA and Associates 10-20-2022* $131,280
10-20-2022 LSA and Associates 10-31-2023 $66,080
*Contract end date extended to allow more time for analysis and completion of project plans by applicant.

As the “lead agency” for carrying out a nd approving the proposed project, the City of Colton is responsible for causing the environmental document to be prepared (CEQA Guidelines, Section 15367). Because the City is the public agency having jurisdiction by law over the project, the environmental document becomes the City’s document to comply with CEQA. Staff, environmental consultant and the Applicant have agreed to continue with preparation of the final documents in completing the Draft Environmental Impact Report.

The specific reason for th e fourth amendment is to address new analysis required by the California Attorney General’s office as related to wildfire analysis, addressing street intersection queuing issues, and SB 330 as related to changing the zone from residential to commercial. LSA has also included costs for project management and meetings.

ISSUES/ANALYSIS

Staff is recommending that one of the City’s pre -qualified environmental consultants, LSA and Associates, continue preparation of the Draft Environmental Impact Report (EIR). All technical analyses associated with the EIR will be prepared directly by the consultant and address recent updates to the Draft EIR to address concerns raised by the City Staff and City Attorney’s Office .

The consultant’s services will be overseen dir ectly by staff to ensure that content, quality, and timeframe commitments are met. The Professional Service Agreement change order #4 is to allow for corrections to the Draft Administrative EIR reviewed by staff. The proposed change order equals to $66,080.

Staff is also requesting approval of a corresponding Reimbursement Agreement with the applicant to ensure funding of all consultant services, including legal services associated with the project. The remaining areas that will be addressed prior to sc heduling a Planning Commission meeting include:

 Traffic Impact Study Update – Addressing intersection queuing issues  SB 330 Update – City has provided updated information as to New Residential Areas that may be utilized in replacing the potentially 5 -6 dwelling units that will be lost because of the new commercial project proposal.
 Wildfire Analysis:
 Meetings, Coordination, Project Management
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Staff is also requesting approval of a corresponding Reimbursement Agreement with the applicant to ensure funding of all consultant services, including legal services associated with the project.

FISCAL IMPACTS

City staff ensure that funds are on deposit with the City prior to entering into or amending any contract for professional services. Revenue from the rei mbursement agreement are receipted in General Fund Developer Reimbursement Agreement Revenue Account Number 100 -6799-000.

Sufficient appropriations are available in the FY2022 -23 adopted budget in General Fund Planning Professional Services Account Number 100-6300-6301-2357-0000-000 for the $60,080 contract amendment. No additional appropriations are necessary to execute the contract amendment.

ALTERNATIVES

1. Provide alternative direction to staff.

ATTACHMENT

1. Attachment 1. PSA Amend No. 4

2. Attachment 2 - Reimbursement Agreement_DAP-001-453_Reche Canyon Commercial Project
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FOURTH AMENDMENT TO

PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE CITY OF COLTON
AND
LSA ASSOCIATES, INC.

1. PARTIES AND DATE.

This Fourth Amendment to the Professional Services Agreement ( PSA) is made and entered into this ___day of February, 2023 by and between the City of Colton (“City”) and LSA Associates, Inc. (“Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this 4th Amendment.

2. RECITALS.

2.1 Agreement. City and Consultant entered into that certain Professional Services Agreement dated April 20 , 20 21 (“Agreement”), whereby Consultant agreed to provide environmental document preparation services on behalf of the Reche Canyon Plaza project.

2.2 Amendment. City and Consultant desire to amend the Agreement for the fourth time to extend the term of the Agreement.

3. TERMS.

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

"The term of this Agreement shall be from October 20 ,
2022 to October 31 , 202 3, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established scheduled and deadlines. The parties may, by mutual, written co nsent, extend the term of this Agreement if necessary to complete the Services by six months, if necessary . Total compensation, as specified in Section

3.3.1 of this Agreement, shall remain unchanged unless modified by mutual, written consent, in order to complete the Services."

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

“Consultant shall receive co mpensation, including authorized reimbursements, for all Services rendered under thi s Agreement at the rates set forth in Exhibit ”C” attached hereto and incorporated herein by reference. The total compensation shall not exceed One-

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Hundred Ninety Seven Thousand, Three Hundred and Eighty Dollars and no cents ($ 131,280 + 66,080 = 197,380) without written approval of City Manager. The City Manager may authorize up to 5% in compensation without returning to City Council for authorization. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates an d manner set forth in this Agreement.”

3.3 Continuing Effect of Agreement. Except as amended by this 4th Amendment, all provisions of the Agreement shall remain unchanged and in full force and effect. From and after the date of this 4th Amendment, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this 4th Amendment.

3.3 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consid eration for the performance of the obligations they have undertaken pursuant to this 4th Amendment.

3.4 Counterparts. This 4th Amendment may be executed in duplicate originals, each of which is deemed to be an original , but when taken together shall con stitute but one and the same instrument.

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SIGNATURE PAGE FOR FOURTH AMENDMENT TO

PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE CITY OF COLTON
AND LSA ASSOCIATES, INC.

IN WITNESS WHEREOF, the Parties have entered into thi s 4th Amendment to Professional Services Agreement as of the ___day of February, 2023.

CITY OF COLTON

By: _________________________
William R. Smith
City Manager

Attest: _________________________
Carolina R. Padilla
City Clerk

LSA ASSOCIATES
a CORPORATION

By: _________________________
Signature

_________________________

_________________________
Principal

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CITY OF COLTON

REIMBURSEMENT AGREEMENT FOURTH AMENDMENT

FOR DEVELOPMENT PROJECT

AMENDMENT TO SPECIFIC PLAN LAND USE MAP, CONDITIONAL USE PERMIT, AND ARCHITECTURAL AND SITE PLAN REVIEW (DAP-001-453)

1. PARTIES AND DATE.

This Reimbursement Agreement ("Agreement") is made this 19th day of November, 2020, by and between the City of Colton, a California municipal corporation ("City"), Fahim Tanios and Ramzy Hanna, with his principal place of business at 1518 Cascante Ct., Redlands, CA 92373 (“Applicant”). City and Applicant are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.

2. RECITALS.

2.1. Property. The owner , Riverside Construction Company , of that certain real property located within the City of Colton, County of San Bernardino , California , and more particularly described in Exhibit “A” attached hereto and incorporated herein by reference (“Property”).

2.2 Project. The Applicant is contemplating the developm ent of the Property as described in Exhibit “ B” attached hereto and incorporated herein by reference (“Project”) . The Applicant has submitted an application for discretionary land use approvals for the Project, including those listed in Exhibit “C” attached hereto and incorporated herein by reference, as well as all related environmental review pursuant to the California Environmental Quality Act ("CEQA") and other applicable laws, rules and regulations.

2.3 Consultants. To provide the City with t he needed expertise and information necessary for the City's review process concerning the Project, it is or may become necessary for the City to access the services of certain outside legal, environmental, planning and other experts for the Project ("Consultants").

2.4 Reimbursement. As a condition to the City's completion of the Project review process, the Applicant has agreed to reimburse the City for the Consultants’ costs and expenses related to the City's Project review process, as well as any oth er out-of-pocket expenses incurred by the City, in the manner and amounts set forth in this Agreement. The Applicant's reimbursement of City under this Agreement will ensure that the City has the necessary resources to diligently and efficiently process the Applicant's Project.

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3. TERMS.

3.1 Incorporation of Recitals. The Parties agree that the Recitals constitute the factual basis upon which the City and the Applicant have entered into this Agreement. The City and the Applicant each acknowledge the acc uracy of the Recitals and agree that the Recitals are incorporated into this Agreement as though fully set forth at length.

3.2 City Selection of Consultants. As a necessary and indispensable part of its fact finding process relating to the review of the Applicant's proposed Project and uses of the Property, the City shall retain the services of Consultants to provide advice as the City may deem necessary in its reasonable and sole discretion. The City has thus far retained or is prepared to retain (either directly or as subconsultants) those Consultants listed in Exhibit “D” attached hereto and incorporated herein by reference, but shall have the right to re tain any additional consultants or sub-consultants pursuant to this Agreement. The contemplated general scope of work of the Consultants for the Project is also described in Exhibit "D" attached hereto, but the City reserves the right, in its reasonable a nd sole discretion, to amend the scope of work as it deems necessary and appropriate to the City's proper review and consideration of the Applicant's Project.

The Applicant agrees that, notwithstanding the Applicant's reimbursement obligations under this Agreement, Consultants shall be the contractors exclusively of the City and not of the Applicant. Except for those disclosures required by law, including, without limitation, the Public Records Act, all conversations, notes, memoranda, correspondence and other forms of communication by and between the City and its Consultants shall be, to the extent permissible by law, privileged and confidential and not subject to disclosure to the Applicant. The Applicant agrees that it shall have no claim to, nor shall it assert any right in any reports, correspondence, plans, maps, drawings, news releases or any and all other documents or work product produced by the Consultants.

3.3 Applicant to Cooperate with Consultants. The Applicant agrees to cooperate in good faith with the Consultants The Applicant agrees that it will instruct its agents, employees, consultants, contractors and attorneys to reasonably cooperate with the Consultants and to provide all necessary documents or information reasonably requested of them by the City and/or the Consultants; provided, however, that the foregoing shall not require the disclosure of any documents or information of the Applicant which by law is privileged, proprietary, confidential, and exempt from disclosure under the Public Records Act.

3.4 Applicant's Reimbursement of Costs and Expenditures . The Applicant shall reimburse the City for one hundred percent (100%) of the actual fees, costs and other expenditures incurred by the City relative to the Consultant costs, as well as staff services associated with the Project, other out-of-pocket expenses incurred by the City ("Costs"). The City has reviewed the scope(s) of work for this project fourth amendment and has estimated the aggregate Costs for all Consultants and City staff to be approximately sixty thousand and eighty dollars ($60,080). Within ten (10) calendar days of the execution of this Agreement, the Applicant shall submit full deposit in the amount of $60,080.00, which amount the City shall separately account for in a Project deposit account ("Deposit Account").

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As the Consultants invoice the City for fees, costs, and expenditures associated with the Project, staff charge their time for services associated with the Project, and City Attorney charges for legal services associated with the Project, the City may draw upon the Deposit Account to make the required payments. At any time that the Deposit Account drops below ($15,000), the City may make demand on Applicant to replenish the Deposit A ccount to reach the minimum Fifteen Thousand Dollars ($15,000) , or alternative minimum amount upon City entering contract(s) with environmental consultant(s) for Project, and Applicant shall submit the required amount of funds to City within ten (10) calen dar days. In the event Applicant fails to make any required deposit, City shall have the right to consider Applicant's Project applications as withdrawn and cease processing such applications.

City shall not exceed the Estimated Costs without consulting with Applicant regarding the need for additional services which cause the Costs to exceed the Estimated Costs ("Excess Costs").

The City shall use reasonable good faith efforts to consult with the Applicant prior to amending any scope of services to be pr ovided by the Consultants and incurring Excess Costs. The Applicant's obligation to reimburse the City for Excess Costs shall be contingent upon the City providing Applicant with written notice of the amendment of the scope of services to be performed by any Consultant and the estimated cost thereof prior to the commencement of work. Once the City provides such notice, Applicant shall be obligated to pay the Excess Costs in the same manner as the Estimated Costs provided above, including, but not limited to, replenishing the Deposit Account.

For purposes of this Section, the City shall be deemed to have consulted with the Applicant when the City has provided written notice to the Applicant that the City reasonably anticipates that it will incur, or has incurred, Excess Costs. If, after consultation, the Applicant disagrees with the City's incurring of Excess Costs, then the Applicant's sole and exclusive remedy will be to terminate this Agreement pursuant to Section 3.6 of this Agreement, subject to the Applicant's obligation to reimburse the City for all Costs incurred by the City prior to the date of termination, whether or not yet paid by the City to any Consultants.

The City shall maintain accurate records of invoices received from, and payments made to, the Consultants resulting from the Project, and will provide a payment summary to Applicant within a reasonable time upon request. In the event that excess funds remain in the Deposit Account upon conclusion of the Project and after all final payme nts to the Consultants have been made, the City agrees to refund that excess amount, if any, to Applicant within fifteen (15) days of final payment to the Consultants. Alternatively, if the Costs of the services of the Consultants exceed the Estimated Costs and Excess Costs, if any, then Applicant shall remain obligated to pay for all such Costs. Applicant shall pay any such amount within ten (10) calendar days of demand for payment by City.

3.5 Term. The term of this Agreement shall commence on the date that this Agreement is approved by the City Council and fully executed by the Parties, and shall terminate when all services required for the project by Consultants have been completed to the City's reasonable satisfaction and the Applicant has sati sfied all of its obligations under this Agreement . For purposes of this section, Applicant's obligations shall include, but shall not be limited to, its obligation to reimburse the City for Estimated Costs and Excess Costs, whether or not paid by the

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City to Consultants prior to the date of termination. The Applicant's obligation to reimburse the City as provided in this Agreement shall survive the natural expiration of this Agreement pursuant to this section, as well as the termination of this Agreement pursuant to Section 3.6.

3.6 Early Termination.

3.6.1 By City. The City may, in its reasonable and sole discretion, terminate this Agreement prior to the term set forth in Section 3.5 above, without cost or liability to the City, upon thirty (30) days prior written notice to the Applicant in the event that Applicant either: (1) fails to satisfy any obligation of this Agreement; or (2) fails to reasonably prosecute its application(s) for the Project.

3.6.2 By Applicant. The Applicant may, in its reasonable and sole discretion, terminate this Agreement prior to the end of the term set forth in Section 3. 5 above, upon thirty (30) days' prior written notice to the City; provided, however, that Applicant's right to so terminate this Agreement is expressly contingent upon Applicant satisfying both of the following: (1) Applicant shall give City written notice withdrawing its application(s) for the Project; and (2) Applicant shall satisfy all of its obligations under this Agreement up through the proposed effective date of termination. For purposes of this section, Applicant's obligations shall include, but shall not be limited to, its obligation to reimburse the City for Estimated Costs and Excess Costs, whether or not paid by the City to Consultants prior to the date of termination.

3.6.3 Notice to Consultants . Within two (2) working days following either the City's decision to terminate this Agreement or the City's receipt of written notice indicating the Applicant's decision to terminate this Agreement, the City shall notify all Consultants and instruct them to cease work on the Project. Consultants shall also be instructed to bill the City for any services completed prior to the date of termination.

3.7 Assignability. This Agreement may not be assigned by either Party without the prior and express written consent of the other Party, which consent shall not be unreasonably withheld. In determining whether to approve a request by the Applicant to assign this Agreement, the City may consider, among other things, the proposed assignee's financial status and commitment to the Project. Any attempted assignment of this Agreement not in compliance with the terms of this Agreement shall be null and void and shall confer no righ ts or benefits upon the assignee.

3.8 No Oral Modifications. This Agreement represents the entire understanding of the City and the Applicant and supersedes all other prior or contemporaneous written or oral agreements pertaining to the subject matter of this Agreement. This Agreement may be modified, only by a writing signed by both the authorized representatives of both the City and the Applicant.

All modifications to this Agreement must be approved by the City Council.

3.9 Binding Upon Successors. This Agreement and each of its terms shall be binding upon the City, the Applicant and their respective officers, elected officials, employees, agents, contractors, and permitted successors and assigns.

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3.10 Legal Challenges. Nothing herein shall be construed to require City to defend any third party claims and suits challenging any action taken by the City with regard to any procedural or substantive aspect of the City ’s approval of development of the Property, the environmental process, or the proposed Project. The Applicant may, however, in its sole and absolute discretion appear as real party in interest in any such third party action or proceeding, and in such event , it and the City shall defend such action or proceeding and the Applicant shall be responsible and reimburse the City for whatever legal fees and expert or other costs, in their entirety, including actual attorneys' fees, which may be incurred by the City in defense of such action or proceeding.

This City shall have the absolute right to retain such legal counsel as the City deems necessary and appropriate and the Applicant shall reimburse the City for any and all attorneys' fees and expert or other costs incurred by the City as a result of such third party action or proceeding . Applicant may, at any time, notify City in writing of its decision to terminate such reimbursement obligation and, thereafter, the City may choose, in its sole discretion, to defend or not defend such third party action or proceeding. In the event that the City decides not to continue the defense of such third party action or proceeding, Applicant shall be obligated to reimburse City for any and all costs, fees, penalties or damages associated with dismissing the action or proceeding. In the event that the City decides to continue the defense of such third party action or proceeding, Applicant shall have no further obligation to reimburse City for its attorney fees and expert or other costs.

3.11 Attorneys' Fees. In the event that any action or proceeding, including arbitration, is commenced by either the City or the Applicant against the other to establish the validity of this Agreement or to enforce any one or more of its term s, the prevailing Party in any such action or proceeding shall be entitled to recover from the other, in addition to all other legal and equitable remedies avail able to it, its actual attorneys' fees and costs of litigation, including, without limitation, filing fees, service fees, deposition costs, arbitration costs and expert witness fees, including actual costs and attorneys' fees on appeal.

3.12 Jurisdiction and Venue. This Agreement is executed and is to be performed in the City of Colton, San Bernardino County, California, and any action or proceeding brought relative to this Agreement shall be heard in the appropriate court in the County of San Bernardino , California. The City and the Applicant each consent to the personal jurisdiction of the c ourt in any such action or proceeding.

3.13 Severability. If any term or provision of this Agreement is found to be invalid or unenforceable, the City and the Applicant both agree that they would have executed this Agreement notwithstanding the invalidity of such term or provision. The invalid term or provision may be severed from the Agreement and the remainder of the Agreement may be enforced in its entirety.

3.14 Headings. The headings of each Section of this Agreement are for the purposes of convenience only and shall not be construed to either expand or limit the express terms and language of each Section.

3.15 Representations of Authority . Each Party signing this Agreement on behalf of a Party which is not a natural person hereby represents a nd warrants to the other Party that all necessary legal prerequisites to that Party's execution of this Agreement have been satisfied and

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that he or she has been authorized to sign this Agreement and bind the Party on whose behalf he or she signs.

3.16 Notices. Notices required under this Agreement shall be sent to the following:

City: City of Colton
650 N La Cadena Drive
Colton, CA 92324
Attn: Mark Tomich, Development Services Director

Applicant: Attn: Fahim Tanios and Ramzy Hanna
Reche Canyon Commercial Project
1518 Cascante Ct.

Redlands, CA 92373

Notices given pursuant to this Agreement shall be deemed received as follows: (1) if sent by United States Mail, five (5) calendar days after deposit into the United States Mail, first class postage prepaid; (2) i f sent by facsimile, upon transmission and actual receipt by the receiving Party; (3) if by express courier service or hand delivery , on the date of receipt by the receiving Party. The addresses for notices set forth in this Section may be changed upon written notice of such change to either the City or the Applicant, as appropriate.

[SIGNATURES ON NEXT TWO PAGES]

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CITY’S SIGNATURE PAGE FOR

CITY OF COLTON

REIMBURSEMENT AGREEMENT FOR DEVELOPMENT PROJECT

RECHE CANYON PLAZA PROJECT (DAP-001-453)

CITY OF COLTON

By: _________________________
William R. Smith
City Manager

Attest:

_________________________
Carolina R. Padilla
City Clerk

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APPLICANT’S SIGNATURE PAGE FOR

CITY OF COLTON

CITY OF COLTON

REIMBURSEMENT AGREEMENT FOR DEVELOPMENT PROJECT

RECHE CANYON PLAZA PROJECT (DAP-001-453)

Fahim Tanios and Ramzy Hanna

By: _________________________
Signature Signature

_________________________
Name: Fahim Tanios Name: Ramzy Hanna

_________________________
Title: Title:

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EXHIBIT "A"

LEGAL DESCRIPTION OF THE PROPERTY

Reche Canyon Plaza project located at 2621 Reche Canyon Road. The project site consists of four parcels, Assessor’s Parcel Numbers (APNs) 0284-211-70, 71, 72, and 1178-371-27.

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EXHIBIT "B"

PROJECT DESCRIPTION

LSA is pleased to provide you with this scope of work and cost estimate to reinitiate the California Environmental Quality Act (CEQA) process for the proposed Reche Canyon Plaza project located at 2621 Reche Canyon Road. The project site consists of four parcels, Assessor’s Parcel Numbers (APNs) 0284 -211-70, 71, 72, and 1178 -371-27. The project proposes the development of approximately 18,770 square feet of commercial uses including a 3,574-square foot fueling station with 6 fueling dispensers, a 3,000 -square foot convenience store, 9,800 square feet of neighborhood commercial retail space, and a 1,750-square foot drive through car wash. The application also includes a request to change the Reche Canyon Specific Plan Land Use Map from Estate Density to Commercial Land Use Designation.

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EXHIBIT "C"

PERMITS AND OTHER APPROVALS

- Change of Zone to Specific Plan Land Use Map
- Conditional Use Permit
- Architectural and Site Plan Review
- Environmental Impact Report

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EXHIBIT "D"

CONSULTANTS

BEST BEST & KRIEGER LLP
Legal Services: Environmental (CEQA, water and other applicable environmental legal issues), planning, and other need legal services.

FIRST CARBON SOLUTIONS, INC.

Environmental consultant to prepare required CEQA document. Contract amount for Environmental Services is not to exceed $11,005.00 without prior approval by each party.

OTHER CONSULTANTS
Any and all other consultants, including but not limited to traffic engineering/transportation planning consultant, and CEQA consultant, determined by the City to be reasonably necessary for its review and processing of the Project application(s).

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ITEM NO. 13

STAFF REPORT

DATE: FEBRUARY 7, 2023
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: BRIAN DICKINSON, PUBLIC WORKS AND UTILITY SERVICES

DIRECTOR
SUBJECT: APPROVE CHANGE ORDER NO. 1 TO PTM GENERAL
ENGINEERING SERVICES, INC., FOR THE I-10 AND 9TH ST.

UNDERPASS LIGHTING PROJECT.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

Approve Change Order No. 1 for the I-10 Freeway /9th Street Underpass Lighting Project in the amount of $9,840.00 and authorize the City Manager to execute Change Order No. 1 (Exhibit A).

BACKGROUND

As part of the Colton Crossing Project, the City completed the painting of murals on the east and west side walls of the I -10 Freeway /9th Stre et Underpass. The east side of the underpass has existing lighting installed as part of a previously completed Caltrans project , but none on the west side. Installation of the lighting on the west side will provide safety for pedestrian s and motorists, and lighting on the mural. The scope of the project includes installation of lighting with decorative poles, and underground conduits and wiring.

ISSUES/ANALYSIS

October 14, 2022, the City Council authorized the award of a contract to PTM General Engineering Services, Inc. for $116,016.00 to install lighting on the west side of the I -10 Freeway /9th Street Underpass.

On November 29, 2022, the Notice to Proceed for the project was issued to PTM General 13 Packet Pg. 490
Staff Report to the Mayor and City Council
Contract Amendment - PTM General Engineering Services, Inc.

February 7, 2023