Report on Compliance and Other Matters
As part of obtaining rea
sonable assurance about whether City of Colton’s financial statements are free from material misstatement, we performed tests of its compliance with certain provisions of laws, regulations, contracts, and grant agreements, noncompliance with which could have a direct and material effect on the financial statements. However, providing an opinion on compliance with those provisions was not an objective of our audit, and accordingly, we do not express such an opinion. The results of our tests disclosed no instances of noncompliance or other matters that are required to be reported under Government Auditing Standards.
Purpose of This Report
The purpose of this report is solely to describe the scope of our testing of internal control and compliance and the results of that testing, and not to provide an opinion on the effectiveness of the entity’s internal control or on compliance. This report is an integral part of an audit performed in accordance with Government Auditing Standards in considering the entity’s internal control and compliance. Accordingly, this communication is not suitable for any other purpose.
CliftonLarsonAllen LLP
Irvine, California
February 6, 2023
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Attachment: Final Internal Control Communication (3971 : FY2021-22 ACFR)
CITY OF COLTON, CALIFORNIA
APPROPRIATIONS LIMIT WORKSHEET NO. 6
INDEPENDENT ACCOUNTANTS’ REPORT
ON AGREED-UPON PROCEDURES APPLIED TO
APPROPRIATIONS LIMIT WORKSHEET NO. 6
YEAR ENDED JUNE 30, 2022
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(1)
INDEPENDENT ACCOUNTANTS’ REPORT
ON APPLYING AGREED-UPON PROCEDURES
Honorable Mayor and Members
of the City Council
City of Colton
Colton, California
We have performed the procedures enumerated below on the accompanying Appropriations Limit Worksheet No. 6 of the City of Colton, California, (the City) for the year ended June 30, 2022. The City’s management is responsible for the Appropriations Limit Worksheet No. 6.
The City and the League of California Cities (as presented in the League publication entitled Article XIII- B Appropriations Limit Uniform Guidelines) have agreed to and acknowledged that the procedures performed are appropriate to meet the intended purpose of meeting the requirements of Section 1.5 of Article XIII-B of the California Constitution. This report may not be suitable for any other purpose. The procedures performed may not address all the items of interest to a user of this report and may not meet the needs of all users of this report and, as such, users are responsible for determining whether the procedures performed are appropriate for their purposes.
The procedures performed and our findings were as follows:
1. We obtained the completed Appropriations Limit Worksheet No. 6 for the year ended June 30, 2022, and compared the limit and annual adjustm ent factors included in that worksheet to the limit and annual adjustment factors tha
t were adopted by resolution of the City Council. We al so compared the populatio
n and inflation options included in the aforementioned worksheet to those that were selected by a recorded vote of the City Council.
No exceptions were noted as a result of this procedure.
2. For the accompanying Appropriations Limit Worksheet No. 6, we added last year’s limit to the t otal adjustments and compared the re
sulting amount to this year’s limit. We also recalculated the adjustment factor and the adjustment for inflation and population and compared the results to the amounts on
Appropriations Limit Worksheet No. 6.
No exceptions were noted as a result of our performing this procedure.
CLA (CliftonLarsonAllen LLP) is an independent network member of CLA Global. See CLAglobal.com/disclaimer.
CliftonLarsonAllen LLP
CLAconnect.com
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Attachment: Colton GANN AUP (3971 : FY2021-22 ACFR)
Honorable Mayor and Members
of the City Council
City of Colton
(2)
3. We compared the prior-year appropriations limit presented in the accompanying Appropriations Limit W
orksheet No. 6 to the prior-year appropriations limit adopted by the City Council for the pr ior year
.
No exceptions were noted as a result of our performing this procedure.
We were engaged by the City to perform this agreed-upon procedures engagement and conducted our engagement in accordan
ce with attestation standards established by the American Institute of Certified Public Accountants. We were not engaged to and did not conduct an examination or review engagement, the objective of which would be the expression of an opinion or conclusion, respectively, on the accompanying Appropriations Limit Worksheet No. 6. Accordingly, we do not express such an opinion or conclusion. Had we performed additional procedures, other matters might have come to our attention that would have been reported to you.
We are required to be independent of the City and to meet our other ethical responsibilities, in accordance with the relevant ethical requirements related to our agreed-upon procedures engagement.
This report is intended solely for the information and use of the City Council and management of the City and is not intended to be, and should not be, used by anyone other than these specified parties.
CliftonLarsonAllen LLP
Irvine, California
February 6, 2023
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Attachment: Colton GANN AUP (3971 : FY2021-22 ACFR)
CITY OF COLTON
APPROPRIATIONS LIMIT WORKSHEET NO. 6
YEAR ENDED JUNE 30, 2022
See accom
panying Notes to Appropriations Limit Worksheet No. 6.
(3)
Appropriations Limit for Fiscal Year Ended June 30, 2021 (Note 2) 87,044,356$ Adjustment Factors for the Fiscal Year Ended June 30, 2022 (Note 2):
Inflation Population
Factor Factor Combined
(Note 3) (Note 4) Factor
1.0573 1.0017 1.0591 0.0591
Adjustment for Inflation and Population 5,144,096
Other Adjustments (Note 5) -
Total Adjustments 5,144,096
Appropriations Limit for Fiscal Year Ended June 30, 2022 92,188,452$
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Attachment: Colton GANN AUP (3971 : FY2021-22 ACFR)
COLTON GANN
NOTES TO APPROPRIATIONS LIMIT WORKSHEET NO. 6
JUNE 30, 2022
(4)
NOTE 1 PURPOSE OF AGREED UPON PROCEDURE REVIEW
Under Article XIIIB of the California Consti tution (the Gann Spending Limitation Initiative), California governmental agencies are restricted as to the amount of annual appropriations from proceeds of taxes. Effective for years beginning on or after July 1, 1990, under Section 1.5 of Article XIIIB, the annual calculation of the appropriations limit is subject to agreed-upon procedures review in connection with the annual audit.
NOTE 2 METHOD OF CALCULATION
Under Section 10.5 of Article XIIIB, for fiscal years beginning on or after July 1, 1990, the appropriations limit is required to be calculated based on the limit for the fiscal year 1986-87, adjusted for the inflation and population factors discussed at Notes 3 and 4 below.
NOTE 3 INFLATION FACTORS
A California governmental agency may adjust its appropriations limit by either the percentage change in California per capita personal income from the preceding year (which is supplied by the State Department of Finance), or the percentage change in the local assessment roll from the preceding year due to the change of local nonresidential construction. The factor adopted by the City of Colton (the City) for fiscal year 2021-22 represents the annual percentage change in the per capita personal income from the preceding year.
NOTE 4 POPULATION FACTORS
A California governmental agency may adjust its appropriations limit by either the annual percentage change of the jurisdiction’s own population or the annual percentage change in population in the county where the jurisdiction is located. The factor adopted by the City for fiscal year 2021-22 represents the annual percentage change in population for the City.
NOTE 5 OTHER ADJUSTMENTS
A California government agency may be required to adjust its appropriations limit when certain events occur, such as the transfer of re sponsibility for municipal services to, or from, another government agency or private entity. T he City had no such adjustments for the year ended June 30, 2022.
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The Honorable City Council
of the City of Colton
Colton, California
We have audited the financial stat
ements of the governmental activities, the business-type activities, each major fund, and the aggregate remaining fund information of City of Colton as of and for the year ended June 30, 2022, and have issued our report thereon dated February 6, 2023. We have previously communicated to you information about our responsibilities under auditing standards generally accepted in the United States of America and Government Auditing Standards , as well as certain information related to the planned scope and timing of our audit in our engagement agreement dated July 19, 2022.Professional standards also require that we communicate to you the following information related to our audit.
Significant audit findings or issues
Qualitative aspects of accounting practices
Accounting policies
Management is responsible for the selection and use of appropriate accounting policies. The significant accounting policies used by City of Colton are described in Note 1 to the financial statements.
As described in Note 1D, the City changed accounting policies related to leases by adopting Governmental Accounting Standards Board (GASB) Statement No. 87, Leases, effective July 1, 2021.
Accordingly, the accounting change has been applied to the beginning of the period of adoption.
We noted no transactions entered into by the entity during the year for which there is a lack of authoritative guidance or consensus. All significant transactions have been recognized in the financial statements in the proper period.
Accounting estimates
Accounting estimates are an integral part of the financial statements prepared by management and are based on management’s knowledge and experience about past and current events and assumptions about future events. Certain accounting estimates are particularly sensitive because of their significance to the financial statements and because of the possibility that future events affecting them may differ significantly from those expected. The most sensitive estimate(s) affecting the financial statements were:
The annual required contributions, pension expense, net pension liability and corresponding deferred outflows of resources and deferred inflows of resources for the City’s public defined benefit plans with CalPERS are based on actuarial valu ations
provided by
CalPERS.
The Other Postemployment Benefit (OPEB) expense, Total OPEB liability, and corresponding deferred
outflows of resources and deferred inflows of resources for the City’s OPEB plans are based on certain actuarial assumptions and methods prepared by an outside consultant.
CLA (CliftonLarsonAllen LLP) is an independent network member of CLA Global. See CLAglobal.com/disclaimer.
CliftonLarsonAllen LLP
CLAconnect.com
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City of Colton
We evaluated the key factors and assumptions used to develop the allowance in determining that it is reasonable in relation to the financial statements taken as a whole.
Financial statement disclosures
Certain financial statement disclosures are particularly sensitive because of their significance to financial statement users. There were no particularly sensitive financial statement disclosures. The most sensitive disclosure(s) affecting the financial statements was (were):
The disclosure of the retirement commitments reported in Note 8 to the financial stat ements
The disclosure of the OPEB commitments reported in Note 9 to the financial statements The financia
l statement disclosures are neutral, consistent, and clear.
Significant unusual transactions
We identified no significant unusual transactions.
Difficulties encountered in performing the audit
We encountered no significant difficulties in dealing with management in performing and completing our audit.
Uncorrected misstatements
Professional standards require us to accumulate all misstatements identified during the audit, other than those that are clearly trivial, and communicate them to the appropriate level of management. The attached schedule summarizes uncorrected misstatements of the financial statements. Management has determined that their effects are immaterial, both individually and in the aggregate, to the financial statements taken as a whole.
Corrected misstatements
Management did not identify and we did not notify them of any financial statement misstatements detected as a result of audit procedures.
Disagreements with management
For purposes of this communication, a disagreement with management is a disagreement on a financial accounting, reporting, or auditing matter, whether or not resolved to our satisfaction, that could be significant to the financial statements or the auditors’ report. No such disagreements arose during our audit.
Circumstances that affect the form and content of the auditors’ report As previously communicated to you, the report was modified to include an emphasis of matter paragraph related to the change in accounting principle described above.
Management representations
We have requested certain representations from management that are included in the attached management representation letter dated February 6, 2023.
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City of Colton
Management consultations with other independent accountants In some cases, management may decide to consult with other accountants about auditing and accounting matters, similar to obtaining a “second opinion” on certain situations. If a consultation involves application of an accounting principle to the entity’s financial statements or a determination of the type of auditors’ opinion that may be expressed on those statements, our professional standards require the consulting accountant to check with us to determine that the consultant has all the relevant facts. To our knowledge, there were no such consultations with other accountants.
Supplementary information in relation to the financial statements as a whole With respect to the required supplementary information (RSI) accompanying the financial statements, we made certain inquiries of management about the methods of preparing the RSI, including whether the RSI has been measured and presented in accordance with prescribed guidelines, whether the methods of measurement and preparation have been changed from the prior period and the reasons for any such changes, and whether there were any significant assumptions or interpretations underlying the measurement or presentation of the RSI. We com pared the RSI for consistency with management’s responses to the foregoing inquiries, the basic financial statements, and other knowledge obtained during the audit of the basic financial statements. Because these limited procedures do not provide sufficient evidence, we did not express an opinion or provide any assurance on the RSI.
With respect to the combining and individual nonmajor fund financial statements and schedules (collectively, the supplementary information) accompanying the financial statements, on which we were engaged to report in relation to the financial statements as a whole, we made certain inquiries of management and evaluated the form, content, and methods of preparing the information to determine that the information complies with accounting principles generally accepted in the United States of America, the method of preparing it has not changed from the prior period or the reasons for such changes, and the information is appropriate and complete in relation to our audit of the financial statements. We compared and reconciled the supplem entary information to the underlying accounting records used to prepare the financial statements or to the financial statements themselves. We have issued our report thereon dated February 6, 2023.
Other information included in annual reports
Other information (financial or nonfinancial information other than the financial statements and our auditors’ report thereon) is being included in your annual report and is comprised of introductory and statistical sections. Our responsibility for other information included in your annual report does not extend beyond the financial information identified in our opinion on the financial statements. We have no responsibility for determining whether such other information is properly stated and do not have an obligation to perform any procedures to corroborate other information contained in your annual report.
We are required by professional standards to read the other information included in your annual report and consider whether a material inconsistency exists between the other information and the financial statements because the credibility of the financial statements and our auditors’ report thereon may be undermined by material inconsistencies between the audited financial statements and other information.
If, based on the work performed, we conclude that an uncorrected material misstatement of the other information exists, we are required to describe it in our report. Our auditors’ report on the financial statements includes a separate section, “Other Information,” which states we do not express an opinion or any form of assurance on the other information included in the annual report. We did not identify any material inconsistencies between the other information and the audited financial statements.
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Attachment: Final Governance Communication (3971 : FY2021-22 ACFR) The Honorable City Council
City of Colton
* * *
This communication is intended solely for the information and use of the City and management of City of Colton and is not intended to be, and should not be, used by anyone other than these specified parties.
CliftonLarsonAllen LLP
Irvine, California
February 6, 2023
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Attachment: Final Governance Communication (3971 : FY2021-22 ACFR) The Honorable City Council
City of Colton
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Attachment: Final Governance Communication (3971 : FY2021-22 ACFR)
MAYOR
Frank J. Navarro
COUNCIL MEMBERS
David J. Toro
District 1
Kelly J. Chastain
District 2
Dr. Luis S. González
District 3
John R. Echevarria
District 4
CITY MANAGER
William R. Smith
CIVIC CENTER
650 N. LA CADENA DRIVE
COLTON, CA 92324
PH: (909) 370-5099
FX: (909) 370-5192
WEB: www.coltonca.gov
February 6, 2023
CliftonLarsonAllen LLP
2875 Michelle Drive, Suite 300
Irvine, CA 92606
This representation letter is provided in connection with your audit of the financial statements of City of Colton, which comprise the respective financial position of the governmental activities, the business-type activities, each major fund, and the aggregate remaining fund information as of June 30, 2022, and the respective changes in financial position and, where applicable, cash flows for the year then ended, and the related notes to the financial statements, for the purpose of expressing opinions on whether the financial statements are presented fairly, in all material respects, in accordance with accounting principles generally accepted in the United States of America (U.S. GAAP).
Certain representations in this letter are described as being limited to misstatements that are material. Misstatements, including omissions, are considered material if there is a substantial likelihood that, individually or in the aggregate, they would influence the judgment made by a reasonable user based on the financial statements.
We confirm, to the best of our knowledge and belief, as of February 6, 2023, the following representations made to you during your audit of the financial statements as of and for the year ended June 30, 2022.
Financial Statements
1. We have fulfilled our responsibilities, as set out in the terms of the audit engagement agreement dated July 19, 2022, for the preparation and fair presentation of the financial statements in accordance with U.S. GAAP. The financial statements include all properly classified funds and other financial information of the primary government and all component units required by generally accepted accounting principles to be included in the financial reporting entity.
2. We acknowledge and have fulfilled our responsibility for the design, implementation, and maintenance of internal control relevant to the preparation and fair presentation of financial statements that are free from material misstatement, whether due to fraud or error.
3. We acknowledge our responsibility for the design, implementation, and maintenance of internal control to prevent and detect fraud.
4. Significant assumptions used by us in making accounting estimates, including those measured at fair value, are reasonable.
5. Significant estimates have been appropriately accounted for and disclosed in accordance with the requirements of U.S. GAAP. Significant estimates are estimates at the financial statement date that could change materially within the next year.
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CliftonLarsonAllen LLP
6. Related party relationships and transactions, including, but not limited to, revenues, expenditures/expenses, loans, transfers, leasing arrangements, and guarantees, and amounts receivable from or payable to related parties have been appropriately accounted for and disclosed in accordance with the requirements of U.S. GAAP.
7. All events occurring subsequent to the date of the financial statements and for which U.S. GAAP requires adjustment or disclosure have been adjusted or disclosed. No events, including instances of noncompliance, have occurred subsequent to the financial statement date and through the date of this letter that would require adjustment to, or disclosure in, the financial statements or in the schedule of findings and questioned costs.
8. The effects of uncorrected misstatements are immaterial, both individually and in the aggregate, to the financial statements for each opinion unit. A list of the uncorrected misstatements is attached to the representation letter.
10. The effects of all known actual or possible litigation, claims, and assessments have been accounted for and disclosed in accordance with U.S. GAAP.
11. Receivables recorded in the financial statements represent valid claims against debtors for transactions arising on or before the financial statement date and have been reduced to their estimated net realizable value.
12. We have analyzed all lease contracts and have considered and recorded material embedded leases contained within other contracts in accordance with U.S. GAAP.
13. We have implemented GASB Statement No. 87, Leases, during the audit period. We have implemented the new accounting standard in accordance with the transition guidance prescribed in the standard. We have sufficient and appropriate documentation supporting all estimates and judgments underlying the amounts recorded and disclosed in the financial statements.
14. We have no plans or intentions that may materially affect the carrying value or classification of assets, liabilities, or equity.
15. We believe that the actuarial assumptions and methods used to measure pension and other postemployment benefits (OPEB) liabilities and costs for financial accounting purposes are appropriate in the circumstances.
Information Provided
1. We have provided you with:
a. Access to all information, of which we are aware, that is relevant to the preparation and fair presentation of the financial statements such as records (including information obtained from within and outside of the general and subsidiary ledgers), documentation, and other matters. b. Additional information that you have requested from us for the purpose of the audit.
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CliftonLarsonAllen LLP
c. Unrestricted access to persons within the entity from whom you determined it necessary to obtain audit evidence.
d. Complete minutes of the meetings of the governing board and related committees, or summaries of actions of recent meetings for which minutes have not yet been prepared. e. Access to all audit or relevant monitoring reports, if any, received from funding sources.
2. All material transactions have been recorded in the accounting records and are reflected in the financial statements and the schedule of expenditures of federal awards.
3. We have disclosed to you the results of our assessment of the risk that the financial statements may be materially misstated as a result of fraud.
4. We have no knowledge of any fraud or suspected fraud that affects the entity and involves:
a. Management;
b. Employees who have significant roles in internal control; or c. Others when the fraud could have a material effect on the financial statements.
5. We have no knowledge of any allegations of fraud, or suspected fraud, affecting the entity's financial statements communicated by employees, former employees, grantors, regulators, or others.
6. We have no knowledge of any instances of noncompliance or suspected noncompliance with provisions of laws, regulations, contracts, and grant agreements, or waste or abuse whose effects should be considered when preparing financial statements.
7. There are no other material liabilities or gain or loss contingencies that are required to be accrued or disclosed in accordance with U.S. GAAP.
8. There are no known related-party relationships or transactions which need to be accounted for or disclosed in accordance with U.S. GAAP.
9. We have disclosed to you the identity of all the entity's related parties and all the related party relationships and transactions of which we are aware, including any side agreements.
10. The entity has satisfactory title to all owned assets, and there are no liens or encumbrances on such assets, nor has any asset been pledged as collateral, except as made known to you and disclosed in the financial statements.
11. We have a process to track the status of audit findings and recommendations.
12. We have identified to you any previous audits, attestation engagements, and other studies related to the audit objectives and whether related recommendations have been implemented.
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CliftonLarsonAllen LLP
13. We are responsible for compliance with the laws, regulations, and provisions of contracts and grant agreements applicable to City of Colton, including tax or debt limits and debt contracts; and we have identified and disclosed to you all laws, regulations, and provisions of contracts and grant agreements that we believe have a direct and material effect on the determination of financial statement amounts or other financial data significant to the audit objectives, including legal and contractual provisions for reporting specific activities in separate funds.
14. There are no violations or possible violations of budget ordinances, laws and regulations (including those pertaining to adopting, approving, and amending budgets), provisions of contracts and grant agreements, tax or debt limits, and any related debt covenants whose effects should be considered for disclosure in the financial statements, or as a basis for recording a loss contingency, or for reporting on noncompliance.
15. The entity has complied with all aspects of contractual or grant agreements that would have a material effect on the financial statements in the event of noncompliance.
16. We have complied with all restrictions on resources (including donor restrictions) and all aspects of contractual and grant agreements that would have a material effect on the financial statements in the event of noncompliance. This includes complying with donor requirements to maintain a specific asset composition necessary to satisfy their restrictions.
17. We have followed all applicable laws and regulations in adopting, approving, and amending budgets.
18. The financial statements include all component units as well as joint ventures with an equity interest, and properly disclose all other joint ventures, jointly governed organizations, and other related organizations.
19. The financial statements properly classify all funds and activities.
20. All funds that meet the quantitative criteria in GASB Statement Nos. 34 and 37 for presentation as major are identified and presented as such and all other funds that are presented as major are particularly important to financial statement users.
21. Components of net position (net investment in capital assets; restricted; and unrestricted) and equity amounts are properly classified and, if applicable, approved.
22. Investments are properly valued.
23. Provisions for uncollectible receivables have been properly identified and recorded.
24. Expenses have been appropriately classified in or allocated to functions and programs in the statement of activities, and allocations have been made on a reasonable basis.
25. Revenues are appropriately classified in the statement of activities within program revenues, general revenues, contributions to term or permanent endowments, or contributions to permanent fund principal.
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ITEM NO. 2
STAFF REPORT
DATE: FEBRUARY 21, 2023
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: BILL SMITH, CITY MANAGER
SUBJECT: WAIVE FULL READING, READ BY TITLE ONLY AND PASS FIRST
READING OF AN ORDINANCE AUTHORIZING THE CITY
MANAGER TO SETTLE CLAIMS AND LAWSUITS FOR AMOUNTS
UP TO AND INCLUDING $50,000, ORDINANCE NO. O-11-22.
RECOMMENDED ACTION
Staff recommends that the City Council take the following action:
Waive full reading, read by title only and i ntroduce Ordinance No. O-11-22, amending Section
3.04.030 of the Colton Municipal Code relating to the authority of the City Manager pertaining to claims against the City.
BACKGROUND/DISCUSSION
Section 3.04.030 of the Colton Municipal Code authorizes the City Manager to evaluate and settle any claim or lawsuit asking the City for $25,000 or less. The settlement of any claims above $25,000 requires the approval of the City Council.
In order to expedite the City’s processing of minor claims, which are w ithin the City Manager’s current settlement authority, it is recommended that the City Council: (1) increase the City Manager’s settlement authority to $50,000, which matches the City Manager’s purchasing authority; and (2) delegate to the City Manager the limited authority to delegate the processing of claims to staff. Examples of claims which are brought against the City from time to time include alleged damage to private property as a result of City operations, as well as alleged personal injury claims. The settlement of claims in excess of $50,000 would require approval of the City Council. In order to alleviate potential concerns regarding the delegation of such settlement authority, the proposed Ordinance also requires the City Manager to develop a policy providing 2 Packet Pg. 225
Staff Report to the Mayor and City Council
Ordinance - City Manager Settlement Authority
February 21, 2023
guidance to designees regarding the evaluation of claims, as well as the conduct of negotiations for settling these minor claims.
The adoption of the proposed Ordinance and the implementation of a policy is anticipated to streamline the settlement and rejection of claims, freeing up the City Manager to attend to other business, and allow the City Manager and City Council to focus on larger claims against the City.
FISCAL IMPACTS
There is no direct fiscal impact as a result of this it em; however, it is anticipated that there will be some savings of staff costs due to reduced claim processing time, with the approval of this action.
ALTERNATIVES
1. Provide alternative direction to the City Manager and staff.
ATTACHMENT
1. Ordinance O-11-22
2 Packet Pg. 226
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ORDINANCE NO. O-11-22
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF COLTON CALIFORNIA AMENDING COLTON
MUNICIPAL CODE SECTION 3.04.030 REGARDING THE
AUTHORITY OF THE CITY MANAGER RELATED TO
CLAIMS AGAINST THE CITY
WHEREAS, Title 3, Chapter 3.04, Sectio n 3.04.030 of the Colton Municipal Code states that the City Council delegates to the City Manager the authority to allow, compromise, or settle claims for an amount of up to Twenty-Five Thousand Dollars ($25,000); and WHEREAS, Title 3, Chapter 3.04, Section 3.04.030 was last updated in 2004; and WHEREAS, it is the intent of the City Council to promote greater efficiency in the settlement and compromise of claims against the City; and WHEREAS, the City Council desires to increase the City Manager’s settlem ent authority and grant additional flexibility to the City Manager in order to allow the City Manager to provide prompt and cost effective resolution of claims arising minor occurrences, incidents, and/or accidents resulting in potential damage exposure to the City.
NOW, THEREFORE, the City Council of the City of Colton, Californ ia, does ordain as follows:
SECTION 1. Incorporation of Recitals . The City Council hereby finds that all of the foregoing recitals and the staff report presented herewith are tr ue and correct and are hereby incorporated and adopted as findings of the City Council as if fully set forth herein.
SECTION 2 . Amending the Colton Municipal Code Section 3.04.03 0. Colton Municipal Code Section 3.04.030 Authority of City Manager is hereby amended in its entirety to read:
“3.04.030 – Authority of City Manager
A. The City Council delegates authority to the City Manager and his or her designee to review all claims for sufficiency and to reject any and all claims. The City Council delega tes to the City Manager authority to allow, compromise, or settle claims for an amount up to Fifty Thousand Dollars ($50 ,000). The City Council shall have the sole authority to allow, compromise, or settle claims for an amount in excess of Fifty Thousand Dollars (>$50,000).”
B. The City Manager may further delegate the settlement authority outlined in Section 3.04.030(A) of the Colton Municipal Code. Prior to such delegation of settlement authority, the City Manager shall develop or cause to be developed, policies and procedures as are necessary to encourage consistent application and provide guidance to designees regarding evaluation and settlement of potential claims.”
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SECTION 3. Except as amended above, all other sections of the Colton Municipal Cod e shall remain unchanged.
SECTION 4. Compliance with California Environmental Quality Act . Based on the entire record before the City Council, and all written and oral evidence presented to the City Council, the City Council hereby finds that this ordin ance is exempt from review under the California Environmental Quality Act (“CEQA”), pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activ ity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Article 3, because it has no potential for resulting in physical change to the environment, directly or indirectly.
SECTION 5. Severability. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this Ordinance for any reason is held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validit y of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or mor e sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional.
SECTION 6. Effective Date. This ordinance shall become effective thirty (30) days after its adoption.
SECTION 7. Publication. The City Clerk shall certify the passage of this Ordinance and shall cause the same to be entered in the book of original ordinances of said City; shall make a minute passage and adoption thereof in the records of the meeting at which time the same is passed and adopted; and shall, within fifteen (15) days after the passage and adoption thereof, cause the same to be published as required by law, in a local newspaper of general circulation and which is hereby designated for that purpose.
//
PASSED, APPROVED AND ADOPTED this 6th day of September, 2022.
Frank Navarro, Mayor
ATTEST:
Carolina R. Padilla, City Clerk
APPROVED AS TO FORM:
Best Best & Krieger LLP
City Attorney
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ITEM NO. 3
STAFF REPORT
DATE: FEBRUARY 21, 2023
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: STACEY DABBS, FINANCE DIRECTOR
SUBJECT: APPROVE VOUCHER NUMBERS 203489 TO 203580 DATED 01/12/2023 AND TOTALING $2,540,966.58; VOUCHER NUMBERS
203581 TO 203624 DATED 01/19/2023 AND TOTALING $474,525.57; VOUCHER NUMBERS 203626 TO 203705 DATED 01/30/2023 AND
TOTALING $73,076.28; VOUCHER NUMBERS 203625, 203706 TO
203847 AND TOTALING $909,389.87; VOUCHER NUMBER 203848
FOR $4,256.03; A PAYROLL DISBURSEMENT LISTING DATED
11/26/2022 TO 12/09/2022 AND TOTALING $928,482.61 AND A PAYROLL DISBURSEMENT LISTING DATED 12/10/2022 TO
12/23/2022 AND TOTALING $857,223.64.
RECOMMENDED ACTION
Staff recommends that the City Council take the following action:
Approve voucher numbers 203489 to 203580 dated 01/12/2023 and totaling $2,540,966.58; voucher numbers 203581 to 203624 dated 01/19/2023 and totaling $474,525.57; voucher numbers 203626 to 203705 dated 01/24/2023 and totaling $73,076.28; voucher numbers 203625, 203706 to 203847 dated 01/26/2023 and totaling $909,389.87; voucher number 203848 for $4,256.03; a payroll disbursement listing dated 11/26/2022 to 12/09/2022 and totaling $928,482.61 and a payroll disbursement listing dated 12/10/2022 to 12/23/2022 and totaling $857,223.64.
BACKGROUND
The California Government Code requires that the legislative body ratify all vouchers issued in the course of conducting City business.
ISSUES/ANALYSIS
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Staff Report to the Mayor and City Council
Warrants - Accounts Payable
February 21, 2023
All vouchers and related backup documentation have been reviewed by the City Treasurer.
FISCAL IMPACTS
None.
ALTERNATIVES
1. Provide alternative direction to staff.
ATTACHMENT
1. Fund Number and Title Legend
2. Voucher lists
3. Payroll Registers
3 Packet Pg. 230
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. 4
STAFF REPORT
DATE: FEBRUARY 21, 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 CITY TREASURER'S REPORT FOR
NOVEMBER 2022.
RECOMMENDED ACTION
Staff recommends that the City Council take the following action:
Receive and File City Treasurer’s Report for November 2022.
ATTACHMENT
1. Treasurer's report Nov 2022
4 Packet Pg. 317
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ITEM NO. 5
STAFF REPORT
DATE: FEBRUARY 21, 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 AGREEMENT WITH CALIFORNIA RURAL WATER
ASSOCIATION FOR THE WELL 32 PROJECT AND RESOLUTION
AMENDING THE FISCAL YEAR 2022-23 BUDGET TO ACCOUNT
FOR GRANT ACCEPTANCE, RESOLUTION R-15-23.
RECOMMENDED ACTION
Staff recommends that the City Council take the following action:
1. Authorize the execut ion of 2021 Urban and Multi -Benefit Drought Relief Program (UMDRP) Set-Aside for Disadvantaged Communities Involvement Program for the Engineering and design of Well 32 Project;
2. Approve Resolution R -15-23 to amend the FY2022 -23 budget to increase revenues and appropriations to account for grant acceptance; and,
3. Authorize the City Manager or his designee to execute the required agreements/documents.
BACKGROUND
The City received an award of grant funding from the 2021 Urban and Multi -benefit Drought Relief Program (UMDRP) for the Engineering and Design of Well 32 through Santa Ana Watershed Project Authority (SAWPA) and California Rural Water Association (CRWA). The 2021 UMDRP grant offers financial assistance to address drought impacts through implementation of pr ojects with multiple benefits f or communities, facing the loss or contamination of their water supplies due to th e drought to address immediate drought impacts on human health and safety.
5 Packet Pg. 328
Staff Report to the Mayor and City Council
Agreement - Urban and Multi-benefit Drought Relief Program Grant February 21, 2023
Under the Budget Act of 2021, financial assistance is pro vided by California Department of Water Resources (DWR) to deliver grants for interim and immediate drought relief to urban communities and for multi -benefit projects. DWR is combining the funding into one Urban and Multi-benefit Drought Relief Program. This Grant Solicitation allows all planning, design, engineering, acquisition of real property interests, construction and related activities undertaken to implement a discrete action to be funded. Eligible project types includes emergency water interties, new wells or rehabilitation of existing wells, construction or installation of permanent connection to adjacent water systems, and recycled water projects that support immediate relief to potable water supplies.
ISSUES/ANALYSIS
On December 2022, the City received the Grant Agreement that intends to disburse the UMDRP grant funds. The execution of the Sub -Grant Agreement between the City of Colton, Santa Ana Watershed Project Authority (SAWPA) and California Rural Water Association (CRWA) is necessary prior to reimbursement of the State funding allocated for the Project.
FISCAL IMPACTS
The total funding allocated for the project is $885,000 , and no local match is required. Approval of Resolution R -15-23 will amend the FY2022 -23 budget to increase revenues and appropriations in the Water Fund as follows:
REVENUE - Water Fund UMDRP Grant Revenue
521-5851-000 Increase by $885,000
APPROPRIATIONS - Water Fund New Wells Well #32 UMDRP Capital Improvement Account 521-8100-8105-3890-0000-021 Increase by $885,000
ALTERNATIVES
1. Provide alternative direction to staff.
ATTACHMENT
1. CRWA - City of Colton - SAWPA Sub Agreement
2. CRWA - Colton Agreement
3. Resolution - R-15-23
5 Packet Pg. 329
2021 URBAN AND MULTI-BENEFIT DROUGHT RELIEF PROGRAM
SET-ASIDE FOR DISADVANTAGED COMMUNITIES INVOLVEMENT PROGRAM
SUB-GRANT AGREEMENT AMONG THE
SANTA ANA WATERSHED PROJECT AUTHORITY,
CALIFORNIA RURAL WATER ASSOCIATION, AND CITY OF COLTON
This 2021 Urban and Multi -Benefit Drought Relief Program (“UMDRP”) Set-Aside for Disadvantaged Communities Involvement (“D ACI Set-Aside”) Program Grant Funding Contract (“Contract”) is made among the Santa Ana Watershed Project Authority ("SAWPA"), the California Rural Water Association ( "Sub-Grantee") and the City of Colton , (“Project Proponent” ) with respect to the facts set forth below .
SAWPA, Sub-Grantee, and Project Proponent may be individually referred to as "Party", and collectively referred to as the "Parties".
RECITALS
WHEREAS, the Budget Act of 2021 (Stats. 2021, ch. 240, § 80) allocated $300 million dollars to the California Department of Water Resources (“DWR”) to deliver grants for interim and immediate drought relief to urban communities and for multi -benefit projects. These grants are intended to provide water to communities that face the loss or contamination of their water supplies, to address immediate imp acts on human health and safety, and to protect fish and wildlife resources.; and
WHEREAS, a Set-Aside of at least $50 million dollars will be made available to support underrepresented communities and Native American tribes through the Proposition 1 IRWM Disadvantaged Community Involvement (DACI) Program. An applicant must be an existing grantee of the DACI Program to apply for this Set-Aside. Grantees may be awarded up to $5 million dollars to fund eligible drought re lief projects benefiting underrepresented communities or tribes within a funding area.; and
WHEREAS, in September, 2022, DWR and SAWPA entered into a UMDRP DACI Set-Aside Program Grant Agreement (“Grant Agreement”) providing that SAWPA would serve as the program manager for the Five Million Dollars ($5,000,000) in UMDRP DACI Set-Aside grant funds to be disbursed to various sub-grantees, consistent with UMDRP and California Environmental Quality Act ("CEQA") requirements, and ensuring that the maximum benefit of such funds are realized in the Santa Ana River Watershed; and
WHEREAS, consistent with the Grant Agreement between DWR and SAWPA, SAWPA intends to disburse to Sub-Grantee a portion of UMDRP grant funds, Eight Hundred Eighty Five Thousand Dollars ($885,000) for the SAWPA Disadvantaged Communities Involvement Program (“DCI”) by way of this Contract with Sub-Grantee to administer the Project Proponent’s project under the Sub-Grant Agreement.
THEREFORE, based on the foregoing incorporated recitals and in consideration of the mutual covenants and conditions set forth in this Contract, the Parties hereby agree to the following:
SECTION 1. PROJECT DESCRIPTION
CRWA will administer Project Proponent’s Production Well 32 Project (the “Project”) to construct one of two wells needed to solve a critical source deficiency for Project Proponent. The Project will construct Well 32 at one of Project Proponent’s existing well sites. Well 32 will replace the well at the site and tie into the existing infrastructure. Once the well is completed, the anticipated Project benefit is approximately 2,400 acre-feet per year of additional groundwater supply.
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Attachment: CRWA - City of Colton - SAWPA Sub Agreement (3934 : Agreement - Urban and Multi-benefit Drought Relief Program Grant)
Santa Ana Watershed Project Authority Page 2 of 12
SECTION 2. CONTRACT DOCUMENTS; ORDER OF PRECEDENCE; SUB -GRANTEE
GENERAL COMMITMENT
This Contract incorporates and includes as part of its terms and conditions the Grant Agreement between DWR and SAWPA, Agreement No. 4600014767, attached hereto as Attachment “A” (hereinafter the “Grant Agreement”).
In the event of any inconsistency between this Contract and the Grant Agreement, except as otherwise specifically provided, the inconsistency shall be resolved by giving precedence to the Grant Agreement.
Sub-Grantee shall comply with all terms, provisions, conditions, and commitments of this Contract and the Grant Agreement. Such compliance shall include providing SAWPA with all deliverables, budget detail, reports and all other documents required by the Grant Agreement.
On behalf of and for the benefit of SAWPA, Sub -Grantee shall comply with all of the obligations and requirements of the Grant Agreement as if Sub-Grantee were the “Grantee” under the terms of the Grant Agreement; provided however that SAWPA acknowledges that Sub -Grantee’s role is to oversee and administer the above-mentioned project and Sub-Grantee will not have any obligatio n in connection with the subsequent operation of the project. Such compliance shall be to the fullest extent necessary and as may be required by SAWPA to enable SAWPA to comply with the Grant Agreement as “Grantee.”
SECTION 3. ESTIMATED ELIGIBLE PROJECT COSTS; GRANT AMOUNT
The estimated reasonable cost of Project Proponent’s Project that CRWA is to administer at the time of SAWPA's and DWR’s approval is Two Million One Hundred Eighty Two Thousand dollars ($2,182,000) (the “Project Cost”). Subject to all of the terms, provisions, and conditions of this Contract .
Subject to the availability of the grant funds, SAWPA shall disburse such grant funds in a sum not-to exceed Eight Hundred Eighty Five Thousand dollars ($885,000). In all events , SAWPA’s actual grant disbursements to Sub-Grantee under this Contract shall not exceed payments received from the DWR.
If Sub-Grantee proceeds with construction of the Project,, the final grant amount will be determined in accordance with the provisions of this Contract. If Sub-Grantee fails or refuses to proceed with or complete the Project, SAWPA shall consider such failure or refusal to be a material violation and breach of this Contract. SAWPA shall have the right to pursue the all rights and remedies afforded to it by law..
If actual Project Costs exceed the Project’s estimated reasonable cost, SAWPA shall have no obligation to provide grant funds for such exceedance and Project Proponent is responsible for such excess costs related to its project.
Eligible Project Costs include the reasonable costs of studies, engineering, design, land and easement acquisition, legal fees, preparation of environmental documentation, environmental mitigations, monitoring, project construction, and any other task set forth in Exhibit A of the Grant Agreement.
Reimbursable administrative expenses are the necessary costs that are incidental, but directly related to the Project.
Project Costs not eligible for reimbursement or not eligible to be counted as local match include, but are not limited to:
Costs, other than those noted above, incurred prior to the award date of this Grant. Costs for preparing and filing a grant application.
Operation and maintenance costs, including post construction performance and monitoring costs. Purchase of equipment that is not an integral part of a project.
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Establishing a reserve fund.
Purchase of water supply.
Replacement of existing funding sources for ongoing programs. Meals, food items, or refreshments.
Payment of any punitive regulatory agency requirement, federal or state taxes. Purchase of land in excess of the minimum required acreage necessary to operate as an integral part of a project, as set forth and detailed by engineering and feasibility studies, or acquisition of land by eminent domain.
Overhead and Indirect Costs. “Indirect Costs” means those costs that are incurred for a common or joint purpose benefiting more than one cost objective and are not readily assignable to the funded project (i.e., costs that are not directly related to the funded project). Examples of In direct Costs include, but are not limited to: central service costs; general administration of the Sub-Grantee or Project Proponent; non-project-specific accounting and personnel services performed within the Sub-Grantee’s or Project Proponent’s organization; depreciation or use allowances on buildings and equipment; the costs of operating and maintaining non -project-specific facilities; tuition and conference fees; forums, trainings, and seminars; and, generic overhead or markup. This prohibition applies to the Sub-Grantee, Project Proponent and any subcontract or sub -agreement for work on the Project that will be reimbursed pursuant to this Agreement. Mitigation for environmental impacts not resulting from implementation of the Project funded by this program.
Work performed after June 10, 2022, is eligible for grant reimbursement.
SECTION 4. SCOPE OF WORK AND COMPLETION OF PROJECT
The Scope of Work is described in Exhibit A of the Grant Agreement. The Parties understand that time is of the essence and agree to expeditiously proceed with and complete the Project.
SECTION 5. DISBURSEMENT
Grant funds will be disbursed in accordance with the disbursement provisions of the Grant Agreement. SAWPA will disburse grant funds received from DWR to Sub-Grantee within 30 days of receipt of grant funds, except as described in Section 9.
Retention is stipulated in the Standard Conditions, Exhibit D (Item 34) of the Grant Agreement.
SECTION 6. FISCAL MANAGEMENT SYSTEMS AND ACCOUNTING STANDARDS
Sub-Grantee agrees that, at a minimum, its fiscal control and accounting procedures shall be sufficient to permit tracking of grant funds to a level of expenditure adequate to establish that such funds have not been used in violation of State law or this Contract. Sub-Grantee shall maintain accounts in accordance with generally accepted government accounting standards and the conditions outlined in the Standard Conditions, Exhibit D of the Grant Agreement.
SECTION 7. TERM
This Contract shall not be effective until it has been fully executed by both Parties. The Term of this Contract shall be the same as the Term of the Grant Agreement, unless sooner terminated pursuant to the provisions of this Contract or the Grant Agreement.
SECTION 8. COVENANT TO OPERATE AND MAINTAIN PROJECT FACILITIES
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Sub-Grantee will provide direction to Project Proponent to properly staff, operate and maintain all portions of the Project during the Project's useful life and in accordance with this Contract, the Grant Agreement, and all applicable state and federal laws, rules and regulations. In the event that Project Proponent assigns or transfers all or any portions of the Project to another entity, Sub-Grantee, upon receiving actual notice of such assignment or transfer, will direct the assignee or transferee of all or any portions of the Project to properly staff, operate and maintain all portions of the Project during its useful life and in compliance with this Contract, the Grant Agreement, and all applicable state and federal laws, rules and regulations. The Parties to this Contract understand and agree that this covenant shall survive the expiration or termination of this Contract. The Parties further understand and agree that this covenant is for the benefit of SAWPA and DWR and shall be enforceable during the useful life of the Project facilities.
Sub-Grantee shall require Project Proponent to prepare and maintain the Post Performance Monitoring Report (“PPMR”) as defined in Exhibit F, and follow guidance provided in Exhibit L, “Project Monitoring Plan Guidance of the Grant Agreement. DWR and SAWPA shall approve the PPM R prior to the disbursement of grant funds for construction or monitoring activities.
Sub-Grantee shall inform Project Proponent that it cannot abandon, substantially discontinue use of, lease, or dispose of its Project, including its construction, or any significant part or portion thereof, during the useful life of the Project without SAWPA’s and DWR’s prior written approval.
SECTION 9. ASSIGNMENT
Neither this Contract, nor any duties or obligations under this Contract, nor any of the Project facilities referenced in this Contract shall be assigned by any Party without the prior written consent of the other Party; provided that Project Proponent may continue to operate its facilities, including the facilities funded under this Contract.
Should an assignment or transfer occur, whenever SAWPA or Sub-Grantee are named or referred to herein, such reference shall be deemed to include the successor to the powers, duties and functions that are presently vested in SAWPA and Sub-Grantee, and all Contract and covenants required hereby to be performed by or on behalf of SAWPA and/or Sub-Grantee shall bind and inure to the benefit of the respective successors thereof, whether so expressed or not.
SECTION 10. COMPLIANCE WITH LAWS AND REGULATIONS
Sub-Grantee agrees that it shall, at all times, comply with and require its contractors and subcontractors to comply with all applicable federal and state laws, rules, regulations and guidelines. Sub-Grantee shall comply with, implement, and fulfill all environmental mitigation measures applicable to the Project, and which may otherwise be required by this Contract and the Grant Agreement, the California Environmental Quality Act ("CEQA"), and the State CEQA Guidelines.
SECTION 11. ACKNOWLEDGEMENT OF CREDIT/SIGNAGE REQUIREMENTS
Sub-Grantee shall include appropriate acknowledgement of credit to the State, SAWPA and to all cost- sharing partners for their support when promoting the Project or using any data and/or information developed under this Sub-Grantee Agreement. Signage shall be posted in a prominent location at the Project Site(s), if applicable, or at Sub-Grantee’s headquarters and shall include the Department of Water Resources logo, in color, and the following disclosure statement: “Funding for this project has been provided in full or in part from the Budget Act of 2021 and through an agreement with the State Department of Water Resources and by the Santa Ana Watershed Project Authority”. The si gn shall include the Department of Water Resources logo, One Watershed logo and SAWPA logo (available from SAWPA).
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Sub-Grantee shall also include in each of its contracts for work under this Agreement a provision that incorporates the requirements stated within this Paragraph.
Before it is constructed, Sub-Grantee shall provide the draft design layout of the sign to SAWPA for approval. Sub-Grantee shall notify SAWPA that the sign has been erected by providing a site map with the sign location noted and a photograph of the sign.
SECTION 12. CONSTRUCTION ACTIVITIES AND NOTIFICATION
Sub-Grantee shall immediately notify SAWPA in writing of:
(1) Any substantial change in the scope, budget, or work performed on the Project. Sub-Grantee agrees that no substantial change in the scope of the Project may be undertaken until written notice of the proposed change has been provided to SAWPA, and both SAWPA and DWR have given written approval for such a change;
(2) Any public or media event publicizing the accomplishments and/or results of this Grant Agreement shall provide the opportunity for attendance and participation by SAWPA and DWR. Sub-Grantee must notify SAWPA at least 20 calendar days prior to the event.
(3) Unscheduled cessation of all major construction work on the Project where such cessation of work is expected to or does continue for a period of 30 calendar days or more;
(4) Any circumstance, combination of circumstances, or condition which is expected to delay Project completion for a period of 90 calendar days or more beyond the initial estimated date of completion of the Project previously provided to SAWPA;
(5) Completion of construction of the Project and provide SAWPA and DWR the opportunity to participate in the inspection. Sub-Grantee must notify SAWPA at least 20 calendar days prior to final inspection.
SECTION 13. PAYMENT OF PROJECT COSTS
Sub-Grantee shall provide for and make payment for all Project Costs. All costs and payments for the Project shall be paid by Sub-Grantee promptly and in compliance with all applicable laws. All grant disbursements will be reimbursed in accordance with Section 5 of this Agreement.
SECTION 14. WITHHOLDING OF GRANT DISBURSEMENTS
SAWPA may withhold all or any portion of the grant funds provided for by this Contract in the event that:
(1) Sub-Grantee has violated, or threatens to violate, any term, provision, condition, or commitment of this Contract;
(2) Sub-Grantee fails to maintain reasonable progress toward completion of the Project; or
(3) DWR directs SAWPA to withhold any such grant funds.
SECTION 15. INVOICING
Invoices shall be submitted to SAWPA no later than the 15th of the month following the end of the reporting period. Invoices shall cover the following reporting period (Jan-Mar, Apr-Jun, Jul-Sep, Oct-Dec). The final Invoice will be due January 15, 2025.
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(A) Invoices shall be completed on a State-provided invoice form and shall meet the following format requirements:
(1) Invoices must contain the date of the invoice, the time period covered by the invoice, and the total amount due.
(2) Invoices must be itemized. The amount claimed for salaries/wages/consultant fees must include a calculation formula (i.e. hours or days worked times the hourly or daily rate = the total amount claimed).
(3) Sufficient evidence (i.e. receipts, copies of checks, timesheets) must be provided for all costs included in the invoice.
(4) Each invoice shall clearly delineate those costs claimed for reimbursement from the State’s grant amount and those costs that represent Sub-Grantee’s share as applicable.
(B) Invoices also shall include the following information:
(1) Costs incurred for work performed in implementing the IRWM program or program contracts during the period identified in the particular invoice.
(2) Costs incurred for any interests in real property (land or easements) that have been necessarily acquired for the Project during the period identified in the particular invoice for the construction, operation, or maintenance of the Project.
(3) Appropriate receipts and reports for all costs incurred.
SECTION 16. RECORDS AND REPORTS
(A) Without limitation on the requiremen t that Project accounts be maintained in accordance with generally accepted government accounting standards, Sub-Grantee shall comply with the records and reporting requirements imposed by the Grant Agreement, and shall also:
(1) Establish an offici al Project file that documents all significant actions relative to the Project;
(2) Establish separate accounts that adequately and accurately itemize and describe all amounts received and expended on the Project, including all grant funds received under this Contract;
(3) Establish separate accounts that adequately and accurately itemize and describe all income received which is attributable to the Project, specifically including any income attributable to grant funds disbursed under this Contract;
(4) Establish an accounting system that adequately and accurately itemizes and describes final total costs of the Project, including both direct and indirect costs;
(5) Establish such accounts and maintain such records as may be necessary for the State, DWR and SAWPA to fulfill federal reporting requirements, including any and all reporting requirements under federal tax statutes or regulations; and
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(6) If Force Account is used by Sub-Grantee for any phase of the Project, establish an account that adequately and accurately itemizes and describes all employee hours, and associated tasks charged to the Project per employee.
(B) Sub-Grantee shall require all Project contractors a nd subcontractors to maintain books, records, and other material relative to the Project in accordance with generally accepted accounting standards, and to require that such contractors and subcontractors retain such books, records, and other material for a minimum of five (5) years after the Grant Agreement termination date. Sub- Grantee shall require that such books, records, and other material shall be subject, at all reasonable times, to inspection, copying, and audit by SAWPA, DWR or their authorized representatives.
(C) Sub-Grantee shall maintain its books, records and other material concerning the Project in accordance with generally accepted government accounting standards and as required by the Grant Agreement.
(D) All documents required or requested to be provided to SAWPA shall be submitted electronically in both the native format (e.g. Microsoft Word, Microsoft Excel, etc .) and PDF. All documents shall be public domain or the property of SAWPA once submitted.
(E) Sub-Grantee agrees to expeditiously provide, during work on the Project and for three years after the projection completion, such reports, data, information and certifications as may be reasonably required by SAWPA or DWR. Such documents and information shall be provided in electronic format.
SECTION 17. QUARTERLY PROGRESS REPORTS
Quarterly Progress Reports shall be completed using the templates provided. Quarterly Progress Reports shall provide a brief description of the work performed, activities, milestones achieved, any accomplishments as well as any problems encountered in the performance of the work.
The first quarterly report shall be submitted no later than the end of the month following the end of the reporting period. The first progress report shall cover the following reporting period (Jan-Mar, Apr-Jun, Jul-Sep, Oct- Dec). The final quarterly progress report will be due January 15, 2025.
SECTION 18. PROJECT REVIEW AND EVALUATION; FINAL REPORTS AND AUDIT
(A) SAWPA may perform a Project review or otherwise evaluate the Project to determine compliance with the contract documents at any time or if questions about the proper use or management of the funds arise. SAWPA may review or evaluate the contractor or vendor for compliance with the terms and conditions of the contract documents. The Project review and evaluation may be performed by SAWPA or may be contracted to a responsible third party. Any findings and recommendations of the Project review and evaluation shall be addressed by Sub-Grantee within 60 days of the d ate such findings and recommendations are provided to Sub-Grantee and before the next invoice is paid by SAWPA.
(B) Inventory of equipment purchased with grant funds.
(1) At least 75 days prior to submission of the final Project invoice, Sub-Grantee shall consult with SAWPA on the scope of the inventory of equipment purchased with grant funds. This inventory shall include all items with a current estimated fair market value of more than $5,000 per item.
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(2) At least 45 days prior to submi ssion of the final Project invoice, Sub-Grantee shall provide SAWPA with a final inventory list of equipment purchased with grant funds. DWR shall have the opportunity to take title to any item on the inventory list. Should DWR take title to any item on the inventory list, DWR shall arrange for delivery and transportation of such inventory.
(C) In addition to the documents and deliverables required to be provided by the Grant Agreement, within 90 days after completion of the Project but no later than 14 days prior to the due date indicated in the Grant Agreement, Sub-Grantee shall provide to SAWPA, a Project Completion Report. The Project Completion Report shall follow the Guidelines in Exhibit F of the Grant Agreement.
(D) SAWPA may call for an audi t of financial information relative to the Project, where SAWPA determines that an audit is desirable to assure program integrity or where such an audit becomes necessary because of federal or state requirements. Where such an audit is called for, the audit shall be performed by a Certified Public Accountant independent of Sub-Grantee and, if the audit reveals Sub- Grantee has overstated or inappropriately received funds in excess of five percent (5%) of the permissible amount, Sub-Grantee shall pay for the costs of the audit. The audit shall be in the form required by SAWPA.
SECTION 19. PROJECT CLOSEOUT DOCUMENTATION
To ensure that that the Project is closed out in a manner that provides an auditable file for SAWPA, Sub - Grantee shall follow a close-out procedure that includes payment of all subcontracts, completion of all punch lists, defects correction, satisfaction of warranty or guarantee issues, and any other requirements for the completion of the scope of work. Such close-out procedures shall include those procedures contained in the Grant Agreement or otherwise required by SAWPA and DWR.
SECTION 20. POST-PERFORMANCE REPORTS
Post-Performance Reports shall be submitted to SAWPA within 75 calendar days after the first operational year of the Project has elapsed. This record keeping and reporting process shall be repeated annually for a total of three (3) years after the completed project begins operation.
SECTION 21. MONITORING REQUIREMENTS
(A) All groundwater projects and projects that include groundwater monitoring requirements are consistent with the Groundwater Quality Monitoring Act of 2001.
(B) Projects that affect water quality shall include a monitoring component that allows the integration of data into statewide monitoring efforts, including where applicable, the Surface Water Ambient Monitoring Program administered by the State Water Resources Control Board.
(C) Groundwater quality and ambient surface water quality monitoring data that include chemical, physical, or biological data shall be submitted to the State with a narrative description of data submittal activities (included in project reports) as described below:
(1) Surface water quality monitoring data shall be prepared for submission to the California Environmental Data Exchange Network (CEDEN). CEDEN data templates are available on the CEDEN website ( http://www.ceden.org). Inclusion of additional data elements described on the data templates is desirable. Data ready for submission should be uploaded to the CEDEN Regional Data Center via the CEDEN website and a copy shall be given to SAWPA.
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(2) If Sub -Grantee’s Work Plan contains a groundwater ambient monitoring element, groundwater quality monitoring data shall be submitted to the State for inclusion in the State Water Resources Control Board’s Groundwater Ambient Monitoring and Assessment (GAMA) Program.
Information on the GAMA Program can be obtained at
http://www.waterboards.ca.gov/water_issues/programs/gama. If further information is required, Sub-Grantee can contact the State Water Resources Control Board GAMA Program. A copy of all data submitted shall be given to SAWPA.
(D) If groundwater level dat a is collected, Sub -Grantee must submit this data to DWR’s Water Data Library (WDL) with a narrative description of data submittal activities (included in project reports).
Information regarding the WDL and the format to submit the data in can be found at:
http://www.water.ca.gov/waterdatalibrary/. A copy of all data submitted shall be given to SAWPA.
In the near future, DWR’s WDL will be replaced by the California Statewide Groundwater Elevation Monitoring program (CASGEM). Once this program comes online, Sub -Grantee will then submit groundwater level data to CASGEM. Information regarding the CASGEM program can be found at:
http://www.water.ca.gov/groundwater/casgem/.
SECTION 22. TERMINATION; IMMEDIATE REPAYMENT; INTEREST
(A) SAWPA may terminate this Contract at any time prior to completion of the Project for Sub - Grantee’s violation of any provision of this Contract upon written notice by SAWPA of the violation and the failure of Sub-Grantee to come into compliance within a reasonable time (at least fourteen (14) days), as established by SAWPA.
(B) In the event of such termination, Sub-Grantee agrees, upon demand, to immediately rep ay to SAWPA an amount equal to the amount of grant funds disbursed to Sub-Grantee prior to such termination. In the event of termination, prejudgment interest at a rate not to exceed eight percent (8%) per annum, shall accrue on all amounts due from the date that notice of termination is mailed to Sub-Grantee to the date of full repayment by Sub-Grantee.
(C) SAWPA may terminate this Contract should DWR terminate SAWPA as program manager or terminate funding for this Contract or the Project or should DWR terminate its standard agreement with SAWPA on this Project. Upon such DWR-caused termination, SAWPA shall not be liable to Sub-Grantee for any damages, costs or expenses resulting from such termination.
SECTION 23. DAMAGES FOR BREACH AFFECTING TAX EXEMPT STATUS
In the event that any breach of any of the provisions of this Contract or other action by Sub-Grantee shall result in the loss of tax exempt status for any bonds, or if such breach shall result in an obligation on the part of SAWPA to reimburse the federal government by reason of any arbitrage profits, Sub-Grantee shall immediately reimburse SAWPA and/or DWR in an amount equal to any damages paid by or loss incurred by the State due to such breach.
SECTION 24. ARBITRATION
Any dispute which may arise under this Contract by and between SAWPA and Sub-Grantee, including Sub-Grantee's subcontractors, laborers, and suppliers, shall be submitted to binding arbitration pursuant to the Construction Industry Arbitration Rules and Mediation Procedures of the American Arbitration Association (AAA). The arbitrator shall decide each and every dispute in accordance with the laws of the State of California and AAA rules, and all other applicable laws. Unless the Parties stipulate in writing to
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the contrary, prior to the appointment of the arbitrator, all disputes shall first be submi tted to non-binding mediation.
SECTION 25. COSTS AND ATTORNEY FEES
In the event of arbitration or litigation between the Parties hereto arising from this Contract, it is agreed that the prevailing Party shall be entitled to recover reasonable costs and attorney fees.
SECTION 26. WAIVER
Any waiver of any rights or obligations under this Contract or the Grant Agreement shall be in writing and signed by the Party making such waiver, and approved by SAWPA and the DWR.
SECTION 27. AMENDMENT
This Contract may be amended at any time by mutual written agreement of the Parties and the DWR.
SECTION 28. SAWPA REVIEWS; SUB-GRANTEE AS INDEPENDENT CONTRACTOR
(A) The Parties agree that review or approval of the Project or Project plans and specifications by SAWPA is for administrative and eligibility purposes only and does not relieve Sub-Grantee of its responsibility to properly plan, design, construct, operat e, and maintain the Project. As between SAWPA and Sub-Grantee, Sub-Grantee agrees that it has sole responsibility for proper planning, design, construction, operation, and maintenance of the Project.
(B) Sub-Grantee warrants that it is an independent contractor exclusively responsible for the design, construction, operation and maintenance of the specific project funded by this Grant Funding Contract and that Sub-Grantee is not acting as SAWPA's agent, nor is SAWPA acting as an agent of Sub-Grantee.
SECTION 29. INDEMNIFICATION
(A) To the extent permitted by law, Sub-Grantee shall defend, indemnify and hold and save SAWPA and DWR and their directors, commissioners, officers, employees, agents and assigns (collectively the “Indemnified Parties”) free and harmless from any and all liabilities for any claims and damages (including inverse condemnation) that may arise out of the Project and the Grant Agreement, including but not limited to any claims or damages arising from planning, design and construction of the subject Projects and any breach of this Agreement. This indemnification shall not apply in instances of gross negligence or misconduct on behalf of SAWPA and/or DWR. Sub-Grantee shall require its contractors or subcontractors to name SAWPA, the State, its officers, agents and employees as additional insureds on their liability insurance for activities undertaken pursuant to this Sub-Agreement.
(B) Sub-Grantee understands and agrees that it has complied and will comply with CEQA and the State CEQA Guidelines for the Project which is the subject matter of this Grant Funding Contract. Sub- Grantee understands and agrees that it is ultimately and solely responsible to ensure compliance with CEQA and any mitigation measures required for the Project. To the extent permitted by law, Sub- Grantee hereby agrees to indemnify, defend and hold harmless SAWPA and the DWR from any and all claims or actions related to this Project that may be made by any third party or public agency alleging, among other things, violations of CEQA or the State CEQA Guidelines.
(C) Sub-Grantee shall ensure that adequate insurance coverage is provided by Sub -Grantee and/or its contractors and subcontractors on the Project funded, in part, by this Contract. Such insurance shall
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include adequate coverage for comprehensive commercial general liability, business auto liability, workers compensation liability, professional and errors and omissions liability, property insurance, including all builders risk insurance. Such insurance coverage shall, at a minimum, insure against injuries to third parties, damage to property owned by third parties, physical damage to the Project and all related facilities, theft of building materials and supplies intended for the Project, delays in Project completion, delays in Project Completion due to strikes and governmental actions, liquidated damages, employee injuries and work -related illnesses, design errors resulting in increased project costs, environmental damage caused by construction activities related to the Project, and nonperformance by the contractors and subcontractors. Such insurance coverages shall be provided by admitted insurance companies authorized to do business in the State of California, and with a minimum “Best’s Insurance Guide” rating of “A:VII”.
SECTION 30. PROJECT AND INFORMATION ACCESS
Sub-Grantee agrees to ensure that Project Proponent allows SAWPA, DWR, or any authorized representative thereof, shall have reasonable access to the Project site at all reasonable times during Project construction, and thereafter for the useful life of the Project.
SECTION 31. OPINIONS AND DETERMINATIONS
Where the terms of this contract provide for action to be based upon the opinion, judgment, approval, review, or determination of either party hereto, such terms are not intended to be and shall never be construed as permitting such opinion, judgment, approval, review, or determination to be arbitrary and capricious.
[SIGNATURE PAGE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have executed this Contract on the later date set forth below.
SANTA ANA WATERSHED PROJECT
AUTHORITY
Dated:
By:
JEFFREY J. MOSHER
General Manager
CALIFORNIA RURAL WATER ASSOCIATION
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Sub-Grantee
Dated: _________________________ By: ________________________________________ Authorized Representative
________________________________________
Typed Name
________________________________________
Title
CITY OF COLTON
Project Proponent
Dated: _________________________ By: ________________________________________ Authorized Representative
________________________________________
Typed Name
________________________________________
Title
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AGREEMENT BETWEEN
CALIFORNIA RURAL WATER ASSOCIATION
AND
CITY OF COLTON
This Agreement, effective as of ___________, 2022, is made between California Rural Water Association, a California non-profit public benefit corporation (“CRWA”) and City of Colton (“Project Proponent”) with respect to the facts set forth below . CRWA and Project Proponent may be individually referred to herein as “Party,” and jointly as the “Parties.”
RECITALS
A. CRWA is a sub-grantee with respect to funding in the amount of $885,000 awarded to the Santa Ana Watershed Project Authority (“SAWPA”) for Project Proponent under the 2021 Urban and Multibenefit Drought Relief Program Set-Aside for Disadvantaged Communities Involvement (“DACI Set- Aside”) Program Grant Funding Contract (“ Grant Agreement”), which provides funding for interim and immediate drought relief to urban communities that face the loss or contamination of their water supplies, to address immediate impacts on human health and safety, and to protect fish and wildlife resources.
B. SAWPA serves as the program manager for the DACI Set-Aside grant funds which are to be disbursed to the Project Proponent and other water suppliers in SAW PA’s service area for use in connection with their selected projects.
C. SAWPA has entered into an agreement with CRWA (the “Sub-Grant Agreement”) under which CRWA will administer Project Proponent’s project and the sel ected projects of the other water suppliers who are receiving funds under the Sub-Grant Agreement.
D. CRWA is entering into this Agreement with Project Proponent to ensure that all project - related requirements under the Sub-Grant Agreement are complied with.
NOW, THEREFORE, based on the foregoing incorporated recitals and in consideration of the mutual covenants and conditions set forth in this Agreement, the Parties hereby agree to the following:
SECTION 1. PROJECT DESCRIPTION
The City of Colton project (the “Project”) is designed to construct one of two wells needed to solve a critical groundwater source deficiency for the City of Colton. The Project will construct Well 32 at one of Colton’s existing well sites. Well 32 will replace the existing well at the site and tie into the existing infrastructure.
Once the well is completed, the anticipated benefit is approximately 2,400 acre-feet per year of additional groundwater supply.
SECTION 2. CONTRACT DOCUMENTS; ORDER OF PRECEDENCE; PROJECT
PROPONENT GENERAL COMMITMENT
This Agreement incorporates and includes as part of its terms and conditions the Grant Agreement and Sub- Grant Agreement.
In the event of any inconsistency between this Agreement, the Grant Agreement and the Sub-Grant Agreement, except as otherwise specifically provided, shall resolve any inconsistency by giving precedence first to the Grant Agreement, then to the Sub-Grant Agreement and last to this Agreement.
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Project Proponent shall comply with all terms, provisions, conditions, and commitments of this Agreement, the Grant Agreement and the Sub-Grant Agreement. Such compliance shall include providing CRWA with all deliverables, budget detail, reports, and all other documents which CRWA may reasonably request that are required by the Grant Agreement or Sub-Grant Agreement.
SECTION 3. ESTIMATED ELIGIBLE PROJECT COSTS; GRANT AMOUNT
The estimated reasonable cost of the Project (“Project Cost”) is Eight Hundred and Eighty-Five Thousand Dollars ($885,000), which CRWA is to administer. Subject to all of the terms, provisions, and conditions of this Agreement, and subject to the availability of the grant funds, CRWA shall disburse such grant funds in a sum not -to exceed Eight Hundred and Eighty -Five Thousand Dollars ($885,000). In all events, CRWA’s actual grant disbursements to Project Proponent under this Agreement shall not exceed payments received from SAWPA under the Sub-Grant Agreement.
If Project Proponent proceeds with construction of such facilities, the final grant amount will be determined in accordance with the provisions of this Agreement. If Project Proponent fails or refuses to proceed with or complete the c onstruction of facilities, CRWA shall consider such failure or refusal to be a material violation and breach of this Agreement. In such instance, CRWA shall pursue all rights and remedies afforded to it by law.
If actual Project Costs are determined to exceed the Project’s estimated reasonable cost, neither CRWA, SAWPA nor the Department of Water Resources (“DWR”) shall have any obligation to provide grant funds for such exceedance.
Eligible Project Costs include, but are not limited to, the reasonable costs of studies, engineering, design, land and easement acquisition, legal fees, preparation of environmental documentation, environmental mitigations, monitoring, project construction, and any other task set forth in Exhibit A of the Sub-Grant Agreement.
Reimbursable administrative expenses are the necessary costs incidental but directly related to the Project.
Costs not eligible for reimbursement include, but are
not limited to:
Costs, other than those noted above, incurred prior to the award date under the Grant Agreement. Costs for preparing and filing a grant application.
Operation and maintenance costs, including post construction performance and monitoring costs. Purchase of equipment that is not an integral part of a project. Establishing a reserve fund.
Purchase of water supply.
Replacement of existing funding sources for ongoing programs. Meals, food items, or refreshments.
Payment of any punitive regulatory agency requirement, federal or state taxes. Purchase of land in excess of the minimum required acreage necessary to operate as an integral part of a project, as set forth and detailed by engine ering and feasibility studies, or acquisition of land by eminent domain.
Overhead and Indirect Costs. “Indirect Costs” means those costs that are incurred for a common or joint purpose benefiting more than one cost objective and are not readily assignable to the funded project (i.e., costs that are not directly related to the funded project). Examples of Indirect Costs include but are not limited to: central service costs; Project Proponent’s general administration
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costs; non -project-specific accounting and personnel services performed within the Project Proponent’s organization; depreciation or use allowances on buildings and equipment; the costs of operating and maintaining non -project-specific facilities; tuition and conference fees; forums, trainings, and seminars; and, generic overhead or markup. This prohibition applies to the Project Proponent and any subcontract or sub -agreement for work on the Project that will be reimbursed pursuant to this Agreement.
Mitigation for environmental impacts not resulting from implementation of the Project funded by this program.
Work performed after June 10, 2022, is eligible for grant reimbursement.
SECTION 4. SCOPE OF WORK AND COMPLETION OF PROJECT
CRWA shall supervise and oversee the following work under the Sub-Grant Agreement for the Project..
The Parties understand that time is of the essence and agree to expeditiously proceed with and complete the Project.
The scope of work is described as follows:
Task 1: Project Management
Ensure compliance with the terms of the Grant Agreement, including compliance with grant requirements, and preparation and submission of supporting grant documents. Prepare invoices , including relevant supporting documentation for submittal to DWR via the Grantee. This task also includes administrative responsibilities associated with the Project such as coordinating with partnering agencies and managing consultants/contractors.
Deliverables:
• Invoices and associated backup documentation
Task 2: Reporting
Prepare progress reports detailing work completed during reporting period as outlined in Exhibit F of this Agreement. Submit reports to DWR via the Grantee . Prepare Project Com pletion Report and submit to DWR no later than 90 days after project completion for DWR Project Manager’s comment and review. The report shall be prepared and presented in accordance with guidance as outlined in Exhibit F of the grant agreement.
Deliverables:
• Quarterly Project Progress Reports
• Project Completion Report
• Documentation (e.g., photo) of “Acknowledgment of Credit & Signage” per Standard Condition D.2
Task 3: Land Purchase
Not Applicable
Task 4: Feasibility Studies
Feasibility Studies have been competed for the Project. Submit study to DWR via Grantee.
Deliverables:
• Relevant Feasibility Studies
Task 5: CEQA Documentation
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A Notice of Exemption was filed for the Project with the County of San Bernardino in June 2022. Prepare letter stating that there exist no legal challenges (or addressing legal challenges) as it relates to the Project.
Submit CEQA documents and supporting documents to DWR via Grantee.
Deliverables:
• All completed CEQA documents as required
• Legal Challenges Letter , environmental permits, State letter of concurrence, and NEPA compliance statement.
Task 6: Permitting
Permitting has been completed. Submit permit documents to DWR via Grantee.
Deliverables:
• Permits as required
Task 7: Design
Planning and design have been completed. Submit planning documents to DWR via Grantee.
Deliverables:
• Design Plans and Specifications
Task 8: Project Monitoring Plan
Develop and submit a Project Monitoring Plan per Grant Agreement for DWR’s review and approval via Grantee.
Deliverables:
• Project Monitoring Plan
Task 9: Contract Services
Contract Services have been completed. Documentation and compliance with Grant Agreement to be submitted to DWR via the Grantee.
Deliverables:
• Bid Documents
• Proof of Advertisement
• Award of Contract
• Notice to Proceed
Task 10: Construction Administration
Project Proponent shall be responsible for performing Construction Administration tasks including:
managing contractor submittal review, answering requests for information, and issuing work directives.
Project Proponent shall provide a full-time engineering construction observer on site for the duration of the Project. Construction observer duties include documenting of pre -construction conditions, daily construction diary, preparing change orders, addressing questions of contractors on site, reviewing/ updating Project schedule, reviewing contractor log submittals and pay requests, forecasting cash flow, and notifying contractor if work is not acceptable.
Upon completing the Project construction administration, CRWA will provide a Project Completion Report including the DWR Certificate of Project Completion , Record Drawings, and oth er documentation to be provided to DWR via the Grantee.
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Deliverables:
• DWR Certificate of Project Completion
• Project Completion Report
Task 11: Construction
The Construction activities related to the Project are outlined below. Well 32 will be constructed at one of Project Proponent’s existing well sites and at least 50 feet away from the current well. Mobilization of the Project shall include deploying equipment and materials at the Project site. A test well will be drilled and tested for quality and quantity, followed by a sieve analysis and geophysical survey. Following the results from the test well, a full bore will be completed and furnished with casing, gravel pack, pump testing, screen and a well cap. Minimal grading is required for the site. Demobilization will include disinfection of installed well, final clean up and removal of temporary construction facilities, equipment, an d materials.
Construction will be completed by the Project Proponent.
Upon completion of the Project construction, CRWA will compile and submit construction documentation to DWR via the Project Proponent. CRWA will provide labor compliance program management during construction for Project Proponent.
Deliverables:
• Photographic documentation of progress
• Labor compliance program management
SECTION 5. DISBURSEMENT
Grant funds shall be disbursed in accordance with the disbursement provisions of the Grant Agreement. CRWA will disburse grant funds received from DWR, through SAWPA, to Project Proponent within 30 days of receipt of grant funds, except as described in Section 9.
Retention is stipulated in the Standard Conditions, as set forth in Exhibit D (Item 3 4) of the Grant Agreement.
SECTION 6. FISCAL MANAGEMENT SYSTEMS AND ACCOUNTING STANDARDS
Project Proponent agrees that, at a minimum, its fiscal control and accounting procedures shall be sufficient to permit tracking of grant funds to a level of expenditure adequate to establish that such funds have not been used in violation of State law or this Agreement. Project Proponent shall maintain accounts in accordance with generally accepted government accounting standards and the conditions outlined in the Standard Conditions, as set forth in Exhibit D of the Grant Agreement.
SECTION 7. TERM
This Agreement shall not be effective until it has been fully executed by both Parties. The Term of this Agreement shall be the same as the Term of the Sub-Grant Agreement, unless sooner terminated pursuant to the provisions of this Agreement or the Sub-Grant Agreement.
SECTION 8. COVENANT TO OPERATE AND MAINTAIN PROJECT FACILITIES
Project Proponent shall properly staff, operate and maintain all portions of the Project during the Project's useful life and in accordance with this Agreement, the Sub-Grant Agreement, the Grant Agreement and all applicable state and federal laws, rules and regulations. In the event Project Proponent assigns or transfers all or any portions of the Project to another entity, Project Proponent shall be responsible for ensuring that the assignee or transferee of all or any portions of the Project properly staff s, operates and maintains all portions of the Project during its useful life and in compliance with this Agreement, the Sub-Grant
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Agreement, the Grant Agreement and all applicable state and federal laws, rules and regulations. The Parties to this Agreement understand and agree that this covenant shall survive the expiration or termination of this Agreement. The Parties further understand and agree that this covenant is for the benefit of CRWA, SAWPA, and DWR and shall be enforceable during the useful life of the Project facilities.
Project Proponent shall prepare and maintain the Post Performance Monitoring Report (“PPMR”) as defined in Exhibit F, and follow the guidance provided in Exhibit L, “Project Monitoring Plan Guidance of the Grant Agreement. DWR and CRWA shall approve the PPMR prior to the disbursement of grant funds for construction or monitoring activities.
Project Proponent shall not abandon, substantially discontinue use of, lease, or dispose of the Project, including its construction, or any significant part or portion thereof, during the useful life of the Project without CRWA’s, SAWPA’s, and DWR’s prior written approval.
SECTION 9. ASSIGNMENT
Neither this Agreement, nor any of the duties or obligations herein, nor any of the Project facilities referenced in this Agreement shall be assigned by any Party without the prior written consent of the other Party.
Should an assignment or transfer occur, whenever CRWA or the Project Proponent are named or referred to herein, such reference shall be deemed to include the successor to the powers, duties and functions that are presently vested in CRWA and Project Proponent, and all provisions and covenants required hereby to be performed by or on behalf of CRWA and/or Project Proponent shall bind and inure to the benefit of the respective successors thereof, whether so expressed or not.
SECTION 10. COMPLIANCE WITH LAWS AND REGULATIONS
Project Proponent agrees that it shall, at all times, comply with and require its contractors and subcontractors to comply with all applicable federal and state laws, rules, regulations and guidelines. Project Proponent shall comply with, implement, and fulfill all environmental mitigation measures applicable to the Project, and which may otherwise be required by this Agreement and the Sub-Grant Agreement, the California Environmental Quality Act ("CEQA"), and the State CEQA Guidelines.
SECTION 11. ACKNOWLEDGMENT OF CREDIT/SIGNAGE REQUIREMENTS
Project Proponent shall include appropriate acknowledgement of credit to the State, DWR, SAWPA and to all cost-sharing partners for their support when promoting the Project or using any data and/or information developed under this Agreement. Signage shall be posted in a prominent location at the Project Site(s), if applicable, or at the Project Proponent’s headquarters and shall include the Department of Water Resources logo in color and the following disclosure statement: “Funding for this project has been provided in full or in part from the Budget Act of 2021 and through an agreement with the State Department of Water Resources and by the Santa Ana Watershed Project Authority”. The sign shall include the Department of Water Resources logo, One Water One Watershed logo and SAWPA logo.
Project Proponent shall provide the location for placement of the sign to CRWA for approval. Project Proponent shall maintain the sign after it has been erected by providing a protection from damage for the duration of the Project and proper disposal after Project completion.
SECTION 12. CONSTRUCTION ACTIVITIES AND NOTIFICATION
Project Proponent shall immediately notify CRWA in writing of:
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(1) Any substantial change in the scope, budget, or work that is desired for the Project. Project Proponent agrees that no substantial change in the scope of the Project may be undertaken until written notice of the proposed change has been provided to CRWA, SAWPA, and DWR have given written approval for such a change;
(2) Any public or media event publicizing the accomplishments and/or results of this Agreement shall provide the opportunity for attendance and participation by SAWPA and DWR. Project Proponent must notify CRWA at least 25 calendar days prior to the event.
(3) Unscheduled cessation of all major construction work on the Project where such cessation of work is expected to or does continue for a period of 30 calendar days or more;
(4) Any circumstance, combination of circumstances, or condition which is expected to delay Project completion for a period of 90 calendar days or more beyond the initial estimated date of completion of the Project previously provided to CRWA;
(5) Completion of construction of the Project and provide CRWA, SAWPA and DWR the opportunity to participate in the inspection. Project Proponent must notify CRWA at least 25 calendar days prior to final inspection.
SECTION 13. PAYMENT OF PROJECT COSTS
Project Proponent shall provide for and make payment for all Project costs. All costs and payments for the Project shall be paid by Project Proponent promptly and in compliance with all applicable laws. All grant disbursements will be reimbursements paid pursuant to Section 5 of this Agreement.
SECTION 14. WITHHOLDING OF GRANT DISBURSEMENTS
CRWA may withhold all or any portion of the grant funds provided for by this Agreement in the event that:
(1) Project Proponent has violated, or threatens to violate, any term, provision, condition, or commitment of this Agreement;
(2) Project Proponent fails to maintain reasonable progress toward completion of the Project; or
(3) DWR or SAWPA directs CRWA to withhold any such grant funds.
SECTION 15. INVOICING
(A) Invoices (to be completed by CRWA for submittal to SAWPA and DWR) shall be completed on a State-provided invoice form and shall meet the following format requirements:
(1) Invoices must contain the date of the invoice, the time period covered by the invoice, and the total amount due.
(2) Invoices must be itemized. The amount claimed for salaries/wages/consultant fees must include a calculation formula (i.e. hours or days worked times the hourly or daily rate = the total amount claimed).
(3) Sufficient evidence (i.e. receipts, copies of checks, timesheets) must be provided by Project Proponent for all costs included in the invoice.
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(4) Each invoice shall clearly delineate those costs claimed for reimbursement from the State’s grant amount and those costs that represent Project Proponent’s share as applicable.
(B) Invoices also shall include the following information:
(1) Costs incurred for work performed in implementing the IRWM program or program contracts, if any, during the period identified in the particular invoice.
(2) Costs incurred for any interests in real property (land or easements) that have been necessarily acquired for the Project during the period identified in the particular invoice for the construction, operation, or maintenance of the Project.
(3) Appropriate receipts and reports for all costs incurred (to be provided by Project Proponent to CRWA).
SECTION 16. RECORDS AND REPORTS
(A) Without limitation on the requirement that Project accounts be maintained in accordance with generally accepted government accounting standards, Project Proponent shall comply with the records and reporting requirements imposed by the Sub-Grant Agreement, and shall also:
(1) Establish an official Project file that documents all significant actions relative to the Project;
(2) Establish separate accounts that adequately and accurately itemize and describe all amounts received and expended on the Project, including all grant funds received under this Agreement;
(3) Establish separate accounts that adequately and accurately itemizes and describes all income received which is attributable to the Project, specifically including any income attributable to grant funds disbursed under this Agreement;
(4) Establish an accounting system that adequately and accurately itemizes and describes final total costs of the Project, including both direct and indirect costs;
(5) Establish such accounts and maintain such records as may be necessary for the State, DWR, SAWPA, and CRWA to fulfill federal reporting requirements, including any and all reporting requirements under federal tax statutes or regulations; and
(6) If force account is used by Project Proponent for any phase of the Project, establish an account that adequately and accurately itemizes and describes all employee hours, and associated tasks charged to the Project per employee.
(B) Project Proponent shall require all Project co ntractors and subcontractors to maintain books, records, and other material relative to the Project in accordance with generally accepted accounting standards, and to require that such contractors and subcontractors retain such books, records, and other material for a minimum of five (5) years after the Sub-Grant Agreement termination date.
Project Proponent shall require that such books, records, and other material shall be subject, at all reasonable times, to inspection, copying, and audit by CRWA, SAWPA, DWR, or their authorized representatives.
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(C) Project Proponent shall maintain its books, records , and other material concerning the Project in accordance with generally accepted government accounting standards and as required by the Grant Agreement.
(D) All documents required or requested to be provided to CRWA shall be submitted electronically in the both the native format (e.g. Microsoft Word, Microsoft Excel, etc) and PDF. All documents shall be public domain or the property of CRWA once submitted.
(E) Project Proponent agrees to expeditiously provide, during work on the Project and for 3 years after the projection completion, such reports, data, information and certifications as may be reasonably required by CRWA, SAWPA, or DWR. Such documents and information shall be provided in electronic format.
SECTION 17. QUARTERLY PROGRESS REPORTS
Quarterly Progress Reports shall be completed by CRWA using the templates provided. Quarterly Progress Reports shall provide a brief description of the work performed, activities, milestones achieved, any accomplishments as well as any problems encountered in the performance of the work. Project Proponent shall provide documentation to support the preparation of Quarterly Progress Reports as requested by CRWA.
The first quarterly report shall be submitted no later than the end of the month following the end of the reporting period. The first progress rep ort shall cover the following reporting period : Oct-Dec. The final quarterly progress report will be due January 15, 2025.
SECTION 18. PROJECT REVIEW AND EVALUATION; FINAL REPORTS AND AUDIT
(A) CRWA may perform a Project review or otherwise evaluate the Project to determine compliance with the contract documents at any time or if questions about the proper use or management of the grant funds arise. CRWA may review or evaluate the contractor or vendor for compliance with the terms and conditions of the contract documents. The Project review and evaluation may be performed by CRWA or may be contracted to a responsible third party. Any findings and recommendations of the Project review and evaluation shall be addressed by Project Proponent within 60 days of the date such findings and recommendations are provided to Project Proponent and before the next invoice is paid by CRWA.
(B) Inventory of equipment purchased with grant funds.
(1) At least 75 days prior to submission of the final Project invoice, Project Proponent shall consult with CRWA on the scope of the inventory of equipment purchased with grant funds. This inventory shall include all items with a current estimated fair market value of more than Five Thousand Dollars ($5,000) per item.
(2) At least 45 days prior to submission of the final project invoice, Project Proponent shall provide CRWA with a final inventory list of equipment purchased with grant funds. DWR shall have the opportunity to take title to any item on the inventory list. Should DWR take title to any item on the inventory list, DWR shall arrange for delivery and transportation of such inventory.
(C) In addition to the documents and deliverables required to be provided by the Agreement, within 60 days after completion of the Project but no later than 30 days prior to the due date indicated in the Grant Agreement, Project Proponent shall provide to CRWA documents and records necessary to
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write a Project Completion Report. The Project Completion Report shall follow the Guidelines set forth in Exhibit F of the Grant Agreement and be provided by CRWA.
(D) CRWA (or SAWPA or DWR) may call for an audit of financial information relative to the Project, where CRWA (or SAWPA or DWR) determines that an audit is desirable to assure program integrity or where such an audit becomes necessary because of federal or state requirements. Where such an audit is called for, the audit shall be performed by a Certified Public Accountant independent of Project Proponent and at the cost of Project Proponent. The audit shall be in the form required by CRWA, SAWPA, or DWR.
SECTION 19. PROJECT CLOSEOUT DOCUMENTATION
To ensure that that the Project is closed out in a manner that provides an auditable file, Project Proponent shall follow a close-out procedure that includes payment of all subcontracts, completion of all punch lists, defects correction, satisfaction of warranty or guarantee issues, and any other requirements for the completion of the scope of work. Such close-out procedures shall include those procedures contained in the Grant Agreement or otherwise required by CRWA, SAWPA, and DWR.
SECTION 20. POST-PERFORMANCE REPORTS
Post-Performance Reports shall be submitted to CRWA within 60 calendar days after the first operational year of the Project has elapsed. This record keeping and reporting process shall be repeated annually for a total of 3 years after the completed Project begins operation. CRWA shall provide a template post-performance report to support Project Proponent.
SECTION 21. MONITORING REQUIREMENTS
(A) All groundwater projects and projects that include groundwater monitoring requirements are consistent with the Groundwater Quality Monitoring Act of 2001.
(B) Projects that affect water quality shall include a monitoring component that allows the integration of data into statewide monitoring efforts, including where applicable, the Surface Water Ambient Monitoring Program administered by the State Water Resources Control Board.
(C) Groundwater quality and ambient surface water quality monitoring data that include chemical, physical, or biological data shall be submitted to the State with a narrative description of data submittal activities (included in Project reports) as described below:
(1) Surface water quality monitoring data shall be prepared for submission to the California Environmental Data Exchange Network (CEDEN). CEDEN data templates are available on the CEDEN website ( http://www.ceden.org). Inclusion of additional data elements described on the data templates is desirable. Data ready for submission should be uploaded to the CEDEN Regional Data Center via the CEDEN website and a copy shall be given to CRWA.
(2) If Project Proponent’s Work Plan contains a groundwater ambient monitoring element, groundwater quality monitoring data shall be submitted to the State for inclusion in the State Water Resources Control Board’s Groundwater Ambient Monitoring and Assessment (GAMA) Program.
Information on the GAMA Program can be obtained at
http://www.waterboards.ca.gov/water_issues/programs/gama. If further information is required, Project Proponent can contact the State Water Resources Control Board GAMA Program. A copy of all data submitted shall be given to CRWA.
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(D) If groundwater level data is collected, Project Proponent must submit this data to DWR’s Water Data Library (WDL) with a narrative description of data sub mittal activities (included in project reports). Information regarding the WDL and the format to submit the data in can be found at:
http://www.water.ca.gov/waterdatalibrary/. A copy of all data submitted shall be given to CRWA.
In the near future, DWR’s WDL will be replaced by the California Statewide Groundwater Elevation Monitoring program (CASGEM). Once this program comes online, Project Proponent will then submit groundwater leve l data to CASGEM. Information regarding the CASGEM program can be found at: http://www.water.ca.gov/groundwater/casgem/.
SECTION 22. TERMINATION; IMMEDIATE REPAYMENT; INTEREST
(A) CRWA may terminate this Agreement at any time prior to completion of the Project for Project Proponent’s violation of any provision of this Agreement upon written notice by CRWA of the violation and the failure of Project Proponent to come into compliance within a reasonable time as established by CRWA.
(B) In the event of such termination, Project Proponent agrees, upon demand, to immediately repay to CRWA an amount equal to the amount of grant funds disbursed to the Project Proponent prior to such termination. In the event of termination, prejudgment interest shall accrue on all amounts due from the date that notice of termination is mailed to Project Proponent to the date of full repayment by Project Proponent.
(C) CRWA may terminate this Agreement should DWR or SAWPA terminate CRWA as program manager or terminate funding for this Agreement or the Project or should SAWPA terminate its standard agreement with CRWA on this Project. Upon such termination, CRWA shall not be liable to Project Proponent for any damages, costs or expenses resulting from such termination.
SECTION 23. DAMAGES FOR BREACH AFFECTING TAX EXEMPT STATUS
In the event that any breach of any of the provisions of this Agreement or other action by Project Proponent results in the loss of tax exempt status for any bonds, or if such breach shall result in an obligation on the part of CRWA to reimburse the federal government by reason of any arbitrage profits, Project Proponent shall immediately reimburse CRWA, SAWPA, and/or DWR in an amount equal to any damages paid by or loss incurred by the State due to such breach.
SECTION 24. ARBITRATION
Any dispute which may arise under this Agreement by and between CRWA and Project Proponent , including Project Proponent 's subcontractors, laborers, and suppliers, shall be submitted to binding arbitration pursuant to the Construction Industry Arbitration Rules and Mediation Procedures of the American Arbitration Association (AAA). The arbitrator shall decide each and every dispute in accordance with the laws of the State of California and AAA rules, and all other applicable laws. Unless the Parties stipulate in writing to the contrary, prior to the appointment of the arbitrator, all disputes shall first be submitted to non-binding mediation.
SECTION 25. COSTS AND ATTORNEY FEES
In the event of arbitration or litigation between the Parties hereto arising from this Agreement, it is agreed that the prevailing Party shall be entitled to recover reasonable costs and attorney fees.
SECTION 26. WAIVER
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Any waiver of any rights or obligations under this Agreement or the Sub-Grant Agreement shall be in writing and signed by the Party making such waiver, and approved by CRWA.
SECTION 27. AMENDMENT
This Agreement may be amended at any time by mutual written agreement of the Parties.
SECTION 28. SAWPA REVIEWS; SUB-GRANTEE AS INDEPENDENT CONTRACTOR
AND PROJECT PROPONENT RESPONSIBILITY
(A) The Parties agree that review or approval of the Project or Project plans and specifications by SAWPA is for administrative and eligibility purposes only and does not relieve Project Proponent of its responsibility to properly plan, design, construct, operate, and maintain the Project. Project Proponent agrees that it has sole responsibility for proper planning, design, and construction of the Project and Project Proponent has sole responsibility for operation and maintenance of the Project.
(B) CRWA is an independent contractor exclusively responsible for the grant administration and documentation of the Project whereas Project Proponent is exclusively responsible for the planning, design, construction, operation, and maintenance of the specific project funded by this Agreement and that Project Proponent is not acting as CRWA's agent, nor is CRWA acting as an agent of Project Proponent.
SECTION 29. INDEMNIFICATION
(A) Project Proponent shall defend, indemnify, and hold and save CRWA, SAWPA, and DWR and their directors, commissioners, officers, employees, agents, and assigns (collectively the “Indemnified Parties”) free and harmless from any and all liabilities for any claims and damages (including inverse condemnation) that may arise out of the Project and the Grant Agreement, Sub-Grant Agreement and Agreement, including but not limited to any claims or damages arising from planning, design, construction, maintenance, and/or operation of this Project and/or any breach of this Agreement except for instances of gross negligence or misconduct on behalf of CRWA, SAWPA, and DWR. Project Proponent shall require its contractors or subcontractors to name CRWA, SAWPA, DWR, the State, and their respective officers, agents, and employees as additional insureds on their liability insurance for activities undertaken pursuant to this Agreement.
(B) Project Proponent understands and agrees that it has complied and will comply with CEQA and the State CEQA Guidelines for the Project which is the subject matter of this Agreement. Project Proponent understands and agrees that it is ultimately and solely responsible for compliance with CEQA and any mitigation measures required for the Project. Project Proponent hereby agrees to indemnify, defend, and hold harmless CRWA, SAWPA, and DWR from any and all claims or actions related to this Project that may be made by any third party or public agency alleging, among other things, violations of CEQA or the State CEQA Guidelines.
(C) Project Proponent will ensure that adequate insurance coverage is provided by Project Proponent, its contractors, and subcontractors on the Project funded, in part, by this Agreement. Such insurance shall include adequate coverage for comprehensive commercial general liability, business auto liability, workers compensation liability, professional and errors and omissions liability, property insurance, including all builders risk insurance. Such insurance coverage shall, at a minimum, insure against injuries to third parties, damage to property owned by third parties, physical damage to the Project and all related facilities, theft of building materials and supplies intended for the Project, delays in Project
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completion (including due to strikes and governmental actions), liquidated damages, employee injuries and work-related illnesses, design errors resulting in increased project costs, environmental damage caused by construction activities related to the Project, and nonperformance by the contractors and subcontractors. Such insurance coverages shall be provided by admitted insurance companies authorized to do business in the State of California, and with a minimum “Best’s Insurance Guide” rating of “A:VII”.
SECTION 30. PROJECT AND INFORMATION ACCESS
Project Proponent agrees to ensure that CRWA, SAWPA, DWR, or any authorized representative thereof, shall have reasonable access to the Project site at all reasonable times during Project construction, and thereafter for the useful life of the Project.
SECTION 31. OPINIONS AND DETERMINATIONS
Where the terms of this Agreement provide for action to be based upon the opinion, judgment, approval, review, or determination of either party hereto, such terms are not intended to be and shall never be construed as permitting such opinion, judgment, approval, review, or determination to be arbitrary and capricious.
IN WITNESS THEREOF, the parties have executed this Agreement on the later date set forth below.
CALIFORNIA RURAL WATER ASSOCIATION
Dated:
By:
DUSTIN HARDWICK
Director of Resource Development
City of Colton
Project Proponent
Dated: _________________________ By: ________________________________________ Authorized Representative
________________________________________
Typed Name
________________________________________
Title
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RESOLUTION NO. R-15-23
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COLTON AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE THE 2021 URBAN AND
MULTI-BENEFIT DROUGHT RELIEF PROGRAM SET -ASIDE FOR
DISADVANTAGED COMMUNITIES INVOLVEMENT PROGRAM (UMDRP) FOR THE ENGINEERING AND DESIGN OF WELL 32 PROJECT AND AMENDING THE FY2022- 23 BUDGET TO INCREASE REVENUES AND APPROPRIATIONS BY $885,000 IN THE
WATER FUND TO ACCOUNT FOR THE GRANT ACCEPTANCE AND
EXPENDITURES.
WHEREAS, the City Council of the City of Colton desires to improve the water supply system within the City jurisdiction; and
WHEREAS, the City of Colton has received an Urban and Multi-benefit Drought Relief Program (UMDRP) Funding for the engineering and design of Well 32 Project; and WHEREAS, the City of Colton has received authorization from Santa Ana Watershed Project Authority (SAWPA) and California Rural Water Association (CRWA) to proceed with the engineering and design of Well 32; and
WHEREAS, the SAWPA requires that the Sub-Grant Agreement be fully executed before any invoices for reimbursement can be processed; and WHEREAS, the SAWPA and CRWA requires that the City adopt and attach a resolution identifying the project and the official authorized to execute the Sub-Grant Agreement between City of Colton, Santa Ana Watershed Project Authority (SAWPA) and California Rural Water Association (CRWA).
NOW, THEREFORE, BE IT RESOLVED, DECLARED, DETERMINED AND ORDERED by the City Council of the City of Colton, California as follows:
Section 1. The City Council hereby authorizes the City Manager or his designee to execute the Sub-Grant Agreement between City of Colton, Santa Ana Watershed Project Authority (SAWPA) and California Rural Water Association (CRWA) for the Well 32 Project.
Section 2. Amend the FY2022-23 Budget to increase revenues in Water Fund UMDRP Grant Account Number 521-5851-000 by $885,000 to account for grant acceptance.
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Section 3. Amend the FY2022-23 Budget to increase appropriations in Water Fund New Wells Well #32 UMDRP Project Capital Improvement Account Number 521-8100-8105-3890-0000- 021 by $885,000 for the Engineering and Design of Well #32.
PASSED, APPROVED AND ADOPTED THIS 21st DAY OF FEBRUARY 2023.
_________________________________
FRANK J. NAVARRO, MAYOR
ATTEST:
_____________________________
CAROLINA R. PADILLA, CITY CLERK
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ITEM NO. 6
STAFF REPORT
DATE: FEBRUARY 21, 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 MINAGAR AND ASSOCIATES, INC. FOR THE 7TH STREET/VALLEY BLVD.
AND THE LA CADENA DR./BORDWELL AVE./LAUREL AVE.
TRAFFIC SIGNAL PROJECT.
RECOMMENDED ACTION
Staff recommends that the City Council take the following action:
Award a professional services agreeme nt to Minagar and Associates, Inc. for the preparation of engineering design for the 7th Street/Valley Blvd. and the La Cadena Dr./Bordwell Ave./Laurel Ave. Traffic Signal Project for $23,051; and authorize City Manager to execute the agreement.
BACKGROUND
The intersection of Valley Blvd. and 7 th Street is a T -intersection with significant volume of traffic along Valley Blvd (east/west direction). The combined volume of vehicles for east/west traffic along this road is 10,182. The City traffic engineering consultant studied this intersection and found it warranted for installation of a traffic signal.
The intersection of La Cadena Dr./Bordwell Ave./Laurel Ave. is an existing traffic signal built in February 1960. The traffic signal poles at this inter section are considered sub-standard, and this intersection has suffered a number of breakdowns such as burnt wiring, malfunctioning controllers and broken conduits. Since all of the equipment, wiring and conduits at this intersection are outdated, t he scope of work at this intersection warrants replacing the existing traffic signal with a new traffic signal. The location of th is two traffic signals project is shown on Exhibit A.
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Staff Report to the Mayor and City Council
Contract Award - Minagar and Associates, Inc.
February 21, 2023
ISSUES/ANALYSIS
On December 16, 2022, City staff issued the Request for Prop osal (RFP) for the preparation of plans, specifications and estimate for the 7th Street/Valley Blvd. and the La Cadena Dr./Bordwell Ave./Laurel Ave. Traffic Signal Project . The RFP was advertised on December 16 and December 23, 2022. On January 19, 2023, the City received the following proposals from the following engineering firms with their corresponding cost for engineering design and support for the project:
No. Consultant Cost Proposal
1 Minagar and Associates, Inc. $ 23,051.00
2 KOA Corporation $ 39,874.00
3 GTS, Inc. $ 58,245.00
4 Transportation and Energy Solution, Inc. $109,897.08
5 STC Traffic, Inc. $121,820.00
After review of the proposals submitted, Minagar and Associates, Inc. came up as the most qualified consultant to provide work ne eded for the preparation of plans, specifications and estimate for the 7th Street/Valley Blvd. and the La Cadena Dr./Bordwell Ave./Laurel Ave.
Traffic Signal Project. Minagar and Associates, Inc. experience include s traffic signal design services in the Cities of Colton, San Bernardino and Baldwin Park. In addition they perform traffic design and consulting in Los Angeles County, and the Cities of Santa Clarita, Chino Hills, Modesto, Costa Mesa, Temecula, Sacramento and Palmdale. The cost proposal includ es preparation of engineering plans, estimate and specifications, and bidding support. The professional service agreement contract is attached as Exhibit B.
Although the contract amount of $23,051 for the 7 th Street/Valley Blvd. and La Cadena Dr./Bordwell Ave./Laurel Ave. Traffic Signal Project is within City Manager’s authority for award, when combined with the existing contract for the citywide traffic consulting engineering, the total contract amount exceeds the City Manager’s $50,000 limit for the fiscal year.
FISCAL IMPACTS
The 7th Street/Valley Blvd. and the La Cadena Dr./Bordwell Ave./Laurel Ave. Traffic Signal Projects are funded by Traffic Impact Fee s. Sufficient appropriations for the contract are available in the FY2022-23 budget in the following Traffic Impact Fee Fund accounts:
Project/Account Number Available
Funding
Contract
Funding
7th/Valley Traffic Signal - 249-2315-6150-3890-0000-000 $400,000 $ 11,525.50 6 Packet Pg. 358
Staff Report to the Mayor and City Council
Contract Award - Minagar and Associates, Inc.
February 21, 2023
Bordwell /La Cadena TS - 249-2316-6150-3890-0000-000 $300,000 $ 11,525.50 Total $700,000 $23,051.00
ENVIRONMENTAL IMPACTS
Preparation of documents for the California Environmental Quality Act (CEQA) is part of the Preliminary Engineering phase for this Project
ALTERNATIVES
1. Provide alternative direction to staff.
ATTACHMENT
1. Exhibit A - Project location
2. Exhibit B -Minagar Inc. Professional Service Agreement 6 Packet Pg. 359
EXHIBIT A
LOCATION MAP
CITY OF COLTON TRAFFIC SIGNAL PROJECT
Legend:
Location of Proposed Traffic Signal
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Exhibit B
Contract and Insurance Requirements
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[***MODEL - REMOVE THIS TITLE WHEN USED***]
CITY OF COLTON
PROFESSIONAL SERVICES AGREEMENT
1. P ARTIES AND DATE.
This Agreement is made and entered into this [***INSERT DAY***] day of [***INSERT MONTH***], [***INSERT YEAR***] by and between the City of Colto n, 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 [***INSERT NAME***], a [***[INSERT TYPE OF ENTITY - C ORPORATION, PARTNERSHIP, SOLE PROPRIETORSHIP OR OTHER LEGAL ENTITY]***] with its principal pl ace of business at [***INSERT ADDRESS***] (“Consulta nt”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.
2. R ECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement.
Consultant represents that it is experienced in providing [***INSERT TYPE OF SERVICES***] services to public clients, is licensed in the State of Califor nia, and is familiar with the plans of City.
2.2 Project; Colton Utility Authority.
City desires to engage Consultant to render such services for the [***INSERT NAME OF PROJECT***] project (“Project”) a s set forth in this Agreement. [***INCLUDE THE FOLLOWING 2 SENTENCES ONLY IF AGREEMENT INVOLVES WATER OR WASTEWATER UTILITIES – DELETE OTHERWISE; ALSO DELETE “COLTON UTILITY AUTHORITY FROM TITLE OF RECITAL***]Consultant understands that the City has entered into a Utility System Management Agreement, dated as of Septemb er 1, 2000, with the Colton Utility Authority (“CUA”) for the maintenance, management and operation of its Water Enterprise and Wastewater Enterprise (“CUA Management Agreement”). To the extent that this Agreement is deemed to be a "material contract" under the CUA Management Agreement, City enters into this Agreement on behalf of the CUA and subject to the terms of the CUA Management Agreement.
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3. T ERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agree s to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional [***INSERT TYPE OF SERVICES***] consulting services necessary for the Project (“Services”). T he Services are more particularly described in Exhibit “A” attached hereto 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, sta t e a n d f e d e r a l l a w s , r u l e s , a n d regulations.
3.1.2 Term. The term of this Agreement shall be from [***INSER T START DATE***] to [***INSERT ENDING DATE***], unless earlier terminat ed as provided herein.
Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.
3.2 Responsibilities of Consultant.
3.2.1 Control and Payment of Subordinates; Independent Contract or. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject t o the requirements of this Agreement. City retains Consu ltant on an independent contracto r basis and not as an employee.
Consultant retains the right to perform similar or different se rvices 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 contro l. Consultant shall pay all wage s, 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 repor ts and obligations respecting such additional personnel, including, but not limited to: social sec urity taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
3.2.2 Schedule of Services. Consultant shall perform the Servi ces expeditiously, within the term of this Agreement, and in accordance with the S chedule of Services set forth in Exhibit “B” attached hereto and incorporated herein by referenc e. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to faci litate Consultant’s conforman ce with the Schedule, City shall respond to Consultant’s submittals in a timely manner. Upon re quest 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 prepare d by Consultant shall be subject to the approval of City.
3.2.4 Substitution of Key Personnel. Consultant has represente d to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one
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or more of such personnel become unavailable, Consultant may su bstitute 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: [***INSERT NAMES***].
3.2.5 City’s Representative. The City hereby designates [***IN SERT NAME OR TITLE***], or his or her designee, to act as its representat ive for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Contract. Consultant s hall not accept direction or orders from any person other than the City’s Representative or his or her designee.
3.2.6 Consultant’s Representativ e. Consultant hereby designate s [***INSERT NAME OR TITLE***], or his or her designee, to act as its repres entative for the performance of this Agreement (“Consultant’s Representative”). Consultant’s R epresentative shall have full authority to represent 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 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 clos ely 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 s hall perform all Services under this Agreement in a skillful and competent manne r, 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 ski lled in the professional calling necessary to perform the Services. Consultant warrants that al l employees and subconsultants shall have sufficient skill and experience to perform the Servi ces assigned to them. Finally, Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legall y required to perform the Services, including a City Business License, and that such licenses and a pprovals 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 t he 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.
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3.2.9 Period of Performance and Liquidated Damages. 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 Service s 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 an d agreed that the City will suffer damage. [***INCLUDE THE FOLLOWING SENTENCE ONLY IF YOU'RE INCL UDING LD'S – DELETE OTHERWISE – DON'T SIMPLY INSERT $0; ALSO DELETE “ AND LIQUIDATED DAMAGES” FROM TITLE OF SECTION***]Pursuant to Govern ment Code Section 53069.85, Consultant shall pay to the City as fixed and liquidated damages the sum of [***INSERT WRITTEN DOLLAR AMOUN T***] Dollars ($[***INSERT NUME RICAL DOLLAR AMOUNT***]) per day for each and every calendar day of d elay beyond the Performance Time or beyond any Project Milestones established pursuant to this Agreement.
3.2.10 Laws and Regulations; Employee/Labor Certifications. Co nsultant 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 Proj ect 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 the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees, and agents free and harmless, pursuant to the indemnification provisions of thi s 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 t his 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, the Immigration Reform and Control Act of 1986, as may be amend ed from time to time. Such requirements and restrictions i nclude, 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 Agree ment, and shall not violate any such law at any time during the term of the Agreement. Consult ant 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 Depart ment of Homeland Security, by participating in an equivalent federal work authorization progr am 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 fo r 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.
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3.2.10.2 Employment Eligibility; Subcontractors, Consultants, Sub- subcontractors and Subconsultants. To the same extent and unde r 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 t his 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 pe rson 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 subco ntractors, 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 con cerning 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 perso n found not to be in compliance with such requirements.
3.2.10.4 Labor Certification. By its signature hereunder, Cons ultant certifies that it is aware of t he provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
3.2.10.5 Equal Opportunity Employmen t. Consultant represents that it is an equal opportunity employer and it shall not discrimina te 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, b ut not be limited to, all activities related to initial employment, upgrading, demotion, transfer, r ecruitment or recruitment advertising, layoff or termina tion. Consultant shall also comp ly 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.
3.2.10.6 Air Quality. To the extent applicable, Consultant mu st fully comply with all applicable laws, rules and regulations in furni shing or using equipment and/or providing services, including, but not limited to, emissions li mits and permitting requirements imposed by the South Coast Air Quality Management District (SCA QMD) 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 applicat ion to "portable 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 fi nes or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory agency fo r violations of applicable laws, rules and/or regulations by Consultant, its subconsultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement.
3.2.10.7 Water Quality.
(A) Management and Compliance. To the extent applicable, Consultant’s Services must acc ount for, and fully comply with, all local, state and federal laws,
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rules and regulations that may impact water quality compliance, including, without limitation, all applicable provisions of the Federal Water Pollution Control Ac t (33 U.S.C. §§ 1300); the California Porter-Cologne Water Q uality Control Act (Cal Water Code §§ 13000-14950); laws, rules and regulations of the Environmental Protection Agency, the State Water Resources Control Board and the Santa Ana Regional Water Quality Control Board; the City’s ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the di scharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State.
(B) Liability for Non-compliance. Failure to comply with the laws, regulations and policies described in this Section is a v iolation of law that may subject Consultant or City to penaltie s, fines, or additional regulator y requirements. 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, from and against any and all fines, penalties, claims or other regulatory requirements imposed as a result of Consultant’s non-compliance with t he laws, regulations and poli cies described in this Section, unless such non-compliance is the result of the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers.
(C) Training. In addition to any other standard of care requirements set forth in this Agreement, Consultant warrants t hat all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them without impacting water quality in violation of the laws, regulations and policies described in this Section. Consultant 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 this Section as they may relate to the Services provided under this Agreement. Upon request, City will provide Consultant with a list of training p rograms that meet the requirements of this paragraph.
3.2.11 Insurance.
3.2.11.1 Time for Compliance. Consultant shall not commence Wo rk under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this S ection. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evide nce satisfactory to the City that the subconsultant has secured all insurance required under this Section.
3.2.11.2 Minimum Requirements. Cons ultant shall, at its expens e, procure and maintain for the duration of the Agreement insuranc e against claims for injuries to persons or damages to property which may arise from or in conne ction with the performance of the Agreement by the Consultant, its agents, representatives, e mployees or subconsultants.
Consultant shall also require all of its subconsultants to proc ure 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
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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 Califor nia and Employer’s Liability In surance. The policy shall not contain any exclusion contrary t o 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: [***INSERT AMOUNT - TYPICALLY $1,000,000 MINIMUM; HOWEVER, AMOUNT OF INSURANCE REQUIRED DEPENDS UPON NATURE OF CONTRACT AND RISK TO CITY. PLEASE CONTACT RISK MANAGEMENT TO CONFIRM AMOUNT***] per occurrence for bodily inju ry, 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: [***INSERT AMOUNT - TYPICALLY $1,000,000 MINIMUM; HOWEVER, AMOUNT O F INSURANCE REQUIRED DEPEN DS UPON NATURE OF CONTRACT AND RISK TO CITY. PLEASE CONTACT RISK MANAGEMENT TO CONFIRM AMOUNT***] 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 limits of [***INSERT AMOUNT - TYPICALLY $1,000,000 MINIMUM; HOWEVER, AMOU NT OF INSURANCE REQUIRED DEPENDS UPON NATURE OF CONTRACT AND RISK TO CITY.
PLEASE CONTACT RISK MANAGEMENT TO CONFIRM AMOUNT***] per accide nt 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, e vidence 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 cove rage, file with the City evide nce of insurance showing that the required insurance has been reins tated or has been provided thr ough another insurance company or companies. In the event any policy of insurance required under this Agreement 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 Consultant or the City may withhold amounts suffi cient to pay premium from Consultant payments. In the alternative, the City may suspend or terminate this Agreement.
3.2.11.3 Professional Liabilit y. [***INCLUDE THIS SUB- SECTION ONLY IF APPLICABLE; DELETE OTHERWISE***] Consultant sh all procure and maintain, and require its sub-consultants to procure and mainta in, for a period of five (5) years following completion of the Project, errors and omissions liabi lity insurance appropriate to their profession. Such insurance shall be in an amount not less than [***INSERT AMOUNT - TYPICALLY $1,000,000 MINIMUM; HOWEVER, AMOUNT OF INSURANCE REQU IRED DEPENDS UPON NATURE OF CONTRACT AND RISK TO CITY. PLEASE CONTA CT
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RISK MANAGEMENT TO CONFIRM AMOUNT***] per claim, and shall be e ndorsed 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 e ndorsements 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 incl ude 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 w ith respect to the Services or ongoing and completed operations performed by or on behalf of t he 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 insu rance coverage shall be primary insurance as respects the City, its directors, officials, offic ers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage exce ss 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 pro tect it as a named insured. Any insurance or self-insurance maintained by the City, its directo rs, officials, officers, employees, agents, and volunteers shall be excess of the Consultant’s insu rance 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(A).
(B) Automobile Liability. The automobile liability policy shal l include or be endorsed (amended) t o state that: (1) the City, its directors, officials, officers, employees, agents, and volunteers shall be covered as additiona l 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 respo nsible; and (2) the insurance coverage shall be primary insurance as respects the City, its d irectors, 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 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 lim its 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 loss es paid under the terms of the insurance policy which arise from work performed by the Consultant. (D) All Coverages. Each insuran ce policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced
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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 in surance 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 insure r against the City, its officials, officers, employees, agents, and volunteers, or any other addit ional insureds, or shall specifically allow Consultant or others provi ding insurance evidence in comp liance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, its officials, officers, employees, agents, and v olunteers, 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 deduct ibles 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’ po licies of Commercial General Liability using ISO form 20 38, or coverage at least as broad.
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 Ci ty with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the Cit y. The certificates and endors ements 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 a nd 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.
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3.2.11.10 Reporting of Claims. Consu ltant shall report to the City, in addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in connection with the Services under this Agreement.
3.2.12 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 l aws, 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: (A) adequate life protec tion and life saving 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.
3.2.13 Accounting Records. Consultant shall maintain complete and accurate records with respect to all cost s and expenses incurred under t his 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 peri od of three (3) years from the date of final payment under this Agreement.
3.3 Fees and Payments.
3.3.1 Compensation. Consultant shall receive compensation, inc luding authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit ”C” attached hereto and incorporated herein by referenc e. The total compensation shall not exceed [***INSERT WRITTEN DOL LAR AMOUNT***] ($[***INSERT NU MERICAL DOLLAR AMOUNT***]) without written approval of City’s [***INSER T TITLE***]. 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 itemized statement which indicates work completed and hours of Services rendered by Consultant.
The statement shall describe the amount of Services and supplie s provided since the initial commencement date, or since the s tart of the subsequent billing periods, as appropriate, through th e d a te o f t h e s ta te m e n t. C ity s h a ll, w ith in 4 5 d a y s o f re c eiving such statement, review the statement and pay all approved charges thereon.
3.3.3 Reimbursement for Expenses. Consultant shall not be reim bursed for any expenses unless authorized in writing by City.
3.3.4 Extra Work. At any time during the term of this Agreemen t, 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
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did not reasonably anticipate would be necessary at the executi on of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without w ritten authorization from City’s Representative.
3.3.5 Prevailing Wages. Consultant is aware of the requirement s of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works” and “maintenance” projects. [***INSERT “IF” OR “SINCE” AS APPLICABLE***] the Services are being performed as part of an applicable “public works” or “maintenance” projec t, as defined by the Prevailing Wage Laws, and [***INSERT “IF” OR “SINCE” AS APPLICABLE***] the total compensation is $1,000 or more, Consultant agrees to fully comply with such Pre vailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per d iem wages in effect at the commencement of this Agreement. Consultant shall make copies o f 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 th e Consultant’s principal place of business and at the project site. Consultant shall defend, ind emnify and hold the City, its elected officials, officers, employees and agents free and harmless fro m any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
3.4 Termination of Agreement.
3.4.1 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 ef fective date thereof, at least seven (7) days before the effective date of such termination. Upon t ermination, Consultant shall be compensated only for those services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause.
3.4.2 Effect of Termination. If this Agreement is terminated a s provided herein, City may require Consultant to provide all finished or unfinish ed Documents and Data and other information of any kind prepared by Consultant in connection wi th 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.
3.4.3 Additional Services. In the e vent this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms a nd in such manner as it may determine appropriate, services similar to those terminated.
3.5 Ownership of Materials and Confidentiality.
3.5.1 Documents & Data; Licensing of Intellectual Property. Th is 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 propert y embodied in plans, specifications, studies, drawings, estimates, and other documents or works of a uthorship fixed in any tangible medium of expression, including but not limited to, physical dr awings or data magnetically or
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otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). All Docu ments & Data shall 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 t he method of document reproductio n 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 a mount 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 right to retain or fail to provide to City any such documents p ending 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 dup lication costs. Before destroy ing the Documents & Data following this retention period, Consultant shall make a reason able effort to notify City and provide City with the opportunity to obtain the documents.
3.5.2 Subconsultants. Consultant s hall require all subconsulta nts to agree in writing that City is granted a non-exclusive and perpetual lice nse 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. C onsultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or its subconsultants, or t hose provided to Consultant by the City.
3.5.3 Right to Use. City shall not b e 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 this 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 Document s & Data on any project other t han this Project, it shall remove the Consultant’s seal from the D ocuments & Data and indemnify a nd 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 Ci ty upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any revisions to the Documents & Data made by any part y other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant.
3.5.4 Indemnification. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agent s free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged i nfringement 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.
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3.5.5 Confidentiality. All Documents & Data, either created by or provided to Consultant in connection with the performance of this Agreement , shall be held confidential by Consultant. All Documents & Data shall not, without the prior written consent of City, be used or reproduced by Consultant for any purposes other than the performance of the Services. Consultant shall not disclose, cause or facilitate the disclosure of the D ocuments & Data to any person or entity not connected with the performance of the Services or th e Project. Nothing furnished to Consultant that 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 General Provisions.
3.6.1 Delivery of Notices. All notices permitted or required u nder this Agreement shall be given to the respective parties at the following addre ss, or at such other address as the respective parties may provide in writing for this purpose:
Consultant:
[***INSERT NAME, ADDRESS & CONTACT PERSON***]
City:
City of Colton
650 North La Cadena Drive
Colton, California 92324
Attn: [***INSERT NAME & DEPARTMENT***]
Such notice shall be deemed made when personally delivered or w hen mailed, forty-eight (48) hours after deposit in the U.S. Mail, first c lass 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.
3.6.2 Indemnification.
3.6.2.1 Scope of Indemnity . To the fullest extent permitted by law, Consultant shall defend, indemnify and hold the City, its direc tors, 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, pertain ing to, or incident to any alleged acts, errors or omissions of C onsultant, its officials, officer s, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorneys’ fees and other related costs and ex penses. Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above
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indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant.
3.6.2.2 Additional Indemnity Obligations. Consultant shall defend, with Counsel of City's choosing and at Consultant’s own cost, expens e and risk, any and all claims, suits, actions or other proceedings of every kind covered by Se ction 3.6.2.1 that may be brought or instituted against City or its directors, officials, officer s, employees, volunteers and agents.
Consultant shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, volunteers and agents as part of any such claim, suit, action or other proceeding. Consultant shall also reimburse City for the cost of any settlement paid by City or its directors, officials, officers, employees, agent s or volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement sh all include payment for City’s attorney’s fees and costs, including expert witness fees. Cons ultant shall reimburse City and its directors, officials, officers, e mployees, agents, and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or i n enforcing the indemnity herein provided. Consultant’s obligation to indemnify shall survive e xpiration or termination of this Agreement, and shall not be restricted to insurance proceeds, i f any, received by the City, its directors, officials officers, employees, agents, or volunteers.
3.6.3 Governing Law; Government Code Claim Compliance. This Ag reement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County.
I n a d d i t i o n t o a n y a n d a l l c o n t r act requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims a nd/or changed conditions, Consultant must comply with the claim procedures set forth in G overnment 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 p ertaining to extra work, dispu ted work, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual r equirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.
3.6.4 Time of Essence. Time is of the essence for each and eve ry provision of this Agreement.
3.6.5 City’s Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project.
3.6.6 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.6.7 Assignment or Transfer; Colton Utility Authority. Consul tant shall not assign, hypothecate or transfer , either directly or by operatio n 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. [***INCL UDE THE FOLLOWING 2
SENTENCES ONLY IF AGREEMENT INVOLVES WATER OR WASTEWATER UTILITIES – DELETE OTHERWISE; ALSO DELETE “COLTON UTILITY AUTHORITY FROM TITLE
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OF SECTION***]To the extent that this Agreement is deemed to be a "material contract" under the CUA Management Agreement, Consultant has no right to termin ate this Agreement, either with or without cause, based upon the existence or non-existenc e of the CUA Management Agreement. Therefore, if the CUA Management Agreement expires or terminates for any reason, Consultant shall remain fully obligated to perform under this Agreement on behalf of the CUA or another third party contracted by the CUA for the maintenance, management and operation of the Water Enterprise and/or Wastewater Enterprise.
3.6.8 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the la nguage 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 inc lude all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. A ll 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 do not define , limit, augment, or describe the scope, content or intent of this Agreement.
3.6.9 Amendment; Modification. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.6.10 Waiver. No waiver of any default shall constitute a wai ver of any other default or breach, whether of the same or other covenant or con dition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party s h a l l g i v e t h e o t h e r P a r t y a n y contractual rights by custom, estoppel or otherwise.
3.6.11 No Third Party Beneficiaries. Except to the extent expr essly provided for in Section 3.6.7, there are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.6.12 Invalidity; Severability. I f any portion of this Agreem ent is declared invalid, illegal, or otherwise unenforceable by a court of comp etent jurisdiction, the remaining provisions shall continue in full force and effect.
3.6.13 Prohibited Interests. Consu ltant 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 A greement. 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, n o member, officer or employee of City, during the term of his or her service with City, shall ha ve any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
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3.6.14 Cooperation; Further Acts. The Parties shall fully coop erate 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.
3.6.15 Attorney’s Fees. If either party commences an action ag ainst the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litig ation shall be entitled to ha ve and recover from the losing party reasonable attorney’s fees and all other costs of such action.
3.6.16 Authority to Enter Agreement. Consultant has all requis ite 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 ha ve the legal power, right, and authority to make this Agreement and bind each respective Party.
3.6.17 Counterparts. This Agreement may be signed in counterpa rts, each of which shall constitute an original.
3.6.18 Entire Agreement. This Agreement contains the entire Ag reement of the parties with respect to the subj ect matter hereof, and supersed es all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties.
3.6.19 Federal Provisions. [***INC LUDE THIS SECTION ONLY IF APPLICABLE; DELETE OTHERWISE. IF APPLICABLE, YOU MAY ALSO NEED T O INCLUDE SOME INFORMATION IN THE RFP. CONSULT THE CITY ATTORNEY I F NECESSARY***] When funding for the Services is provided, in whole or in part, by an agency of the federal government, Consultant shall also fully and adeq uately comply with the provisions included in Exhibit “D” (Federal Requirements) attached hereto and incorporated herein by reference (“Federal Requirement s”). With respect to any confli ct between such Federal Requirements and the terms of this Agreement and/or the provisi ons of state law, the more stringent requirement shall control.
[SIGNATURES ON NEXT PAGE]
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SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF COLTON
AND [***INSERT NAME***]
IN WITNESS WHEREOF, the Parties have entered into this Agreemen t as of the [***INSERT DAY***] day of [***INSERT MONTH***], [***INSERT YEAR***].
CITY OF COLTON
By: _________________________
[***INSERT NAME***]
[***INSERT TITLE***]
Attest: _________________________
[***INSERT NAME***]
City Clerk
[***INCLUDE FOLLOWING SIGNATURE BLOCK ONLY IF AGREEMENT INVOLVES WATER OR WASTEWATER UTILITIES – DELETE OTHERWISE ***]
Recommended for Approval:
_________________________
Executive Director
Colton Utility Authority
[***INSERT NAME OF CONSULTANT***]
a [***INSERT TYPE OF LEGAL ENTITY***]
By: _________________________
Signature
_________________________
Name (Print)
_________________________
Title (Print)
By: _________________________
Signature
_________________________
Name (Print)
_________________________
Title (Print)
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[***NOTE (READ AND DELETE THIS BLOCK BEFORE USING MODEL): SIGNA TURE BLOCKS CAN VARY DEPENDING UPON THE CONSULTANT’S TYPE OF LEGAL ENTITY (E.G. C O R P O R A T I O N ; GENERAL PARTNERSHIP; LIMITED PARTNERSHIP; LIMITED LIABILITY PARTNERSHIP OR COMPANY; OR AN INDIVIDUAL). THIS MODEL CONTAINS A GENERAL FRAMEWORK WHI CH WILL WORK FOR
MOST CORPORATIONS, INDIVIDUAL (NON-CORPORATE) PARTNERSHIPS AND INDIVIDUAL SOLE PROPRIETORSHIPS. PLEASE REFER TO THE CITY CLERK’S “SIGNATURE R EQUIREMENT” MEMO ON THE CITY OF COLTON INFO WEB FOR COMPLETE INFORMATION***]
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EXHIBIT “A”
SCOPE OF SERVICES
[***INSERT SCOPE***]
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EXHIBIT “B”
SCHEDULE OF SERVICES
[***INSERT SCHEDULE***]
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EXHIBIT “C”
COMPENSATION
[***INSERT RATES & AUTHORIZED REIMBURSABLE EXPENSES***]
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[***INCLUDE THIS EXHIBIT (AND CORRESPONDING AGREEMENT PROVISION) ONLY IF APPLICABLE; DELETE OTHERWISE. IF APPLICABLE, YOU MAY ALSO NEED TO INCLUDE SOME INFORMATION IN THE RFP. CONSULT THE CITY ATTORNEY IF NECESSARY***]
EXHIBIT “D”
FEDERAL REQUIREMENTS
[***INSERT ALL FORMS, PROVISIONS AND OTHER REQUIREMENTS OF THE FEDERAL FUNDING SOURCE***]
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INSURANCE REQUIREMENTS
CITY OF COLTON
INSURANCE REQUIREMENTS
FOR CONSULTANTS
Consultant 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, Consultant 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.
Minimum Requirements . Consultant 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 the Consultant, its agents, representatives, employees or subcontractors. Consultant 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:
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); (3) Workers’ Compensation and Employers’ Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance.
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 a general aggregate limit is used, 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 per accident for bodily injury and property damage; (3) Workers’ Compensation and Employer’s Liability:Workers’ compensation limits as required by the Labor Code of the State of California. Employers’ Liability limits of $1,000,000 per accident for bodily injury or disease 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:
General Liability . (1) The City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the Work or operations performed by or on behalf of the Contractor, including materials, parts or equipment furnished in connection with such work; 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 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.
Automobile Liability. (1) The City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by 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 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.
Workers’ Compensation and Employers 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.
All Coverages. Each insurance policy required by this Contract shall be endorsed to state that: (1) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City; and (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents and volunteers.
Separation of Insureds; No Special Limitations . 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.
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Attachment: Exhibit A - Project location (3957 : Contract Award - Minagar and Associates, Inc.) EXHIBIT “B”
INSURANCE REQUIREMENTS
Professional Liability Insurance . All architects, engineers, consultants or design professionals 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 respect to Work performed, and shall otherwise comply with all requirements of this Section.
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.
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.
Verification of Coverage . Consultant shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Contract on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms supplied or approved by the City.
All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
Subcontractors. All subcontractors shall meet the requirements of this Section before commencing Work. In addition, Consultant 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.
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Attachment: Exhibit A - Project location (3957 : Contract Award - Minagar and Associates, 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 22nd 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 Minagar and Associates, Inc., a corporation, with its principal place o f business at 23282 Mill Creek Drive, Suite 120 ., Laguna Hills, CA 92653 ("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 e ngineering, 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 traffic engineering l services for the 7th Street/Valley Blvd. and the La Cadena Dr./Bordwell Ave./Laurel Ave. Traffic Signal 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 7th Street/Valley Blvd. and the La Cadena Dr./Bordwel l Ave./Laurel Ave. Traffic Signal Project ("Project"). The scope of services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agr eement, 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 June 30, 20 24, 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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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 o fficials, 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 sec urity taxes, income tax withholding, unemployment insurance, disability 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 Agreem ent are as follows: Fred Minagar, 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 Fred Minagar, 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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and act on behalf of the Consultant for all purposes under this Agr eement. 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 calling 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 subconsultants 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 t he 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 -Minagar Inc. Professional Service Agreement (3957 : Contract Award - Minagar and Associates, Inc.) (BB&K 2018)
23152.06000\30453088.2 Exhibit “A”-4
the Immigration Reform and Control Act of 1986, as may be amended f rom 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 c ommitted 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 Subconsultants . 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 "portable 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 agency for violations of applicable
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Attachment: Exhibit B -Minagar Inc. Professional Service Agreement (3957 : Contract Award - Minagar and Associates, Inc.) (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 applic able 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 -Minagar Inc. Professional Service Agreement (3957 : Contract Award - Minagar and Associates, Inc.) (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 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 Agreement 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 Consultant or the City may withhold amounts sufficient to pay premium 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 -Minagar Inc. Professional Service Agreement (3957 : Contract Award - Minagar and Associates, Inc.) (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 subc onsultants’ policies of Commercial General Liability using ISO form 20 38, or coverage at least as broad.
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Attachment: Exhibit B -Minagar Inc. Professional Service Agreement (3957 : Contract Award - Minagar and Associates, Inc.) (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 Consultant’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 various 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. Cons ultant 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 as signed 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 associ ated 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 Twenty Three Thousand Fifty One Dollars and No Cents ($23,051.00) 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 i nitial 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, Extra Wor k 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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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 principal 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 suc h 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 maint ain 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 -Minagar Inc. Professional Service Agreement (3957 : Contract Award - Minagar and Associates, Inc.) (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. Consultant 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 is 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: Minagar and Associates, Inc.
23282 Mill Creek Drive, Suite 120
Laguna Hills, CA 92653
Attn: Fred Minagar, 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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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 right 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 ma ke 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 this 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, direct ors, 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 liable, 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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purposes other than the performance 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 informat ion ("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 c ooperate 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 o f 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 Services, 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 the 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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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 requirements 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 r ight 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 do 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 -Minagar Inc. Professional Service Agreement (3957 : Contract Award - Minagar and Associates, Inc.) (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 Economi c 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 -Minagar Inc. Professional Service Agreement (3957 : Contract Award - Minagar and Associates, Inc.) (BB&K 2018)
23152.06000\30453088.2 Exhibit “A”-16
SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF COLTON
AND MINAGAR AND ASSOCIATES, INC.
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the 22nd day of February 2023.
CITY OF COLTON Minagar and Associates, 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 -Minagar Inc. Professional Service Agreement (3957 : Contract Award - Minagar and Associates, Inc.) (BB&K 2018)
23152.06000\30453088.2 Exhibit “A”-17
EXHIBIT "A"
SCOPE OF WORK
(Per work plan and technical approach submitted by Minagar and Associates, Inc., proposal dated 1/19/23)
Phase I – Preliminary Engineering Services
Task 1 – Record Data
Prior to the field visit and survey, Minagar & Associates, Inc. will collect the appropriate resources and data to become familiarized with the traffic and roadway conditions of Colton, particularly, the two subject intersections.
Task 2 – Field Visit and Survey
Minagar & Associates, Inc. shall conduct traffic counts as necessary, such as Turning Movement Counts (TMCs) or Average Daily Traffic (ADT) Counts, and also visit and inspect the two project intersections. Inventories of surface utilities such as water valves, manholes, and utility boxes shall also be recorded.
Minagar & Associates, Inc. shall also identify any damaged or missing roadway features such as sidewalks, curbs, or ramps. Those that require installation, replacement, or upgrading will be noted.
An ADA design level topographic survey will be provided within the project area . Only areas for proposed ADA improvement will have elevations, the remaining area will only contain horizontal data. Location and type of utilities will be surveyed.
Phase I – Preliminary Engineering Services
The work plan for the development and implementation of the project are below and discussed in detailed on Mina gar proposal dated Jan. 19, 2023:
1. Pre-Design Research
2. Coordination/Meetings
3. Plans, Specifications, and Estimate (PS&E)
4. Design Process – Intermediate Reviews
5. Final PS&E (100% Complete)
6. Bid supports
Upon the completion of the two traffic signal design plans, we shall prepare the timing charts for both intersections. The first for the new traffic signal plan for the intersection of Valley Blvd at 7th Street and the second for the traffic signal modification and upgrade of La Cadena/Bordwell Avenue/Laurel Avenue.
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Attachment: Exhibit B -Minagar Inc. Professional Service Agreement (3957 : Contract Award - Minagar and Associates, Inc.) (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 -Minagar Inc. Professional Service Agreement (3957 : Contract Award - Minagar and Associates, Inc.) (BB&K 2018)
23152.06000\30453088.2 Exhibit “B”-1
EXHIBIT "B"
SCHEDULE OF SERVICES
April 1, 2023 to June 30, 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 -Minagar Inc. Professional Service Agreement (3957 : Contract Award - Minagar and Associates, Inc.) (BB&K 2018)
23152.06000\30453088.2 Exhibit “C”-1
EXHIBIT "C"
COMPENSATION
The total compensation is Not to Exceed Amount of $23,051.00 with the following breakdown:
Task No. Task Description Proposed Fee
A Field Survey, Inspection and Inventory $ 10,670.00
B Documents Research $ 3,306.00
C Prepare Plans, Specifications, and Estimates
(PS&E), bid assistance
$ 7,950.00
D Prepare Timing Charts $ 1,125.00
Total $23,051.00
HOURLY RATE SCHEDULE
P
roject Manager ...................................................... $224.92 P
roject Engineer ...................................................... $224.92 S
enior Engineer ....................................................... $167.24 F
ield Manager .......................................................... $127.36 E
ngineering Assistant ................................................ $75.26
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Attachment: Exhibit B -Minagar Inc. Professional Service Agreement (3957 : Contract Award - Minagar and Associates, Inc.)
ITEM NO. 7
STAFF REPORT
DATE: FEBRUARY 21, 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 CONTRACT AWARD TO NINYO & MOORE FOR PHASE
II ENVIRONMENTAL WORK ON THE CITY MAINTENANCE
YARD PROJECT.
RECOMMENDED ACTION
Staff recommends that the City Council take the following action:
Award a contract for Phase II Environmental Investigation for the City’s Ma intenance Yard to Ninyo & Moore for $89,500; and, authorize the City Manager to execute all contracts/documents necessary to proceed.
BACKGROUND
The City of Colton has been working on a preconstruction design for a future Zero Net Energy (ZNE) Public Works and Utilities building in the current location of 160 S. 10 th Street. During the initial Geotechnical request for proposals (RFP) , a land covenant/deed restriction was discovered on Assessor Parcel Number 163-041-38 in the City’s corporate yard.
The City applied for funding to mitigate the land use covenant. On July 1 2022, The Department of Toxic Substance Control (DTSC) contacted the City of Colton as the selected inaugural grantee for the Equitable Community Revitalization Grant (ECRG) in the amount of $280,000.
City Council accepted the grant award September 6, 2022 with approval of Resolution No. R -98-
22. Phase I Environmental has been completed for this location. The grant fund award will pay for Phase II Environmental Site Assessment. Upon completion, this will make the City eligible for future Environmental Cleanup grants if required after the Phase II investigation. The result of 7 Packet Pg. 406
Staff Report to the Mayor and City Council
Contract Award - Ninyo & Moore
February 21, 2023
Phase II can either have the covenant removed or mediate the issue to have future greenspace usability as the project proceeds.
ISSUES/ANALYSIS
On December 8, 2022, in accordance wi th Colton Municipal Code 3.08.100 , staff issued a Request for Proposals (RFP) for Phase II Environmental work. The RFP and related documents were distributed through BidNet, the City’s online bid system and w ent out to 1 26 professional landscape companies. The bid due date was 5:00 p.m., on January, 19, 2023 and was opened publicly at the City of Colton Public Works Utility Services Department, 160 S. 10 th Street Colton, CA 92324. Five bids were received for the project. After reviewing all documents and required completed forms , staff recommends Ninyo and Moore as the most responsive responsible bidder. A-Tech Consulting was the lowest bidder but did not provide a notarized Appendix E, Non Collusion Affida vit. Staff is requesting that City Council reject the A-Tech Consulting bid and proceed to award the contract to Ninyo & Moore, the lowest responsive and responsible bidder in accordance with Colton Municipal Code Sections 3.08.020 and
3.080.050(G).
Phase II Environmental Public Works Yard Bid Analysis
No. Company Bid Amount
1 A-Tech Consulting $ 84,746.80 2 Ninyo & Moore $ 89,500.00 3 Alisto Engineering Group $ 98,205.00 4 Terracon $ 144,000.00 5 ENGEO $ 197,600.00
FISCAL IMPACTS
Sufficient appropriations are available in the adopted FY 2022-23 budget in Electric Utility Fund Capital Improvement Expenditure Account Number 520-8000-8001-3890-0107-000.
ALTERNATIVES
1. Provide alternative direction to staff.
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ITEM NO. 8
STAFF REPORT
DATE: FEBRUARY 21, 2023
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: MARK TOMICH, DIRECTOR
SUBJECT: APPROVE CONTRACT FOR ENVIRONMENTAL SERVICES WITH
RINCON CONSULTANTS AND REIMBURSEMENT AGREEMENT
WITH APPLICANT FOR CALWEST YARDS, LLC ZONING TEXT
AMENDMENT, CONDITIONAL USE PERMIT AND
ARCHITECTURAL AND SITE PLAN REVIEW APPLICATION.
RECOMMENDED ACTION
Staff recommends that the City Council take the following action:
1. Authorize the City Manager to execute a Professional Services Agreement (PSA) with Rincon Consultants, Inc. for $134,306 to provide environm ental services on behalf of Greg Johnson and Patrick O’Brien (DAP-001-777 - Calwest Yards, LLC), as per the terms of the PSA, including exhibits attached thereto.
2. Approve Reimbursement Agreement with Calwest Yar ds, LLC (Greg Johnson and Patrick O’Brien – Collectively, “Calwest”) to fund environmental consulting and associated legal services as needed, for processing entitlements for DAP-001-777.
BACKGROUND
The City received a planning application from a Calwest representative for a Zoning Text Amendment, Conditional Use Permit and Architectural and Site Plan Review to allow the storage of truck trailers, truck chassis and truc k & trailer parking on property located in the M -2 (Heavy Industrial) Zone. Union Pacific Railroad Company owns the property. Calwest, a private company, leased the property from Union Pacific Railroad Company to conduct the truck and trailer and truck chassis storage use on property measuring approximately 11 acres.
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Staff Report to the Mayor and City Council
Contract Award & Reimbursement Agreement - Rincon Environmental Services / Calwest Yards February 21, 2023
As the lead agency for carrying out and 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, the environmental consultant, and the applicant have agreed to the scope of this proposal.
ISSUES/ANALYSIS
Staff is recommending that one of the City’s pre -qualified environmental consultants, Rincon Consultants, Inc., be selected to continue preparation of the Initial Study. All technical analyses associated with the Initial Study will b e prepared directly by the consultant and subconsultants (Traffic/VMT). The consultant’s services will be overseen directly by staff to ensure that content, quality, and timeframe commitments are met.
Staff is also requesting approval of a corresponding R eimbursement Agreement with the applicant to ensure the applicant funds of all consultant services, including legal and staff services associated with the project.
The total cost for the environmental services to prepare the Initial Study is $ 154,451.90 (including 15% Planning Administrative fee : 134,306 x .15 = 20,145.90) . Pursuant to the attached reimbursement agreement, the applicant is required to submit the funding required prior to initiation of the contracted services.
FISCAL IMPACTS
The applic ant will pay the full amount of the $154,451.90, which includes the 15% Planning Administrative fee or $20,145.90. As the application consists of legislative amendment ( Zoning Text Amendment), all staff time spent on processing the applications will be charged “at cost” to the applicant. Revenue from the Reimbursement Agreement will be deposited in General Fund Revenue Account Number 100-6799-000. Sufficient appropriations for the Initial Study contract are available in the adopted FY2022 -23 budget in General Fund Planning Professional Services Account Number 100-6300-6301-2357-0000-000.
ALTERNATIVES
Provide alternative direction to staff.
ATTACHMENT
1. Attachment 1._PSA Rincon_DAP-001-777
2. Attachment 2_Reimbursement Agreement DAP-001-777
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CITY OF COLTON
PROFESSIONAL SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered into this ___day of _______, 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 Rincon Consults, Inc., with its principal place of business at 250 East 1st Street, Suite 1400, Los Angeles, California 90012 ("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 Environmental Document Preparation 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 environmental consulting services for the Zoning Text Amendment, Conditional Use Permit and Architectural and Site Plan Review for 205 Mission Street (APNs: 0163 -041-46 and 0276 -121-14) (“Project”) (DAP-001-777), David Mlynarski , applicant representing Calwest Yards, LLC, 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 environmental consulting services necessary for the Proje ct ("Services"). The Services are more particularly described in Exhibit "A" attached hereto 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 February 21, 2023 to February 28, 2024, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than six months/ Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.
3.2 Responsibilities of Consultant.
3.2.1 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant o r under its supervision. Consultant will determine the 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
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Attachment: Attachment 1._PSA Rincon_DAP-001-777 (3966 : Contract Award & Reimbursement Agreement - Rincon Environmental Services / 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, disability 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 prov ide 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: Kari Cano, Project Manager.
3.2.5 City's Representative. The City hereby designates Mark Tomich, Development Services Director , or his/her designee, to act a s 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 Sc ope 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 designates Kari Cano , 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 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
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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 calling 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 subconsultants 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 la w 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. 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 authorizatio n 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
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Attachment: Attachment 1._PSA Rincon_DAP-001-777 (3966 : Contract Award & Reimbursement Agreement - Rincon Environmental Services / 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 Subconsultants . To the sa me 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 c omply 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 adverti sing, 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 "portable equipment", wh ich 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 agency for violations of applicable 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 fo r 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 equi pment 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
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Attachment: Attachment 1._PSA Rincon_DAP-001-777 (3966 : Contract Award & Reimbursement Agreement - Rincon Environmental Services / 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 s hall 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 exclusi on 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 limits of $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 in surance 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 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 Agreement 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 Consultant or the City may withhold amounts sufficient to pay pr emium 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:
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Attachment: Attachment 1._PSA Rincon_DAP-001-777 (3966 : Contract Award & Reimbursement Agreement - Rincon Environmental Services / (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 f urnished 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 b enefit 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 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(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 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 insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, void ed, 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 requi red 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 Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss.
Consultant hereby waives its own right of recovery against City, its officials, officers, employees, agents,
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Attachment: Attachment 1._PSA Rincon_DAP-001-777 (3966 : Contract Award & Reimbursement Agreement - Rincon Environmental Services / and volunteers, or any other additional ins ureds, 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.
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 C ity 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 copie s of all required insurance policies, at any time.
3.2.11.10 Reporting of Claims . Consultant shall report to the City, in addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in connection with the Services under this Agreement.
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 one hundred thirty four thousand three hundred and six dollars ($134,306.00) 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 f or Expenses . Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit "C" of this Agreement.
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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, Extra 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 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 principal 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 Con sultant shall therefore comply with such Labor Code sections to the fulle st 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 sh all 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 per formance 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.
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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 reco rds 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.
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 Consultan t shall be entitled to no further compensation. Consultant 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 Doc uments 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 is 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: Rincon Consulting, Inc.
Attn: Charles Holcombe, Supervising Environmental Planner 250 East 1st Street
Los Angeles, CA 90012
City: City of Colton
650 North La Cadena Drive
Colton, CA 92324
ATTN: Mark Tomich, Development Services 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.
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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 dra wings 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 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 born e 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 right 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 fifte en (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 prepa red 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 purp oses of this 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 neglig ent 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 liable, 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
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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, tel evision 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, includin g 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 Services, 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 in surance 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 the 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 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.
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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 requirements 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 refere nce only, and do 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 othe r Party any contractual rights by custom, estoppel, or otherwise.
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 Consultan t, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay
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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 sign ed 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.
3.7 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 st ipulated in this Agreement.
[SIGNATURES ON NEXT PAGE]
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SIGNATURE PAGE TO
PROFESSIONAL SERVICES AGREEMENT BY AND
BETWEEN THE CITY OF COLTON AND RINCON
CONSULTANTS, INC. (DAP-001-777)
CITY OF COLTON RINCON CONSULTANTS, INC.
By: ____________________________ By:
Wiliam R. Smith Rincon Consulting, Inc.
City Manager
Attest:
____ _________________________
Carolina R. Padilla
City Clerk
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SCOPE OF SERVICES
PROJECT UNDERSTANDING
The project is located in at 205 Mission Street (APN:0163 -041-46 & 01276-121-14), and is located in an area designated as M-2 (Heavy Industrial) Zone. The proposed chassis/container storage use is not listed as a permitted use in the Zoning Code. The trailer storage facility operation requires a Conditional Use Permit (CUP). Architectural and Site Plan Review is also required for the overall project layout of the temporary trailer storage, assembly (placing trailers on chassis), providing tractor parking areas for Walmart or other outside trucking companies.
It is our understanding that the project is to consist of a chassis/container and trailer storage facility operations on the approximately 11-acre site
Scope of Services
The following key documents will be required to address environmental requirements under the California Environmental Quality Act for the project:
Initial Study
Air Quality/Greenhouse Gases Analysis
Health Risk Assessment
Energy Analysis
Biological Resource Assessment
Phase I Cultural Resource Assessment
Noise and Vibration Analysis
Traffic/Vehicle Miles Traveled
Rincon’s work scope involves the preparation of an Initial Study (IS), which we believe is the approp riate document under CEQA. However, if any of our analyses determine that the project would or may have a significant and unavoidable environmental impact, we will contact you immediately to determine an
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Attachment: Attachment 1._PSA Rincon_DAP-001-777 (3966 : Contract Award & Reimbursement Agreement - Rincon Environmental Services / appropriate course of action. This could result in t he preparation of an Environmental Impact Report focused on just those identified impacts.
We assume that the remaining subjects can be addressed in the IS via quantitative and qualitative evaluation, research, field investigation, existing documentation, and direct analysis, and Applicant provided technical reports.
Task 1 Project Kick-off
The project kick-off meeting will convene the client, City staff, and the Rincon team, virtually, to introduce the project, clarify the scope of work/process, establish preferred methods of communication, and refine the project schedule. Prior to the kick -off meeting, Rincon will submit a list of data and document needs for the project; following the meeting, Rincon will perform an initial review of all materials.
Task 2 Administrative Draft Initial Study
Rincon will prepare an Administrative Draft IS using the CEQA Appendix G environmental checklist. The Administrative Draft IS will address all issue areas in the most recent CEQA Guidelines environmental checklist. To the maximum extent feasible, existing technical studies will be used and may be supplemented with additional technical studies or memorandums. The focus of the analyses will be on whether the project would cause any new significant impacts beyond those previously identified that cannot be mitigated through implementation of uniformly applica ble City development policies or standards. Wherever possible, impacts will be quantified and compared to quantitative significance thresholds. Rincon will submit one electronic copy of the Administrative Draft IS in MS Word and one compiled PDF including all appendices. Rincon estimates three weeks (15 working days) for City review in one set of consolidated comments in a Word document using Track Changes.
Approach to Environmental Topics
Our general approach to analyzing the topics in the current CEQA ch ecklist is described below. As appropriate for each topic, applicable mitigation measures will be identified.
Topic Description
Aesthetics, Light, and
Glare
Long-term visual impacts (i.e., visual character and public views from on- site and adjacent areas) resulting from the project will be reviewed based on a visual survey of the site and surrounding uses. The analysis will consider light and glare impacts of proposed structures and vehicle headlights. Other information will be incorporated into exhibits and discussion, if provided, such as building elevations, or artist renderings.
Agriculture and
Forestry
The IS will confirm that there would be no effect on farmland or forestland and that the project would not convert such lands to another use.
Air Quality The analysis will include qualitative and quantitative evaluation of air quality emissions resulting from project construction and subsequent operation. Analysis will be based on the air quality and GHG analysis
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described in Subtask 2.1, below.
Biological Resources This section will discuss existing biological resources on the project site and consider impacts to species, habitats, wetlands, and wildlife corridors. The discussion will include a summary of General Plan, General Plan EIR, and field survey results (Subtask 2.3, below).
Cultural Resources This section will discuss existing cultural resources on the project site and consider impacts to historic and archaeological resources and human remains. The discussion will include a summary of General Plan, General Plan EIR, and records search findings (Subtask 2.4, below).
Energy The analysis will include qualitative and quantitative evaluation of energy consumption resulting from project construction and operation derived from the air quality and GHG analysis (Subtask 2.2).
Geology and Soils Based on readily available sources (General Plan and General Plan Update EIR, State resource maps, etc.), this analysis will identify existing regional and site-specific geology and soils constraints. As necessary, the analysis will identify erosion control criteria and grading requirements to achieve consistency with the City’s geologic and grading standards and policies.
Greenhouse Gas The analysis will include qualitative and quantitative evaluation of GHG emissions resulting from project construction and subsequent operation. The analysis will be based on the air quality and GHG analyses (Subtask 2.1).
Hazards and
Hazardous Materials
Hazard conditions will be examined, based upon desktop research, including the City’s General Plan and General Plan EIR, State and local hazard maps, and online databases (Cortese List). Open Leaking Underground Storage Tank (LUST) sites have been identified adjacent to the project site; therefore, the analysis will include research into clean-up history and appropriate mitigation measures to reduce potential impacts.
Hydrology and Water
Quality Existing hydrology/drainage data for the project area will be reviewed to identify any existing localized flooding or drainage problems. The review will consider changes in absorption rates, drainage patterns, storm drain improvements, and downstream effects. The potential for the project to violate water quality standards or waste discharge requirements will also be analyzed. Standard Urban Stormwater Mitigation Plan (SUSMP) and National Pollutant Discharge Elimination System (NPDES) requirements will be referenced and incorporated as appropriate. Water supply discussion will be base d on information provided by the Applicant or water use estimates developed by CalEEMod pursuant to Subtask 2.1.
Land Use & Planning This section will analyze the project and applicable environmental planning policies and ordinances, including the City’s General Plan and Zoning Code. Potential compatibility conflicts with adjacent uses will also be analyzed.
Mineral Resources The IS will confirm that there would be no effect on mineral resources and that the project would not include mining activities.
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Noise The analysis will include qualitative and quantitative evaluation of temporary construction and long-term operational noise generated by the project. The analysis will be based on the noise and vibration analysis, as described in Subtask 2.5
Population/Housing The section will evaluate the project’s contribution and related impact to population and housing.
Public Services The project’s environmental effects related to the provision of public services, including fire, law enforcement, educational, and recreational services, will be evaluated. Data sources will include readily available documents, such as the City’s General Plan and General Plan EIR, and contact with local agencies.
Recreation The analysis will address direct impacts to local recreation facilities as well as indirect impacts associated with increased demand for recreational facilities, with an emphasis on the facilities being provided by this project.
Data sources will include the City’s General Plan and General Plan EIR.
Transportation/Traffic The analysis will include qualitative and quantitative evaluation of traffic resulting from project operation based on the Traffic Impact Analysis provided by the project applicant and the Vehicle Miles Travelled (VMT) Impact Analysis to be prepared by Urban Crossroads. The analysis will discuss trip generation and qualitatively discuss impacts to the local/regional cir culation system, VMT, alternative transportation modes, and traffic hazards.
Tribal Cultural
Resources The section will evaluate the project’s impact to Tribal Cultural Resources and incorporate any relevant findings from the cultural resources records search. Rincon will assist the City with Native American consultation in accordance with Assembly Bill (AB) 52. We assume that the City will provide a list of tribes who have requested AB 52 notification from the City. Rincon will draft letters and maps for Native American tribal contacts. The results of the City’s consultation with tribes will be summarized in the IS-MND.
Utilities and Service
Systems Impacts to existing infrastructure, including water, wastewater, and solid waste facilities will be evaluated. Water demand and wastewater and solid waste generation will be quantified using information provided in the air quality and GHG modeling (Subtask 1.1) and compared to current and future system capacity. This section will also rely on information from utility providers.
Wildfire The IS will indicate the distance to the nearest wildfire zone and discuss potential impacts related to wildland fire.
Technical Tasks
Upon authorization of the scope of services, Rincon and the City will discuss the availability of any other existing or anticipated project -specific technical studies, if applicable, that may be prepared by the Applicant.
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Attachment: Attachment 1._PSA Rincon_DAP-001-777 (3966 : Contract Award & Reimbursement Agreement - Rincon Environmental Services / The scope of services herein includes the following additional technical tasks to supplement any existing technical studies, to establish and/or confirm existing baseline project site conditions, and to identify potential project impacts.
Subtask 2.1 Air Quality and Greenhouse Gas Analysis
The Air Quality and GHG Emissions Study will consider both temporary construction and long -term operational emissions. The analysis will include the following tasks:
Evaluate the existing conditions of the project study area; this will include gathering background air quality data, local wind patterns in the study area and identifying applicable rules, plans and thresholds of significance.
Identify construction -related air quality impacts from associated construction activities at the project site which may include demolition, import/export of fill dirt, mass grading, building construction, paving, concrete pouring, etc.
Evaluate operational emissions for the proposed project, based upon trip generation projections provided as part of the traffic study. In addition, emissions from other operational sources such as heaters, air conditioners, water heaters, consumer products, cargo handling equipment (CHE), and lawn care equipment will also be considered.
A screening-level carbon monoxide (CO) Hotspot analysis of future conditions at key intersections located in the project study area will be prepared. It is anticipated that a qualitative discussion on CO Hotspot potential and rationale as to why more detailed modeling of CO Hotspot analysis is not required.
Perform Construction Localized Significance Threshold (LST) analysis as recommended by the South Coast Air Quality Management District (SCAQMD) for construction and operational activity.
Evaluate potential odor impacts resulting from the proposed project. Identify applicable mitigation measures and regulatory requirements that the project must comply with to minimize odors. For purposes of this evaluation a qualitative assessment of odors and odor controls is expected. Qualitatively discuss cumulative impacts within the context of planned and foreseeable projects for short-term construction and long-term operational activity. A “list” approach per CEQA will be utilized when discussing cumulative impacts using the list of cumulative projects identified in the traffic report. Since the basin is in nonattainment the determination of significance will likely be based on whether or not the Project results in a substantial incremental increase. Identify and recommended mitigation measures that are feasible to implement and that will reduce any potential impacts to the maximum extent possible. Prepare an air quality report that incorporates the findings and all supporting calculations.
Air Quality Response to Comments
Revise the air quality study report based on comments provided by the Client and Lead agency for up to 1 review cycle.
The results of the air quality and GHG analysis will be summarized in the respective sections of the IS. A standalone technical report is being proposed. The technical report will be appended to the IS, as appropriate.
Greenhouse Gas
Evaluate applicable federal and state regulatory requirements (i.e., AB32, SCAQMD, CARB
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Evaluate operational GHG emissions for the proposed project which will include emissions from mobile sources, heaters, air conditioners, water heaters, consumer products, cargo handling equipment (CHE), and lawn care equipment will also be considered. Evaluate project significance based on an applicable Climate Ac tion Plan or direction provided by the Project CEQA preparer and/or the lead agency.
Identify and recommend mitigation measures that are feasible to implement and that will reduce any potential impacts to the maximum extent possible. Prepare a greenhouse g as report that incorporates the findings and all supporting calculations.
Greenhouse Gas Response To Comments
Revise the greenhouse gas study report based on comments provided by the Client and Lead agency for up to 1 review cycle.
Subtask 2.2 Energy Analysis
To address potential energy issues, Rincon will estimate project related energy consumption and prepare an analysis. The energy analysis will include the following tasks:
Characterize the state of the energy resources and relevant federal, state, and local standards and regulations. Existing statewide or regional energy resources will be summarized. Sources of information will include energy utility providers, the California Energy Commission, the U.S.
Department of Energy, and energy trade and research organizations. Calculate construction fuel consumption. The construction data used for air quality calculations will be used to estimate the fuel consumption associated with project construction. Calculate energy demand associated with project operations (i.e., post-construction) using project data on energy demand based on the greenhouse gas analysis prepared for the project.
Vehicle fuel consumption will be based on average fuel consumption per vehicle identified in the current California Air Resources Board’s Emission Factor Model (EMFAC 2014). Evaluate the potential for long-term operational energy demands, combined with construction energy demands, to comprise a significant increase in energy demand over that projected for the City and region. The quantitative estimates of construction and operational energy needs will be used to assess whether the project’s energy use would be considered wasteful, inefficient, or an unnecessary consumption of energy. Should significant impacts be identified, appropriate mitigation measures to reduce energy demand will be evaluated.
The energy analysis will be included in the IS and a separate technical report will not be prepared. All energy calculations will be included as an appendix to the IS.
Subtask 2.3 Biological Resources Survey and Analysis
Because the project site is largely disturbed, and is in a fully urbanized area; however, the natural habitat value of the site and its immediate surroundings are unknown expected to be limited. Therefore, Rincon will conduct a field reconnaissance survey to assess the project site for it’s potential to support sensitive
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Additionally, Rincon will conduct a literature review of relevant documents that have been prepared for the site, including a database search of the California Department of Fish and Wildlife California Natural Diversity Database and the United States Fish and Wildlife Servi ce Information for Planning and Consultation (IPaC) Online System. The findings on the field reconnaissance and literature review will be incorporated directly into the IS. The IS will include an appendix with representative photographs displaying the gene ral condition of the project site and existing biological resources, as well as the database search results. If significant biological resources are identified, Rincon will notify the Client prior to proceeding on the IS.
Assumptions
• The Client will confirm the availability of any documentation pertaining to Biological Resources for the project site to determine the potential of biological resources that may have been and/or may be present on the project site, and to confirm proper handling of such resources during previously demolition activities have occurred.
• Site access will be granted prior to the field reconnaissance survey. • This scope does not include focused species surveys.
• The methods and results of the Biological Resources Survey will be documented directly in the IS; therefore, a stand-alone biology report is not included. • The IS will include an appendix with representative photographs displaying the general condition of the project site and existing biological resources, as well as the database search results.
A Rincon biologist will conduct a field reconnaissance survey to assess the project site for biological resources, establish existing project site -specific conditions to supplement the findings of the IS, and determine if any exist ing resources onsite are considered to be sensitive. Findings will be directly incorporated into the IS.
Subtask 2.4 Cultural Resources Analysis
This scope of work and cost assume no cultural or paleontological resources will be found during the cultural and paleontological resources study. Should cultural and/or paleontological resources be discovered, additional work may be required, and a scope and budget augmentation will be provided to complete a full cultural resources technical report and/or a paleo ntological resources technical report to addressing the project finds.
In addition to the archaeological inventory records and reports, an examination will be made of Archaeological Determinations of Eligibility (DOE) listings, historic maps, and the OHP -prepared Built Environment Resource Directory (BERD) for communities in the project site. The BERD can contain listings in the NRHP, California Register of Historical Resources (CRHR), State Historical Landmarks, and California Points of Historical Interest . In addition, listings for designated local resources will be reviewed. Rincon assume SCCIC direct expenses will not exceed $600 and due to the Covid-19 Pandemic, the results will be received within 6 to 12 weeks.
Native American Outreach
Rincon will contact the California Native American Heritage Commission (NAHC) for a review of their Sacred Lands File (SLF). The NAHC will determine if any NAHC -listed Native American sacred lands are located within or adjacent to the project site. The NAHC will also prov ide a list of local Native American individuals and groups who may have knowledge of, or concerns about, Native American resources in the area. Rincon will provide this list to the lead agency. This task does not constitute
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Attachment: Attachment 1._PSA Rincon_DAP-001-777 (3966 : Contract Award & Reimbursement Agreement - Rincon Environmental Services / government-to- government consultation under Assembly Bill 52 (AB 52). Rincon assumes that any AB 52 consultations needed will be completed by the lead agency.
Cultural Resources Survey
Upon receipt of the records search results, Rincon will conduct a cultural resources survey of the project site. For the purposes of this proposal and cost estimate, Rincon assumes that no cultural resources will be encountered that require recordation or updates. Should any cultural resources be identified within the records search or during the survey, a change order for formal recordation or record updating would be requested. No testing or excavation will be conducted, nor will any artifacts, samples, or specimens be collected during the survey. Rincon assumes that the survey may be completed in one (1) 8-hour workday by one (1) archaeologist, including travel time.
Negative Findings Letter Report
Rincon will prepare a short letter format report that will include a project description, summary of background research, survey methods, management recommendations, and figures. An electronic copy (PDF) of the draft report will be submitted to the lead agency for review and approval. Rincon assumes that one round of minor comments may be requested by the lead agency. The report will be finalizing following completion of the review cycle. Electronic copies will be provided to the lead agency and to the SCCIC. This scope of work and cost estimate assumes no hardcopies will be produced by Rincon.
Paleontological Resources Records Search and Desktop Review Upon authorization to proceed, Rincon will request a paleontological resources records search through the Natural History Museum of Los Angeles County (LACM) to identify the potential for fossil-sensitive formations to be impacted by the project. Rincon w ill also review geologic and soils maps, and any available geotechnical studies. The primary purpose of the records search is to identify any previous recorded paleontological resources within or adjacent to the project site, that have been discovered in similar sediments that are found within the project site, and to determine the overall paleontological sensitivity of the project site. Rincon assume paleontological resources records search direct expenses will not exceed $300 and the results will be received within 2 to 6 weeks.
Rincon will incorporate the information within the finalized Negative Findings Letter Report and the Paleontological Technical Report into the appropriate section of the Initial Study. This information will be modified to match the format of the overall CEQA document. Rincon assumes that one round of minor comments may be requested by the lead agency.
Subtask 2.5 Noise and Vibration Analysis
The Noise and Vibration Technical Study will be conducted in accordance with City of Colton guidelines, standards, and ordinances. The report will consider both temporary construction and long -term operational noise from the project. The noise analysis will include the following tasks:
• Identify and review applicable, Federal, State and Local Noise criteria. This includes the City of Colton Noise Element and Municipal Code to determine appropriate noise standards and significance criteria.
• Collect long-term 24-hour ambient noise level measurements in the Project study area at up to six locations to quantify the existing noise environment. All noise level measurement equipment will satisfy American National Standards Institute (ANSI)
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Attachment: Attachment 1._PSA Rincon_DAP-001-777 (3966 : Contract Award & Reimbursement Agreement - Rincon Environmental Services / standard specifications for sound level meters ANSI S1.4-2014/IEC 61672-1:2013. The noise level measurements will be collected consistent with the criteria outlined in the Municipal Code. Briefly describe the ambient noise conditions in the Project study area. • Calculate the off -site traffic noise contour boundaries for the baseline (existing) conditions, opening year an d future conditions on up to twenty study area roadway segments. Calculate the future Project contributions by comparing the "with" and "without" Project noise contours on the study area roadways for the proposed project.
Determine if the Project will crea te a significant noise impact on any analyzed roadway segments.
• Collect reference noise level measurements to represent the expected stationary source impacts associated with the proposed Mission Road Storage Project land uses. • Evaluate the potential stationary source noise impacts associated with the operation of the proposed Project and recommend measures to reduce the potential noise impacts to any nearby noise-sensitive uses.
• Provide a detailed construction noise and vibration analysis for each stage of construction using reference noise level measurements of similar activities. • Summarize the results of the study in a noise impact analysis report addressing the potential impacts associated with the Project and provide the appropriate measures to reduce the impacts to levels of less than significant.
Noise Analysis Response To Comments
• Revise the Noise study report based on comments provided by the Client and Lead agency for up to 1 review cycle.
The results of the noise and vibration analysis wil l be summarized in the respective section of the IS. A standalone technical report is proposed. Model outputs and calculations will be appended to the IS, as appropriate.
Subtask 2.6: Vehicles Miles Traveled (VMT)
A VMT Technical Study will be conducted for the project by Urban Crossroads as a subconsultant to Rincon and will include the following:
• Review applicable VMT screening thresholds to determine if any apply to the Project. • Make adjustments to socio-economic data (SED) within a separate Traffic Analysis Zone (TAZ) to represent the project site to reflect the Project’s specific land use in the SBTAM.
• Run base year SBTAM model inclusive of SED changes.
• Run cumulative year SBTAM model inclusive of SED changes. • Calculate the Project generated VMT per employee based on the base year and cumulative year model runs.
• Compare the Project VMT per employee with the baseline average VMT per employee for the City of Colton and apply specific thresholds. • If impacts to VMT are found to be potentially significant, then where applicable, identify Transportation Demand Measures (TDM) to reduce VMT. • Summarize the results of the VMT analysis in a letter report.
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Attachment: Attachment 1._PSA Rincon_DAP-001-777 (3966 : Contract Award & Reimbursement Agreement - Rincon Environmental Services /
VMT Response To Comments
• Revise the draft report based on comments provided by the Lead agency for up to 1 review cycle.
• Assist the CEQA preparer with preparation of response to comments on the draft CEQA document.
Trip Generation Assessment
• Conduct driveway counts at up to 4 existing driveways over 3 consecutive days. Client to provide existing square footage information. Count data collected will be used to • determine trip generation associated with existing uses and will be used to develop a site- specific trip generation rate on a per thousand square foot basis. • Calculate project-related vehicle trips based on the trip generation rates developed as part of this Task. Raw vehicle trips will then be converted to passenger car equivalent (PCE) values based on the PCE factors commonly used in City to perform capacity and level of service analysis.
• Determine whether a traffic study is required in accordance with the City of Colton traffic study guidelines.
• Summarize the results in a letter report/scoping document for submittal to the City.
VMT Response To Comments
• Revise the draft report based on comments provided by the Client and Lead agency for up to 1 review cycle.
Subtask 2.7: Health Risk Assessment
In light of recent California Air Resources Board (CARB) comment letters on other warehouse/industrial project CEQA Notice of Preparations (NOPs), the following task is recommended to address CARB’s request for preparation of construction -level health risk assessment. Construction of the proposed project is expected to utilize heavy duty construction equipment the primary Toxic Air Contaminant (TAC) that will be generated is diesel particulate matter (DPM). Accordingly, a health risk assessment will be prepared.
It is anticipated that the AERMOD modeling program will be utilized. The construction health risk assessment will evaluate the potential health risks from on-site construction activity.
Since the proposed project is expected to attract heavy-duty diesel trucking the primary TAC that will be generated is DPM associated with warehousing operations. An operational HRA is proposed to be prepared for the project.
The construction and operational health risk assessment include source characterization, identifying contaminant release characteristics, estimation of ambient air concentrations, and risk calculation. It is anticipated that the United States Environmental Protection Agency’s (US EPA’s), Air Dispersion Model (AERMOD) will be utilized for modeling purposes along with sequentially processed meteorological data to represent local weather conditions. Prepare a HRA report documenting the results of the study. The report will summarize the results of the previous work tasks and define appropriate and feasible mitigation packages to address any significant impacts.
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Revise the HRA report based on comments provided by the Client and Lead agency for up to 1 review cycle.
TASK 3 SCREENCHECK AND PUBLIC IS-MND AND NOTICE OF INTENT The Administrative Draft IS-MND will be revised based on the comments received from City staff and incorporated into a Screencheck IS -MND prepared ready for public and agency review. Any final revisions from City review will be made based on a single set of consolidated comments provided in an editable format (MS Word). It is assumed only minor edits will be received on the Screencheck IS -MND not requiring any additi onal analysis. Rincon will incorporate those edits into a publishing-ready IS-MND.
Rincon will work with the City to develop the Notice of Intent (NOI) to Adopt a Mitigated Negative Declaration. The NOI will include a link to the location on the City’s web site where the IS-MND can be reviewed on -line, and the locations where hard copies (optional) of the IS - MND can be reviewed in- person.
Rincon will submit the IS-MND to the State Clearinghouse (SCH) for a 30-day public review.
Submittal will include upload ing the IS -MND, NOI, an SCH Summary Form, and an SCH Notice of Completion to the SCH’s CEQAnet web portal, and it is assumed that no CDs or hard copies will be required. Note that a 30- day public review period will be required. The City will be responsible for posting the NOI and the IS on the City’s website and with the County Clerk, publishing the NOI in the newspaper, and addressing any direct mailing of notices required by the City.
TASK 4 FINAL IS-MND
Upon receipt of all public comments on the IS -MND, Rincon will prepare draft responses for City review. Upon receipt of internal review comments on the draft responses, we will incorporate changes and prepare the Final IS -MND. Up to 17 hours of professional time has been identified for this task. Upon Fin al IS-MND approval, Rincon will provide digital copies of the Final IS-MND (including responses to comments) in PDF form.
Rincon will prepare a Mitigation Monitoring and Reporting Program (MMRP) in a City - preferred format. Rincon will work with the City to finalize and file the Notice of Determination (NOD) with the County Clerk and State Clearinghouse. The City or applicant will be responsible for the applicable administrative and CDFW filing fees.
TASK 5 GENERAL PROJECT MANAGEMENT
The Principal -in-Charge of this contract will be Deanna Hansen. The Supervising Project Manager for this project will be Charles Holcombe, MBA. Mr. Holcombe will act as the primary point of contact between the City of Rialto, Applicant, and project team as needed.
This task will include coordination with the City and project team. Mr. Holcombe can be reached at Rincon’s Redlands office via email, [email protected], and telephone, (909) 312-2938, or cell at (909) 725-8304.
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Attachment: Attachment 1._PSA Rincon_DAP-001-777 (3966 : Contract Award & Reimbursement Agreement - Rincon Environmental Services / TASK 6 PUBLIC HEARINGS
If requested by the City, Rincon will attend two public hearings on the project. We can attend additional hearings at the request of the City in accordance with our standard fee schedule.
Assumptions
The preceding scope is based on the following assumptions:
• The project is subject to CEQA only, with the City acting as CEQA Lead Agency. • The City or Applicant will provide a stable project description, project site plan, and any technical studies that may be completed for the p roject site (i.e., Geotechnical Evaluation, Preliminary Hydrology Study or Low Impact Design Plan, Water Quality Management Plan, Phase I Environmental Site Assessment, etc.). The Applicant will confirm the availability of any documentation pertaining to Biological Resources and Cultural Resources for the project site to determine the potential of biological and/or cultural resources that may have been and/or may be present on the project site, and to confirm proper handling of such resources during previously demolition activities have occurred.
• Adjustments required as a result of changes to the project description and/or site plan, once technical analyses are underway, are not included in this scope and may require a task amendment pending complexity of project description and/or site plan changes. • Costs have been allocated to tasks based upon Rincon’s proposed approach. Rincon has the discretion to re -allocate costs among tasks and/or direct costs as circumstances warrant so long as the adjustments maintain the total budget within its authorized amount. • Direct costs are estimated; actual costs will be invoiced and may be greater than estimated; however, will not be greater than the project’s not to exceed budget. • The City and Applicant will be responsive to information needs, access requests, and review timeframes to allow Rincon to maintain project momentum. • City’s review of the Administrative Draft IS-MND, including technical analyses, is assumed to require up to three weeks (fifteen business days) to complete, and the City will provide comments in a consolidated, electronic, and editable format (Word and/or PDF). • One round of revisions to the Administrative Draft IS-MND, including technical analyses, is included in this scope of services. Referred to in our scope as the Screencheck Draft IS-MND. • All draft documents will be provided electronically (Word and PDF). All final documents will be provided electronically. No hard copies of the IS-MND will be provided. If required, CDs or hard copies can be prov ided at cost in accordance with Rincon’s standard printing fees. Overnight shipping from our Production office in Ventura has been estimated to be approximately $50 per shipment, should hard copies or CDs be required. This cost is not included in our fee. Rincon has assumed up to 17 hours of staff time to respond to public and agency comments on the published IS-MND. If the volume or length of public comments received require more time to provide adequate responses, additional staff time may be provided in accordance with Rincon’s standard fee schedule.
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Attachment: Attachment 1._PSA Rincon_DAP-001-777 (3966 : Contract Award & Reimbursement Agreement - Rincon Environmental Services / EXHIBIT "B"
SCHEDULE OF SERVICES
Schedule
The project schedule conforms to the City’s schedule requirements detailed in the City’s request, with modification as directed by the City. This schedule may be subject to further change based on COVID-19 considerations.
The proposed schedule is illustrated below. This example schedule is based on the kickoff meeting and will be based on the actual project start date.
The ability to meet this timeframe depends on:
Receipt of a complete and stable project description, plan set and technical reports to be provided by the project applicant at project inception
Access to cultural records from the local information center Responsiveness of the City and applicant to information requests Actual time needed for City staff to review documents The extent of comments received, which will refine the time needed to revise documents The level of public comment
Staff’s direction on addressing unanticipated issues that may arise during the process
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EXHIBIT "C"
COSTS AND FEE SCHEDULE
Cost
The budget for the above work program is $134,306. The following table shows a breakdown of costs by task. As previously noted, this cost estimate assumes a determination that all potential project impacts are less than significant or can be mitigated below a level of significance. If it is determined that potentially significant and unavoidable impacts may occur and an EIR needs to be prepared for the project, Rincon will submit a separate scope and cost for the required tasks.
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CITY OF COLTON
REIMBURSEMENT AGREEMENT FOR LAND USE ENTITLEMENT PROJECT
ZONING TEXT AMENDMENT, CONDITIONAL USE PERMIT AND
ARCHITECTURAL AND SITE PLAN REVIEW FOR 205 MISSION STREET,
FOR CALWEST YARDS, LLC
(DAP-001-777)
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 Greg Johnson and Patrick O’Brien (collectively, “Calwest”) with principal place of business at 1408 Ritchey Street, Santa Ana, CA 92705 (“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 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 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, correspo ndence 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 coopera te 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 re quested 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 preliminarily reviewed the scope(s) of work required and has estimated the aggregate Costs for all Consultants and City staff to be one hundred thousand and thirty four an three hundred and six dollars ($134,306.00), plus an additional administrative fee of 15% , twenty thousand one hundred and forty five dollars and ninety cents ($20,145.90) ("Estimated Costs"). Within ten (10) calendar days of the execution of this Agreement, the Applicant shall submit deposit in the amount of $134,306 and separate check in the amount of $20,145.90 to cover the initial Estimated Costs, 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 dro ps below ($15,000), the City may make demand on Applicant to replenish the Deposit Account 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) 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) days of final payment to the Consultants. Alternatively, if the Costs of the services of the Con sultants 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
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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. 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 liabili ty 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 sha ll 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 p roceeding. 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 e vent 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 e vent 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 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 a nd 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 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 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
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necessary legal prerequisites to that Party's execution of this Agreement have been satisfied and that he or she has been authorized to sign this Agreement and bind t he 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: David Mlynarski, Principal
Transtech Engineers, Inc.
13367 Benson Avenue
Chino, CA 91710
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 r eceiving 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 LAND USE ENTITLEMENT PROJECT
ZONING TEXT AMENDMENT, CONDITIONAL USE PERMIT AND
ARCHITECTURAL AND SITE PLAN REVIEW FOR 205 MISSION STREET FRANK
FOR CALWEST YARDS, LLC
(DAP-001-777)
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 LAND USE ENTITLEMENT PROJECT
ZONING TEXT AMENDMENT, CONDITIONAL USE PERMIT AND
ARCHITECTURAL AND SITE PLAN REVIEW FOR 205 MISSION STREET FRANK
FOR CALWEST YARDS, LLC
(DAP-001-777)
CALWEST YARDS, LLC
By: _________________________
Signature
_________________________
Name:
_________________________
Title:
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EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
Assessor’s Parcel Numbe r: 0163-041-46 and 0276 -121-14; portions thereof; 11 acres; City of Colton, CA 92324
The site map is below:
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EXHIBIT "B"
PROJECT DESCRIPTION
DAP-001-777 – The project is located in at 205 Mission Street (APN:0163-041-46 & 01276-121- 14), and is located in an area designated as M -2 (Heavy Industrial) Zone. The proposed chassis/container storage use is not listed as a permitted use in the Zoning Code. Therefore, a Zoning Text Amendment is proposed to allow the proposed trailer, chassis and truck storage use.
The trailer storage facility operation requires a Conditional Use Permit (CUP). Architectural and Site Plan Review is also required for the overall proje ct layout of the temporary trailer storage, assembly (placing trailers on chassis), providing tractor parking areas for Walmart or other outside trucking companies. It is our understanding that the project is to consist of a chassis/container and trailer storage facility operations on the approximately 11-acre site.
The environmental review includes the preparation of an Initial Study to determine appropriate CEQA document.
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EXHIBIT "C"
PERMITS AND OTHER APPROVALS
- Conditional Use Permit
- Architectural and Site Plan Review
- Zoning Text Amendment
- 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.
RINCON CONSULTANTS
Environmental consultant to prepare required CEQA document. Contract amount for Environmental Services is not to exceed $154,145.90 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. 9
STAFF REPORT
DATE: FEBRUARY 21, 2023
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: BRIAN DICKINSON, PUBLIC WORKS AND UTILITY SERVICES
DIRECTOR
SUBJECT: ACCEPT GRANT FROM CALRECYCLE SB1383 LOCAL
ASSISTANCE GRANT PROGRAM AND AMEND FY2023 BUDGET
ACCORDINGLY, RESOLUTION R-14-23.
RECOMMENDED ACTION
Staff recommends that the City Council take the following action:
1. Approval of Resolution No., R-14-23 to authorize the acceptance of a grant award from CalRecycle; and
2. Amend the FY2023 budget increasing revenues and appropriations by $77,411 in the Miscellaneous Grant Fund for the grant acceptance; and
3. Authorize the City Manager to execute all grant documents.
BACKGROUND
In September 2016, Governor Edmund Brown Jr. set methane emissions reduction targets for California (SB 1383 Lara, Chapter 395, Statutes of 2016) in a statewide effort to reduce emissions of short -lived climate pollutants (SLCP). The targets are to reduce organic waste disposal 50 percent by 2020 and 75 percent by 2025 , and for people to eat at least 20 percent of currently disposed surplus food by 2025.
The Department of Resources Recycling and Recovery (CalRecycle) is administering a one -time grant program meant to provide aid in the implementation of regulations adopted by CalRecycle pursuant to Chapter 395, Statutes of 2016 and SB170 Budget Act of 2021. This non-competitive 9 Packet Pg. 450
Staff Report to the Mayor and City Council
Grant - CalRecycle
February 21, 2023