Fontana City Council
December 13, 2022

AMENDMENT NO. 2

TO THE DESIGN SERVICES AGREEMENT
SQ-97-DE-20

BETWEEN

THE CITY OF FONTANA
AND
WLC ARCHITECTS, INC.

1. Parties and Date.

This Amendment No. 2 to the Design Services Agreement SQ-97-DE-20 (“Amendment No. 1”) is made and entered into as of this 13th day of December, 2022, by and between the City of Fontana (“City”) and WLC Architects, Inc., a Corporation with its principal place of business at 8163 Rochester Avenue, Suite 100, Rancho Cucamonga, California 91730 (“Designer”). City and Designerare sometimes individually referred to as “Party” and collectively as “Parties.”

2. Recitals.

2.1 Original Agreement. The City and Designer have entered into an agreement entitled “FIRE STATION NO. 81 5302 MONTELENA ROAD” dated September 28, 2020 (“Agreement”) for the purpose of retaining the services of Designer to provide services in connection with the Fire Station No. 81 project.

2.2 Amendment Purpose. The City and Designer desire to amend the Agreement to additional scope of services and increase the not-to-exceed compensation amount.

2.3 Amendment Authority. This Amendment No. 2 is authorized pursuant to Section 3.37 of the Agreement.

3. Terms.

3.1 Amendment. Section 3.1.1 of the Agreement is hereby amended in its entirety to read as follows:

3.1.1 Scope of Services. Designer promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional design and related services necessary for the full and adequate completion of the Project consistent with the provisions of this Agreement (hereinafter referred to as “Services”). The Services are more particularly described throughout this Agreement, including Exhibit “A” attached hereto and incorporated herein by reference and Attachment 1 to Amendment No. 2. 544

All Services shall be subject to, and performed in accordance with, this Agreement, any exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. All Services performed by Designer shall be subject to the sole and discretionary approval of the City, which approval shall not be unreasonably withheld.

3.2 Section 3.1.2 of the Agreement is hereby amended in its entirety to read as follows:

3.1.2 Term. The term of this Agreement shall be from S e p t e m b e r 2 8 , 2020 to May 31, 2023, unless earlier terminated as provided herein. Designer shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines.

3.3 Section 3.10.1 of the Agreement is hereby amended in its entirety to read as follows:

3.10.1 Designer’s Compensation for Basic Services. Designer shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit ”B” attached hereto and incorporated herein by reference. Amendment No. 2 is authorized in the amount of Seven Thousand, Four Hundred Eighty Dollars and Zero Cents ($7,480.00). The total compensation shall not exceed Five Hundred Twenty-seven thousand, Four hundred Eighty dollars and thirty-two cents ($527,480.00) without written approval of City’s Engineering Manager. Extra Work may be authorized, as described below; and if authorized, said Extra Work will be compensated at the rates and manner set forth in this Agreement.

3.4 Continuing Effect of Agreement. Except as amended by this Amendment No. 2, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 2. From and after the date of this Amendment No. 2, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 2.

3.5 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 2.

3.6 Severability. If any portion of this Amendment No. 1 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
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SIGNATURE PAGE TO
AMENDMENT NO. 2

DESIGN SERVICES AGREEMENT

CITY OF FONTANA
By:

Matthew C. Ballantyne
City Manager
WLC ARCHITECTS, INC.

By: ______________________________
Kelley Needham
Chief Financial Officer
Attest:

By:

Germaine McClellan Key, City Clerk
Approved as to form:
_______________________________
Best Best & Krieger LLP
City Attorney
By: ______________________________
Phillip Burum
Deputy City Engineer
By: ______________________________
Gia Kim
Director of Public Works/City Engineer

IN COMPLIANCE WITH PURCHASING AND CONTRACT ADMINISTRATION POLICIES/PROCEDURES Jessica Brown
Management Services Department
Purchasing
546

Attachment 1 to Amendment No. 2
[insert additional services scope of work]
547
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1891 Agenda Date: 12/13/2022
Agenda #: Z. Category: Consent Calendar
FROM:

Engineering
SUBJECT:

Approve Amendment No. 4 to Professional Services Agreement with BMLA, Inc. for the South Fontana Park Project
RECOMMENDATION:

1. Approve and authorize the City Manager to execute Amendment No. 4 to Professional Services Agreement with BMLA, Inc. for Construction Phase Services in the additional amount of $9,000.00 for South Fontana Park (SP-32-PW-18) for a total compensation not to exceed $337,537.69.

2. Approve and authorize the City Manager to execute any future amendments to the contract with BMLA, Inc. for South Fontana Park.

COUNCIL GOALS:
· Enhance the local environment for future generations and create a healthy economic and environmental future by implementing sustainable landscaping and the use of recycled water.
· Invest in the City’s infrastructure (streets, sewers, parks, etc.) by providing for the development of new infrastructure.
· Invest in the City’s infrastructure (streets, sewers, parks, etc.) by creating and promoting community through people, parks, and programs.

DISCUSSION:

South Fontana Park is a priority one project that involves the construction of a nearly 18 acre park in the southern area of the City. The proposed site is located at 16647 Santa Ana Avenue between Cypress and Juniper Avenues. The new park will provide amenities to the surrounding community and will also enhance the streetscape along Santa Ana Avenue. The park amenities include four (4) artificial turf fields with football and soccer field striping, restroom/concession building, two (2) storage buildings, a playground/tot log area, exercise equipment, sports field lighting for nighttime use of the fields, walking path, shade structures and new landscape throughout the park.

Construction began in January 2022 with the park targeted for an opening in early 2023. As construction progresses and the landscape maintenance period begins, the services of the landscape architect, BMLA, Inc. will be necessary to ensure all punch list items and maintenance period requirements are being met before the City accepts the park. The City entered into an agreement with BMLA, Inc. on April 24, 2018 for design services of South Fontana Park. Three (3) City of Fontana Page 1 of 2 Printed on 12/7/2022
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File #: 21-1891 Agenda Date: 12/13/2022
Agenda #: Z. Category: Consent Calendar
previous amendments were authorized that included the design of the landscape median on Santa Ana Avenue, legal descriptions for the acquisition of property related to the park, and additional security system design requirements. Amendment No. 4 is necessary to complete the construction of the project with BMLA, Inc. services related to the 30, 60, and 90-day maintenance field reviews to ensure the planting and irrigation system are meeting the design requirements.

FISCAL IMPACT:

Funds for this project have been budgeted in the current FY 2022/2023 Capital Improvement Program in the Capital Improvement Fund (Fund 602), CFD #86 Fund (Fund #664), CFD #88 Fund (Fund 666), CFD #89 Fund (Fund 667), and CFD #90 Fund (Fund 668) specifically in PN 4250 Fontana Park.

MOTION:

Approve Staff Recommendation.

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Project Site
N
Vicinity Map
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16498.00150\32127016.1
AMENDMENT NO. 4

TO THE PROFESSIONAL SERVICES AGREEMENT
SP-32-PW-18

BETWEEN

THE CITY OF FONTANA
AND
BMLA, INC.

1. Parties and Date.

This Amendment No. 4 to the Professional Services Agreement is made and entered into as of this 13th day of December, 2022 by and between the City of Fontana (“City”) and BMLA, Inc., a Corporation with its principal place of business at 310 North Joy Street, Corona, California 92879.

City and BMLA, Inc. are sometimes individually referred to as “Party” and collectively as “Parties.”

2. Recitals.

2.1 Consultant. The City and Consultant have entered into an agreement entitled “Professional Services Agreement Landscape Design and Park Development Services” dated April 24, 2018 (“Agreement”) for the purpose of retaining the services of Consultant to provide Professional Design Services for the South Fontana Park.

2.2 Amendment Purpose. The City and Consultant desire to amend the Agreement to “revise the scope of services, increase the not-to-exceed compensation amount and extend the contract term date.”

2.3 Amendment Authority. This Amendment No. 4 is authorized pursuant to Section

3.3.4 of the Agreement.

3. Terms.

3.1 Amendment. Section 3.1.1 of the Agreement is hereby amended in its entirety to read as follows:

3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental customary work necessary to fully and adequately supply the professional Landscape Design and Park Development Services necessary for the Project (“Services”). The Services are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by 551

16498.00150\32127016.1
reference, and all applicable local, state, and federal laws, rules and regulations.

3.2 Amendment. Section 3.3.1 of the Agreement is hereby amended in its entirety to read as follows:

3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set for in “Exhibit A” attached hereto and incorporated herein by reference. Amendment No. 4 is authorized in the amount of Nine Thousand Dollars and Zero Cents ($9,000.00). The total compensation shall not exceed Three Hundred Thirty-seven Thousand, Five Hundred Thirty-seven Dollars and Sixty-nine cents ($337,537.69) without written approval of City’s Engineering Manager. Extra work may be authorized, as described in Section 3.3.4 in the original Agreement; and if authorized said Extra Work will be compensated at the rates and manner set forth in the original Agreement.

3.4 Continuing Effect of Agreement. Except as amended by this Amendment No. 4, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 4. From and after the date of this Amendment No. 4, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 4.

3.5 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 4.

3.6 Severability. If any portion of this Amendment No. 4 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
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16498.00150\32127016.1

SIGNATURE PAGE TO
AMENDMENT NO. 4

DESIGN SERVICES AGREEMENT

CITY OF FONTANA
By:

Matthew C. Ballantyne
City Manager
WLC ARCHITECTS, INC.

By: ______________________________
Kelley Needham
Chief Financial Officer
Attest:

By:

Germaine McClellan Key, City Clerk
Approved as to form:
_______________________________
Best Best & Krieger LLP
City Attorney
By: ______________________________
Phillip Burum
Deputy City Engineer
By: ______________________________
Gia Kim
Director of Public Works/City Engineer

IN COMPLIANCE WITH PURCHASING AND CONTRACT ADMINISTRATION POLICIES/PROCEDURES Jessica Brown
Management Services Department
Purchasing
553
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1902 Agenda Date: 12/13/2022
Agenda #: AA. Category: Consent Calendar
FROM:

Housing
SUBJECT:

Approve Master Task Order Agreement with MDG Associates, Inc. for Grant Consulting Services RECOMMENDATION:

1. Approve and authorize the City Manager to enter into a Master Task Order Agreement with MDG Associates, Inc. for grant consulting services with up to four (4) one-year extensions at the sole discretion of the City of Fontana for the amount not to exceed $175,000 annually.

2. Approve and authorize the City Manager to execute any future amendments to the contract with MDG Associates, Inc. for Grant Consulting Services.

COUNCIL GOALS:
· Practice sound fiscal management by producing timely and accurate financial information.

DISCUSSION:

The City of Fontana is an entitlement jurisdiction, eligible to receive Federal and State grant monies available through the Department of Housing and Urban Development (HUD) and State of California.

The City currently receives funds as part of the Community Development Block Grant (CDBG), the HOME Investment Partnership Program (HOME) and the Emergency Solutions Grant Program (ESG). Additionally, the City also received State allocations through Permanent Local Housing Allocation (PLHA), Family Homelessness Challenge Grant (FHC), and CalHome. In recent years, the City has received special funding to address various national concerns and continues to apply for new funding opportunities.

In order to continue receiving federal entitlement funds, the City must prepare and submit five (5) separate documents to HUD; including the Five Year Consolidated Plan, the One Year Action Plan, the Citizen Participation Plan, the Analysis of Impediments to Housing (AI) and the Consolidated Annual Performance Report (CAPER). In addition, all participating jurisdictions are required to provide ongoing financial and performance updates and reporting on their individual grant programs through the on-line reporting software program Integrated Disbursement & Information System (IDIS) provided by HUD.

Since 2009, the City of Fontana has utilized MDG Associates, Inc. to provide professional services in support of our Federal and State entitlement programs. That support includes assisting with the preparation of any/all HUD and State required documents, financial, and performance updates as City of Fontana Page 1 of 2 Printed on 12/7/2022
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File #: 21-1902 Agenda Date: 12/13/2022
Agenda #: AA. Category: Consent Calendar
preparation of any/all HUD and State required documents, financial, and performance updates as required.

The City of Fontana issued an RFP for HUD Consulting Services (SP-95-HD-22). The current contract with MDG Associates, Inc. expires on June 30, 2023, however, due to an unforeseen increase in Federal and State funding the need for additional services is required to maintain the same level of performance and meet all necessary deadlines. It is anticipated that the cost of the professional services with MDG Associates, Inc. will not exceed $175,000 annually.

FISCAL IMPACT:

Funds for this contract are available in the Fiscal Year 2022/2023 budget within, PLHA Fund #295, Grants Fund #301, CDBG Fund #362, and HOME Fund #363.

MOTION:

Approve staff recommendation.

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1 CITY OF FONTANA

ON-CALL PROFESSIONAL SERVICES AGREEMENT
SP-95-HD-22
This Agreement is made and entered into as of December 14, 2022 by and between the City of Fontana (“City”), and MDG Associates, Inc., a Corporation with its principal place of business at 10722 Arrow Route, Suite 822, Rancho Cucamonga, California 91730 (hereinafter referred to as “Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.

RECITALS
A. City is a public agency of the State of California and is in need of professional services for the following project:

Grant Consulting Services
(hereinafter referred to as “the Project”).

B. Consultant is duly licensed and has the necessary qualifications to provide such services on the Project. Consultant desires to perform and assume responsibility for the provision of certain professional services required by City on the terms and conditions set forth in this Agreement and in the task order(s) to be issued pursuant to this Agreement (“Task Order”).

C. The Parties desire by this Agreement to establish the terms for City to retain Consultant to provide the services described herein.

AGREEMENT
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

1. Services.

Consultant shall provide the City with the services described in the Scope of Services attached hereto as Exhibit “A.” The services shall be more particularly described in the individual Task Order issued by the City or its designee. No services shall be performed unless authorized by a fully executed Task Order in the form attached hereto as Exhibit “C”.

2. Compensation.
a. Consultant shall receive compensation, including authorized reimbursements, for all services rendered under this Agreement at the rates set forth in the Schedule of Charges attached hereto as Exhibit “B” and incorporated herein by this reference.

The maximum compensation for services to be provided pursuant to each Task Order shall be set forth in the relevant Task Order. The total aggregate compensation paid to Consultant under this Agreement shall not exceed the amount set forth in Section 2(b) below. b. In no event shall the total amount paid for services rendered by Consultant under this Agreement and all Task Orders issued hereunder exceed the sum of $175,000.00 annually. This amount is to cover all printing and related costs, and the City will not pay any additional fees for printing expenses. Periodic payments shall be made within 30 556
2 days of receipt of an invoice which includes a detailed description of the work performed.

Payments to Consultant for work performed will be made on a monthly billing basis.

3. Additional Work.

If changes in the work seem merited by Consultant or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following manner: a letter outlining the changes shall be forwarded to the City by Consultant with a statement of estimated changes in fee or time schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services, or the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement.

4. Maintenance of Records.

Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Consultant and made available at all reasonable times during the contract period and for four (4) years from the date of final payment under the contract for inspection by City.

5. Time of Performance.

The term of this Agreement shall be from July 1, 2022 to June 30, 2023, unless earlier terminated as provided herein. Consultant shall complete the services within the term of this Agreement, and shall meet any other established schedules and deadlines set forth in each individual Task Order issued by the City. All applicable indemnification provisions of this Agreement shall remain in effect following the termination of this Agreement.

6. Delays in Performance.
a. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the nonperforming party. For purposes of this Agreement, such circumstances include but are not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage or judicial restraint.
b. Should such circumstances occur, the non-performing party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement.

7. Compliance with Law.
a. Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Cal/OSHA requirements. i. HOME Program Requirements. CONSULTANT is subject to the requirements in Part 92 that are applicable to the CITY, except §

92.505 and § 92.506 do not apply, and the CONSULTANT cannot assume the City’s responsibilities for environmental review, decision making, and action under § 92.352.
557
3 ii. Use of HOME Funds. The HOME funds shall be used exclusively for the payment of approved professional service costs incurred in connection with the administration and implementation of the HOME Program and projects or programs funded with HOME
funds, as prescribed in ATTACHMENT “1” of Amendment No. 1. iii. The CONSULTANT may be required to provide professional services for programs funded under the HOME Program. funded programs, and as such, all applicable requirements shall be met by the CONSULTANT when implementing any portion of the
HOME Program. All tasks shall be performed in a timely manner and in accordance with the agreed terms, but not to exceed the period of performance under this agreement.
b. If required, Consultant shall assist the City, as requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies. c. If applicable, Consultant is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement.

8. Standard of Care
Consultant’s services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions.

9. Assignment and Subconsultant
Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Nothing contained herein shall prevent Consultant from employing independent associates, and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder.

10. Independent Contractor
Consultant is retained as an independent contractor and is not an employee of City. No employee or agent of Consultant shall become an employee of City. The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from City as herein provided.

11. Insurance. Consultant shall not commence work for the City until it has provided evidence satisfactory to the City 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 secured all insurance required under this section. a. Commercial General Liability
558
4 (i) The Consultant shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City.
(ii) Coverage for Commercial General Liability insurance shall be at least as broad as the following:
(1) Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. (iii) Commercial General Liability Insurance must include coverage for the following:
(1) Bodily Injury and Property Damage
(2) Personal Injury/Advertising Injury
(3) Premises/Operations Liability
(4) Products/Completed Operations Liability
(5) Aggregate Limits that Apply per Project
(6) Explosion, Collapse and Underground (UCX) exclusion deleted
(7) Contractual Liability with respect to this Agreement (8) Property Damage
(9) Independent Contractors Coverage
(iv) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement.
(v) The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (vi) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured. b. Automobile Liability
(i) At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City.
(ii) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto).
(iii) The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status. 559
5 (iv) Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention.
c. Workers’ Compensation/Employer’s Liability
(i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement.
(ii) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this section.
d. Professional Liability (Errors and Omissions)
At all times during the performance of the work under this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend.
e. Minimum Policy Limits Required
(i) The following insurance limits are required for the Agreement:

Combined Single Limit
Commercial General Liability $1,000,000 per occurrence/ $2,000,000 aggregate for bodily injury, personal injury, and property
damage
Automobile Liability $1,000,000 combined single limit
Employer’s Liability $1,000,000 per accident or disease Professional Liability $1,000,000 per claim and aggregate (errors and omissions)
(ii) Defense costs shall be payable in addition to the limits. 560
6 (iii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement. f. Evidence Required
Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25- S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance.
g. Policy Provisions Required
(i) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration.
(ii) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant’s policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss.
(iii) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement.

Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement.
(iv) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
(v) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability.

Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the 561
7 City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
h. Qualifying Insurers
(i) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements:
(1) Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
i. Additional Insurance Provisions
(i) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(ii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
(iii) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (iv) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.
j. Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants.

12. Indemnification.
a. To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any 562
8 acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s services, the Project, any Task Order 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. b. If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance of “design professional” services (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.

13. California Labor Code Requirements.
a. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). 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. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4. b. If the services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1. c. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor 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 563
9 harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor.

14. Verification of Employment Eligibility.

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, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subconsultants and subsubconsultants to comply with the same.

15. Reserved

16. Laws and Venue.

This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of San Bernardino, State of California.
17 Termination or Abandonment
a. City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) calendar days written notice to Consultant. In such event, City shall be immediately given title and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed for that portion of the work completed and/or being abandoned. City shall pay Consultant the reasonable value of services rendered for any portion of the work completed prior to termination. If said termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed during such task shall be the reasonable value of such services, based on an amount mutually agreed to by City and Consultant of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified herein.

Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work.
b. Consultant may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days’ written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant.
18 Documents. Except as otherwise provided in “Termination or Abandonment,” above, all original field notes, written reports, Drawings and Specifications and other documents, produced or developed for the Project shall, upon payment in full for the services described in this Agreement, be furnished to and become the property of the City.

19. Organization
Consultant shall assign Rudy Munoz. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City. 564
10 20. Limitation of Agreement.

This Agreement is limited to and includes only the work included in the Project described above.

21. Notice
Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to:

CITY:

City of Fontana
8353 Sierra Avenue
Fontana, California 92335
Attn: Sid Lambert, Purchasing Office
[email protected]
CONSULTANT:

MDG Associates, Inc.
17022 Arrow Route, Suite 822
Rancho Cucamonga, CA 91730
Attn: Rudy Munoz
[email protected]
and shall be effective upon receipt thereof.

22. Third Party Rights
Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant.

23. Equal Opportunity Employment.

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

24. Entire Agreement
This Agreement, with its exhibits, represents the entire understanding of City and Consultant as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those matters covered hereunder. Each party acknowledges that no representations, inducements, promises or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This Agreement may not be modified or altered except in writing signed by both Parties hereto. This is an integrated Agreement.

25. Severability
The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the remaining provisions unenforceable, invalid or illegal. 565
11 26. Successors and Assigns
This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each party to this Agreement. However, Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void.

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

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

29. City’s Right to Employ Other Consultants
City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects.

30. 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. 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 director, official, 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.

31. Federal Requirements
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 “D” (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.
[SIGNATURES ON FOLLOWING PAGE]
566
12 SIGNATURE PAGE FOR ON-CALL PROFESSIONAL SERVICES AGREEMENT IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.

CITY OF FONTANA
By:

Matthew C. Ballantyne
City Manager
MDG ASSOCIATES, INC.

By:

Rudy Munoz
President
Attest:

By:

Germaine McClellan Key
City Clerk
By:

Guadalupe R. Munoz
C.F.O
By:

Phillip Burum
Deputy City Manager
Approved as to form:

Best Best & Krieger LLP
City Attorney
By: _____________________________
Valerie Gonzales
Housing Development Manager

IN COMPLIANCE WITH CONTRACT INSURANCE REQUIREMENTS
By: ______________________________
Rakesha Thomas
Human Resources & Risk Management Director

IN COMPLIANCE WITH PURCHASING AND CONTRACT ADMINISTRATION POLICIES/PROCEDURES ___________________________________
Jessica Brown
Chief Financial Officer

Purchasing Office
567
13 EXHIBIT A
Scope of Services
568
14 EXHIBIT B
Schedule of Charges/Payments
Consultant will invoice City on a monthly cycle. Consultant will include with each invoice a detailed progress report that indicates the amount of budget spent on each task. Consultant will inform City regarding any out-of-scope work being performed by Consultant. This is a time-andmaterials contract. 569
15 EXHIBIT C
Sample Task Order Form

TASK ORDER
Task Order No. _______
Agreement: [INSERT TITLE OF AGREEMENT]
Consultant: [INSERT NAME OF CONSULTANT]
The Consultant is hereby authorized to perform the following services subject to the provisions of the Agreement identified above:

List any attachments: (Please provide if any.)
Dollar Amount of Task Order: Not to exceed $_____,_____.00 Completion Date: _____________
The undersigned Consultant hereby agrees that it will provide all equipment, furnish all materials, except as may be otherwise noted above, and perform all services for the work above specified in accordance with the Agreement identified above and will accept as full payment therefore the amount shown above.

CITY OF FONTANA [INSERT NAME OF CONSULTANT]
Dated: Dated:

By: By:
570
16 EXHIBIT D
Federal Requirements
Funds from the Coronavirus State Fiscal Recovery Fund and/or the Coronavirus Local Fiscal Recovery Fund, together known as the Coronavirus State and Local Fiscal Recovery Funds (“CSLFRF”) program, will be used to fund all or a portion of this Agreement. As applicable, Consultant shall comply with all federal requirements including, but not limited to, the following, all of which are expressly incorporated herein by reference:
• Sections 602 and 603 of the Social Security Act as added by Section 9901 of the American Rescue Plan Act of 2021 (“ARPA”);
• CSLFRF Final Rule, codified at 31 CFR Part 35;
• CSLFRF Guidance on Recipient Compliance and Reporting Requirement, the most current version;
• 2 C.F.R. Part 200 – Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, other than such provisions as the U.S. Department of the Treasury may determine are inapplicable to the CSLFRF program and subject to such exceptions as may be otherwise provided by the U.S. Department of the Treasury; • Treasury Coronavirus Local Fiscal Recovery Fund Award Terms and Conditions; and Subcontracts, if any, shall contain a provision making them subject to all of the provisions stipulated in this Agreement. With respect to any conflict between the Federal Contract Provisions and the Agreement and/or the provisions of state law and, except as otherwise required under federal law or regulation, the Federal Contract Provisions shall control.

Consultant shall also comply with the following provisions:

1. REQUIRED CONTRACT PROVISIONS IN ACCORDANCE WITH APPENDIX II TO PART 200 – CONTRACT PROVISIONS FOR NON-FEDERAL ENTITY CONTRACTS UNDER FEDERAL AWARDS (2 C.F.R. § 200.327)
(a) Appendix II to Part 200 (A); Appendix II to Part 200 (B): Remedies for Breach; Termination for Cause/Convenience. The Agreement includes remedies for breach and termination for cause and convenience.
(b) Appendix II to Part 200 (C) – Equal Employment Opportunity: Except as otherwise provided under 41 C.F.R. Part 60, if this Agreement meets the definition of a “federally assisted construction contract” in 41 C.F.R. § 60-1.3, then Consultant shall comply with the following equal opportunity clause, in accordance with Executive Order 11246 of September 24, 1965 entitled “Equal Employment Opportunity,” as amended by Executive Order 11375 of October 13, 1967 and implementation regulations at 41 C.F.R. Chapter 60:
(i) The Consultant will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Consultant will take affirmative action to ensure that applicants are 571
17 employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. (ii) The Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(iii) The Consultant will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the Consultant's legal duty to furnish information. (iv) The Consultant will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Consultant’s commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (v) The Consultant will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
(vi) The Consultant will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. (vii) In the event of the Consultant’s noncompliance with the nondiscrimination clauses of this Agreement or with any of the said rules, regulations, or orders, this Agreement may be canceled, terminated, or suspended in whole or in part and the Consultant may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as 572
18 provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. (viii) The Consultant will include the portion of the sentence immediately preceding paragraph (i) and the provisions of paragraphs (i) through (vii) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Consultant will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:

Provided, however, that in the event a Consultant becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the Consultant may request the United States to enter into such litigation to protect the interests of the United States.

The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, That if the applicant so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the Agreement.

The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.

The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings. (c) Appendix II to Part 200 (D) – Davis-Bacon Act: Not applicable to this Agreement since it is funded by the CSLFRF.
573
19 (d) Appendix II to Part 200 (D) – Copeland “Antti-Kickback” Act: Not applicable to this Agreement since it is funded by the CSLFRF.
(e) Appendix II to Part 200 (E) – Contract Work Hours and Safety Standards Act:
(i) If this Agreement is in excess of $100,000 and involves the employment of mechanics or laborers, Consultant shall comply with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. Part 5). Under 40 U.S.C. 3702, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.
(ii) Overtime Requirements. No contractor or subcontractor contracting for any part of the Contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. (iii) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (ii) of this section the Consultant and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such Consultant and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (ii) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (ii) of this section.
(iv) Withholding for unpaid wages and liquidated damages. The City shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Consultant or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such Consultant or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (iii) of this section.
574
20 (v) Subcontracts. The Consultant or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (ii) through (v) of this Section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The Consultant shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (ii) through (v) of this Section. (f) Appendix II to Part 200 (F) – Rights to Inventions Made Under a Contract or Agreement:
(i) If the Federal award meets the definition of “funding agreement” under 37 C.F.R. § 401.2(a) and the non-Federal entity wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the non-Federal entity must comply with the requirements of 37 C.F.R. Part 401 (Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements), and any implementing regulations issued by the Federal awarding agency.
(ii) The regulation at 37 C.F.R. § 401.2(a) currently defines “funding agreement” as any contract, grant, or cooperative agreement entered into between any Federal agency, other than the Tennessee Valley Authority, and any contractor for the performance of experimental, developmental, or research work funded in whole or in part by the Federal government. This term also includes any assignment, substitution of parties, or subcontract of any type entered into for the performance of experimental, developmental, or research work under a funding agreement as defined in the first sentence of this paragraph. (g) Appendix II to Part 200 (G) – Clean Air Act and Federal Water Pollution Control Act: If this Agreement is in excess of $150,000, Consultant shall comply with all applicable standards, orders, or requirements issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). (i) Pursuant to the Clean Air Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq., (2) Consultant agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000.
(ii) Pursuant to the Federal Water Pollution Control Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq., (2) Consultant agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000. 575
21 (h) Appendix II to Part 200 (H) – Debarment and Suspension: A contract award (see 2 C.F.R. § 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 C.F.R. part 1986 Comp., p. 189) and 12689 (3 C.F.R. part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. (i) This Agreement is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such Consultant is required to verify that none of the Consultant, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). (ii) Consultant must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into.
(iii) This certification is a material representation of fact relied upon by City. If it is later determined that Consultant did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the City, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. (iv) Consultant warrants that it is not debarred, suspended, or otherwise excluded from or ineligible for participation in any federal programs. Consultant also agrees to verify that all subcontractors performing work under this Agreement are not debarred, disqualified, or otherwise prohibited from participation in accordance with the requirements above. Consultant further agrees to notify the City in writing immediately if Consultant or its subcontractors are not in compliance during the term of this Agreement. (i) Appendix II to Part 200 (I) – Byrd Anti-Lobbying Act: If this Agreement is in excess of $100,000, Consultant shall have submitted and filed the required certification pursuant to the Byrd Anti-Lobbying Amendment (31 U.S.C. § 1353). If at any time during the Contract term funding exceeds $100,000.00, Consultant shall file with the City the Federal Standard Form LLL titled “Disclosure Form to Report Lobbying.” Consultants that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the awarding agency. (j) Appendix II to Part 200 (J) – §200.323 Procurement of Recovered Materials:
576
22 (i) Consultant shall comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R. part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement. (ii) In the performance of this Agreement, the Consultant shall make maximum use of products containing recovered materials that are EPA-designated items unless the product cannot be acquired: Competitively within a timeframe providing for compliance with the contract performance schedule; Meeting contract performance requirements; or At a reasonable price.
(iii) Information about this requirement, along with the list of EPA-designate items, is available at EPA’s Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program. (iv) The Consultant also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.” (k) Appendix II to Part 200 (K) – §200.216 Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment:
(i) Consultant shall not contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system funded under this Agreement. As described in Public Law 115–232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).
(1) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities).
(2) Telecommunications or video surveillance services provided by such entities or using such equipment.
(3) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, 577
23 reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.
(ii) See Public Law 115-232, section 889 for additional information. (l) Appendix II to Part 200 (L) – §200.322 Domestic Preferences for Procurement:
(i) Consultant shall, to the greatest extent practicable, purchase, acquire, or use goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all subcontracts
(ii) For purposes of this section:
(1) “Produced in the United States’’ means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States. (2) ‘‘Manufactured products’’ means items and construction materials composed in whole or in part of nonferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.

2. COMPLIANCE WITH U.S. DEPARTMENT OF THE TREASURY CORONAVIRUS STATE AND

LOCAL FISCAL RECOVERY FUND AWARD TERMS AND CONDITIONS
(a) Maintenance of and Access to Records. Consultant shall maintain records and financial documents sufficient to evidence compliance with section 603(c) of ARPA, Treasury’s regulations implementing that section, and guidance issued by Treasury regarding the foregoing. Consultant agrees to provide the CITY, Treasury Office of Inspector General and the Government Accountability Office, or any of their authorized representatives access to any books, documents, papers, and records (electronic an otherwise) of the Consultant which are directly pertinent to this Agreement for the purposes of conducting audits or other investigations. Records shall be maintained by Consultant for a period of five (5) years after completion of the project.
(b) Compliance with Federal Regulations. Consultant agrees to comply with the requirements of section 603 of ARPA, regulations adopted by Treasury pursuant to section 603(f) of ARPA, and guidance issued by Treasury regarding the foregoing. Consultant also agrees to comply with all other applicable federal statutes, regulations, and executive orders, including, without limitation, the following:
(i) Universal Identifier and System for Award Management (SAM), 2 C.F.R.

Part 25, pursuant to which the award term set forth in Appendix A to 2 C.F.R. Part 25 is hereby incorporated by reference.
578
24 (ii) Reporting Subaward and Executive Compensation Information, 2 C.F.R.

Part 170, pursuant to which the award term set forth in Appendix A to 2 C.F.R. Part 170 is hereby incorporated by reference.
(iii) OMB Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement), 2 C.F.R. Part 180, including the requirement to include a term or condition in all lower tier covered transactions (contracts and subcontracts described in 2 C.F.R. Part 180, subpart B) that the award is subject to 2 C.F.R. Part 180 and Treasury’s implementing regulation at 31 C.F.R. Part 19.
(iv) Recipient Integrity and Performance Matters, pursuant to which the award term set forth in 2 C.F.R. Part 200, Appendix XII to Part 200 is hereby incorporated by reference.
(v) Governmentwide Requirements for Drug-Free Workplace, 31 C.F.R. Part

20. (vi) New Restrictions on Lobbying, 31 C.F.R. Part 21. (vii) Uniform Relocation Assistance and Real Property Acquisitions Act of 1970 (42 U.S.C. §§ 4601-4655) and implementing regulations.
(c) Compliance with Federal Statutes and Regulations Prohibiting Discrimination.

Consultant agrees to comply with statutes and regulations prohibiting discrimination applicable to the CSLFRF program including, without limitation, the following:
(i) Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d et seq.) and Treasury’s implementing regulations at 31 C.F.R. Part 22, which prohibit discrimination on the basis of race, color, or national origin under programs or activities receiving federal financial assistance.
(ii) The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (42 U.S.C. §§ 3601 et seq.), which prohibits discrimination in housing on the basis of race, color, religion, national origin, sex, familial status, or disability.
(iii) Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794), which prohibits discrimination on the basis of disability under any program or activity receiving federal financial assistance.
(iv) The Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101 et seq.), and Treasury’s implementing regulations at 31 C.F.R. Part 23, which prohibit discrimination on the basis of age in programs or activities receiving federal financial assistance. (v) Title II of the Americans with Disabilities Act of 1990, as amended (42 U.S.C. §§ 12101 et seq.), which prohibits discrimination on the basis of disability under programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto.
579
25 (d) False Statements. Consultant understands that making false statements or claims in connection with the CSLFRF program is a violation of federal law and may result in criminal, civil, or administrative sanctions, including fines, imprisonment, civil damages and penalties, debarment from participating in federal awards or contracts, and/or any other remedy available by law.
(e) Hatch Act. If Consultant is a public agency, Consultant agrees to comply, as applicable, with the requirements of the Hatch Act (5 U.S.C. section 1501-1508 and 7324-7328), which limit certain political activities of State or local government employees whose principal employment is in connection with an activity financed in whole or in part by this federal assistance.
(f) Protections for Whistleblowers.
(i) In accordance with 41 U.S.C. § 4712, Consultant may not discharge, demote, or otherwise discriminate against an employee in reprisal for disclosing to any of the list of persons or entities provided below, information that the employee reasonably believes is evidence of gross mismanagement of a federal contract or grant, a gross waste of federal funds, an abuse of authority relating to a federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a federal contract (including the competition for or negotiation of a contract) or grant. (ii) The list of persons and entities referenced in the paragraph above includes the following:
(1) A member of Congress or a representative of a committee of Congress;
(2) An Inspector General;
(3) The Government Accountability Office;
(4) A Treasury employee responsible for contract or grant oversight or management;
(5) An authorized official of the Department of Justice or other law enforcement agency;
(6) A court or grand jury; or
(7) A management official or other employee of Consultant, or a subcontractor who has the responsibility to investigate, discover, or address misconduct. (g) Increasing Seat Belt Use in the United States. Pursuant to Executive Order 13043, 62 FR 19217 (Apr. 18, 1997), Consultant is encouraged to adopt and enforce on-the-job seat belt policies and programs for their employees when operating company-owned, rented or personally owned vehicles, and encourage its subcontractors to do the same 580
26 (h) Reducing Text Messaging While Driving. Pursuant to Executive Order 13513, 74 FR 51225 (Oct. 6, 2009), Consultant should encourage its employees and subcontractors to adopt and enforce policies that ban text messaging while driving, and Consultant should establish workplace safety policies to decrease accidents caused by distracted drivers. (i) Assurances of Compliance with Civil Rights Requirements. The Civil Rights Restoration Act of 1987 provides that the provisions of this assurance apply to the Contract, including, but not limited to, the following:
(i) Consultant ensures its current and future compliance with Title VI of the Civil Rights Act of 1964, as amended, which prohibits exclusion from participation, denial of the benefits of, or subjection to discrimination under programs and activities receiving federal funds, of any person in the United States on the ground of race, color, or national origin (42 U.S.C. § 2000d et seq.), as implemented by the Department of the Treasury Title VI regulations at 31 CFR Part 22 and other pertinent executive orders such as Executive Order 13166; directives; circulars; policies; memoranda and/or guidance documents. (ii) Consultant acknowledges that Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency (LEP),” seeks to improve access to federally assisted programs and activities for individuals who, because of national origin, are limited in their English proficiency. Consultant understands that the denial of access to persons to its programs, services and activities because of their limited proficiency in English is a form of national origin discrimination prohibited under Title VI of the Civil Rights Act of 1964.

Accordingly, Consultant shall initiate reasonable steps, or comply with Treasury’s directives, to ensure meaningful access to its programs, services and activities to LEP persons. Consultant understands and agrees that meaningful access may entail providing language assistance services, including oral interpretation and written translation where necessary to ensure effective communication in the Project.
(iii) Consultant agrees to consider the need for language services for LEP persons during development of applicable budgets and when conducting programs, services and activities. As a resource, the Department of the Treasury has published its LEP guidance at 70 FR 6067. For more information on LEP, please visit http://www.lep.gov. (iv) Consultant acknowledges and agrees that compliance with this assurance constitutes a condition of continued receipt of federal financial assistance and is binding upon Consultant and Consultant’s successors, transferees and assignees for the period in which such assistance is provided.
(v) Consultant agrees to incorporate the following language in every contract or agreement subject to Title VI and its regulations between the Consultant and the Consultant’s subcontractors, successors, transferees and assignees:

The subcontractor, successor, transferee and assignee shall comply with Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal financial assistance from excluding from a program or activity, denying benefits of, or otherwise discriminating against a person on 581
27 the basis of race, color, or national origin (42 U.S.C. § 2000d et seq.), as implemented by Department of the Treasury Title VI regulations, 31 CFR Part 22, which are herein incorporated by reference and made a part of this contract (or agreement). Title VI also extends protection to persons with “Limited English proficiency” in any program or activity receiving federal financial assistance, 42 U.S.C. § 2000d et seq., as implemented by Department of the Treasury Title VI regulations, 31 CFR Part 22, which are herein incorporated by reference and made a part of this contract (or agreement).
(vi) Consultant understands and agrees that if any real property or structure is provided or improved with the aid of federal financial assistance by the Department of the Treasury, this assurance obligates the Consultant, or in the case of a subsequent transfer, the transferee, for the period during which the real property or structure is used for a purpose for which the federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. If any personal property is provided, this assurance obligates the Consultant for the period during which it retains ownership or possession of the property.
(vii) Consultant shall cooperate in any enforcement or compliance review activities by the Department of the Treasury of the aforementioned obligations. Enforcement may include investigation, arbitration, mediation, litigation, and monitoring of any settlement agreements that may result from these actions. Consultant shall comply with information requests, on-site compliance reviews, and reporting requirements. (viii) Consultant shall maintain a complaint log and inform the Department of the Treasury of any accusations of discrimination on the grounds of race, color, or national origin, and limited English proficiency covered by Title VI of the Civil Rights Act of 1964 and implementing regulations and provide, upon request, a list of all such reviews or proceedings based on the complaint, pending or completed, including outcome. Consultant must also inform the Department of the Treasury if Consultant has received no complaints under Title VI. (ix) Consultant must provide documentation of an administrative agency’s or court’s findings of non-compliance of Title VI and efforts to address the non-compliance, including any voluntary compliance or other agreements between the Consultant and the administrative agency that made the finding. If the Consultant settles a case or matter alleging such discrimination, Consultant must provide documentation of the settlement. If Consultant has not been the subject of any court or administrative agency finding of discrimination, please so state.
(x) If Consultant makes sub-awards to other agencies or other entities, Consultant is responsible for assuring that sub-recipients also comply with Title VI and all of the applicable authorities covered in this assurance.

3. CONTRACTING WITH SMALL AND MINORITY FIRMS, WOMEN’S BUSINESS ENTERPRISE AND LABOR SURPLUS AREA FIRMS (2 C.F.R. § 200.321)
582
28 (a) Consultant shall be subject to 2 C.F.R. § 200.321 and will take affirmative steps to assure that minority firms, women’s business enterprises, and labor surplus area firms are used when possible and will not be discriminated against on the grounds of race, color, religious creed, sex, or national origin in consideration for an award. (b) Affirmative steps shall include:
(i) Placing qualified small and minority businesses and women's business enterprises on solicitation lists;
(ii) Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources; (iii) Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority business, and women's business enterprises;
(iv) Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority business, and women's business enterprises; and (v) Using the services/assistance of the Small Business Administration (SBA), and the Minority Business Development Agency (MBDA) of the Department of Commerce.

Consultant shall submit evidence of compliance with the foregoing affirmative steps when requested by the City.
583
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1893 Agenda Date: 12/13/2022
Agenda #: AB. Category: Consent Calendar
FROM:

Police Department
SUBJECT:

Police Department Monthly Information Update
RECOMMENDATION:

Accept the Police Department monthly information update for October 2022.

COUNCIL GOALS:
· Operate in a businesslike manner by creating a memorable customer experience with every interaction.
· Increase citizen involvement by informing the public about issues, program, and accomplishments.
· Concentrate on Inter-governmental relations by establishing partnerships and positive working relationships with other public agencies providing services to residents and local businesses.

DISCUSSION:

The October 2022 monthly information report has been completed. Once the report is accepted by the City Council it will be featured on the Department website.

FISCAL IMPACT:

There is no fiscal impact.

MOTION:

Approve staff recommendation.

City of Fontana Page 1 of 1 Printed on 12/7/2022
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2022 CRIME STATISTICS ARE IN NIBRS
FORMAT
• As reported to the community in October of 2021, the Fontana Police Department transitioned from Uniform Crime Reporting (UCR) format to the Department of Justice mandated National Incident Based Reporting System (NIBRS).
• There were significant reporting requirement changes, in terms of types of crimes and categories reported.
• As a result, year-to-year comparison reporting is not available due to the new format and crimes reported.
• As an example, Robbery was reported as a Crime Against Person in UCR format but transitioned to a Property Crime under NIBRS. • It is important to note nothing has changed in the manner your Fontana Police Department investigates crimes.
585

POLICE DEPARTMENT

MONTHLY REPORT
October 2022
586

NOTEWORTHY EVENTS
• FPD participated in several activities to promote Breast Cancer Awareness Month • Narcotics detectives seized nearly two tons of methamphetamine • Patrol officers reunited an elderly man suffering from dementia with his loved ones • Detectives from the Fontana Police Department's Internet Crimes Against Children (ICAC) Task Force discovered conducted multiple investigations and made several arrests of adults trafficking in Child Sexual Abuse Material (CSAM) over the internet • Patrol officers conducted an investigation regarding threats made toward a private school • Gang officers arrested an individual responsible for manufacturing ghost guns • The police department launched a vulnerable person registry for residents with unique needs • The police department celebrated its 70 year anniversary • COPE participated in a Fall Festival at Falcon Ridge Elementary School • The police department participated in several Red Ribbon Week events • Animal Services Unit hosted a low-cost pet clinic
KA1
587
Slide 3
KA1 Kevin Anderson, 2/9/2021
588
589

CITYWIDE
• Priority 1 response time- 4:40 (Emergency calls like subject not breathing, shots fired, and other immediate risk to life/safety)
• Calls for service- 10,056
• Total Traffic Accidents- 257
• Non-Injury- 201, Injury - 56
• Total arrests- 606
• Hispanic- 387, White- 106, Black- 96, All others races- 17 • Total Group A Offenses- 791
• Crimes Against Persons- 168
• Crimes Against Property- 401
• Crimes Against Society- 222
590
• Crimes Against Person- 168 CITYWIDE • Homicide- 0
• Sex Offenses- 18
• Assault- 147
• Kidnapping- 3
• Other- 0
• Crimes Against Property- 401
• Robbery- 7
• Burglary- 33
• Larceny- 154
• Destruction of Property- 37
• Fraud- 52
• Possession of Stolen Property- 54
• Motor Vehicle Theft- 53
• Other Miscellaneous Property Crimes- 12
• Crimes Against Society- 222
• Drug and Paraphernalia Possession- 181
• Possession of Child Pornography- 6
• Possession of Weapons- 35
• Other Miscellaneous Crimes- 0
591

CRIMES BY BEAT
• Police Department Beat system is NOT
geographically the same as City Council
representation Districts
• Beat 1- All area north of 210 Freeway
• Beat 2- All area south of 210 Freeway and
north of Foothill
• Beat 3- All area south of Foothill and north
of 10 Freeway
• Beat 4- All area south of the 10 Freeway
Area 1
Area 2
Area 3
Area 4
592
BEAT 1

AREA COMMANDER IS LIEUTENANT KELLEN GUTHRIE
EMAIL- [email protected]
DESK- (909) 350-7716
• Total Group A Offenses- 93
• Crimes Against Persons- 16
• Crimes Against Property- 68
• Crimes Against Society- 9
593
BEAT 2

AREA COMMANDER IS LIEUTENANT ADAM CLABAUGH
EMAIL- [email protected]
DESK- (909) 854-8004
• Total Group A Offenses- 186
• Crimes Against Persons- 51
• Crimes Against Property- 96
• Crimes Against Society- 39
594
BEAT 3

AREA COMMANDER IS LIEUTENANT KEITH ZAGORIN
EMAIL – [email protected]
DESK – (909) 854-8161
• Total Group A Offenses- 361
• Crimes Against Persons- 79
• Crimes Against Property- 150
• Crimes Against Society- 132
595
Beat 4

AREA COMMANDER IS LIEUTENANT DOUG IMHOF
EMAIL – [email protected]
DESK – (909) 350-7707
• Total Group A Offenses- 123
• Crimes Against Persons- 22
• Crimes Against Property- 82
• Crimes Against Society- 19
596

ADDITIONAL USEFUL INFORMATION
• For more information regarding specific geographical crime data, visit www.crimemapping.com and enter your zip code
• Police Department information line- (909) 350-7740
• Police Department Dispatch non-emergency line- (909) 350-7700 • Anonymous crime reporting (909) 356-TIPS to leave a recorded message
• Report Graffiti on City Property- (909) 350-GONE
• Office of the Chief- (909) 350-7702 or [email protected] 597
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1896 Agenda Date: 12/13/2022
Agenda #: AC. Category: Consent Calendar
FROM:

Finance
SUBJECT:

Annual Report on Development Impact Fees
RECOMMENDATION:

Adopt Resolution No. 2022- 138, of the City Council of the City of Fontana, approving the Annual Report on Development Impact Fees and making findings as to unexpended funds.

COUNCIL GOALS:
· Practice sound fiscal management by producing timely and accurate financial information.
· Practice sound fiscal management by living within our means while investing in the future.
· Practice sound fiscal management by emphasizing capital formation. · Practice sound fiscal management by producing transparent information in a timely matter.
· Practice sound fiscal management by pursing grant opportunities.

DISCUSSION:

California Government Code Sections 66000-66006 impose requirements for the collection and expenditure of development impact fees. The City has twelve different development impact fee funds with combined collected revenues from the last fiscal year of approximately $22.5 million.

Under Government Code Section 66006(b), the City must issue a yearly report relating to the development impact fees it imposes. In addition, pursuant to Government Code Section 66001(d), at least every five years, the City must make certain findings with respect to that portion of each development fee account remaining unexpended. This report satisfies those statutory requirements for accounting for development impact fees.

A copy of this report was made available to the public on November 23, 2022, at least 15 days prior to this meeting as required by law.

FISCAL IMPACT:

Approval of this report will have no fiscal impact to the City. However, revenue generated by development impact fees pays for millions of dollars of infrastructure each year.

City of Fontana Page 1 of 2 Printed on 12/7/2022
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File #: 21-1896 Agenda Date: 12/13/2022
Agenda #: AC. Category: Consent Calendar
MOTION:

Approve staff recommendation.

City of Fontana Page 2 of 2 Printed on 12/7/2022
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RESOLUTION NO. 2022-

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FONTANA

APPROVING THE ANNUAL REPORT ON DEVELOPMENT IMPACT

FEES AND MAKING FINDINGS AS TO UNEXPENDED FUNDS
WHEREAS, California Government Code Sections 66000-66006 impose requirements for the collection and expenditure of development impact fees; and WHEREAS, pursuant to Government Code Section 66006(b), the City must issue a yearly report relating to the development impact fees it imposes; and WHEREAS, pursuant to Government Code Section 66001(d), at least every five years the City must make certain findings with respect to that portion of each development fee account remaining unexpended; and
WHEREAS, pursuant to Government Code Section 66006(b)(2), the report was made available to the public not less than 15 days prior to the public meeting.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Fontana, as follows:

Section 1. The City Council approves the attached Annual Report of Development Impact Fees for the Fiscal Year Ended June 30, 2022, and adopts the findings included there.

APPROVED AND ADOPTED this 13th day of December, 2022.

READ AND APPROVED AS TO LEGAL FORM:

City Attorney
I, Germaine M. Key, City Clerk of the City of Fontana, and Ex-Officio Clerk of the City Council do hereby certify that the foregoing resolution is the actual resolution duly and regularly adopted by the City of Fontana at a regular meeting on the 13th day of December, 2022, by the following vote to wit:

AYES:

NOES:

ABSENT:
600
Resolution No. 2022-

City Clerk of the City of Fontana
Mayor of the City of Fontana
ATTEST:

City Clerk
601
City of Fontana
Annual Report on Development Impact Fees
Fiscal Year Ended June 30, 2022
Background
The Mitigation Fee Act, Government Code Section 66000 et seq., (the “Act”) governs the establishment and administration of development impact fees paid by new development projects for public facilities needed to serve new development. Fees must be separately accounted for and used for the specific purpose for which the fee was imposed. The City’s adopted development impact fees are listed in the attached exhibits. Expenditures are authorized through the annual Operating Budget and the City’s Capital Improvement Program.

Annual Development Fee Reporting
The Act requires that the City prepare an annual review of all development impact fees as defined in the Act and make a public report on the fees available to the public after the end of each fiscal year. Government Code Section 66006(b)(2) requires the report to be placed on an agenda for review at a public meeting not less than 15 days after the report is made available to the public.

The City is also required to adopt by resolution certain findings for any fund accounts which contain unexpended funds as of the fifth fiscal year following the first deposit into those funds (Government Code Section 66001(d)).

The report is organized as follows:

Section 1. A brief description of the purpose of each development impact fee, its authorizing legislation and current amount (Government Code Section 66006(b)(1)(A)).

Section 2. A summary of the beginning fund balance, annual fee revenue collected and interest earned, public improvement expenditures, and the ending fund balance for each fee (Government Code Section 66006(b)(1)(C) and (D)).

Section 3. A five-year history of the beginning fund balance, annual fee revenue collected and interest earned, public improvement expenditures, and the ending fund balance for each fee (Government Code Section 66006(b)(1)(C) and (D)).

Section 4. A listing of projects funded or to be funded with development impact fees.

Section 5. Report of Findings for each fee.
602
SFDU Retail Office Industrial
620 San Sevaine Flood Control Drainage facility improvements 90-34 $4,405 $4,405 $4,405 $4,405 $4,405 $4,405 621 Upper Etiwanda Flood Control Drainage facility improvements 90-34 $9,790 $9,790 $9,790 $9,790 $9,790 $9,790 SFDU Retail Office Industrial
622 Storm Drainage - Declez North Master interceptor drains & major drainage facilities 2021-094 $23,970 $23,970 $23,970 $23,970 $23,970 $23,970 622 Storm Drainage - Declez South Master interceptor drains & major drainage facilities 2021-094 $28,460 $28,460 $28,460 $28,460 $28,460 $28,460 622 Storm Drainage - Fontana East Master interceptor drains & major drainage facilities 2021-094 $14,594 $14,594 $14,594 $14,594 $14,594 $14,594 622 Storm Drainage - I-10 North Master interceptor drains & major drainage facilities 2021-094 $20,959 $20,959 $20,959 $20,959 $20,959 $20,959 622 Storm Drainage - I-10 South Master interceptor drains & major drainage facilities 2021-094 $5,138 $5,138 $5,138 $5,138 $5,138 $5,138 622 Storm Drainage - I-15 North Master interceptor drains & major drainage facilities 2021-094 $19,599 $19,599 $19,599 $19,599 $19,599 $19,599 622 Storm Drainage - Lower Etiwanda Master interceptor drains & major drainage facilities 2021-094 $8,565 $8,565 $8,565 $8,565 $8,565 $8,565 622 Storm Drainage - Middle Etiwanda Master interceptor drains & major drainage facilities 2021-094 $7,144 $7,144 $7,144 $7,144 $7,144 $7,144 622 Storm Drainage - Project 3-4 Master interceptor drains & major drainage facilities 2021-094 $17,188 $17,188 $17,188 $17,188 $17,188 $17,188 622 Storm Drainage - Upper Etiwanda Master interceptor drains & major drainage facilities 2021-094 $9,266 $9,266 $9,266 $9,266 $9,266 $9,266 SFDU 0-2 3+ Retail Office Industrial
630 Circulation Mitigation Arterial street and interchange improvements 2021-094 $5,895 $3,608 $3,608 $8,850 $7,160 $3,610 SFDU 0-2 3+ Retail Office Industrial
630 Local Transportation Street, sidewalks and pathways 2021-094 $815 $774 $815 $0.223 $0.223 $0.065 630 Local Arterials Local four-lane arterials 2021-094 $456 $433 $456 $0.124 $0.124 $0.036 630 Traffic Signals Local traffic signals 2021-094 $141 $135 $141 $0.039 $0.039 $0.011 631 Fire Assessment Fire protection facilities 2021-094 $380 $360 $380 $0.104 $0.104 $0.030 632 General Government Public facilities 2021-094 $458 $435 $458 $0.125 $0.125 $0.037 633 Landscape Improvements Median landscaping 2021-094 $287 $273 $287 $0.078 $0.078 $0.023 634 Library Cap Improvements Library facilities 2021-094 $102 $97 $102 $0.028 $0.028 $0.008 635 Park Development Park and recreational facilities 2021-094 $6,819 $6,478 $6,819 N/A N/A N/A 636 Police Cap Facilities Police facilities, vehicles and equipment 2021-094 $486 $461 $486 $0.133 $0.133 $0.039 698 Affordable Housing Inclusionary housing 2021-094 $1,388 $677 $677 $1.660 1,15 $0.120 SFDU 0-2 3+ Retail Office Industrial
702 Sewer Capital Sewer connection 2021-094 $902.00 $902.00 $902.00 $902.00 $902.00 $902.00 Brief Description and Amount of Fees
City of Fontana
Annual Report
Development Impact Fees
Fiscal Year Ended June 30, 2022
Government Code Section 66006(b)(1)(A) and (B)
Fund # Fund Description Fee Description Last Updated Residential Fees per Gross Acre Non-Residential Fees per 1,000 Gross Building SF
Non-Residential Fees per 1,000
Gross Building SF
Fund # Fund Description Fee Description Last Updated
Residential Fees per Net Developable
Acre
Non-Residential Fees per 1,000
Gross Building SF
Fund # Fund Description Fee Description Last Updated Residential Fees per Dwelling Unit Non-Residential Fees per EDU
Fund # Fund Description Fee Description Last Updated Residential Fees per Dwelling Unit Non-Residential Fees per Building SF
Fund # Fund Description Fee Description Last Updated Residential Fees per Dwelling Unit Section 1

603
Beginning
Balance
Ending
Balance
07/01/21 06/30/22
620 Flood Control - San Sevaine 579,435 977,357 3,324 (96,861) (13,400) 1,449,855 621 Flood Control - Etiwanda 46,973 0 159 0 0 47,132
622 Storm Drain 15,843,084 4,373,223 62,884 (1,207,621) (123,000) 18,948,570 630 Circulation Mitigation 7,696,915 10,055,943 129,083 (821,496) (181,500) 16,878,945 631 Fire Facility 637,971 340,822 2,341 0 (291,749) 689,385 632 Public Facilities 11,327,524 1,025,717 39,091 0 0 12,392,332 633 Median Landscaping 5,582,394 658,150 19,063 (101,908) (46,900) 6,110,798 634 Library Facility 1,020,693 285,160 3,859 (87,070) 0 1,222,642 635 Park Development 5,120,626 2,299,536 19,519 (1,452,261) (219,300) 5,768,120 636 Police Facilities 3,582,959 640,651 12,511 (521,396) (4,600) 3,710,125 698 Affordable Housing 5,656,571 1,497,365 13,790 (1,546,090) 0 5,621,635 702 Sewer Connection 2,457,842 336,864 2,305 510,640 (602,191) (9,100) 2,696,361 TOTALS 59,552,987 22,490,787 307,929 510,640 (6,436,893) (889,549) 75,535,901 City of Fontana
Fiscal Year Ended June 30, 2022
Fund Balances, Fees Collected, Interest Earned, and Project Expenditures Government Code Section 66006(b)(1)(C) and (D)
Annual Report
Development Impact Fees
Cost
Allocation Fund Fund Description Fees Collected
Interest
Earned
Other
Revenues
Capital
Expenditures
Section 2

604
Fee Type 2021/22 2020/21 2019/20 2018/19 2017/18
Flood Control - San Sevaine (620)
Beginning balance 579,435 461,015 364,953 367,042 427,838 Revenue 977,357 216,918 186,943 84,164 36,357
Interest 3,324 1,880 15,862 19,395 4,902
Other revenue
Capital (96,861) (86,578) (92,743) (92,748) (88,555)
Cost allocation (13,400) (13,800) (14,000) (12,900) (13,500) Ending balance 1,449,855 579,435 461,015 364,953 367,042 Flood Control - Etiwanda (621)
Beginning balance 46,973 46,925 45,840 44,339 44,167
Revenue 0 0 0 0 0
Interest 159 48 1,085 1,501 172
Other revenue
Capital
Cost allocation
PPA - fees owed to County
Ending balance 47,132 46,973 46,925 45,840 44,339
Storm Drain (622)
Beginning balance 15,843,084 14,963,962 13,634,637 13,996,233 14,883,896 Revenue 4,373,223 3,529,070 2,440,966 2,001,556 3,440,409 Interest 62,884 22,156 389,307 485,316 68,478
Other revenue
Capital (1,207,621) (2,381,903) (1,011,048) (2,347,468) (3,896,450) Cost allocation (123,000) (290,200) (489,900) (501,000) (500,100) Ending balance 18,948,570 15,843,084 14,963,962 13,634,637 13,996,233 Circulation Mitigation (630)
Beginning balance 7,696,915 102,964 (3,481,614) (10,281,237) (17,703,078) Revenue 10,055,943 8,680,924 5,049,189 7,147,782 8,319,008 Interest 129,083 64,926 563,486 777,028 171,515
Other revenue
Capital (821,496) (1,024,499) (1,953,097) (1,030,387) (582,082) Cost allocation (181,500) (127,400) (75,000) (94,800) (486,600) Ending balance 16,878,945 7,696,915 102,964 (3,481,614) (10,281,237) Government Code Section 66006(b)(1)(C) and (D)
Annual Report
Development Impact Fees
City of Fontana
Fiscal Year Ended June 30, 2022
Fund Balances, Fees Collected, Interest Earned, and Project Expenditures - Five Year History Section 3

605
Fee Type 2021/22 2020/21 2019/20 2018/19 2017/18
Government Code Section 66006(b)(1)(C) and (D)
Annual Report
Development Impact Fees
City of Fontana
Fiscal Year Ended June 30, 2022
Fund Balances, Fees Collected, Interest Earned, and Project Expenditures - Five Year History Fire Facility (631)
Beginning balance 637,971 719,932 856,721 757,475 681,581 Revenue 340,822 235,012 155,707 383,204 374,921
Interest 2,341 655 16,863 24,203 2,246
Other revenue
Capital 0 0 (309,359) (308,161) (301,273)
Cost allocation (291,749) (317,628) 0 0 0
Ending balance 689,385 637,971 719,932 856,721 757,475
Public Facilities (632)
Beginning balance 11,327,524 10,110,789 9,127,783 7,335,477 5,859,593 Revenue 1,025,717 1,202,606 757,037 1,536,608 1,448,836 Interest 39,091 14,729 225,969 260,171 27,048
Other revenue
Capital 0 0 0 (4,473) 0
Cost allocation 0 (600) 0 0 0
Ending balance 12,392,332 11,327,524 10,110,789 9,127,783 7,335,477 Median Landscaping (633)
Beginning balance 5,582,394 5,809,267 5,612,257 4,263,188 3,018,876 Revenue 658,150 536,533 454,735 1,263,373 1,266,082
Interest 19,063 6,607 133,565 153,935 7,845
Other revenue
Capital (101,908) (760,214) (386,590) (64,939) (26,815) Cost allocation (46,900) (9,800) (4,700) (3,300) (2,800) Ending balance 6,110,798 5,582,394 5,809,267 5,612,257 4,263,188 Library Facility (634)
Beginning balance 1,020,693 475,855 248,297 1,540,128 1,349,342 Revenue 285,160 567,217 328,919 325,570 274,470
Interest 3,859 2,321 9,639 40,187 4,337
Other revenue
Capital (87,070) 0 (100,000) (1,653,088) (88,021)
Cost allocation 0 (24,700) (11,000) (4,500) 0
Ending balance 1,222,642 1,020,693 475,855 248,297 1,540,128 Section 3

606
Fee Type 2021/22 2020/21 2019/20 2018/19 2017/18
Government Code Section 66006(b)(1)(C) and (D)
Annual Report
Development Impact Fees
City of Fontana
Fiscal Year Ended June 30, 2022
Fund Balances, Fees Collected, Interest Earned, and Project Expenditures - Five Year History Park Development (635)
Beginning balance 5,120,626 5,533,262 6,366,089 5,666,657 7,492,576 Revenue 2,299,536 1,645,189 1,274,558 1,846,002 1,540,875 Interest 19,519 4,200 148,523 202,231 37,364
Other revenue
Capital (1,452,261) (1,906,824) (1,827,208) (1,220,901) (3,372,058) Cost allocation (219,300) (155,200) (428,700) (127,900) (32,100) Ending balance 5,768,120 5,120,626 5,533,262 6,366,089 5,666,657 Police Facilities (636)
Beginning balance 3,582,959 2,907,816 2,509,702 1,929,674 1,684,357 Revenue 640,651 767,821 418,738 664,646 603,263
Interest 12,511 5,343 63,840 70,807 5,986
Other revenue
Capital (521,396) (80,321) (39,064) (145,925) (363,932) Cost allocation (4,600) (17,700) (45,400) (9,500) 0
Ending balance 3,710,125 3,582,959 2,907,816 2,509,702 1,929,674 Affordable Housing (698)
Beginning balance 5,656,571 4,772,171 3,974,083 3,221,282 2,489,821 Revenue 1,497,365 876,809 710,496 639,198 724,205
Interest 13,790 7,591 87,592 113,603 7,256
Other revenue
Capital (1,546,090) 0 0 0 0
Cost allocation 0 0 0 0 0
Ending balance 5,621,635 5,656,571 4,772,171 3,974,083 3,221,282 Sewer Connection (702)
Beginning balance 2,457,842 2,242,168 2,099,980 1,726,495 1,482,070 Revenue 336,864 325,729 281,127 501,363 361,600
Interest 2,305 3,774 10,159 6,023 0
Other revenue 510,640 509,039 506,564 516,974 522,434
Loan proceeds
Loan repayment (416,115) (416,115) (416,115) (416,115) (416,115) Capital (186,076) (198,753) (213,647) (227,160) (213,194) Cost allocation (9,100) (8,000) (25,900) (7,600) (10,300) Ending balance 2,696,361 2,457,842 2,242,168 2,099,980 1,726,495 Section 3

607
Flood Control - San Sevaine (620) 0
See Findings
Flood Control - Etiwanda (621) 0
See Findings
Storm Drain (622) 5,804,815
0001 DUNCAN SD: I 15 - CITRUS 2023 2,950 2,950 2,950 0 100% 3346 LIME AVENUE BASIN 2022 50,000 50,000 872 49,128 100% 3347 SULTANA @ MILLER BASIN 2022 100,000 100,000 872 99,128 100% 3361 CYPRESS STORM DRAIN 2022 16,356,715 8,116,715 2,460,156 5,656,559 50% Circulation (630) 26,006,416
Due to other funds for project funding 18,370,049
0002 W LIBERTY PARKWAY/ MILLER TS 2022 829,884 44,884 0 44,884 5% 3281 SIERRA: FOOTHILL - BASELINE 2022 19,093,064 6,128,874 1,074,687 5,054,187 32% 3333 FOOTHILL: HEMLOCK - ALMERIA 2024 13,209,000 619,530 612,515 7,015 5% 3350 ETIWANDA/SLOVER 2022 13,151,299 3,146,196 660,379 2,485,817 24% 3378 SIERRA: SUMMIT TO I15 ROW 2021 400,000 128,400 83,936 44,464 32% Fire Facility (631) 23,125,000
Due to Bondholders 23,125,000
Public Facilities (632) 0
Projects
Government Code Section 66006(b)(1)(E)
City of Fontana
Annual Report
Development Impact Fees
Fiscal Year Ended June 30, 2022
Project # Project % From Dev
Impact Fees
Expended
Development
Impact Fees
Budgeted
Development
Impact Fees
Project
Completion
Total Project
Cost
Pending DIF
Expenditures
Section 4

608
Projects
Government Code Section 66006(b)(1)(E)
City of Fontana
Annual Report
Development Impact Fees
Fiscal Year Ended June 30, 2022
Project # Project % From Dev
Impact Fees
Expended
Development
Impact Fees
Budgeted
Development
Impact Fees
Project
Completion
Total Project
Cost
Pending DIF
Expenditures
Median Landscaping (633) 4,482,689
0004 SIERRA CREST LANDSCAPE PROJECT 2021 682,998 682,998 682,998 0 100% 0020 JURUPA AVE. LANDSCAPE MEDIAN 2024 2,890,000 2,890,000 174,092 2,715,908 100% 3361 CYPRESS STORM DRAIN 2022 16,356,715 1,900,000 133,219 1,766,781 12% Library Facility (634) 312,930
Due to General Fund 100,000
0034 LEWIS LIBRARY WALL 2022 300,000 300,000 87,070 212,930 100% Park Development (635) 2,373,513
0003 SOUTHRIDGE DOG PARK 2023 47,515 47,515 47,515 0 100% 0010 McDERMOTT PARKING LOT 2022 2,500,000 520,000 20,000 500,000 21% 0019 SOUTHRIDGE DOG PARK 2023 607,025 107,025 25,057 81,968 18% 4250 SOUTH FONTANA SPORTS PARK 2023 19,087,150 2,330,000 1,207,761 1,122,239 12% 4249 CENTRAL CITY PARK 2022 12,808,230 4,082,733 3,413,427 669,306 32% Police Facilities (636) 1,123,366
0021 PD FENCE ON SIVILLE AVE 2022 431,000 431,000 27,097 403,903 100% 2029 POL LOBBY/MTG ROOM REMODEL 2022 335,830 302,410 78,422 223,988 90% 2040 CAPTAIN OFFICES REMODEL 2022 806,500 806,500 575,935 230,565 100% 4328 EOC POLICE LOBBY REMODEL 2022 2,310,790 300,000 35,091 264,909 13% Affordable Housing (698) 0
Sewer Connection (702) 2,891,914
Due to State Revolving loan for San Bernardino Trunk Sewer 2,891,914 Section 4

609
City of Fontana
Annual Report
Development Impact Fees
Fiscal Year Ended June 30, 2022
Report of Findings
(Government Code Section 66001(d))
Section 5

San Sevaine Flood Control – Fund 620
The purpose of the fee, the relationship between the fee and the purpose, the sources of anticipated funding and the approximate dates on which funding is expected are set forth in the City’s most recent Capital Improvement Plan for Fiscal Years 2021/2022 – 2027/2028, which is incorporated herein by reference. The San Sevaine Flood Control fee is a “pass-through” fee to the San Bernardino County Flood Control District (SBCFCD). The SBCFCD determines the project priorities and project expenditures and by agreement the SBCFCD will request a draw of funds on a project priority basis.

Fees are currently being accumulated and are on reserve for these SBCFCD projects.

Upper Etiwanda Flood Control – Fund 621
The purpose of the fee, the relationship between the fee and the purpose, the sources of anticipated funding and the approximate dates on which funding is expected are set forth in the City’s most recent Capital Improvement Plan for Fiscal Years 2021/2022 – 2027/2028, which is incorporated herein by reference. The Upper Etiwanda Flood Control fee is a “pass-through” fee to the San Bernardino County Flood Control District (SBCFCD). The SBCFCD determines the project priorities and project expenditures and by agreement the SBCFCD will request a draw of funds on a project priority basis.

Fees are currently being accumulated and are on reserve for these SBCFCD projects.

Storm Drainage – Fund 622
The purpose of the fee, the relationship between the fee and the purpose, the sources of anticipated funding and the approximate dates on which funding is expected are set forth in the City’s most recent Capital Improvement Plan for Fiscal Years 2021/2022 – 2027/2028, which is incorporated herein by reference.

Circulation Mitigation – Fund 630
The purpose of the fee, the relationship between the fee and the purpose, the sources of anticipated funding and the approximate dates on which funding is expected are set forth in the City’s most recent Capital Improvement Plan for Fiscal Years 2021/2022 – 2027/2028, which is incorporated herein by reference. Many of the projects funded with these fees are subject to a Measure I Agreement which identifies the City’s DIF share.

In order to move projects forward, funds have been borrowed from other sources. All circulation mitigation fees collected are obligated to repay those other sources. 610
City of Fontana
Annual Report
Development Impact Fees
Fiscal Year Ended June 30, 2022
Report of Findings
(Government Code Section 66001(d))
Section 5

Fire Facility – Fund 631
The purpose of the fee, the relationship between the fee and the purpose, the sources of anticipated funding and the approximate dates on which funding is expected are set forth in the City’s most recent Capital Improvement Plan for Fiscal Years 2021/2022 – 2027/2028, which is incorporated herein by reference. In order to fund the construction of Fire Station No. 71, the Fontana Public Financing Authority issued Taxable Recovery Zone Economic Development Bonds on December 8, 2010, in the amount of $5,420,000. These bonds were refinanced in October 2021 through the issuance of the City’s 2021A Lease Revenue Bonds in the amount of $23,125,000 which will also fund Fire Stations No. 80 and 81 as well as the Fire Protection District Training Facility.

Bond debt service for Fiscal Year 2022/23 is $1,395,400. Fire facility fees as available will be used to service this debt obligation, with any shortfall to be paid by the Fontana Fire Protection District.

Public Facilities – Fund 632
The purpose of the fee, the relationship between the fee and the purpose, the sources of anticipated funding and the approximate dates on which funding is expected are set forth in the City’s most recent Capital Improvement Plan for Fiscal Years 2021/2022 – 2027/2028, which is incorporated herein by reference.

Median Landscaping – Fund 633
The purpose of the fee, the relationship between the fee and the purpose, the sources of anticipated funding and the approximate dates on which funding is expected are set forth in the City’s most recent Capital Improvement Plan for Fiscal Years 2021/2022 – 2027/2028, which is incorporated herein by reference.

Library Facility – Fund 634
The purpose of the fee, the relationship between the fee and the purpose, the sources of anticipated funding and the approximate dates on which funding is expected are set forth in the City’s most recent Capital Improvement Plan for Fiscal Years 2021/2022 – 2027/2028, which is incorporated herein by reference.

Park Development – Fund 635
The purpose of the fee, the relationship between the fee and the purpose, the sources of anticipated funding and the approximate dates on which funding is expected are set forth in the City’s most recent Capital Improvement Plan for Fiscal Years 2021/2022 – 2027/2028, which is incorporated herein by reference.
611
City of Fontana
Annual Report
Development Impact Fees
Fiscal Year Ended June 30, 2022
Report of Findings
(Government Code Section 66001(d))
Section 5

Police Facilities – Fund 636
The purpose of the fee, the relationship between the fee and the purpose, the sources of anticipated funding and the approximate dates on which funding is expected are set forth in the City’s most recent Capital Improvement Plan for Fiscal Years 2021/2022 – 2027/2028, which is incorporated herein by reference.

Affordable Housing – Fund 698
The purpose of the fee, the relationship between the fee and the purpose, the sources of anticipated funding and the approximate dates on which funding is expected are set forth in the City’s most recent Capital Improvement Plan for Fiscal Years 2021/2022 – 2027/2028, which is incorporated herein by reference.

Sewer Connection – Fund 702
The purpose of the fee, the relationship between the fee and the purpose, the sources of anticipated funding and the approximate dates on which funding is expected are set forth in the City’s most recent Capital Improvement Plan for Fiscal Years 2021/2022 – 2027/2028, which is incorporated herein by reference. In order to fund the San Bernardino Trunk Sewer project, $8,322,304 was borrowed from the State Revolving Loan Fund. The loan repayment is equal to $416,115 per year. Sewer connection fees are obligated for one-half of this annual repayment amount. 612
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1907 Agenda Date: 12/13/2022
Agenda #: AD. Category: Consent Calendar
FROM:

Economic Development
SUBJECT:

Real Estate Services - Property Management
RECOMMENDATION:

Approve Lease Agreement Template and Property Management Services for acquired properties.

COUNCIL GOALS:
· To promote economic development by pursuing business retention, expansion, and attraction.

DISCUSSION:

In response to public comment received during the October 25, 2022 Council Meeting, commercial tenants expressed interest in maintaining lease agreements under newly acquired city properties.

City Council requested staff to respond with a plan to extend current lease agreements. With a strong reputation with local business owners, Economic Development will add property management to its menu of real estate services; which currently includes site selection for businesses looking to expand, relocate or develop in Fontana.

Lease Agreements terms to include:
- Base Rent
- Additional Operations Expenditures (See Lease Agreement) - Annual Fee Adjustment based on Consumer Price Index (CPI) Property Management services will include:
- Administration of lease agreements to current or new tenants - Billing management including rent collection and utility payments - Marketing/promotion of property vacancy
- Negotiation of lease agreement terms including extensions - Oversee compliance of property maintenance and tenant improvements Properties enrolled in these services will be assigned by Development Services to Economic Development upon close of acquisition.

FISCAL IMPACT:

Anticipated revenue will be provided to Budget office to include in second quarter budget adjustment for mid-year. Rental income received will record to Org #10110500-6332 and utilities will appropriate to Org #10110500-8020.

MOTION:

Approve staff recommendation.

City of Fontana Page 1 of 1 Printed on 12/7/2022
powered by Legistar™613
16498.00001\40865896.1
1 COMMERCIAL LEASE AGREEMENT
THIS COMMERCIAL LEASE AGREEMENT (the "Lease") is made and entered into by and between ________________________ ("Landlord") and _________________ ("Tenant"), under the following terms and conditions:

Introduction. Landlord owns the commercial property located at __________________, located in the City of ____________, California, (the “Property”). The Property is improved with a ________________________ and other improvements.

Description of the Leased Premises. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord a portion of the Property consisting of approximately _______ square feet, known as [Address & Suite Number], referred to herein as the "Premises" and shown on Exhibit A. The Property also contains common areas which Tenant may use on a non-exclusive basis in common with other tenants of the Property, consisting of [describe common area: parking area, sidewalks, driveways, entrances and public walkways necessary for access of the Property] (the “Common Areas”). Tenant’s non-exclusive right to use the Common Area shall be considered part of the Premises. Tenant’s proportionate share of the Property is agreed to be __% (“Proportionate Share”), which represents the rentable square footage of the Premises to the total rentable area of the Property.

Term, Occupancy, and Renewal.
a. Term. The term of this Lease shall commence on the date this Lease is executed by both Tenant and Landlord (the "Commencement Date"), and shall continue until __________________.
b. Occupancy. Tenant may, upon execution of this Lease by Landlord and Tenant, occupy the Premises on the Commencement Date subject to all terms and conditions of this Lease, provided Tenant complies with Section 17 (Insurance) and delivers an insurance certificate to Landlord prior to entry. Upon delivery of the insurance certificate, first month's rent and any security deposit, Landlord shall deliver the keys and possession to Tenant.

Use if Tenant has been in occupancy of the Property [Occupancy. Tenant has been in occupancy of the Premises under a prior lease, and subsequent month-to-month tenancy, which lease and tenancy are hereby terminated by the execution of this Lease (except for such provisions which expressly survive).]
c. [Option to Renew. Provided Tenant is not in default under any terms of this Lease, and in the sole and absolute discretion of Landlord, Tenant is hereby granted an option to renew this Lease, under the same terms and conditions as set forth in this Lease, for the further term of _______ years from and after the expiration of the original term of this Lease as set forth under Section 3(a) (the "Renewal Term") by giving Landlord written notice of election of exercise option to at least 120 days prior to the expiration of the then unexpired term; provided, if Tenant fails to timely notify Landlord of election to extend for any option period, all succeeding option periods, if any, shall automatically expire and lapse and the Lease shall terminate at the end of the term then in effect.].
614
16498.00001\40865896.1
2 Rent. The initial annual rent during the term of this Lease shall be $___________ per month, subject to increase as provided in Section 4(d) below (“Base Rent”). Tenant shall, commencing on the Commencement Date and continuing thereafter on the first day of each and every month during the term of this Lease, pay to Landlord in advance, such minimum monthly rent, without setoff, deduction or demand. If possession is taken on other than the first of the month, rent shall be prorated accordingly based on a 30-day month. a. Late Charge. Tenant acknowledges that late payment by Tenant to Landlord of rent will cause Landlord to incur costs not contemplated by this Lease. If any installment of rent due from Tenant is not received by Landlord within five (5) days after it becomes due, Tenant shall pay to Landlord an additional sum of 5% of the overdue rent as a late charge. The parties agree that this late charge represents a fair and reasonable estimate of the costs that Landlord will incur by reason of late payment by Tenant. Acceptance of any late charge shall not constitute a waiver of Tenant's default with respect to the overdue amount or prevent Landlord from exercising any of the other rights and remedies available to Landlord.
b. Interest on Unpaid Rent. Rent or other charges under this Lease not paid within five (5) days of the date due shall, in addition to any late charges under Section 4(a) above, bear interest at the lesser of the maximum legal rate or 10% per annum from the date due until paid. c. Holdover. Tenant shall not hold over after the expiration or earlier termination of the term hereof without the express prior written consent of Landlord. Acceptance of rent is not Landlord's consent to holdover. Without Landlord's express consent Tenant shall become a tenant at sufferance only at a rental rate equal to 150% of the rent in effect upon the date of such expiration. Acceptance by Landlord of rent after such expiration or earlier termination shall not constitute a holdover hereunder or result in a renewal. The foregoing provisions of this Section 4 are in addition to and do not affect Landlord's right of re-entry or any rights of Landlord hereunder or as otherwise provided by law. If Tenant fails to surrender the Premises upon the expiration of this Lease, Tenant shall indemnify, protect, defend and hold Landlord harmless from all loss or liability, including without limitation, any claim made by any succeeding tenant founded on or resulting from such failure to surrender. Such indemnity shall survive the expiration of this Lease. d. Annual Adjustment. Beginning on the first anniversary of the Commencement Date, Base Rent shall increase annually at the end of each 12-month period by any increase in the Consumer Price Index (“CPI”) as determined by the U.S. Bureau of Labor Statistics for all Urban Consumers for the San Bernardino/Riverside Metropolitan Area over the previous year. Should the CPI be discontinued, the index used for comparison shall be a comparable index as designated by the Bureau. It is recognized by both parties that the Index for any month is not published for approximately two months. Tenant shall, therefore, continue to pay the current rental paid by Tenant until such time as the new rental is calculated and, at that time, Tenant shall pay within ten (10) days of notice of the new Base Rent the new amount plus arrearages. In no event shall Base Rent ever decrease below the prior year’s Base Rent even if the CPI is negative. In such event, the Base Rent shall remain the same.
e. Security Deposit. Concurrently with Tenant's execution of this Lease, Tenant shall deposit with Landlord the Security Deposit in the amount of $_____________. The Security Deposit shall be held by Landlord as security for Tenant's performance of the terms of this Lease.

Landlord may (but shall not be required to) use all or any part of the Security Deposit to cure any default of Tenant under the Lease (after any required notice and expiration of any applicable cure 615
16498.00001\40865896.1
3 period) or to compensate Landlord for any loss or damage which Landlord may incur as a result of Tenant's default. Tenant shall not be entitled to interest on the Security Deposit and Landlord shall not be required to keep the Security Deposit separate from its general funds. Where there have been no defaults by Tenant or where all applicable deductions from Security Deposit have been made as hereinabove provided, Landlord shall refund the then existing balance of the Security Deposit to Tenant within thirty (30) days of expiration or termination of this Lease.1 Place of Payment of Rent. Rent and all other sums which shall become due under this Lease, including but not limited to late charges and additional rent, shall be payable by hand delivery or mail at ______________________________________________, or at such other place as Landlord may designate from time to time in writing. Mailed payments must be received (not postmarked) by Landlord by the date due.

Condition of, and Improvements to, Premises.
a. Improvements. Under this Lease, Landlord shall have no obligation or responsibility, actual or implied, to install, construct, accommodate, or make any improvements to the Premises prior to, or as a condition of, Tenant's occupation of the Premises. b. As-Is Condition. Tenant warrants and agrees that Tenant has inspected the Premises. Tenant agrees to take possession of the Premises in an AS-IS condition (which exists on the date this Lease is signed) and Tenant further agrees that, if Tenant wishes to construct any improvement in the Premises, Tenant shall comply with all requirements in Exhibit C as well as Section 13 (Alterations and Liens) of this Lease. Landlord makes no representations regarding the condition, status, compliance with laws or suitability for a particular purpose for Tenant's use. c. Condition Upon Surrender. Upon termination of this Lease, Tenant shall surrender the Premises to Landlord in as good condition as when originally received, ordinary wear and tear and damage by fire, earthquake, flood or act of God excepted, and including any repairs or improvements made by Tenant. If Tenant fails to maintain the Premises in good order and repair, after thirty (30) days' prior written notice, Landlord may, at its option, make such repairs, and Tenant shall pay the reasonable cost thereof as additional rent hereunder within ten (10) days after receipt of a written statement therefor. In the event the giving of thirty (30) days' prior notice may result in additional damage to the Premises, Landlord may make such repairs, at Tenant's expense, without thirty days' prior written notice.
d. Inspection by Certified Access Specialist. Landlord discloses that the Premises have not undergone inspection by a Certified Access Specialist as referenced in California Civil Code Section 1938 subsection (e) which provides: "A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant.

The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises."

1 NOTE TO STAFF: ok to mark as “Reserved” if not applicable 616
16498.00001\40865896.1
4 Pursuant to the foregoing Section 1938(e), Tenant acknowledges and agrees that, if Tenant wishes to have the Premises inspected by a CASp: (i) Tenant must notify Landlord on or before the date when Tenant executes this Lease pursuant to the election below; (ii) the inspection will be at Tenant's sole cost and expense; (iii) the inspection must be scheduled through Landlord and in coordination with the Building’s property manager; (iv) any repairs or modifications necessary to correct any violation of construction-related accessibility standards that is noted in the CASp report shall be Tenant’s responsibility; and (v) Tenant must provide a copy of the CASp report to Landlord on completion. By initialing below, Tenant represents that:

Tenant wishes to have a CASp inspection of the Premises Initials: ______________ Tenant hereby waives its right to have a CASp inspection of the Premises Initials: ____________ Use. The Premises shall be used only for the operation of _______________ and for no other purpose (“Permitted Use”). Tenant shall provide, no later than three (3) business days prior to the Commencement Date, evidence of a Planning Permit for use and Tenant’s current business license. Tenant shall not use any portion of the Premises for purposes other than those specified without first obtaining the written consent of Landlord. Tenant shall before and during the Term faithfully observe and comply with, and shall cause all occupants of the Premises to observe and comply with, the "Rules and Regulations" attached hereto as Exhibit B, and all reasonable nondiscriminatory modifications and additions to them which Landlord may, from time to time, put into effect and furnish to Tenant. Landlord will try to enforce the Rules and Regulations, but will not be liable to Tenant for the violation or non-performance of the Rules and Regulations by any other tenant or occupant of the Property. Tenant shall maintain and conduct its said business insofar as the same relates to Tenant's use and occupancy of the Premises, in a lawful manner and in strict compliance with all governmental laws, rules, regulations and order. Tenant shall obtain all business licenses, clearances, and permits required to operate its business prior to opening, maintain such necessary licenses and permits in force during the Term, and shall provide copies of each permit or license within 30 days after the Commencement Date and at any time during the Lease Term upon Landlord’s request. Tenant shall post all notices to the public in an accessible and visible place to the public. Such notices may include, but are not limited to, Health Department clearances, business licenses, or cosmetology or other licensure. Tenant shall promptly notify Landlord of any notice of violation, suspension or revocation of any such license or clearance.

Without limiting in any way the restriction in this Lease that the Premises be used only for the Permitted Use specified in this paragraph, in no event shall the Premises be used for any exclusive use granted by Landlord to other tenants of the Property prior to or subsequent to the date of this Lease. Nothing in this Lease shall be construed to grant Tenant an exclusive right to such Permitted Use.

Uses Prohibited. In addition to uses prohibited pursuant to Paragraph 7, Tenant shall not do or permit anything to be done in or about the Premises nor bring or keep anything therein which is not within the permitted use of the Premises which will in any way increase the existing rate of or affect any fire or other insurance upon the Property or any of its contents, or cause a cancellation of any insurance policy covering the Property or any part thereof or any of its contents. Tenant shall not use the Premises for any cannabis related uses, dispensary, manufacture, assembly, the sale of cannabis or accessories related to cannabis products. Tenant shall not do or permit anything to be done in or about the Premises which will in any way obstruct or interfere with the rights of other tenants or occupants of the Property or injure or annoy them or use or allow the Premises to be used for any improper, immoral, unlawful or objectionable purpose; nor shall Tenant cause, 617
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5 maintain or permit any nuisance in, on or about the Premises. Tenant shall not commit or allow to be committed any waste in or upon the Premises. Under no circumstances shall the right herein granted to use the Common Areas be deemed to include the right to sell or solicit in any manner or store any property, temporarily or permanently, in the Common Areas. Any such storage shall be permitted only by the prior written consent of Landlord or Landlord's designated agent, which consent may be revoked at any time. In the event that any unauthorized storage shall occur then Landlord shall have the right, without notice, in addition to any other rights and remedies that it may have, to remove the property and charge the cost to Tenant, which cost shall be payable as additional rent immediately upon demand by Landlord.

Compliance with Laws/Hazardous Materials.
a. Tenant, at Tenant's expense, shall comply with and cause all of Tenant's agents to comply with all applicable laws, ordinances, rules and regulations of governmental authorities applicable to the Premises or the use or occupancy thereof, including, without limitation, the law commonly known as the Americans With Disabilities Act and California Code of Regulations Title 8, Sections 3281 through 3299 (collectively, "Laws"). b. Tenant shall not cause or permit any Hazardous Materials, as defined below, to be brought upon, kept, used, discharged, deposited or leaked in or about the Premises or the Property by Tenant or any of Tenant's agents or by anyone in the Premises (other than Landlord or its agents, employees or contractors), except to the extent such Hazardous Materials are cleaning or office supplies customarily kept or used by typical _________________ tenants and are kept and used in accordance with all applicable laws. If Tenant breaches the obligations stated in the preceding sentence, or if the presence of any Hazardous Material on the Premises or the Property caused or suffered or permitted by Tenant or any of Tenant's agents or by anyone in the Premises (other than Landlord or its agents, employees or contractors) results in contamination of the Premises or the Property, or if contamination of the Premises or the Property by any Hazardous Material otherwise occurs for which Tenant is legally liable, then Tenant shall indemnify, defend and hold Landlord harmless from any and all claims, damages, costs, liabilities and expenses (including, without limitation, diminution in value or use of the Property, attorneys' fees, consultant fees and expert fees) which arise during or after the Term as a result of such contamination. This indemnification shall include, without limitation, costs incurred in connection with any investigation of site conditions or any clean-up, remedial, removal or restoration work on or under the Premises. "Hazardous Material" means any hazardous or toxic substance, material or waste which is or becomes regulated by any local, state or federal governmental authority or by common law decisions, including without limitation (i) all chlorinated solvents, (ii) petroleum products or byproducts, (iii) asbestos and (iv) polychlorinated biphenyls.

Waste; Nuisance; Quiet Enjoyment. Tenant shall not suffer or commit any waste or nuisance on the Premises, nor shall Tenant interfere with or obstruct the rights of or disturb the quiet enjoyment of any other tenant or occupant of the building or injure or annoy them. Tenant shall not use or allow the Premises to be used for any improper, immoral, or objectionable purposes, to be determined Landlord's sole and absolute judgment.

Repair and Maintenance.
a. Landlord shall repair and maintain the roof, structural foundations, exterior walls of the building, and Common Areas in which the Premises are located unless the need for such 618
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6 repair shall be caused by the neglect, misuse, or misconduct of Tenant, its agents, employees or invitees, in which case Landlord shall promptly cause the repairs to be made at Tenant's sole expense. Within ten (10) days after receipt of a written notice that Landlord has made repairs that were caused by the neglect, misuse, or misconduct of Tenant, its agents, employees or invitees, Tenant shall promptly reimburse Landlord within thirty (30) days of invoice for the cost of all such repairs and maintenance. Landlord shall not be required to make any repairs to the roof, structural foundation, or exterior walls unless and until Tenant has notified Landlord in writing of the need for such repairs and Landlord shall have had a reasonable period thereafter to commence and complete said repairs.
b. Tenant shall, at Tenant's sole cost and expense, maintain the Premises except as noted under Section 11(a), above, in good condition and repair. Said maintenance shall include but not be limited to, the interior of the Premises, exterior doors and windows, all fixtures and equipment, including without limitation, heating and ventilation systems, plate glass, electrical wiring, plumbing fixtures, plumbing drains (from the interior of the Premises to the point of connection of Tenant's drainage system with the sanitary sewer system owned, managed, and/or maintained by the local municipality). Tenant hereby waives California Civil Code Sections 1932(1), 1941 and 1942 and any other applicable existing or future law, ordinance or governmental regulation permitting Tenant to make repairs at Landlord's expense.

Additional Rent. In addition to the Base Rent required to be paid hereunder, Tenant shall pay as additional rent as provided in this Paragraph 12, an amount equal to (i) Operating Expenses assessed, billed, or charged separately against the Premises, plus (ii) Tenant’s Proportionate Share of Property Operating Expenses not so separately assessed, billed, or charged in the manner set forth below (Tenant’s “Operating Expense”).
a. Landlord shall reasonably allocate to Tenant portions of Operating Expenses not assessed, billed or charged separately against the Premises between the Premises and the other occupied building area in the Property. The portion of an Operating Expense so allocated by Landlord to the Premises shall be Tenant's share of such Operating Expense. Tenant's share of all real property taxes and assessments resulting from leasehold improvements by Tenant shall be 100% allocated to Tenant. Additional Rent shall be invoiced on a monthly basis after Operating Expenses have been incurred by Landlord, and shall be due on the first (1st) day of the month following invoice.
b. Operating Expenses shall include all costs to operate, repair, restore, maintain and manage the Property improvements, buildings, roofs, common areas, parking lots, sidewalks, driveways, and other areas used in common by the tenants of the Property; all costs to supervise and administer said common areas, parking lots, sidewalks, driveways, and other areas used in common by the tenants or occupants of the Property, including such fees as may be paid to a third party in connection with same; and all parking charges, utility charges and surcharges, or any other costs levied, assessed or imposed by, or at the direction of, or resulting from statutes or regulations, or interpretations thereof, promulgated by any governmental authority in connection with the use or occupancy of the Premises or the parking facilities serving the Premises. Operating Expenses include the following costs by way of illustration, but shall not be limited to: general and special real property taxes and assessments (including any tax imposed by changes in laws or which is imposed as a result of this transaction or any transfers hereof), rent taxes; gross receipt taxes (whether assessed against Landlord or assessed against Tenant and collected by Landlord, or both); water and sewer charges; insurance premiums on property and liability insurance maintained by 619
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7 Landlord; any deductible portion of an insured loss; utilities; refuse disposal; painting, and decoration of non-tenant areas; Common Area lighting; fire detection systems; security; Common Area clean-up; labor; reasonable costs incurred in the management of the Property; airconditioning and heating; supplies, materials, equipment and tools, including maintenance and repair costs and service contracts; costs of licenses, permits and inspections; maintenance, repair and restoration of all Common Areas, including repair/installation of asphalt overlay, resurfacing, restriping and cleaning of parking areas (all of which parking area expenses shall be non-capital improvements); cost of Landlord's compliance under the Lease; landscaping and gardening; cost of utilities not separately metered; rental value of manager's office; wages, salaries and benefits; and other services to be provided by Landlord that are stated elsewhere in this Lease to be Operating Expenses. All capital expenditures that directly and measurably reduce Operating Expenses or that are required to comply with laws or regulations shall also be included in Operating Expenses. Operating Expenses shall not include depreciation on the Property buildings, loan payments, executive salaries or real estate brokers' commissions. c. Trade Fixtures And Equipment. Tenant at its own expense shall provide and maintain all trade fixtures and equipment reasonably required to enable it to conduct its business in the Premises in a business-like manner. Tenant shall keep all trade fixtures and equipment clean and in good repair. Kitchens or other food preparation facilities shall be steam cleaned annually.

Landlord may inspect the Premises annually to ensure good maintenance practices and review the current condition of the Premises pursuant to Section 15. Such fixtures and equipment shall remain the property of Tenant, and Tenant may remove or if required to do so by Landlord, shall remove the same or any part thereof upon the termination of this Lease. Prior to lease expiration or earlier termination, Tenant shall repair at its own expense any damage to the Premises caused by its removal of said fixtures or equipment. All trade fixtures and equipment installed by Tenant pursuant thereto shall not be subject to, and shall be free of any lien for payment of rent by Tenant or for the performance of any other obligation of Tenant. Tenant shall keep Tenant's fixtures and equipment insured for full replacement value.
d. To the extent separately assessed, billed or charged, Tenant shall pay, during the term hereof, all electric, water, gas, telephone, and other public utility charges in connection with its occupancy and use of the Premises, including all costs of operating and maintaining all equipment therein, and all business taxes and all taxes upon the property and fixtures of the Tenant.

To the extent not separately assessed, billed or charged, such charges shall be subject to this Section 12 (Additional Rent). Landlord shall not be responsible for any interruptions or disturbance of service regardless of whether Tenant is paying directly for such services or if such services are being contracted for by Landlord, nor shall there be any abatement of rent resulting from any cessation or interruption of utility service or other service contemplated by this section.

Tenant hereby waives the provisions of California Civil Code Section 1932(1) or any other applicable existing or future law, ordinance or governmental regulation permitting the termination of this Lease due to the interruption of failure of any services to be provided under this Lease. e. Revenue & Taxation Code Section 107.6 Possessory Interest Tax. Tenant recognizes and understands that this Lease may create a possessory interest subject to property taxes and that, if a possessory interest is created, Tenant shall, in accordance with this Section 12(e) hereof, be responsible for payment of property taxes levied against such possessory interest.

Alterations and Liens. Tenant shall not make or cause to be made any alterations, additions, or improvements to or of the Premises or any part thereof without the prior written consent of 620
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8 Landlord. If any alterations require additional changes to comply with Laws which are triggered by Tenant's alterations, all such resulting requirements to comply with Laws shall be at Tenant's expense and any Landlord consent to such alterations shall be conditioned on Tenant's payment for same. Any alterations, additions, or improvements affixed to the Premises, except furnishings, equipment, and trade fixtures, shall, at Landlord's option, become part of the real property and belong to Landlord on expiration or termination of the term and any extension thereof. If Landlord consents to the making of any alteration, additions, or improvements to the Premises, they shall be made at Tenant's sole cost and expense. Tenant shall comply with the provisions of Exhibit C with regard to all Alterations and Improvements. Tenant shall keep the Premises free and clear of any liens or encumbrances which may arise from such work. At Landlord's option, Tenant shall, at its sole cost and expense, remove all such additions, alterations, and improvements from the Premises at the end of the term hereof and repair any damage to the Premises occasioned by such removal. If Tenant shall fail to complete such removal and repair such damage within ten (10) days after such termination, Landlord may do so and Tenant shall pay the reasonable cost thereof as additional rent within ten (10) days after Landlord shall render to Tenant a written statement therefor. In the event Tenant makes any alterations to the Premises that trigger or give rise to a requirement that the Premises come into compliance with any governmental laws, ordinances, statutes, order and or regulations (such as ADA requirements), Tenant shall be fully responsible for complying, at its sole cost and expense with same. Tenant shall file a Notice of Completion after completion of any alteration or improvement and provide Landlord with a copy thereof.

Tenant shall provide Landlord with a copy of a set of “as built” drawings of any such work.

Assignment and Subletting. Tenant shall not either voluntarily, or by operation of law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the said Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the said Premises, or any portion thereof, without first obtaining the written consent of Landlord which shall not be unreasonably withheld. If an assignment or subletting involves a use other than that permitted in Paragraph 7 above, Tenant must comply with said Paragraph 7.

Consent to one assignment, subletting, occupation or use by another person shall not be deemed to be consent to any subsequent assignment, subletting, occupation or use by another person.

Consent to any such assignment or subletting shall in no way relieve Tenant of any liability under this Lease. Any such assignment or subletting without such consent shall be void, and shall, at the option of the Landlord, constitute a default under the terms of this Lease. No sublease or assignment shall release Tenant from continuing liability hereunder. In the event that Landlord shall consent to a sublease or assignment hereunder, Tenant shall pay Landlord reasonable attorney fees and costs incurred in connection with the processing of documents necessary to giving of such consent. Any excess consideration above the rental rate provided in this Lease Tenant is entitled to as a result of any assignment or sublease shall be divided and paid 50% to Tenant and 50% to Landlord; provided, however, that if Tenant is in default under this Lease, Landlord shall be entitled to all such excess consideration
a. Procedures. Should Tenant desire to assign, transfer, sublet, mortgage, pledge, hypothecate or encumber this Lease or any interest therein (a “Transfer”), Tenant shall request, in writing, Landlord's consent to the proposed Transfer at least 60 days before the intended effective date of the proposed Transfer (which request shall be accompanied by a payment of Five Hundred Dollars ($500.00) to reimburse Landlord for costs incurred in connection with reviewing such proposed Assignment), which request shall include any information reasonably requested by Landlord to evaluate the proposed Transfer. Within 30 days after receipt of Tenant's request for 621
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9 consent to the proposed Transfer together with all of the above-required information, Landlord shall respond and shall have the right to: (a) consent to the proposed Transfer; (b) refuse to consent to the proposed Transfer; or (c) terminate this Lease, such termination to be effective 30 days after Tenant's receipt of Landlord's notice electing to so terminate. If Landlord shall exercise its termination right hereunder, Landlord shall have the right to enter into a lease or other occupancy agreement directly with the proposed transferee, and Tenant shall have no right to any of the rents or other consideration payable by such proposed transferee under such other lease or occupancy agreement. A consent to one Transfer by Landlord shall not be deemed to be a consent to any subsequent Transfer to any other party.
b. Standard for Consent. Tenant agrees that Landlord may refuse its consent to the proposed transfer on any reasonable grounds, and (by way of example and without limitation) Tenant agrees that it shall be reasonable for Landlord to withhold its consent if any of the following situations exist or may exist: (a) the proposed assignee, subtenant or transferee (each a "Transferee") proposes to change the use of the Premises from the permitted use pursuant to Section 7, and the new proposed use of the Premises (i) is a non-retail use; or (ii) is a use which would breach any exclusive use rights granted in writing to another tenant in the Property; or (iii) is a use which would duplicate the primary use of any other tenant or occupant in the Property; or (iv) in Landlord's reasonable opinion, is inconsistent with the tenant mix in the Property at the time of the request for Landlord's consent (excepting the use specified in Section 7 above); (b) the proposed Transferee's financial condition, net worth or liquidity is inadequate, based upon Landlord's reasonable business judgment consistent with generally accepted industry standards necessary to support all of the financial and other obligations of Tenant under this Lease; (c) the business reputation or character of the proposed Transferee is not reasonably acceptable to Landlord; (d) the proposed Transferee is not likely to conduct on the Premises a business of a quality substantially equal to that conducted by Tenant, including Landlord's ability to obtain Percentage Rent; or (e) the business of the proposed Transferee is not, in Landlord's reasonable judgment, a business that is likely to attract patrons to the Property, based on the demographics and clientele of the Property, or the business or reputation of the proposed Transferee is inconsistent with the image of the Property; (f) the proposed Transferee would, in Landlord's reasonable judgment, be unlikely to generate revenues in sufficient amounts to sustain the level of percentage rent obligations then being incurred by Tenant; (g) the proposed Transferee will create a vacancy elsewhere in the Property; (h) the proposed Transferee is a person with whom Landlord is, or recently has been, within the past three (3) months, negotiating to lease space in property owned by Landlord, including the Property; (i) Tenant is in default under the Lease, or has defaulted hereunder on more than three (3) occasions during the twelve (12) months preceding the request by Tenant; (j) the proposed business plan (or past business history) of the proposed Transferee indicates a possible likelihood of detriment to any portion of the Property or to the Rent to be received by Landlord hereunder; (k) the proposed Transferee will operate under a trade name other than that stated in this Lease; and/or (l) the proposed Transferee does not, in Landlord's reasonable judgment, have sufficient business experience (including substantial experience in comparable retail centers) to successfully operate a retail establishment in the Premises in the manner contemplated in the Lease.

Entry by Landlord. Except for emergencies such as fire, water intrusion and the like which may be at any time, Landlord and its agents shall have the right to enter the Premises at reasonable times to inspect and examine the same and to make such repairs to the Premises as the Landlord shall deem advisable, and to show the Premises to prospective tenants, buyers or lenders. 622
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10 Indemnification.
a. Waiver of Claims. To the extent permitted by law, Tenant waives all claims against Landlord for damage to person or property arising for any reason. Tenant assumes all such risks for Tenant and any employees, licensees, invitees, agents, or contractors. b. General Indemnity. Tenant shall indemnify, protect, defend (at Tenant's sole cost and with legal counsel acceptable to Landlord) and hold harmless, Landlord and Landlord’s affiliated entities, and each of their respective members, managers, partners, officers, employees, volunteers, council members, board members, lenders, agents, contractors, successors and assigns from and against any and all claims, judgments, causes of action, damages, penalties, costs, liabilities, and expenses, including all court costs and attorney fees, arising at any time during or after the Term, as a result (directly or indirectly) of or in connection with (i) default in the performance of any obligation on Tenant’s part to be performed under the terms of this Lease, or (ii) Tenant’s use of the Premises, the conduct of Tenant’s business or any activity, work or things done, permitted or suffered by Tenant or Tenant’s employees, agents, customers, visitors, invitees, licensees, contractors, assignees or subtenants (individually, a “Tenant Party” and collectively “Tenant Parties”) in or about the Premises, the Property, the Common Area or other portions of the Premises except as provided by law or for claims caused solely by Landlord’s gross negligence or willful misconduct. Tenant’s indemnity is not intended to nor shall it relieve any insurance carrier of its obligations under policies required to be carried by Tenant pursuant to the provisions of this Lease to the extent such policies cover the results of negligent acts or omissions of Landlord, its employees, agents, volunteers, contractors, council members, board members and officers or the failure of Landlord to perform any of its obligations under this Lease. The obligations of Tenant under this Section 16(b) shall survive the termination or earlier expiration of this Lease. c. Exemption of Landlord from Liability. Tenant, as a material part of the consideration to Landlord, hereby assumes all risk of damage to the Premises and its property including, but not limited to, Tenant's fixtures, equipment, furniture and alterations, or illness or injury to persons in, upon or about the Premises, arising from any cause, and Tenant hereby expressly releases Landlord and waives all claims in respect thereof against Landlord, except only such claims as are caused solely by Landlord's gross negligence or willful misconduct. Tenant hereby agrees that Landlord shall not be liable for injury to Tenant's business or any loss of income therefrom or for damage to the property of Tenant, or injury to or illness or death of Tenant or any Tenant Party or any other person in or about the Premises, whether such damage, illness or injury is caused by fire, steam, electricity, gas, water or rain, or from the breakage, leakage or other defects of sprinklers, wires, appliances, ventilation, plumbing, air conditioning or lighting fixtures, or from any other cause, and whether said damage, illness or injury results from conditions arising upon the Premises, upon other portions of the Property or from other sources or places, and regardless of whether the cause of such damage, illness or injury or the means of repairing the same is inaccessible to Tenant, except only damage, illness or injury caused solely by Landlord's gross negligence or willful misconduct.

Insurance. Tenant shall obtain and maintain at all times during the Term of this Lease insurance against claims for injuries to personal or damages to property which may arise from or in connection with the Lease by the Tenant, its agents, representatives, employees, invitees, or 623
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11 subcontractors. Tenant shall obtain and furnish proof of coverage as to each type of insurance required.
a. Property Insurance. During the Lease Term, Tenant shall, at Tenant's expense, maintain, or cause to be maintained, "All risk" property insurance including boiler and machinery comprehensive form, if applicable, covering damage to or loss of any of Tenant's personal property, fixtures, equipment and alterations, including electronic data processing equipment (collectively, "Tenant's Property") (and coverage for the full replacement cost thereof including business interruption of Tenant);
b. Liability Insurance. Commercial General Liability Insurance (Occurrence Form).

A policy of commercial general liability insurance (occurrence form) having a combined single limit of not less than One Million Dollars ($1,000,000) per occurrence, Two Million Dollars ($2,000,000) in aggregate, providing coverage for, among other things, blanket contractual liability, Premises, products/completed operations with an "Additional Insured-Managers or Lessors of Premises Endorsement" and containing the "Amendment of the Pollution Exclusion Endorsement" for damage caused by heat, smoke or fumes from a hostile fire, and personal and advertising injury coverage, with deletion of (a) the exclusion for operations within fifty (50) feet of a railroad track (railroad protective liability), if applicable, and (b) the exclusion for explosion, collapse or underground hazard, if applicable. The policy shall not contain any intra-insured exclusions as between insured persons or organizations, and shall include coverage for liability assumed under this Lease as an "Insured Contract" for the performance of Tenant's indemnity obligations under this Lease;
c. Automobile Liability Insurance. Business automobile liability insurance having a combined single limit of not less than One Million Dollars ($1,000,000) per occurrence and insuring Tenant against liability for claims arising out of ownership, maintenance, or use of any owned, hired or non-owned automobiles;
d. Worker's Compensation . Workers' compensation insurance having limits not less than those required by state statute and federal statute, if applicable, and covering all persons employed by Tenant in the conduct of its operations on the Premises including coverage for all states and, if applicable, voluntary compensation, together with employer's liability insurance coverage in the amount of at least One Million Dollars ($1,000,000); e. Other Insurance. Any other form or forms of insurance as Landlord or mortgagees of Landlord may reasonably require from time to time in form, in amounts and for insurance risks against which a prudent tenant would protect itself;
f. Business Interruption. Loss of income and extra expense insurance in amounts as will reimburse Tenant for direct or indirect loss of earnings attributable to all peril commonly insured against by prudent Tenants in the business of Tenant or to prevention of access to the Premises as a result of such perils;
g. Umbrella/Excess Liability Insurance. Umbrella or excess liability insurance may be used to satisfy the limits required in Section 17(a) and (b) above. The umbrella liability or excess liability policy shall be written on an "occurrence" form with a self-insured retention no greater than Ten Thousand Dollars ($10,000). Such policies shall name Landlord as an additional insured and shall be primary to any insurance maintained by Landlord. 624
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12 h. Waiver of Subrogation. The parties release each other, and their respective authorized representatives, from any claims (for damage to any person or to the Premises and/or the building in which the Premises are located, and to the fixtures, personal property, Tenant's improvements, and alterations of either Landlord or Tenant in or on the Premises and/or the building in which the Premises are located) that are caused by or result from risks which are insured against under any insurance policies carried by the parties and in force at the time of any such damage and to the full extent of any proceeds paid under said policies. i. Ratings, Certificates. All policies shall be taken out with insurers licensed to do business in California with a current Best Rating of (A, XIII) and in form satisfactory from time to time to Landlord. Certificates of insurance evidencing all such insurance and acceptable to the Landlord shall be filed with Landlord prior to occupancy of the Premises and at least ten (10) days prior to the expiration of the term of each policy thereafter. Such certificates of insurance must specifically show all the special policy conditions required in this Paragraph 9, including "additional insured," "waiver of subrogation," "notice of cancellation," and "primary insurance" wording applicable to each policy. Alternatively, a certified, true and complete copy of each properly endorsed policy may be submitted. All policies shall contain an undertaking by the insurers to notify Landlord and the mortgagees of Landlord in writing not less than thirty (30) days prior to any material change, reduction in coverage, cancellation, or other termination thereof.

Tenant shall furnish Landlord with proof of renewal or binders for new insurance at least thirty (30) days before the expiration date of each policy. With respect to CGL Insurance, Tenant shall name Landlord, its employees, elected officials, board members, officers, agents and volunteers as additional insureds with respect to Tenant's negligence for any claims arising out of Tenant's operations in or upon the Premises. In addition, the CGL Insurance: (i) must be endorsed to be primary and non-contributory, rather than excess, with respect to each party's additional insured status; (ii) endorsed to provide cross-liability coverage if they do not contain a standard ISO separation of insureds provision; (iii) shall not contain any endorsement or provision that states the limits of the policy will not stack, pyramid or be addition to any other limits provided by that insurer, and (iv) have no cross suits exclusion, or any similar exclusion that excludes coverage for claims brought by an additional insured under the policy against another insured under the policy.

All insurance policies required by this Section 17 (i) must be issued by insurance companies having an "A" rating or better by Standard and Poor's, and if not rated by Standard & Poor's, then a rating of "A" by A.M. Best Company, and (ii) may be satisfied by a primary policy or combination of primary and umbrella policies. The insurance provisions set forth in this Section 17 set forth the minimum amounts and scopes of coverage to be maintained by Landlord and Tenant and are not to be construed in any way as a limitation on each party's liability under this Lease. Landlord, as a public entity, may satisfy any of its insurance requirements by use of self-insurance, deductible, captive insurance company or risk pool. The responsibility to fund any financial obligation for self-insurance, the election not to insure, and/or deductibles shall be assumed by, for the account of, and at the sole risk of each party. The application of coverage within this self-insurance, election not to insure, and/or deductible shall be deemed covered in accordance with the policy forms set forth in this Section 17.

Destruction of Premises.
a. Destruction Due to Risk Covered by Insurance. If, during the term of this Lease and any renewal term, the Premises or the Property and other improvements in which the Premises are located are totally or partially destroyed from a risk covered by insurance carried by either Tenant or Landlord for the Property, rendering the Premises totally or partially inaccessible or 625
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13 unusable, Landlord shall restore the Premises or the Property, and other improvements in which the Premises are located, to substantially the same condition as they were immediately before destruction if they can be repaired within 270 days from date of destruction. Such destruction shall not terminate this Lease. If the existing laws do not permit the restoration, either party can terminate this Lease immediately by giving notice to the other party. Provided, however, if the cost of the restoration exceeds the amount of proceeds received from the insurance, or the estimate of time to fully restore the Premises exceeds the lesser of 270 days or the remaining Term of the Lease, Landlord can elect to terminate this Lease by giving notice to Tenant within fifteen (15) days after determining that the restoration cost will exceed the insurance proceeds. b. Destruction Due to Risk Not Covered by Insurance. If, during the term of this Lease and any renewal term, the Premises or the Property and other improvements in which the Premises are located are totally or partially destroyed by a risk not covered by the insurance, rendering the Premises totally or partially inaccessible or unusable, Landlord can elect to terminate this Lease by giving notice to Tenant within fifteen (15) days after determining the restoration cost and replacement value.
c. Abatement or Reduction of Rent. In case of destruction, there shall be an abatement or reduction of rent between the date of destruction and the date of substantial completion of restoration based on the extent to which the destruction interferes with Tenant's use of the Premises.
d. Waiver of Civil Code Sections. Tenant waives the provisions of California Civil Code Section 1932(2) and California Civil Code Section 1933(4) with respect to any destruction of the Premises.

Default and Landlord's Remedies.
a. Default. The occurrence of any of the following shall constitute a default by Tenant:
(1) Tenant shall fail to pay when due any rent or any other monetary sum payable under this Lease.
(2) Tenant shall fail to observe, keep or perform any of the other terms, covenants, agreements or conditions contained in this Lease if such default continues for a period of ten (10) days after written notice by Landlord specifying the nature of the default with reasonable particularity, unless the nature of the default is such that more than ten (10) days is required to cure it and Tenant commences to cure it within such ten (10) -day period and thereafter diligently pursues it to completion.
(3) Tenant shall become bankrupt or insolvent or make a transfer in fraud of creditors, or make an assignment for the benefit of creditors, or take or have taken against Tenant any proceedings of any kind under any provision of the Federal Bankruptcy Act or under any other insolvency, bankruptcy or reorganization act and, in the event any such proceedings are involuntary, Tenant is not discharged from the same within thirty (30) days thereafter. (4) A receiver is appointed for a substantial part of the assets of Tenant, and such receivership is not released within thirty (30) days. 626
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14 (5) The abandonment of the Premises by Tenant, or the vacation (hereby defined to be thirty (30) or more consecutive days of continual absence from the Premises) of the Premises by Tenant.
(6) This Lease or any estate of Tenant hereunder shall be levied upon by any attachment or execution and such levy is not released within thirty (30) days.

Notices given under this Section shall specify the alleged default and the applicable Lease provisions, and shall demand that Tenant perform the provisions of this Lease or pay the rent that is in arrears, as the case may be, within the applicable period of time, or quit the Premises. b. Landlord's Remedies. If any default by Tenant shall occur, and following notice of default as required by this Lease (for the period applicable to the default under the applicable provision of this Lease), Landlord shall have the following remedies in addition to all other rights and remedies provided by law or equity, to which Landlord may resort cumulatively or in the alternative.
(1) Landlord shall have the immediate option to terminate this Lease and all rights of Tenant hereunder by giving written notice of such intention to terminate. In the event that Landlord shall so elect to terminate this Lease, then Landlord may recover from Tenant:
(a) The worth at the time of award of any unpaid rent which had been earned at the time of such termination; plus
(b) The worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss Tenant proves could have been reasonably avoided; plus (c) The worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; plus
(d) Any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom; and (e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable law.

As used in Subparagraphs (a) and (b) above of this Section, the "worth at the time of award" is computed by allowing interest at the maximum rate an individual is permitted by law to charge. As used in subparagraph (c) above, the "worth at the time of award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%).
(2) In the event of the vacation or abandonment of the Premises by Tenant, or in the event that Landlord shall elect to reenter as provided herein or shall take possession of the Premises pursuant to legal proceeding or pursuant to any notice provided by law, then Landlord shall have the remedy specified by Civil Code Section 1951.4, in which Landlord may from time to time recover all rental as it becomes due or relet the Premises or any part thereof for the account 627
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15 of Tenant on such term or terms and at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, with the right to make alterations and repairs to the Premises. In the event that Landlord shall elect so to relet, then rentals received by Landlord from such reletting shall be applied first, to the payment of any indebtedness, other than rent due hereunder, owed by Tenant to Landlord; second, to the payment of any cost (including commissions) of such reletting; third, to the payment of the cost of any alterations and repairs to the Premises; fourth, to the payment of rent due and unpaid hereunder; and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable during that month by Tenant hereunder, then Tenant shall pay such deficiency to Landlord upon demand.

Tenant shall also pay to Landlord, as soon as ascertained, any and all costs and expenses incurred by Landlord in such reletting or in making such alterations and repairs not covered by the rentals received from such reletting.
(3) No reentry or taking possession of the Premises by Landlord pursuant to this Section shall be construed as an election to terminate this Lease unless a written notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction.

Signs. All signs and graphics of every kind visible in or from public view or corridors, or the exterior of the Premises, whether inside or outside the Premises, shall be subject to Landlord’s prior written approval and shall be subject to compliance with any applicable Laws, including local sign ordinances and Historic Preservation laws. Landlord may provide, at its option, a building directory sign, for which Tenant shall pay its Proportionate Share.

Parking. Tenant shall have the [exclusive use of ____ parking spaces and the] nonexclusive use, in common with Landlord and Landlord's other tenants, of the parking area owned by Landlord at and around the Premises; provided, however, that no tenant may park in an area designated, identified, and/or reserved for parking by any other tenant or tenants, if any. Should any damages to the Premises, the parking area, and/or the vehicles of Tenant or their invitees/licensees/employees be occasioned by the invitees, licensees, tradesmen, or customers of Tenant, such damage shall be repaired at Tenant's sole cost and expense. It is expressly understood and agreed the Tenant's right to the use of said parking area shall be non-exclusive and subject to the Rules and Regulations, and that Landlord reserves the right to establish and enforce other rules with respect to the use thereof, and Tenant agrees to abide by and conform to the same, as revised from time-to-time.

Estoppel Certificate. Tenant shall execute and deliver to Landlord within ten (10) days of request a commercially reasonable estoppel statement. Landlord and Tenant intend that any estoppel statement delivered pursuant to this Section may be relied upon by any mortgagee, beneficiary, purchaser or prospective purchaser of the building or any interest therein and failure to execute and return such estoppel shall be a material breach of the Lease.

Eminent Domain. In case the whole of the Premises, or such part thereof that substantially interferes with the reasonable use of the Premises as a ________________ business, shall be taken for any public or quasi-public purpose by any lawful power or authority by exercise of the right of appropriation, condemnation or eminent domain, or sold to prevent such taking, either party shall have the right to terminate this Lease effective as of the date possession is required to be 628
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16 surrendered to said authority. Tenant shall not assert any claim against Landlord or the taking authority for any compensation because of such taking and Landlord shall be entitled to receive the entire amount of any award without deduction for any estate or interest of Tenant. In the event the amount of property or the type of estate taken shall not substantially interfere with the reasonable use of the Premises as a __________________ business, Landlord shall be entitled to the entire amount of the award without deduction for any estate or interest of Tenant. If there is no substantial interference or if there is substantial interference, but neither party elects to terminate, Landlord shall promptly proceed to restore the Premises to substantially the same condition as the Premises existed prior to such partial taking, to the extent possible by application of the condemnation proceeds only, and a proportionate allowance shall be made to Tenant for the rent corresponding to the time during which, and to the part of the Premises of which Tenant shall be so deprived on account of such taking and restoration. Nothing contained in this Section shall be deemed to give Landlord any interest in any award made to Tenant for the taking of personal property and fixtures belonging to Tenant. Each party waives the provisions of California Code of Civil Procedure Section 1265.130 allowing either party to petition the Superior Court to terminate this Lease in the event of a partial taking of the premises.

Brokers. [If one or more parties are represented by a broker – Landlord is represented by name of brokerage (name of broker) (“Landlord’s Broker” and Tenant is represented by name of brokerage (name of broker) (“Tenant’s Broker”) in connection with the transactions set forth herein. Landlord shall pay a leasing commission in accordance with a separate written agreement between Landlord and Landlord’s Broker. Except for Landlord’s Broker and Tenant’s Broker, ]The parties represent that there are no brokers involved in the negotiation of this Lease or otherwise entitled to a commission or fee in connection with the transactions contemplated in this Lease. Each party hereby indemnifies, defends and holds the other party harmless from all loss, cost and expense (including reasonable attorneys' fees) arising out of a breach of its representation set forth in this Section 24. The provisions of this Section 24 shall survive the termination of the Lease. This Section 24 is for the benefit of Landlord and Tenant only and is not intended to give any third person, including Broker, any right of subrogation or action over or against any party to this Lease.

Attorneys' Fees. If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the losing party reasonable attorney's fees and costs of suit.

Notices. Any notice required or permitted to be given hereunder may be given by personal delivery or by United States certified mail, postage prepaid, addressed to Tenant at the Premises and to Landlord at _________________________________________, or at such other address as the Landlord shall designate in writing.

Waiver; Accord and Satisfaction. No delay or omission in the exercise of any right or remedy of Landlord on any default by Tenant shall impair such right or be construed as a waiver.

The receipt and acceptance by Landlord of delinquent rent shall not constitute a waiver of any other default; it shall constitute only a waiver of timely payment for the particular rent payment involved. No payment by Tenant or receipt by Landlord of a lesser amount than the rent payment herein stipulated shall be deemed to be other than on account of the rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to 629
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17 Landlord's right to recover the balance of such rent or pursue any other remedy provided in this Lease.

Time is of the Essence. Time is of the essence of this Lease as to the performance of all terms, covenants, and conditions stated herein.

Successors and Assigns. Except as otherwise provided herein, all of the terms and conditions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. In the event of any transfer, assignment or other conveyance or transfers of any such title or tenant, Landlord herein named (and in case of any subsequent transfers or conveyances, the then grantor) shall be automatically freed and relieved from and after the date of such transfer. Landlord may transfer its interest in the Premises without the consent of Tenant and such transfer or subsequent transfer shall not be deemed a violation on Landlord's part of any of the terms and conditions of this Lease.

Titles and Definitions. The titles of paragraphs herein are for identification only. They shall not be considered to be a part of this Lease and shall have no effect upon the construction or interpretation thereof. The words "Landlord" and "Tenant" as used in this Lease shall include both singular, plural, masculine, feminine, and neuter as the context shall require.

Entire Agreement/Amendment. This Lease contains the entire agreement of the parties and supersedes all prior negotiations, drafts, and other understandings which the parties may have concerning the subject matter hereof. This Lease may not be modified except by written instrument duly executed by the parties hereto or their successors in interest.

Choice of Laws; Interpretation. This Lease shall be governed by and construed pursuant to the laws of the State of California. The provisions of this Lease shall be construed in accordance with the fair meaning of the language used and shall not be strictly construed against either party.

Authority/Consents & Approvals. Each of the persons executing this Lease on behalf of Tenant warrants and represents that Tenant is a duly organized and validly existing entity, that Tenant has full right and authority to enter into this Lease and that the persons signing on behalf of Tenant are authorized to do so and have the power to bind Tenant to this Lease. Tenant shall provide Landlord upon request with evidence reasonably satisfactory to Landlord confirming the foregoing representations. The approval of Landlord, wherever required in this Lease, shall mean the approval of the City Council or City Manager.

No Merger. The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation thereof, shall not work a merger, and shall, at the option of Landlord, operate as an assignment to it of any or all subleases or subtenancies.

Recordation. Tenant shall not record this Lease or a short form memorandum hereof without Landlord’s prior written approval.

No Third Party Benefit. This Lease is a contract between Landlord and Tenant and nothing herein is intended to create any third party benefit.

Severability. If, for any reason whatsoever, any of the provisions hereof shall be unenforceable or ineffective, all of the other provisions shall be and remain in full force and effect. 630
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18 IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease on the day and year set forth below.

LANDLORD
Dated: By:

Name:

Its:

APPROVED AS TO FORM:

BEST BEST & KRIEGER LLP
By: _______________________________
TENANT:

Dated:
631
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1 EXHIBIT A

MAP OF PREMISES
632
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1 EXHIBIT B

RULES AND REGULATIONS
[To be Attached]
633
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1 EXHIBIT C

REQUIREMENTS FOR ALTERATIONS AND IMPROVEMENTS BY TENANT [Revise Per Deal Terms]
If Landlord shall permit Tenant to construct any initial tenant improvements in the Premises or to have any work performed in the Premises at any time prior to or during the Lease term by a contractor retained by Tenant ("Tenants Work"), then Tenant shall comply with the requirements set forth herein, If Tenant's Work has been properly authorized, Tenant will receive written approval and consent for alterations to the Premises All alterations to the Premises, excepting movable furniture and trade fixtures, shall, at Landlord's option, become a part of the realty and belong to Landlord.

1. SUBMITTAL OF PLANS Prior to commencing any work in the Premises, Tenant shall submit to Landlord for approval its proposed plans for the work Without limiting the foregoing, Tenant shall provide:
(a) A separate scale drawing denoting all proposed construction and/or demolition if necessary;
(b) A separate drawing for each trade proposing structural, electrical, mechanical, civil or landscaping modifications;
(c) Specify all dimensions and complete references to all work be performed in the affected areas;
(d) If adding extra electrical or mechanical equipment, -provide complete operating and maintenance specifications for each item;

2. CHECKLIST With respect to each project, Tenant with a checklist listing the items required to be furnished to Landlord in connection with the proposed work Tenant shall furnish to Landlord prior to, during, or upon completion of Tenants Work, as applicable, each of the items specified in the checklist attached hereto as Attachment I.

3. CONTRACTORS PROVIDING TENANT IMPROVEMENT SERVICES.
(e) The contractor employed by Tenant and any subcontractors shall be (i) duly licensed in the state in which the Premises are located, and (ii) subject to Landlord's prior written approval, which approval shall not be unreasonably withheld If more than one trade is employed on a single job, state law requires the services of a general contractor in addition to contractors for specialty work being performed;
(f) Each contractor shall provide proof of licensing as a general or specialty contractor in accordance with state law Additionally, each contractor shall furnish proof of licensing in the city or municipality in which the construction related activity is to take place; 634
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2 (g) Tenant shall use Landlord's subcontractor for mechanical, electrical, plumbing, roofing and roofing consultant Landlord retains the right to approve or disapprove outside contractors prior to commencement of any work;
(h) Tenant and Tenant's contractors shall comply with all Applicable Laws pertaining to the performance of Tenant's Work and the completed improvements and all applicable safety regulations established by Landlord or the general contractor. (i) Prior to commencement of any Work in the Premises, Tenant and Tenant's contractors (and any subcontractors) shall obtain and provide Landlord with certificates evidencing Workers' Compensation, public liability and property damage insurance in amounts and forms and with companies satisfactory to Landlord Each general contractor (and any subcontractor) employed on the Premises shall provide Landlord with a current certificate of insurance in effect for that contractor with a thirty (30) day notice of cancellation or revocation clause Insurance requirements are as follows:
(i) Comprehensive General Liability with a $2,000,000 Combined Single Limit covering the liability of Landlord and contractor for bodily injury and property damage arising as a result of the construction of the improvements and the services performed thereunder Landlord shall be named as an additional insured; (ii) Comprehensive Automobile Liability with a $2,000,000 Combined Single Limit covering Landlord and vehicles used by contractor (and any subcontractor) in connection with the construction of the improvements;
(iii) Workers' Compensation and Employer's Liability as required by law, for employees of the contractor (and any subcontractors) performing work on the Premises. (j) The following requirements shall be incorporated as "Special Conditions" into the contract between Tenant and its contractors and a copy of the contract shall be furnished to Landlord prior to the commencement of Tenant's Work. (i) Prior to start of Tenant's Work, Tenant's contractor shall provide Landlord with a construction schedule in "bar graph" form indicating the completion dates of all phases of Tenant's Work;
(ii) Tenant's contractor shall be responsible for the repair, replacement or clean-up of any damage done by it to other contractors' work which specifically includes access ways to the Premises which may be concurrently used by others; (iii) Tenant's contractor shall accept the Premises prior to starting any trenching operations Any rework of sub-base or compaction required after the contractor's initial acceptance of the Premises shall be done by Tenant's contractor, which shall include the removal from the Project of any excess dirt or debris;
(iv) Tenant's contractor shall contain its storage of materials and its operations "within the Premises and such other space as it may be assigned' by Landlord or Landlord's contractor Should Tenant's contractor be assigned space outside the Premises, it shall 635
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3 move to such other space as Landlord or Landlord's contractor shall direct from time to time to avoid interference or delays with other work;
(v) Tenant's contractor shall clean up the construction area and surrounding exterior areas daily All trash, demolition materials and surplus construction materials shall be stored within the Premises and promptly removed from the Premises and disposed of in an approved sanitation site;
(vi) Tenant's contractor shall provide temporary utilities, portable toilet facilities, and potable drinking water as required for its work within the Premises and shall pay to Landlord's contractor the cost of any temporary utilities and facilities provided by contractor at Tenant's contractor's request;
(vii) Tenant's contractor shall notify Landlord or Landlord's project manager of any planned work to be done on weekends or other than normal job hours; (viii) Tenant's contractor or subcontractors shall not post signs on any part of the Premises;
(ix) Tenant shall and shall cause its contractors and subcontractors to:
pay prevailing wages in the construction of Tenant’s Work as those wages are determined pursuant to Labor Code Sections 1720 et seq.; employ apprentices as required by Labor Code Sections 1777.5 et seq.; and comply with the other applicable provisions of Labor Code Sections 1720 et seq., 1725.5, 1771, 1771.1, 1771.4, 1776, 1777.5 et seq., 1810-1815 and the implementing regulations of the Department of Industrial Relations (the “DIR”) for all such Labor Code sections.

4. COSTS Tenant shall promptly pay any and all costs and expenses in connection with or arising out of the performance of Tenant's Work (including the costs of permits therefore) and shall furnish to Landlord evidence of such payment upon request.

5. MECHANIC'S LIENS
(a) Tenant shall not suffer or permit to be enforced against the Premises or any part of the Project any mechanic's, materialman's, contractor's or subcontractor's lien arising out of any work of improvement, however, it may arise
(b) Tenant shall notify Landlord at least ten (10) days prior to the commencement of construction of any Tenant's work and Landlord shall have the right to post and record a notice of non-responsibility in conformity with applicable law Within ten (10) days following completion of Tenant's Work, Tenant shall file a Notice of Completion' and deliver to' Landlord an unconditional release and waiver of lien executed by each contractor, subcontractor and materialman involved in Tenant's Work.
(c) In the event any lien is filed against the Premises or any portion thereof or against Tenant's leasehold interest therein, Tenant shall obtain the release and/or discharge of said lien, within ten (10) days after the filing thereof In the event Tenant fails to do so, Landlord may obtain the release and/or discharge of said lien and Tenant shall Indemnify Landlord for the costs thereof, including reasonable attorneys’ fees, together with interest at the Applicable Interest Rate 636
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4 from the date of demand Nothing herein shall prohibit Tenant from contesting the validity of any such asserted claim, provided Tenant has furnished to Landlord a lien release bond freeing the Premises from the effect of the lien claim.

6. INDEMNITY
(a) Tenant shall indemnify, defend (with counsel satisfactory to Landlord) and hold Landlord harmless from and against any and all suits, claims, actions, loss, cost or expense (including claims for workers' compensation, attorney's fees and costs) based on personal injury or property damage, or otherwise (including, without limitation, contract and breach of warranty claims) arising from the performance of Tenant's work Tenant shall repair or replace (or, at Landlord's election, reimburse Landlord for the cost of repairing or replacing) any portion of the Property or item of Landlord's equipment or any of Landlord's real or personal property damaged, lost or destroyed in the performance of Tenant's Work.
a. Tenant shall indemnify, hold harmless and defend (with counsel reasonably selected by the Landlord), to the extent permitted by applicable law, Landlord, its councilmembers, commissioners, officials, employees and agents, against any claim for damages, compensation, fines, penalties or other amounts arising out of the failure or alleged failure of any person or entity (including Tenant, or its contractors or subcontractors) to pay prevailing wages as determined pursuant to Labor Code Sections 1720 et seq., to hire apprentices in accordance with Labor Code Sections 1777.5 et seq., or to comply with the other applicable provisions of Labor Code Sections 1720 et seq., 1725.5, 1771, 1771.1, 1771.4, 1776, 1777.5 et seq., 1810-1815 and the implementing regulations of the DIR in connection with Tenant’s Work.

The provisions of this Section shall survive termination of the Lease.

7. PROPERTY STANDARDS All work shall conform to Landlord's established Property standards and specifications Tenant is required to make these standards part of the construction documents.

8. ROOF PENETRATIONS If improvements penetrate the roof membrane, the penetrations will be sealed per Landlord/IRC roofing specifications and inspected by IRC to maintain roof warranty The cost of inspection and all corrective work shall be borne by Tenant.

Tenant shall use Landlord's original roofing contractor.

9. PROPERTY MODIFICATIONS Work will only be approved within the confines of a given space Tenant will not be allowed to modify Property exterior or-mechanical and electrical service as provided to the Property in common with other tenants.

10. ELECTRICAL WORK All electrical work shall be approved from the unit space electrical panel only Additional service requirements shall be secured only by direction of Landlord Tenant shall use Landlord's original electrical contractor.

11. SCHEDULE OF WORK Tenant may be required to provide a schedule of all work to be performed, subject to Landlord approval All costs to produce such schedule shall be borne solely by Tenant.
637
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5 12. CLEAN UP AND DISPOSAL OF CONSTRUCTION DEBRIS Property trash containers are provided for office generated trash only and are not to be used for disposal of construction-related materials and debris Unapproved usage will result in a penalty assessment to the Tenant equal to the cost of an extra pick-up service as provided under the current rate schedule of regular trash removal service.

13. INSPECTION BY LANDLORD Landlord reserves the following rights (i) the right of inspection prior to, during and at completion of all construction and/or demolition, (ii) the right to post and record a notice of non-responsibility in conformity with California law, and (iii) the right to order a total stop to all improvements underway for non-compliance with any of the requirements hereof.

14. GENERAL PROVISIONS
(a) If Landlord has agreed to provide an allowance toward the cost of tenant improvements, Landlord shall retain from such funds an amount determined by Landlord until Tenant has fully complied with the requirements hereof. (b) All materials, work, installations and decorations of any nature whatsoever brought on or installed in the Premises before the commencement of the Term or throughout the Term shall be at Tenant's risk, and neither Landlord nor any party acting on Landlord's behalf shall be responsible for any damage thereto or loss or destruction thereof due to any reason or cause whatsoever.
(c) Nothing contained herein shall make or constitute Tenant as the agent of Landlord.
638
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6 ATTACHMENT 1

ITEMS TO BE FURNISHED TO LANDLORD FOR EACH WORK OF IMPROVEMENT

1. Plans of Alterations for Landlord Approval

2. Contractor(s), Address, Telephone Number, Contact Person

3. Copy of Contractor's State and City Business License

4. Copy of Property Permit

5. Copy of Final Inspection and Signed Property Permit Cards

6. Copy of Certificate of Insurance naming City of _____________ as Additional Insured; (Insurance to include Comprehensive General Liability, Comprehensive Auto, Workers' Compensation and Employer's Liability)

7. Signed Unconditional Lien Waiver in Favor of City of ________________

8. Schedule of Work.

9. Copy of Completion of Payment Bond

10. Architect's License and Expiration

11. Tenant and Contractor Agreement

12. Copy of Permit Plans

13. Copy of As-Built

14. Copy of Recorded Notice of Completion

15. Certificate of Occupancy

16. Evidence on Insurance for All Risk/Builder's Risk Insurance to the Amount of Improvements
639
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1913 Agenda Date: 12/13/2022
Agenda #: AE. Category: Consent Calendar
FROM:

Housing
SUBJECT:

Award a bid for the 8996 Olive St Rehabilitation Project SB-32-HD-23 RECOMMENDATION:

Award and authorize the City Manager to execute a construction contract with Final Touch Construction for the rehabilitation of the 8996 Olive St in the amount of $683,290.00 and authorize a 10% contingency in the amount of $68,329 (Bid No. SB-32-HD-23).

COUNCIL GOALS:
· Provide a diverse range of housing types and levels of affordability while addressing homelessness in the community by acquisition, substantial rehabilitation, and professional management of selected multi-family properties to provide more affordable units and reduce crime and code enforcement activity.
· Provide a diverse range of housing types and levels of affordability while addressing homelessness in the community by promoting diverse range of housing projects and levels of affordability.

DISCUSSION:

The property at 8996 Olive St was originally acquired by the City’s Housing Department on January 19, 1994. The property consists of 10-unit two-story building in disrepair. The City intends to fully rehabilitate the property to meet Health and Safety standards and add the property to its affordable unit portfolio.

On October 10th, 2022, the Invitation to Bidders was sent out to four hundred one (401) vendors and it closed on October 31st, 2022 at 2:00 p.m. There were thirty-four (34) downloads and a total of three (3) valid bids were received ranging from $683,290.00 to $1,458,420.00. Final Touch Construction submitted the apparent lowest bid in the amount of $683,290.00. The Inspector/Engineer estimated the total rehabilitation cost for this rehabilitation to be $752,000.00.

After reviewing the proposed bid documents and performing the license and certification checks, Housing and Purchasing staff has determined Final Touch Construction to be the lowest responsible and responsive bidder.

FISCAL IMPACT:

The fiscal impact associated with the approval of this item is $683,290 (contract plus contingency).

City of Fontana Page 1 of 2 Printed on 12/7/2022
powered by Legistar™640
File #: 21-1913 Agenda Date: 12/13/2022
Agenda #: AE. Category: Consent Calendar
Funds are budgeted in Fiscal Year 2022-23 Fund 301.

MOTION:

Approve staff recommendation.

City of Fontana Page 2 of 2 Printed on 12/7/2022
powered by Legistar™641
Bid Results
Multi-Family Rehabilitation Program
8996 Olive Street
SB-32-HD-23
Final Touch Construction $683,290.00
Fontana, CA
Belfor Property Restoration $977,468.47
Riverside, CA
CS Legacy Construction Inc. $1,458,420.00
Walnut, CA
642
City of Fontana
Multi-Family Housing Rehabilitation Program - 8996 Olive Street (SB-32-HD-23), bidding on 10/31/2022 2:00 PM (PST)

Printed 11/28/2022
PlanetBids, Inc.
643
City of Fontana
Multi-Family Housing Rehabilitation Program - 8996 Olive Street (SB-32-HD-23), bidding on 10/31/2022 2:00 PM (PST)

Printed 11/28/2022
PlanetBids, Inc.
644
City of Fontana
Multi-Family Housing Rehabilitation Program - 8996 Olive Street (SB-32-HD-23), bidding on 10/31/2022 2:00 PM (PST)

Printed 11/28/2022
PlanetBids, Inc.
645
City of Fontana
Multi-Family Housing Rehabilitation Program - 8996 Olive Street (SB-32-HD-23), bidding on 10/31/2022 2:00 PM (PST)

Printed 11/28/2022
PlanetBids, Inc.
646
City of Fontana
Multi-Family Housing Rehabilitation Program - 8996 Olive Street (SB-32-HD-23), bidding on 10/31/2022 2:00 PM (PST)

Printed 11/28/2022
PlanetBids, Inc.
647
City of Fontana
Multi-Family Housing Rehabilitation Program - 8996 Olive Street (SB-32-HD-23), bidding on 10/31/2022 2:00 PM (PST)

Printed 11/28/2022
PlanetBids, Inc.
648
City of Fontana
Multi-Family Housing Rehabilitation Program - 8996 Olive Street (SB-32-HD-23), bidding on 10/31/2022 2:00 PM (PST)

Printed 11/28/2022
PlanetBids, Inc.
649
City of Fontana
Multi-Family Housing Rehabilitation Program - 8996 Olive Street (SB-32-HD-23), bidding on 10/31/2022 2:00 PM (PST)

Printed 11/28/2022
PlanetBids, Inc.
650
City of Fontana
Multi-Family Housing Rehabilitation Program - 8996 Olive Street (SB-32-HD-23), bidding on 10/31/2022 2:00 PM (PST)

Printed 11/28/2022
PlanetBids, Inc.
651
City of Fontana
Multi-Family Housing Rehabilitation Program - 8996 Olive Street (SB-32-HD-23), bidding on 10/31/2022 2:00 PM (PST)

Printed 11/28/2022
PlanetBids, Inc.
652

MULTI-FAMILY REHABILITATION

PROGRAM
8996 Olive Street
SB-32-HD-23
SUBMISSION DEADLINE:

SEPTEMBER 27, 2022
2:00 PM

BID MUST BE SUBMITTED ELECTRONICALLY
Hard Copies will NOT be accepted as a viable bid.
653

TABLE OF CONTENTS
SB-32-HD-23

ITEM PAGE
i
NOTICE INVITING SEALED BIDS 1
INSTRUCTIONS TO BIDDERS 2
➢ Availability of Contract Documents
➢ Examination of Contract Documents
➢ Interpretation of Contract Documents
➢ Inspection of Site; Pre-Bid Conference and Site Walk
➢ Addenda
➢ Completion of Bid Forms
➢ Modification of Bids
➢ Designation of Subcontractors (Entered Online)
➢ Licensing Requirements
➢ Signing of Bids
➢ Submission of Sealed Bids (Electronic Bid Only)
➢ Delivery and Opening of Bids
➢ Withdrawal of Bid
➢ Basis of Award; Balanced Bids
➢ Disqualification of Bidders; Interest In More Than One Bid ➢ Insurance Requirements
➢ Award Process
➢ Filing of Bid Protests
➢ Workers Compensation
➢ Substitution of Security
➢ Prevailing Wages (REQUIRED BY FUNDING)
➢ Debarment of Contractors and Subcontractors
➢ Performance Bond and Payment (Labor and Materials) Bond Requirements ➢ Sales and Other Applicable Taxes, Permits, Licenses and Fees ➢ Iran Contracting Act of 2010
➢ Execution of Contract
BID FORMS 8
➢ Information Required of Bidders (Submit Online)
➢ Bid Form (Submit Online)
➢ Contractor’s Certificate Regarding Workers’ Compensation (Submit Online) ➢ Non-Collusion Declaration (Submit Online)
➢ Payment Bond (Labor and Materials), If Bid Amount is Over $25,000 654

TABLE OF CONTENTS
SB-32-HD-23

ITEM PAGE
ii
CONTRACT 15
➢ Article 1. Scope of Work
➢ Article 2. Time for Completion
➢ Article 3. Contract Price
➢ Article 4. Payments
➢ Article 5. Payments Withheld and Backcharges
➢ Article 6. Changes and Extra Work
➢ Article 7. Liquidated Damages
➢ Article 8. Component Parts of The Contract
➢ Article 9. Provisions Required By Law
➢ Article 10. Indemnification
➢ Article 11. Prevailing Wages (REQUIRED BY FUNDING)
➢ EXHIBIT “A” – Change Order Form
GENERAL CONDITIONS 27
Article 1.- Definitions
Article 2. - Contract Documents
Article 3. - Detail Drawings And Instructions
Article 4. – Substitutions
Article 5. – Materials
Article 6. - Contractor’s Supervision
Article 7. – Workers
Article 8. – Subcontractors
Article 9. - Permits And Licenses
Article 10. - Diversion of Recyclable Waste Materials
Article 11. - Removal of Hazardous Materials
Article 12. - Sanitary Facilities
Article 13. - Air Pollution Control
Article 14. - Fire Protection
Article 15. - Cleaning Up
Article 16. - Excessive Noise
Article 17. - Protection Of Work And Property
Article 18. - Contractors Means And Methods
Article 19. - Authorized Representatives
Article 20. - Hours of Work
Article 21. - Prevailing Rates of Wages (REQUIRED BY FUNDING) Article 22. - Non-discrimination/Equal Employment Opportunity Article 23. - Labor/Employment Safety
Article 24. - Workers’ Compensation Insurance
Article 25. - Employer’s Liability Insurance
Article 26. - Commercial General Liability Insurance
655

TABLE OF CONTENTS
SB-32-HD-23

ITEM PAGE
iii
Article 27. - Automobile Liability Insurance
Article 28. - Form And Proof of Carriage Of Insurance
Article 29. - Time For Completion And Liquidated Damages Article 30. - Cost Breakdown And Periodic Estimates
Article 31. - City’s Right To Terminate Contract
Article 32. - Warranty And Guarantee
Article 33. - Notice And Service Thereof
Article 34. – Integration

OTHER DOCUMENTS

REHABILITATION REPORT & PRIORITY LIST
SECTION 3 BID PACKAGE
SECTION 3 CLAUSE 47
656
1 CITY OF FONTANA

NOTICE INVITING SEALED BIDS
NOTICE IS HEREBY GIVEN that sealed bids will be received only by submitting electronically atww.fontanapurchasing.org, for MULTI-FAMILY REHABILITATION PROGRAM - 8996 Olive Street SB-32-HD-23 no later than SEPTEMBER 27, 2022, 2:00 PM, at which time or thereafter said Bids will be electronically opened and available online. Bids received after this time will not be able to submit electronically. Bids shall be valid for 90 calendar days after the Bid opening date.

DESCRIPTION OF WORK: The work is described as follows: Rehabilitation of Multi-Family Property located at 8996 Olive Street. Fontana, CA.

Bid must be submitted electronically for the exact item(s) requested in the bid specifications. Copies of plans, specifications, and contract documents are available from the City’s Purchasing website www.fontanapurchasing.org.

A MANDATORY Pre-Bid Conference will be held at 8996 Olive Street. Fontana, CA on September 14, 2022 PROMPTLY at 11:00 AM. Each and every Bidder MUST attend the Pre-Bid Conference. Bids WILL NOT be accepted from any Bidder who did not attend the Pre-Bid Conference.

This is a HUD Section 3 construction contract. First preference will be given to a bidder who provides a reasonable bid and is a qualified Section 3 Business Concern. Second preference will be given to a bidder who provides a reasonable bid and commits to achieving the Section 3 employment, training and subcontracting opportunity goals by submitting a written commitment (Economic Opportunity Plan).

Each Bid submitted electronically shall be accompanied by the bid forms, non-collusion declaration, and all additional documentation required by the Instructions to Bidders. The successful Bidder will be required to furnish the City with a Payment (Labor and Materials) Bond equal to 100% of the successful Bid, prior to execution of the Contract. The bond we need to be secured from a surety that meets all of the State of California bonding requirements, as defined in Code of Civil Procedure Section 995.120, and is admitted by the State of California. The cost of said bonds shall be included in the Bid amount. Pursuant to Public Contract Code Section 22300, the successful Bidder may substitute certain securities for funds withheld by City to ensure his performance under the Contract.

Each Bidder shall be a licensed contractor pursuant to the Business and Professions Code and shall be licensed in the following appropriate classification(s) of contractor’s license(s), for the work Bid upon, and must maintain the license(s) throughout the duration of the Contract. At the time of submitting a bid, the prime contractor and subcontractor shall possess a Class "B" contractor’s license or a Class “C” specialty license sufficient to perform the work.

Pursuant to Public Contract Code Section 3400(b), if the City should make findings designating certain materials, products, things, or services by specific brand or trade name, such findings and the materials, products, things, or services and their specific brand or trade names will be set forth in the Special Conditions.

The City shall award the Contract for the Project to the lowest responsive, responsible Bidder on the basis of the base Bid alone by the City. The City reserves the right to reject any or all Bids or to waive any irregularities or informalities in any Bids or in the Bidding process. 657

INSTRUCTIONS TO BIDDERS
2 INSTRUCTIONS TO BIDDERS

1. AVAILABILITY OF CONTRACT DOCUMENTS
Bids must be submitted to the City on the Bid Forms which are a part of the Bid Package for the Project. Contract Documents may be obtained from the Purchasing website www.fontanapurchasing.org.

2. EXAMINATION OF CONTRACT DOCUMENTS
Bidders shall be solely responsible for examining the Project Site and the Contract Documents, including any Addenda issued during the Bidding period, and for informing itself with respect to local labor availability, laws and codes, local permit requirements, wage scales, local tax structure, contractors’ licensing requirements, availability of required insurance, and other factors that could affect the Work. Bidders are responsible for consulting the standards referenced in the Contract. Failure of Bidder to so examine and inform itself shall be at its sole risk, and no relief for error or omission will be given except as required under State law.

3. INTERPRETATION OF CONTRACT DOCUMENTS
Discrepancies in, and/or omissions from the Plans, Specifications or other Contract Documents or questions as to their meaning shall be immediately brought to the attention of the City by submission of a written request for an interpretation or correction by using the online bid system at www.fontanapurchasing.org, NO LATER THAN 5 Days prior to the bid closing date.

Any interpretation of the Contract Documents will be made only by Addenda duly issued electronically to each person registered on the prospective bidder’s list. The City will not be responsible for any explanations or interpretations provided in any other manner. No person is authorized to make any oral interpretation of any provision in the Contract Documents to any Bidder, and no Bidder should rely on any such oral interpretation.

Bids shall include complete compensation for all items that are noted in the Contract Documents and are the responsibility of the Contractor.

4. INSPECTION OF SITE; PRE-BID CONFERENCE AND SITE WALK Each prospective Bidder is responsible for fully acquainting itself with the conditions of the Project Site (which may include more than one site), as well as those relating to the construction and labor of the Project, to fully understand the facilities, difficulties and restrictions which may impact the cost or effort required to complete the Project. To this end, a Pre-Bid Conference and Site Walk will be held on the date(s) and time(s) indicated in the Notice Inviting Bids.

5. ADDENDA
The City reserves the right to revise the Contract Documents prior to the Bid opening date. Revisions, if any, shall be made by Addenda. All Addenda issued by the City shall be included in the Bid and made part of the Contract Documents. Pursuant to Public Contract Code Section 4104.5, if the City issues an Addendum which includes material changes to the Project less than 72 hours prior to the deadline for submission of Bids, the 658

INSTRUCTIONS TO BIDDERS
3 City will extend the deadline for submission of Bids. The City may determine, in its sole discretion, whether an Addendum warrants postponement of the Bid submission date.

Each prospective Bidder shall provide City a name and email address to which Addenda may be sent, as well as a telephone number by which the City can contact the Bidder.

Copies of Addenda will be available on the City’s Purchasing website www.fontanapurchasing.org. Please Note: Bidders are responsible for ensuring that they have received any and all Addenda. To this end, each Bidder should contact the City’s Purchasing website www.fontanapurchasing.org to verify that he has received all Addenda issued, if any, prior to the Bid opening.

6. COMPLETION OF BID FORMS
Bids shall only be prepared using copies of the Bid Forms which are included in the Contract Documents. The use of substitute Bid forms other than clear and correct photocopies of those provided by the City will not be permitted. Bids shall be executed by an authorized signatory as described in these Instructions to Bidders. In addition, Bidders shall fill in all blank spaces (including inserting “N/A” where applicable) and initial all interlineations, alterations, or erasures to the Bid Forms. Bidders shall neither delete, modify, nor supplement the printed matter on the Bid Forms nor make substitutions thereon. USE OF BLACK OR BLUE INK, INDELIBLE PENCIL, ELECTRONICALLY OR TYPED IS REQUIRED. Deviations in the Bid form may result in the Bid being deemed non-responsive.

7. MODIFICATIONS OF BIDS
Each Bidder shall submit its Bid in strict conformity with the requirements of the Contract Documents. Unauthorized additions, modifications, revisions, conditions, limitations, exclusions or provisions attached to a Bid may render it non-responsive and may cause its rejection. Bidders shall neither delete, modify, nor supplement the printed matter on the Bid Forms, nor make substitutions thereon. Oral, telephonic and electronic modifications will not be considered, unless the Notice Inviting Bids authorizes the submission of electronic Bids and modifications thereto and such modifications are made in accordance with the Notice Inviting Bids.

8. DESIGNATION OF SUBCONTRACTORS (Entered Online)
In compliance with the Subletting and Subcontracting Fair Practices Act of the Public Contract Code of the State of California, each Bidder shall set forth below: (a) the name and the location of the place of business and (b) the portion of the work which will be done by each subcontractor who will perform work or labor or render service to the Contractor in or about the construction of the work in an amount in excess of one-half of one percent (1/2%) of the Contractor’s Total Bid Amount. Notwithstanding the foregoing, if the work involves streets and highways, then the Contractor shall list each subcontractor who will perform work or labor or render service to Contractor in or about the work in an amount in excess of one-half of one percent (1/2%) of the Contractor’s Total Bid Amount or $10,000, whichever is greater. No additional time shall be granted to provide the below requested information.

If no subcontractor is specified, for a portion of the work, or if more than one subcontractor is specified for the same portion of Work, to be performed under the Contract in excess of one-half of one percent (1/2%) of the Contractor’s Total Bid Amount or $10,000, whichever is greater if the work involves streets or highways, then the Contractor shall be 659

INSTRUCTIONS TO BIDDERS
4 deemed to have agreed that it is fully qualified to perform that Work, and that it shall perform that portion itself.

9. LICENSING REQUIREMENTS
Pursuant to Section 7028.15 of the Business and Professions Code and Section 3300 of the Public Contract Code, all Bidders must possess proper licenses for performance of this Contract. Subcontractors must possess the appropriate licenses for each specialty subcontracted. Pursuant to Section 7028.5 of the Business and Professions Code, the City shall consider any Bid submitted by a contractor not currently licensed in accordance with state law and pursuant to the requirements found in the Contract Documents to be nonresponsive, and the City shall reject the Bid. The City shall have the right to request, and Bidders shall provide within five (5) calendar days, evidence satisfactory to the City of all valid license(s) currently held by that Bidder and each of the Bidder’s subcontractors, before awarding the Contract. Please also note that, pursuant to Public Contract Code Section 20676, sellers of "mined material" must be on an approved list of sellers published pursuant to Public Resources Code Section 2717(b) in order to supply mined material for this Contract.

10. SIGNING OF BIDS
All Bids submitted shall be executed by the Bidder or its authorized representative.

Bidders may be asked to provide evidence in the form of an authenticated resolution of its Board of Directors or a Power of Attorney evidencing the capacity of the person signing the Bid to bind the Bidder to each Bid and to any Contract arising therefrom.

If a Bidder is a joint venture or partnership, it may be asked to submit an authenticated Power of Attorney executed by each joint venturer or partner appointing and designating one of the joint venturers or partners as a management sponsor to execute the Bid on behalf of Bidder. Only that joint venturer or partner shall execute the Bid. The Power of Attorney shall also: (1) authorize that particular joint venturer or partner to act for and bind Bidder in all matters relating to the Bid; and (2) provide that each venturer or partner shall be jointly and severally liable for any and all of the duties and obligations of Bidder assumed under the Bid and under any Contract arising therefrom. The Bid shall be executed by the designated joint venturer or partner on behalf of the joint venture or partnership in its legal name.

11. SUBMISSION OF SEALED BIDS
Once the Bid and supporting documents have been completed and signed as set forth herein, they shall be submitted electronically.

Only where expressly permitted in the Notice Inviting Bids, may Bidders submit their Bids via electronic transmission pursuant to Public Contract Code Sections 1600 and 1601.

The acceptable method(s) of electronic transmission shall be stated in the Notice Inviting Bids.

12. DELIVERY AND OPENING OF BIDS
Bids are to be submitted electronically. Electronic Bid System will close exactly at the time set forth in the Notice Inviting Bid. All applicable forms required to be completed per the bid documents, shall be submitted electronically prior to the due date and time. Hard copies will not be accepted as a viable bid. It is the Bidder’s sole responsibility to ensure 660

INSTRUCTIONS TO BIDDERS
5 that its Bid is received as specified. Bids may be submitted earlier than the dates(s) and time(s) indicated.

Bids will be available at the date and time stated in the Notice Inviting Bids and the amount of each Bid will be available online and recorded. The City may in its sole discretion, elect to postpone the opening of the submitted Bids. City reserves the right to reject any or all Bids and to waive any informality or irregularity in any Bid. In the event of a discrepancy between the written amount of the Bid Amount and the numerical amount of the Bid Amount, the written amount shall govern.

13. WITHDRAWAL OF BID
Prior to Bid opening, a Bid may be withdrawn by the Bidder only by using the City’s electronic bidding system.

14. BASIS OF AWARD; BALANCED BIDS
The City shall award the Contract to the lowest responsive, responsible Bidder submitting a responsive Bid. The City may reject any Bid which, in its opinion when compared to other Bids received or to the City’s internal estimates, does not accurately reflects the cost to perform the Work. The City may reject as non-responsive any Bid which unevenly weights or allocates costs, including but not limited to overhead and profit to one or more particular Bid items.

15. DISQUALIFICATION OF BIDDERS; INTEREST IN MORE THAN ONE BID No Bidder shall be allowed to make, submit or be interested in more than one Bid.

However, a person, firm, corporation or other entity that has submitted a subproposal to a Bidder, or that has quoted prices of materials to a Bidder, is not thereby disqualified from submitting a subproposal or quoting prices to other Bidders submitting a Bid to the City. No person, firm, corporation, or other entity may submit subproposal to a Bidder, or quote prices of materials to a Bidder, when also submitting a prime Bid on the same Project.

16. INSURANCE REQUIREMENTS
The successful Bidder shall procure the insurance in the form and in the amount specified in the Contract Documents.

17. AWARD PROCESS
Once all Bids are electronically opened and reviewed to determine the lowest responsive and responsible Bidder, the City will award the contract. The apparent successful Bidder should begin to prepare the following documents: (1) the Payment (Labor and Materials) Bond; and (2) the required insurance certificates and endorsements. Once the City notifies the Bidder of the award, the Bidder will have ten (10) consecutive calendar days from the date of this notification letter to execute the Contract and supply the City with all of the required documents and certifications. Regardless whether the Bidder supplies the required documents and certifications in a timely manner, the Contract time will begin to run ten (10) calendar days from the date of the notification. Once the City receives all of the properly drafted and executed documents and certifications from the Bidder, the City shall issue a Notice to Proceed to that Bidder.
661

INSTRUCTIONS TO BIDDERS
6 18. FILING OF BID PROTESTS
Bidders may file a “protest” of a Bid with the City’s Purchasing Officer. In order for a Bidder’s protest to be considered valid, the protest must:

A. Be filed in writing within five (5) calendar days after the Bid opening date; B. Clearly identify the specific irregularity or accusation; C. Clearly identify the specific City staff determination or recommendation being protested;
D. Specify, in detail, the grounds of the protest and the facts supporting the protest; and
E. Include all relevant, supporting documentation with the protest at time of filing.

If the protest does not comply with each of these requirements, it will be rejected as invalid.

If the protest is valid, the City’s Purchasing Officer, or other designated City staff member, shall review the basis of the protest and all relevant information. The Purchasing Officer will provide a written decision to the protestor. The protestor may then appeal the decision of the City Manager.

19. WORKERS COMPENSATION
Each Bidder shall submit the Contractor’s Certificate Regarding Workers’ Compensation form.

20. SUBSTITUTION OF SECURITY
The Contract Documents call for monthly progress payments based upon the percentage of the work completed. The City will retain five percent (5%) of each progress payment as provided by the Contract Documents. At the request and expense of the successful Bidder, the City will substitute securities for the amount so retained in accordance with Public Contract Code Section 22300.

21. PREVAILING WAGES
This contract will be funded in whole or in part with federal housing and community development funds. The Federal Labor Standards Provisions, including prevailing wage requirements of the Davis-Bacon and Related Acts will be enforced. A copy of the Federal Wage Decision applicable to this project is included in the Bid Document.

This is project is a public work in the State of California, funded in whole or in part with public funds. Therefore, the higher of the two applicable prevailing wage rates, federal or state, will be enforced. The Contractor’s duty to pay State prevailing wages can be found under Labor Code Section 1770 et seq. Labor Code Sections 1775 and 1777.7 662

INSTRUCTIONS TO BIDDERS
7 outline the penalties for failure to pay prevailing wages and to employ apprentices, including forfeitures and debarment. The State Wage Decision is on file at the City Clerk’s office, and is also available online at http://www.dir.ca.gov/dlsr/.

Apprenticeship Program: Attention is directed to Sections 1777.5, 1777.6 and 1777.7 of the California Labor Code and Title 8, California Administrative code, Section 200 et seq. to ensure compliance and complete understanding of the law regarding apprentices.

Minority and Women Owned Business: Bidders will be required to document their status as a Minority Business Enterprise (MBE), a Women-owned Business Enterprise (WBE) or a non-MBE/WBE firm. Bidders that are not MBE/WBE firms will be required to make a good faith effort, and to document their efforts to include firms as part of the contract bid.

Section 3 Statement: This is a HUD Section 3 construction contract. First preference will be given to a bidder who provides a reasonable bid and is a qualified Section 3 Business Concern. Second preference will be given to a bidder who provides a reasonable bid and commits to achieving the Section 3 employment, training and subcontracting opportunity goals by submitting a written commitment (Economic Opportunity Plan).

Conflict of Interest: In the procurement of supplies, equipment, construction, and services by sub- recipients, the conflict of interest provisions in (State LCA - 24 CFR

85.36 and Non-Profit Organizations – 24 CFR 84.4), OMB Circular A-110, and 24 CFR 570.611, respectively, shall apply. No employee, officer or agent of the sub-recipient shall participate in selection, or in the award or administration of a contract supported by Federal funds if a conflict of interest, real or apparent, would be involved.

22. DEBARMENT OF CONTRACTORS AND SUBCONTRACTORS
In accordance with the provisions of the Labor Code, contractors or subcontractors may not perform work on a public works project with a subcontractor who is ineligible to perform work on a public project pursuant to Section 1777.1 or Section 1777.7 of the Labor Code and the Federal “Excluded Parties List System”. Any contract on a public works project entered into between a contractor and a debarred subcontractor is void as a matter of law. A debarred subcontractor may not receive any public money for performing work as a subcontractor on a public works contract. Any public money that is paid to a debarred subcontractor by the Contractor for the Project shall be returned to the City. The Contractor shall be responsible for the payment of wages to workers of a debarred subcontractor who has been allowed to work on the Project.

23. PERFORMANCE BOND AND PAYMENT (LABOR AND MATERIALS) BOND

REQUIREMENTS
Within the time specified in the Contract Documents, the Bidder to whom a Contract is awarded shall deliver to the City four identical counterparts of the Performance Bond and Payment (Labor and Materials) Bond, each in an amount equal to one hundred percent (100%) of the Total Bid Amount and in the form supplied by the City and included in the Contract Documents. Failure to do so may, in the sole discretion of City, result in the 663

INSTRUCTIONS TO BIDDERS
8 forfeiture of the Bid Guarantee. The surety supplying the bond must be an admitted surety insurer, as defined in Code of Civil Procedure Section 995.120, authorized to do business as such in the State of California and satisfactory to the City.

24. SALES AND OTHER APPLICABLE TAXES, PERMITS, LICENSES AND FEES Contractor and its subcontractors performing work under this Contract will be required to pay California sales tax and other applicable taxes, and to pay for permits, licenses and fees required by the agencies with authority in the jurisdiction in which the work will be located, unless otherwise expressly provided by the Contract Documents.

25. IRAN CONTRACTING ACT OF 2010
In accordance with Public Contract Code Section 2200 et seq., the City requires that any person that submits a bid or proposal or otherwise proposes to enter into or renew a contract with the City with respect to goods or services of one million dollars ($1,000,000) or more, certify at the time the bid is submitted or the contract is renewed, that the person is not identified on a list created pursuant to subdivision (b) of Public Contract Code Section 2203 as a person engaging in investment activities in Iran described in subdivision (a) of Public Contract Code Section 2202.5, or as a person described in subdivision (b) of Public Contract Code Section 2202.5, as applicable.

26. EXECUTION OF CONTRACT
As required herein the Bidder to whom an award is made shall execute the Contract in the amount determined by the Contract Documents. The City may require appropriate evidence that the persons executing the Contract are duly empowered to do so.

END OF INSTRUCTIONS TO BIDDERS
664

SUBMIT ONLINE

INFORMATION REQUIRED OF BIDDER
9 INFORMATION REQUIRED OF BIDDER
8996 Olive Street.

A. INFORMATION ABOUT BIDDER
BIDDER certifies that the following information is true and correct:

Bidder's Name:

Business Address:

Telephone: Fax:

Email Address:

State Contractor's License No. and Class:

Original Date Issued: Expiration Date:

What type of work does the Bidder normally perform with its own forces? __________________________________________________________ _________________________________________________________ _________________________________________________________ _________________________________________________________ Name of Bonding Company and Name and Address of Agent:
_________________________________________________________ _________________________________________________________ 665

SUBMIT ONLINE

BID FORM
10 BID FORM
8996 Olive Street.

TOTAL BID AMOUNT (BASED ON REHABILITATION REPORT & PRIORITY LIST):
$
Total Bid Amount in Numbers
Total Bid Amount in Written Form
Number of Days to Complete the Project
In case of discrepancy between the written amount and the numerical amount, the written amount shall prevail.

The undersigned agrees that this Bid Form constitutes a firm offer to the City which cannot be withdrawn for the number of calendar days indicated in the Notice Inviting Bids from and after the Bid opening, or until a Contract for the Work is fully executed by the City and a third party, whichever is earlier.

1. Upload the Bid Form.

2. Upload the Information Required of Bidder Form.

3. Upload the fully executed Non-Collusion Declaration Form.

4. Upload the completed Contractor’s Certificate Regarding Workers’ Compensation Form.

5. List Subcontractors online.

I hereby certify under penalty of perjury under the laws of the State of California, which all of the information submitted in connection with this Bid and all of the representations made herein are true and correct.

Name of Bidder
Signature
Name and Title
Dated
666

SUBMIT ONLINE
CONTRACTOR’S CERTIFICATE REGARDING
WORKERS’ COMPENSATION
11 SDPUB\SAKINS\347250.2
CONTRACTOR’S CERTIFICATE REGARDING
WORKERS’ COMPENSATION
8996 Olive Street.

I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake selfinsurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this Contract.

Name of Bidder
Signature
Name and Title
Dated
667

SUBMIT ONLINE

NON-COLLUSION DECLARATION
12 NON-COLLUSION DECLARATION
The undersigned declares:

I am the ______________________________ of _________________________ ___________________________________________, the party making the foregoing bid.

The bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation. The bid is genuine and not collusive or sham. The bidder has not directly or indirectly induced or solicited any other bidder to put in a false or sham bid. The bidder has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or to refrain from bidding. The bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the bidder or any other bidder, or to fix any overhead, profit, or cost element of the bid price, or of that of any other bidder. All statements contained in the bid are true. The bidder has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, to any corporation, partnership, company, association, organization, bid depository, or to any member or agent thereof, to effectuate a collusive or sham bid, and has not paid, and will not pay, any person or entity for such purpose.

Any person executing this declaration on behalf of a bidder that is a corporation, partnership, joint venture, limited liability company, limited liability partnership, or any other entity, hereby represents that he or she has full power to execute, and does execute, this declaration on behalf of the bidder.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on ______________________[date], at ___________________________________[city], _____[state].
__________________________________
(Signature)
__________________________________
(Print Name)
__________________________________
(Title)
668

PAYMENT BOND (LABOR AND MATERIALS)
13 SDPUB\SAKINS\347250.2
Bid Bond
[Note: Not required when other form of Bidder’s Security, e.g. cash, certified check or cashier’s check, accompanies bid.]
The makers of this bond are, _____________________________________________, as Principal, and ______________________________________________________, as Surety and are held and firmly bound unto the City of Fontana, hereinafter called the City, in the penal sum of TEN PERCENT (10%) OF THE TOTAL BID PRICE of the Principal submitted to City for the work described below, for the payment of which sum in lawful money of the United States, well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH that whereas the Principal has submitted the accompanying bid dated _____________, 20 ____, for Multi-Family Housing Rehabilitation Program - 8996 Olive Street
If the Principal does not withdraw its Bid within the time specified in the Contract Documents; and if the Principal is awarded the Contract and provides all documents to the City as required by the Contract Documents; then this obligation shall be null and void. Otherwise, this bond will remain in full force and effect.

Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents shall in affect its obligation under this bond, and Surety does hereby waive notice of any such changes.

In the event a lawsuit is brought upon this bond by the City and judgment is recovered, the Surety shall pay all litigation expenses incurred by the City in such suit, including reasonable attorneys’ fees, court costs, expert witness fees and expenses.

By their signatures hereunder, Surety and Principal hereby confirm under penalty of perjury that surety is an admitted surety insurer authorized to do business in the State of California.

IN WITNESS WHEREOF, the above-bound parties have executed this instrument under their several seals this _______ day of ________________, 20____, the name and corporate seal of each corporation.
(Corporate Seal)
Contractor/ Principal
By
Title
(Corporate Seal) Surety
By
Attorney-in-Fact
(Attach Attorney-in-Fact Certificate) Title
669

PAYMENT BOND (LABOR AND MATERIALS)
14 SDPUB\SAKINS\347250.2
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

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

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

WITNESS my hand and official seal.

Signature of Notary Public

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

CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
Title(s) Title or Type of Document
Partner(s) Limited
General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for Contractor/Principal. 670

PAYMENT BOND (LABOR AND MATERIALS)
15 SDPUB\SAKINS\347250.2
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

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

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

WITNESS my hand and official seal.

Signature of Notary Public

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

CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
Title(s) Title or Type of Document
Partner(s) Limited
General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for the Attorney-in-Fact. The Power-of-Attorney to local representatives of the bonding company must also be attached. 671

PAYMENT BOND (LABOR AND MATERIALS)
16 SDPUB\SAKINS\347250.2

END OF BID BOND

PAYMENT BOND (LABOR AND MATERIALS)
KNOW ALL MEN BY THESE PRESENTS That
WHEREAS, the City of Fontana (hereinafter designated as the “City”), by action taken or a resolution passed ___________ , 20____ has awarded to ________________ hereinafter designated as the “Principal,” a contract for the work described as follows:
______________________________________________________________________ ______ (the “Project”); and
WHEREAS, said Principal is required to furnish a bond in connection with said contract; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth.

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

THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in Section 3181 of the Civil Code, fail to pay for any materials, provisions or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to Section 18663 of the Revenue and Taxation Code, with respect to such work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified, and also, in case suit is brought upon this bond, all litigation expenses incurred by the City in such suit, including reasonable attorneys’ fees, court costs, expert witness fees and investigation expenses.

This bond shall inure to the benefit of any of the persons named in Section 3181 of the Civil Code so as to give a right of action to such persons or their assigns in any suit brought upon this bond.

It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement 672

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17 SDPUB\SAKINS\347250.2
herein above described, or pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement herein above described, nor by any rescission or attempted rescission or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or City and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Section 3110 or 3112 of the Civil Code, and has not been paid the full amount of his claim and that Surety does hereby waive notice of any such change, extension of time, addition, alteration or modification herein mentioned.

IN WITNESS WHEREOF, two (2) identical counterparts of this instrument, each of which shall for all purposes be deemed unoriginal thereof, have been duly executed by the Principal and Surety above named, on the _____ day of ______________________ 20______ the name and corporate seal of each corporate party being hereto affixed and these presents duly signed b its undersigned representative pursuant to authority of its governing body.
(Corporate Seal of
Principal, if corporation)
Principal (Property Name of Contractor)
By:
(Signature of Contractor)
(Seal of Surety)
Surety
By:

Attorney in Fact
(Attached Attorney-In-Fact
Certificate and Required
Acknowledgements)
*Note: Appropriate Notarial Acknowledgments of Execution by Contractor and +surety and a power of Attorney MUST BE ATTACHED.
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PAYMENT BOND (LABOR AND MATERIALS)
18 SDPUB\SAKINS\347250.2

CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California }
} ss.

County of __________________________ }
On before me,
personally appeared
Here Insert Name and Title of the Officer
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

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

WITNESS my hand and official seal.

Place Notary Seal Above Signature of Notary Public
_______________________________________________________ OPTIONAL _____________________________________________________________ Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.

Description of Attached Document
Title of Type of Document:

Document Date: Number of Pages:

Signer(s) Other Than Named Above:

Capacity(ies) Claimed by Signer(s)
Signer’s Name: Signer’s Name:
 Individual  Individual
 Corporate Officer Title(s):  Corporate Officer Title(s):
 Partner -  Limited  General  Partner -  Limited  General  Attorney in Fact Right Thumbprint of Signer
Top of thumb here
 Attorney in Fact Right Thumbprint of Signer
 Trustee  Trustee Top of thumb here
 Guardian or Conservator  Guardian or Conservator
 Other:  Other:

Signer is Representing: Signer is Representing:
.
674

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19 SDPUB\SAKINS\347250.2

CONTRACT
THIS CONTRACT is made this _____ day of _________, 202_, in the County of San Bernardino, State of California, by and between the City of Fontana, hereinafter called City, and ______________________________, hereinafter called Contractor. The City and the Contractor for the considerations stated herein agree as follows:

ARTICLE 1. SCOPE OF WORK. The Contractor shall perform all Work within the time stipulated the Contract and shall provide all labor, materials, equipment, tools, utility services, and transportation to complete all of the Work required in strict compliance with the Contract Documents as specified in Article 5 below for the following Project:

PROJECT NAME, NUMBER
The Contractor and its surety shall be liable to the City for any damages arising as a result of the Contractor’s failure to comply with this obligation.

ARTICLE 2. TIME FOR COMPLETION.

2.1 The Work shall be commenced on the date stated in the City’s Notice to Proceed.

The Contractor shall complete all Work required by the Contract Documents within [**INSERT WORKING DAYS**] calendar days from the commencement date stated in the Notice to Proceed. By its signature hereunder, Contractor agrees the time for completion set forth above is adequate and reasonable to complete the Work.

2.2 Contractor shall coordinate the Work with the other work being performed on the Project, in accordance with those schedules as may be issued from time to time during the performance of the Work, and any other scheduling requirements listed in this Agreement, so as not to delay, impede, obstruct, hinder or interfere with the commencement, progress or completion of the whole or any part of the Work or other work on the Project.

2.3 The Contractor shall participate and cooperate with the City in the development of schedules and other efforts to achieve timely completion of the Work providing information for the scheduling of the times and sequence of operations required for its Work (“Contractor Schedule”) to meet City’s overall master project schedule requirements (“Master Schedule”). The Contractor shall continuously monitor the Master Schedule so as to be fully familiar with the timing, phasing and sequence of operations of the Work and of other work on the Project, and shall execute the Work in accordance with the requirements of the Master Schedule including any revisions thereto. The Contractor shall notify the City within 48 hours of any slippage in the Contractor Schedule and shall submit a detailed recovery plan to the City for approval within five (5) calendar days of such notice. 675

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20 SDPUB\SAKINS\347250.2

2.4 Should the progress of the Work or of the Project be delayed disrupted, hindered, obstructed, or interfered with by any fault or neglect or act or failure to act of the Contractor or any of its officers, agents, servants, employees, subcontractors or suppliers so as to cause any additional cost, expense, liability or damage to the City or any consultants retained by the City for the Project, including legal fees and disbursements incurred by the City or the consultants retained by the City for the Project, (whether incurred in defending claims arising from such delay or in seeking reimbursement and indemnity from the Contractor and its surety hereunder or otherwise) or any damages or additional costs or expenses for which the City or the consultants retained by the City for the Project, may or shall become liable, the Contractor and its surety shall and does hereby agree to compensate the City or the consultants retained by the City for the Project,, for and indemnify them against all such costs, expenses, damages and liability.

2.5 The City, in its sole discretion, may direct the Contractor to work overtime and, if so directed, the Contractor shall work said overtime and, provided that the Contractor is not in default under any of the terms or provisions of this Agreement or of any of the other Contract Documents, the City will pay the Contractor for such actual additional wages paid, if any, at the prevailing wage rates plus taxes imposed by law on such additional wages, plus workers' compensation insurance, liability insurance and levies on such additional wages if required to be paid by the Contractor.

2.6 If, however, the progress of the Work or of the Project is delayed by any fault or neglect or act or failure to act of the Contractor or any of its officers, agents, servants, employees, subcontractors or suppliers, then the Contractor shall, in addition to all of the other obligations imposed by this Agreement upon the Contractor in such case, and at its own cost and expense, work such overtime as may be necessary to make up for all time lost in the completion of the Work and of the Project due to such delay. Should the Contractor fail to make up for the time lost by reason of such delay, the City shall have the right to cause other contractors to work overtime and to take whatever other action it deems necessary to avoid delay in the completion of the Work and of the Project, and the cost and expense of such overtime and/or such other action shall be borne solely by the Contractor.

ARTICLE 3. CONTRACT PRICE. The City shall pay to the Contractor as full compensation for the performance of the Contract, subject to any additions or deductions as provided in the Contract Documents, and including all applicable taxes and costs, the sum of ____________________________________________________________ Dollars ($_________________________________). Payment shall be made as set forth in the General Conditions.
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21 SDPUB\SAKINS\347250.2
ARTICLE 4. PAYMENTS

4.1 The City shall make progress payments following receipt of undisputed and properly submitted payment requests. Contractor shall be paid a sum equal to ninety-five percent (95%) of the value of Work performed up to the last day of the previous month, less the aggregate of previous payments.

4.2 The Contractor shall, after the full completion of The Work, submit a final payment application. All prior progress estimates shall be subject to correction in the final estimate and payment.

4.3 Unless otherwise required by law, the final payment of ten percent (10%) of the value of the Work, if unencumbered, shall be paid no later than sixty (60) Days after the date of recordation of the Notice of Completion.

4.4 Acceptance by Contractor of the final payment shall constitute a waiver of all claims against the City arising from this Contract.

4.5 Payments to the Contractor shall not be construed to be an acceptance of any defective work or improper materials, or to relieve the Contractor of its obligations under the Contract Documents.

4.6 The Contractor shall submit with each payment request the Contractor’s conditional waiver of lien for the entire amount covered by such payment request, as well as a valid unconditional waiver of lien from the Contractor and all subcontractors and materialmen for all work and materials included in any prior invoices. Waivers of lien shall be in the forms prescribed by California Civil Code Section 3262. Prior to final payment by the City, the Contractor shall submit a final waiver of lien for the Contractor’s work, together with releases of lien from any subcontractor or materialmen.

ARTICLE 5. PAYMENTS WITHHELD AND BACKCHARGES In addition to amounts which the City may retain under other provisions of the Contract Documents the City may withhold payments due to Contractor as may be necessary to cover:
a. Stop Notice Claims.
b. Defective work not remedied.
c. Failure of Contractor to make proper payments to its subcontractors or suppliers. d. Completion of the Contract if there exists a reasonable doubt that the work can be completed for balance then unpaid.
e. Damage to another contractor or third party.
f. Amounts which may be due the City for claims against Contractor. 677

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22 SDPUB\SAKINS\347250.2
g. Failure of Contractor to keep the record (“as-built”) drawings up to date. h. Failure to provide updates on the construction schedule. i. Site clean up.
j. Failure of the Contractor to comply with requirements of the Contract Documents. k. Liquated damages.
l. Legally permitted penalties.

Upon completion of the Contract, the City will reduce the final Contract amount to reflect costs charged to the Contractor, backcharges or payments withheld pursuant to the Contract Documents.

ARTICLE 6. CHANGES AND EXTRA WORK

6.1 The City, without invalidating the Contract, may order changes in the Work consisting of additions, deletions or other revisions, the Contract amount and Contract time being adjusted accordingly. All such changes in the Work shall be authorized by Change Order, in the form attached hereto and incorporated herein as Exhibit “A,” and shall be performed under the applicable conditions of the Contract Documents. A Change Order signed by the Contractor indicates the Contractor's agreement therewith, including any adjustment in the Contract amount or the Contract time, and the full and final settlement of all costs (direct, indirect and overhead) related to the Work authorized by the Change Order.

6.2 All claims for additional compensation to the Contractor shall be presented in writing before the expense is incurred and will be adjusted as provided herein. No work shall be allowed to lag pending such adjustment, but shall be promptly executed as directed, even if a dispute arises. No claim will be considered after the work in question has been done unless a written contract change order has been issued or a timely written notice of claim has been made by Contractor.

Contractor shall not be entitled to claim or bring suit for damages, whether for loss of profits or otherwise, on account of any decrease or omission of any item or portion of Work to be done. Whenever any change is made as provided for herein, such change shall be considered and treated as though originally included in the Contract, and shall be subject to all terms, conditions and provisions of the original Contract.

6.3 Owner Initiated Change. The Contractor must submit a complete cost proposal, including any change in the Contract time, within seven (7) Days after receipt of a scope of a proposed change order, unless the City requests that proposals be submitted in less than seven (7) Days.
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23 SDPUB\SAKINS\347250.2

6.4 Contractor Initiated Change. The Contractor must give written notice of a proposed change order required for compliance with the Contract Documents within seven (7) Days of discovery of the facts giving rise to the proposed change order.

6.5 Whenever possible, any changes to the Contract amount shall be in a lump sum mutually agreed to by the Contractor and the City.

6.6 Price quotations from the Contractor shall be accompanied by sufficiently detailed supporting documentation to permit verification by the City.

6.7 If the Contractor fails to submit the cost proposal within the seven (7) Day period (or as requested), the City has the right to order the Contractor in writing to commence the work immediately on a force account basis and/or issue a lump sum change to the contract price in accordance with the City’s estimate of cost. If the change is issued based on the City estimate, the Contractor will waive its right to dispute the action unless within fifteen (15) Days following completion of the added/deleted work, the Contractor presents written proof that the City’s estimate was in error.

6.8 Estimates for lump sum quotations and accounting for cost-plus-percentage work shall be limited to direct expenditures necessitated specifically by the subject extra work, and shall be segregated as follows:
(a) Labor. The costs of labor will be the actual cost for wages prevailing locally for each craft or type of worker at the time the extra work is done, plus employer payments of payroll taxes and insurance, health and welfare, pension, vacation, apprenticeship funds, and other direct costs resulting from Federal, State or local laws, as well as assessment or benefits required by lawful collective bargaining agreements. The use of a labor classification which would increase the extra work cost will not be permitted unless the contractor establishes the necessity for such additional costs. Labor costs for equipment operators and helpers shall be reported only when such costs are not included in the invoice for equipment rental. (b) Materials. The cost of materials reported shall be at invoice or lowest current price at which such materials are locally available in the quantities involved, plus sales tax, freight and delivery. Materials cost shall be based upon supplier or manufacturer’s invoice. If invoices or other satisfactory evidence of cost are not furnished within fifteen (15) Days of delivery, then the City shall determine the materials cost, at its sole discretion.
(c) Tool and Equipment Use. No payment will be made for the use of small tools, tools which have a replacement value of $1,000 or less. Regardless of ownership, the rates to be used in determining equipment use costs shall not exceed listed rates prevailing locally at equipment rental agencies, or distributors, at the time the work is performed.
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24 SDPUB\SAKINS\347250.2
(d) Overhead, Profit and Other Charges. The mark-up for overhead (including supervision) and profit on work added to the Contract shall be according to the following:
i. “Net Cost” is defined as consisting of costs of labor, materials and tools and equipment only excluding overhead and profit. The costs of applicable insurance and bond premium will be reimbursed to the Contractor and subcontractors at cost only, without mark-up.
ii. For Work performed by the Contractor’s forces the added cost for overhead and profit shall not exceed fifteen (15%) percent of the Net Cost of the Work. iii. For Work performed by a subcontractor, the added cost for overhead and profit shall not exceed fifteen (15%) percent of the Net Cost of the Work to which the Contractor may add five (5%) percent of the subcontractor’s Net Cost. iv. For Work performed by a sub-subcontractor the added cost for overhead and profit shall not exceed fifteen (15 %) percent of the Net Cost for Work to which the subcontractor and general contractor may each add an additional five (5 %) percent of the Net Cost of the lower tier subcontractor.
v. No additional mark up will be allowed for lower tier subcontractors, and in no case shall the added cost for overhead and profit payable by City exceed twenty-five (25%) percent of the Net Cost as defined herein.

6.9 For added or deducted Work by subcontractors, the Contractor shall furnish to the City the subcontractor’s signed detailed estimate of the cost of labor, material and equipment, including the subcontractor markup for overhead and profit. The same requirement shall apply to sub-subcontractors.

6.10 For added or deducted work furnished by a vendor or supplier, the Contractor shall furnish to the City a detailed estimate or quotation of the cost to the Contractor, signed by such vendor or supplier.

6.11 Any change in The Work involving both additions and deletions shall indicate a net total cost, including subcontracts and materials. Allowance for overhead and profit, as specified herein, shall be applied if the net total cost is an extra; overhead and profit allowances shall not be applied if the net total cost is a credit. The estimated cost of deductions shall be based on labor and material prices on the date the Contract was executed.

6.12 Contractor shall not reserve a right to assert impact costs, extended job site costs, extended overhead, constructive acceleration and/or actual acceleration beyond what is stated in the change order for work. No claims shall be allowed for impact, extended overhead costs, constructive acceleration and/or actual acceleration due to a multiplicity 680

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of changes and/or clarifications. The Contractor may not change or modify the City’s change order form in an attempt to reserve additional rights.

6.13 If the City disagrees with the proposal submitted by Contractor, it will notify the Contractor and the City will provide its opinion of the appropriate price and/or time extension. If the Contractor agrees with the City, a change order will be issued by the City. If no agreement can be reached, the City shall have the right to issue a unilateral change order setting forth its determination of the reasonable additions or savings in costs and time attributable to the extra or deleted work. Such determination shall become final and binding if the Contractor fails to submit a claim in writing to the City within fifteen (15) Days of the issuance of the unilateral change order, disputing the terms of the unilateral change order.

6.14 No dispute, disagreement or failure of the parties to reach agreement on the terms of the change order shall relieve the Contractor from the obligation to proceed with performance of the work, including extra work, promptly and expeditiously.

6.15 Any alterations, extensions of time, extra work or any other changes may be made without securing consent of the Contractor’s surety or sureties.

ARTICLE 7. LIQUIDATED DAMAGES. In accordance with Government Code section 53069.85, it is agreed that the Contractor will pay the City the sum of $[**INSERT AMOUNT**] for each and every calendar day of delay beyond the time prescribed in the Contract Documents for finishing the Work, as Liquidated Damages and not as a penalty or forfeiture. In the event this is not paid, the Contractor agrees the City may deduct that amount from any money due or that may become due the Contractor under the Contract.

This Article does not exclude recovery of other damages specified in the Contract Documents.

ARTICLE 8. COMPONENT PARTS OF THE CONTRACT. The “Contract Documents” include the following:

Notice Inviting Bids
Instructions to Bidders
Contractor's Bid Forms
Contractor’s Certificate Regarding Workers’ Compensation Designation of Subcontractors
Information Required of Bidders
Non-Collusion Declaration form
Contract
Section 3 Clause
Payment (Labor and Materials) Bond
General Conditions
California Building Codes as defined in the General Conditions Addenda
Approved and fully executed change orders
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Any other documents contained in or incorporated into the Contract The Contactor shall complete the Work in strict accordance with all of the Contract Documents.

All of the Contract Documents are intended to be complementary. Work required by one of the Contract Documents and not by others shall be done as if required by all. This Contract shall supersede any prior agreement of the parties.

ARTICLE 9. PROVISIONS REQUIRED BY LAW. Each and every provision of law required to be included in these Contract Documents shall be deemed to be included in these Contract Documents. The Contractor shall comply with all requirements of applicable federal, state and local laws, rules and regulations, including, but not limited to, the provisions of the California Labor Code and California Public Contract Code which are applicable to this Project.

ARTICLE 10. INDEMNIFICATION.

10.1 To the fullest extent permitted by law, the Contractor shall defend, indemnify and hold harmless the City and their respective officials, officers, agents, employees, and representatives (“indemnitees”) from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages (including without limitation the payment of all consequential damages and attorneys fees and other related costs and expenses) or injuries, in law or equity, regardless of whether the allegations are false, fraudulent, or groundless, to tangible property or persons (including wrongful death) arising out of or resulting from the performance of the Work or this Agreement (including claims made by subcontractors for nonpayment), to the extent that the acts, omissions or willful misconduct are attributable to the Contractor or anyone employed directly or indirectly by any of them. Contractor shall defend, at Contractor’s own cost, expense and risk, with legal counsel of indemnitee’s choosing, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the City and their respective officials, officers, agents, employees and representatives. To the extent of its liability, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against the City and their respective officials, officers, agents, employees, and representatives, in any such suit, action or other legal proceeding. Contractor shall reimburse the City and their respective officials, officers, agents, employees, and representatives for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. The only limitations on this provision shall be those imposed by Civil Code Section 2782.

10.2 Nothing contained in the preceding section shall be deemed to obligate the Contractor to indemnify the City or any of the other indemnitees, against liability for damages or any other loss, damage or expense sustained, suffered or incurred on account of death or bodily injury to active persons or injury to property caused 682

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by the sole negligence or willful misconduct of the City or any of the other indemnitees set forth above. Therefore, if it is determined by legal proceedings or agreement, that the Contractor has no direct contributory or incidental negligence or other obligation to the City or the other indemnitees, and the Contractor is in no way a proper party to a particular claim, then the Contractor shall not be obligated to hold the City or any indemnitees harmless with respect to said claim. However, until such determination is made by legal proceedings or agreement, or if the Contractor is found to have any degree of direct or contributory negligence or if it is determined that the Contractor is in any way or to any degree a proper party to said claim, then the Contractor’s obligations under all of the terms and provisions of the preceding section shall remain in full force and effect.

10.3 Nothing in this provision, or elsewhere in the Contract Documents, shall be deemed to relieve the Contractor of its duty to defend the City or any indemnitee, as specified under this Article, pending a determination of the respective liabilities of the City or any indemnitee, by legal proceeding or agreement.

10.4 In furtherance to, but not in limitation of the indemnity provisions in this Agreement, Contractor hereby expressly and specifically agrees that its obligation to indemnify, defend and hold harmless as provided in this Agreement shall not in any way be affected or diminished by any statutory or constitutional immunity it enjoys from suits by its own employees or from limitations of liability or recovery under workers’ compensation laws.

ARTICLE 11. PREVAILING WAGES (NOT REQUIRED BY FUNDING).

Contractor shall be required to pay the prevailing rate of wages in accordance with the Labor Code which such rates shall be made available online at http//www.dir.ca.gov/dlsr and which must be posted at the job site.
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IN WITNESS WHEREOF, this Contract has been duly executed by the abovenamed parties, on the day and year above written.

CITY OF FONTANA
By:

City Manager
[INSERT CONTRACTOR'S NAME]
By:
[INSERT NAME]
[INSERT TITLE]
Attest:

By:

City Clerk
Attest: 1
By:
[INSERT NAME]
[INSERT TITLE]
Approved as to form:

Best Best & Krieger LLP
City Attorney
By: _____________________________
Department Head

IN COMPLIANCE WITH CONTRACT INSURANCE REQUIREMENTS
By: _____________________________
Director of Human Resources/
Risk Management

IN COMPLIANCE WITH PURCHASING AND CONTRACT ADMINISTRATION POLICIES/PROCEDURES

Chief Financial Officer

Purchasing Office
1 Attestation of Contractor’s signature must be obtained when required by the by-laws, articles of incorporation or other laws, rules or regulations applicable to Contractor’s business entity. 684

PURCHASING USE ONLY
EXHIBIT “A” - CHANGE ORDER FORM
29 SDPUB\SAKINS\347254.2
EXHIBIT “A” CHANGE ORDER FORM
A. CHANGE ORDER STATUS
Change order waiting for approval, please expedite the signature process.

Anticipated Date of Issuance:

Due to the time-sensitive nature of the situation verbal approval was given by the Purchasing Officer on . The call was placed by (name/title): . The date of Issuance of the Change Order was on .

Other:

B. TRACKING INFORMATION
Submitting Organization: -Select- Other:

Bid/Tracking #: Type of Contract -SelectProject Description:

Change Order #:

PO #:

C. CONTRACTOR INFORMATION
Company Name:

Contact Person (name/title):

Address:

Telephone:

D. INITIATING PARTY (Party responsible for initiating the change order request)

1. City Initiated Please Specify Party:

2. Contractor Initiated
E. REASON(S) FOR THE CHANGE ORDER
Change in Scope Unforeseen Conditions Balancing Other:

Detailed Justification (Required):
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PURCHASING USE ONLY
EXHIBIT “A” - CHANGE ORDER FORM
30 SDPUB\SAKINS\347250.2
F. ADJUSTMENT CALCULATION

PRICE TIME

ORIGINAL CONTRACT PRICE ORIGINAL CONTRACT TIME
(DAYS or DATE)
$ -SelectTOTAL CONTRACT PRICE

PRIOR TO THIS CHANGE ORDER

TOTAL TIME

PRIOR TO THIS CHANGE ORDER
$ -SelectINCREASE/DECREASE IN CONTRACT PRICE WITH THIS

CHANGE ORDER

INCREASE/DECREASE

IN DAYS
+ - $ + -

NEW TOTAL PRICE

INCLUDING ALL CHANGE ORDERS

NEW TOTAL

TIME OR COMPLETION DATE
$ -SelectG. ADJUSTMENT DETERMINATION (at the sole discretion of the City):

Mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation.

Unit Prices stated in Contractor’s bid, the Contract, or subsequently agreed upon between the City and Contractor.

Cost determined in a manner agreed upon by the parties such as a mutually acceptable fixed amount or percentage.

By cost of material and labor and a percentage of overhead and profit.

H. ADJUSTMENT JUSTIFICATION: Attach complete itemized cost breakdown of all labor and material showing actual quantities, hours, unit prices, wage rates, required for the change, and the effect upon the time for performance of the work of such change order. Contractor’s form may be attached)
Execution of this change order by the Contractor constitutes a binding accord and satisfaction that fully satisfies, waives, and releases the Owner from all claims, demands, costs, and liabilities, in Contract, law or equity, arising out of or related to the subject of the change order, whether known or unknown, including but not limited to direct and indirect costs and/or damages for delay, disruption, acceleration, loss of productivity, and stacking of trades, as well as any and all consequential damages. ➢ Contractor: __________________________________ Date: ______________________ ➢ City Project Coordinator: ______________________ Date: ______________________ Review of analysis:
➢ Department Head: ___________________________ Date: _______________________ ➢ Purchasing Office: __________________________ Date: _______________________ ➢ Management Services Director: ___________________ Date: ____________________ 686
31 GENERAL CONDITIONS
ARTICLE 1. DEFINITIONS
a. Acceptable, Acceptance or words of similar import shall be understood to be the acceptance of the City.
b. Act of God an Act of God is an earthquake of magnitude 3.5 on the Richter scale and tidal waves.
c. Approval means written authorization by the City.
d. California Building Codes shall mean the following, as such may be modified by the City of Fontana Municipal Code:
2001 California Building Code
2004 California Electrical Code
2001 California Plumbing Code
2001 California Mechanical Code
e. Contract Documents includes all documents as stated in the Contract. f. City and Contractor are those stated in the Contract. The terms City and Owner may be used interchangeably.
g. Day shall mean calendar day unless otherwise specifically designated. h. Engineer shall mean the General Manager, or his or her designee, for the City of Fontana, acting either directly or through properly authorized agents, such as agents acting within the scope of the particular duties entrusted to them. Also sometimes referred to as the “City’s Representative” or “Representative” in the Contract Documents. i. Equal, Equivalent, Satisfactory, Directed, Designated, Selected, As Required and similar words shall mean the written approval, selection, satisfaction, direction, or similar action of the Engineer and/or City.
j. Force Majeure shall mean (i) riots, civil disturbances, insurrection or acts of public enemy, but only occurring at or in the immediate vicinity of the Site or if directly disrupting or delaying the supply chain of materials to the Project; (ii) war if declared by the United States Congress but only if directly disrupting or delaying the supply chain of labor or materials to the Project; (iii) a court administrative or other governmental order directing that the construction of the Project be stopped (except where due to failure to obtain or comply with any authorizations of governmental authorities; (iv) strikes or labor disputes, but only if directly disrupting or delaying the supply chain of labor or materials to the Project and only if not precipitated by Contractor's or a Subcontractor's actual violation of the Union Requirement; (v) casualty at the Site resulting in direct physical damage to the Work not the result, in whole or in part, of the actions or omissions of Contractor or Subcontractors; (vi) acts of terrorism directed at the Project or resulting in direct physical damage to the Project or directly disrupting or delaying the supply chain of labor or materials to the Project; (vii) Delays caused, other than by Contractor's 687

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negligence or breach of the Contract Documents, by conflicts in the coordination of Contractor's Work with the work of other contractors; (viii) delay in the issuance of permits or approvals by governmental authorities to the extent caused solely by circumstances within the control and responsibility of City; or (viii) Acts of God. k. Indicated, Shown, Detailed, Noted, Scheduled or words of similar meaning shall mean that reference is made to the drawings, unless otherwise noted. It shall be understood that the direction, designation, selection, or similar import of the Engineer and/or City is intended, unless stated otherwise.
l. Install means the complete installation of any item, equipment or material. m. Material shall include machinery, equipment, manufactured articles, or construction such as form work, fasteners, etc., and any other classes of material to be furnished in connection with the Contract. All materials shall be new unless specified otherwise.
n. Perform shall mean that the Contractor, at Contractor’s expense, shall take all actions necessary to complete The Work, including furnishing of necessary labor, tools, and equipment, and providing and installing Materials that are indicated, specified, or required to complete such performance.
o. Project is The Work planned by City as provided in the Contract Documents. p. Provide shall include provide complete in place, that is furnish, install, test and make ready for use.
q. Recyclable Waste Materials shall mean materials removed from the Project site which are required to be diverted to a recycling center rather than an area landfill.

Recyclable Waste Materials include asphalt, concrete, brick, concrete block, and rock. r. Specifications means that portion of the Contract Documents consisting of the written requirements for materials, equipment, construction systems, standards and workmanship for the work. The Work shall be done in accordance with the California Building Codes, as defined herein, including all current supplements, Addenda, and revisions thereof which are incorporated herein. In any conflict the contract documents will be interpreted as set forth below.
s. The Work means the entire improvement planned by the City pursuant to the Contract Documents.
t. Work means labor, equipment and materials incorporated in, or to be incorporated in the construction covered by the Contract Documents.

ARTICLE 2. CONTRACT DOCUMENTS
a. Contract Documents. The Contract Documents are complementary, and what is called for by one shall be as binding as if called for by all. b. Interpretations. The Contract Documents are intended to be fully cooperative and to be complementary. If Contractor observes that any documents are in conflict, the 688

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Contractor shall promptly notify the Purchasing in writing. In case of conflicts between the Contract Documents, the order of precedence shall be as follows:

1. Change Orders or Work Change Directives

2. Addenda

3. Contract

4. General Conditions

5. Instructions to Bidders

6. Notice Inviting Bids

7. Contractor’s Bid Forms

8. California Building Codes

9. Reference Documents
c. Conflicts in Contract Documents. Notwithstanding the orders of precedence established above, in the event of conflicts, the more stringent requirement and higher standard shall always apply.
d. Organization of Contract Documents. Organization of the Contract Documents into divisions, sections, and articles, and arrangement of drawings shall not control the Contractor in dividing The Work among subcontractors or in establishing the extent of Work to be performed by any trade.

ARTICLE 3. DETAIL DRAWINGS AND INSTRUCTIONS
a. Examination of Contract Documents. Before commencing any portion of The Work, Contractor shall again carefully examine all applicable Contract Documents, the Project site and other information given to Contractor as to materials and methods of construction and other Project requirements. Contractor shall immediately notify the Engineer of any potential error, inconsistency, ambiguity, conflict or lack of detail or explanation. If Contractor performs, permits, or causes the performance of any Work which is in error, inconsistent or ambiguous, or not sufficiently detailed or explained, Contractor shall bear any and all resulting costs, including, without limitation, the cost of correction. In no case shall the Contractor or any subcontractor proceed with Work if uncertain as to the applicable requirements.
b. Additional Instructions. After notification of any error, inconsistency, ambiguity, conflict or lack of detail or explanation, the Engineer will provide any required additional instructions, by means of drawings or other written direction, necessary for proper execution of Work within a reasonable time from the receipt of such notification. 689

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c. Quality of Parts, Construction and Finish. All parts of The Work shall be of the best quality of their respective kinds and the Contractor must use all diligence to inform itself fully as to the required construction and finish. In no case shall Contractor proceed with The Work without obtaining first from the Engineer such Approval may be necessary for the proper performance of Work.
d. Contractor’s Variation from Contract Document Requirements. If it is found that the Contractor has varied from the requirements of the Contract Documents including the requirement to comply with all applicable laws, ordinances, rules and regulations, the Engineer may at any time, before or after completion of the Work, order the improper Work removed, remade or replaced by the Contractor at the Contractor’s expense.

ARTICLE 4. SUBSTITUTIONS
a. Pursuant to Public Contract Code Section 3400(b) the City may make a finding that is described in the invitation for Bids that designates certain products, things, or services by specific brand or trade name.
b. Unless specifically designated in the Contract Documents, whenever any material, process, or article is indicated or specified by grade, patent, or proprietary name or by name of manufacturer, such Specifications shall be deemed to be used for the purpose of facilitating the description of the material, process or article desired and shall be deemed to be followed by the words “or equal.” Contractor may, unless otherwise stated, offer for substitution any material, process or article which shall be substantially equal or better in every respect to that so indicated or specified in the Contract Documents.

However, the City may have adopted certain uniform standards for certain materials, processes and articles.
c. Contractor shall submit requests, together with substantiating data, for substitution of any “or equal” material, process or article no later than thirty-five (35) days after award of the Contract. To facilitate the construction schedule and sequencing, some requests may need to be submitted before thirty-five (35) days after award of Contract. Provisions regarding submission of “or equal” requests shall not in any way authorize an extension of time for performance of this Contract. If a proposed “or equal” substitution request is rejected, Contractor shall be responsible for providing the specified material, process or article. The burden of proof as to the equality of any material, process or article shall rest with the Contractor. The City has the complete and sole discretion to determine if a material, process or article is an “or equal” material, process or article that may be substituted.
d. Data required to substantiate requests for substitutions of an “or equal” material, process or article data shall include a signed affidavit from the Contractor stating that, and describing how, the substituted “or equal” material, process or article is equivalent to that specified in every way except as listed on the affidavit. Substantiating data shall include any and all illustrations, specifications, and other relevant data including catalog information which describes the requested substituted “or equal” material, process or article, and substantiates that it is an “or equal” to the material, process or article. The substantiating data must also include information regarding the durability and lifecycle cost of the requested substituted “or equal” material, process or article. Failure to submit 690

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all the required substantiating data, including the signed affidavit, to the City in a timely fashion will result in the rejection of the proposed substitution. e. The Contractor shall be responsible for and shall, therefore, bear all costs related to a substituted “or equal” material, process or article for those substitution requests submitted to the Engineer following Contract award if the timelines set forth herein permit the submission of substitution requests after Contract award. Such substitution request costs may include City staff time, independent consultants, any tests or inspections made necessary by the substitution request, in the sole discretion of the City, and the increased cost, if any, of the proposed “or equal” material. If the timeline set forth herein, permits a substitution request to be made prior to Contract award, the City, in its sole discretion, may require the Bidder to submit a deposit or payment for the estimated reasonable costs which may be incurred by the City staff and independent consultants in evaluating the substitution request, as a condition of reviewing the substitution request. f. Contractor is directed to the Special Conditions (if any) to review any findings made pursuant to Public Contract Code section 3400.

ARTICLE 5. MATERIALS
a. Except as otherwise specifically stated in the Contract Documents, Contractor shall provide and pay for all materials, labor, tools, equipment, water, lights, power, transportation, superintendence, temporary constructions of every nature, and all other services and facilities of every nature whatsoever necessary to execute and complete this Contract within specified time.
b. Unless otherwise specified, all materials shall be new and the best of their respective kinds and grades as noted and/or specified, and workmanship shall be of good quality.
c. Materials shall be furnished in ample quantities and at such times as to ensure uninterrupted progress of The Work and shall be stored properly and protected as required by the Contract Documents. Contractor shall be entirely responsible for damage or loss by weather or other causes to materials or Work. d. No materials, supplies, or equipment for Work under this Contract shall be purchased subject to any chattel mortgage or under a conditional sale or other agreement by which an interest therein or in any part thereof is retained by the seller or supplier.

Contractor warrants good title to all material, supplies, and equipment installed or incorporated in the work and agrees upon completion of all work to deliver the Project, to the City free from any claims, liens, or charges.
e. Materials shall be stored on the Project site in such manner so as not to interfere with any operations of the City or any independent contractor.

ARTICLE 6. CONTRACTOR’S SUPERVISION
Contractor shall continuously keep at the Project site, a competent and experienced fulltime Project superintendent approved by the City. Superintendent must be able to proficiently speak, read and write in English. Any change in Project Superintendent must 691

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be approved in writing by the City prior to personnel being changed. Contractor shall continuously provide efficient supervision of the Project.

ARTICLE 7. WORKERS
a. Contractor shall at all times enforce strict discipline and good order among its employees. Contractor shall not employ on the Project any unfit person or any one not skilled in the Work assigned to him or her.
b. Any person in the employ of the Contractor whom the City may deem incompetent or unfit shall be dismissed from The Work and shall not be employed on this Project except with the written Approval of the City.

ARTICLE 8. SUBCONTRACTORS
a. Contractor agrees to bind every subcontractor to the terms of the Contract Documents as far as such terms are applicable to subcontractor’s portion of The Work.

Contractor shall be as fully responsible to the City for the acts and omissions of its subcontractors and of persons either directly or indirectly employed by its subcontractors, as Contractor is for acts and omissions of persons directly employed by Contractor.

Nothing contained in these Contract Documents shall create any contractual relationship between any subcontractor and the City.
b. The City reserves the right to Approve all subcontractors. The City’s Approval of any subcontractor under this Contract shall not in any way relieve Contractor of its obligations in the Contract Documents.
c. Prior to substituting any subcontractor listed in the Bid Forms, Contractor must comply with the requirements of the Subletting and Subcontracting Fair Practices Act pursuant to California Public Contract Code section 4100 et seq.

ARTICLE 9. PERMITS AND LICENSES
Permits and licenses necessary for prosecution of The Work shall be secured and paid for by Contractor, unless otherwise specified in the Contract Documents. a. Contractor shall obtain and pay for all other permits and licenses required for The Work, including excavation permit and for plumbing, mechanical and electrical work and for operations in or over public streets or right of way under jurisdiction of public agencies other than the City.
b. The Contractor shall arrange and pay for all off-site inspection of the Work related to permits and licenses, including certification, required by the specifications, drawings, or by governing authorities, except for such off-site inspections delineated as the City's responsibility pursuant to the Contract Documents.
c. Before Acceptance of the Project, the Contractor shall submit all licenses, permits, certificates of inspection and required approvals to the City.

ARTICLE 10. DIVERSION OF RECYCLABLE WASTE MATERIALS
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In compliance with the applicable City’s waste reduction and recycling efforts, Contractor shall divert all Recyclable Waste Materials to appropriate recycling centers. Contractor will be required to submit weight tickets and written proof of diversion with its monthly progress payment requests. Contractor shall complete and execute any certification forms required by City or other applicable agencies to document Contractor’s compliance with these diversion requirements. All costs incurred for these waste diversion efforts shall be the responsibility of the Contractor.

ARTICLE 11. REMOVAL OF HAZARDOUS MATERIALS
Should Contractor encounter material reasonably believed to be polychlorinated biphenyl (PCB) or other toxic wastes and hazardous materials which have not been rendered harmless at the Project site, the Contractor shall immediately stop work at the affected Project site and shall report the condition to the City in writing. The City shall contract for any services required to directly remove and/or abate PCBs and other toxic wastes and hazardous materials, if required by the Project site(s), and shall not require the Contractor to subcontract for such services. The Work in the affected area shall not thereafter be resumed except by written agreement of the City and Contractor.

ARTICLE 12. SANITARY FACILITIES
Contractor shall provide sanitary temporary toilet buildings for the use of all workers. All toilets shall comply with local codes and ordinances. Toilets shall be kept supplied with toilet paper and shall have workable door fasteners. Toilets shall be serviced no less than once weekly and shall be present in a quantity of not less than 1 per 20 workers as required by CAL-OSHA regulation. The toilets shall be maintained in a sanitary condition at all times. Use of toilet facilities in The Work under construction shall not be permitted.

Any other Sanitary Facilities required by CAL-OSHA shall be the responsibility of the Contractor.

ARTICLE 13. AIR POLLUTION CONTROL
Contractor shall comply with all air pollution control rules, regulations, ordinances and statutes. All containers of paint, thinner, curing compound, solvent or liquid asphalt shall be labeled to indicate that the contents fully comply with the applicable material requirements.

ARTICLE 14. FIRE PROTECTION
a. Contractor is responsible for providing and maintaining fire extinguishers, fire protection, fire watch and other necessary fire protection devices as may be required by the applicable regulatory agencies, the Contract Documents, and/or the City. b. Contractor shall provide fire watch and be responsible for all fire prevention in connection with The Work. Open fires will not be permitted on or about the Project site. c. The Contractor shall make chemical fire extinguishers available at the location where the Contractor performs any torch cutting or welding operations. Contractor shall provide the Engineer with notice prior to undertaking any torch cutting and welding 693

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operations. Contractor, if performing cutting or welding operations, shall undertake all appropriate safety measures including but not limited to a fire watch, fire extinguishers, fire blankets and shall be responsible for any damage caused by its operations.

ARTICLE 15. CLEANING UP
a. Contractor at all times shall keep premises free from debris such as waste, rubbish, and excess materials and equipment. Contractor shall not store debris under, in, or about the premises. Upon completion of Work, Contractor shall clean the interior and exterior of the building or improvement including fixtures, equipment, walls, floors, ceilings, roofs, window sills and ledges, horizontal projections, and any areas where debris has collected so surfaces are free from foreign material or discoloration. Contractor shall clean and polish all glass, plumbing fixtures, and finish hardware and similar finish surfaces and equipment. Contractor shall also clean all buildings, asphalt and concrete areas to the degree necessary to remove oil, grease, fuel, or other stains caused by Contractor operations or equipment.
b. Contractor shall fully clean up those areas of the Site where it has been working at the completion of the Work. If the Contractor fails to immediately clean up as required, the City may do so and the cost of such clean up shall be charged back to the Contractor. c. Contractor is responsible for its own bulk trash (e.g., boxes, crates, lumber, etc.) removal from the Project Site. Contractor is responsible for the cost of dumpsters generated by its own rubbish and surplus material. The placement of Contractor’s dumpster(s) shall be coordinated with, and subject to approval of, the Engineer prior to delivery. The disposal of construction debris within the Project Site will not be permitted. d. Contractor shall store volatile or hazardous waste materials in properly labeled, covered containers and remove from the Project Site daily. Contractor shall also prevent accumulation of wastes that create hazardous conditions and provide adequate ventilation during use of volatile or noxious substances. e. Contractor shall provide cleaning materials only as recommended by manufacturer of the surface to be cleaned and shall use cleaning materials only on surfaces as recommended by cleaning material manufacturer and in accordance with instructions. f. Contractor shall conduct cleaning and disposal operations in accordance with all applicable legal requirements and shall not burn or bury rubbish and waste materials on the Project Site. Contractor shall not dispose of any wastes including mineral spirits, oil, paint, drywall mud, paint thinners, or grout in storm or sanitary drains. g. Contractor shall be responsible for cleaning up during and after installation of its materials and shall leave areas broom clean or better. Contractor’s Work, lunch, and parking areas will be left neat and in an orderly manner on a daily basis. After every work shift, facilities must be cleaned in a manner acceptable to the Engineer. 694

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h. Contractor shall, within twenty-four (24) hours from the request of the Engineer, remove excess debris from the Work and/or Project site or Engineer shall undertake such removal work at the expense of the Contractor.

ARTICLE 16. EXCESSIVE NOISE
a. The Contractor shall use only such equipment on the work and in such state of repair so that the emission of sound therefrom is within the noise tolerance level of that equipment as established by CAL-OSHA.
b. The Contractor shall comply with the most restrictive of the following: (1) local sound control and noise level rules, regulations and ordinances and (2) the requirements contained in these Contract Documents, including hours of operation requirements. No internal combustion engine shall be operated on the Project without a muffler of the type recommended by the manufacturer. Should any muffler or other control device sustain damage or be determined to be ineffective or defective, the Contractor shall promptly remove the equipment and shall not return said equipment to the job until the device is repaired or replaced. Said noise and vibration level requirements shall apply to all equipment on the job or related to the job, including but not limited to, trucks, transit mixers or transit equipment that may or may not be owned by the Contractor.

ARTICLE 17. PROTECTION OF WORK AND PROPERTY
a. The Contractor shall be responsible for all damages to persons or property that occurs as a result of The Work. Contractor shall be responsible for the proper care and protection of all materials delivered and Work performed until completion and final Acceptance by the City. All Work shall be solely at the Contractor’s risk.

Contractor shall adequately protect adjacent property from settlement or loss of lateral support as necessary. Contractor shall comply with all applicable safety laws and building codes to prevent accidents or injury to persons on, about, or adjacent to the Project site where Work is being performed. Contractor shall erect and properly maintain at all times, as required by field conditions and progress of work, all necessary safeguards, signs, barriers, lights, and watchmen for protection of workers and the public, and shall post danger signs warning against hazards created in the course of construction.
b. In an emergency affecting safety of life or of work or of adjoining property, Contractor, without special instruction or authorization from the Engineer, is hereby permitted to act to prevent such threatened loss or injury; and Contractor shall so act, without appeal, if so authorized or instructed by the Engineer or the City. Any compensation claimed by Contractor on account of emergency work shall be determined by and agreed upon by the City and the Contractor. 695

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c. Contractor shall provide such heat, covering, and enclosures as are necessary to protect all Work, materials, equipment, appliances, and tools against damage by weather conditions.
d. Contractor shall take adequate precautions to protect existing sidewalks, curbs, pavements, utilities, and other adjoining property and structures, and to avoid damage thereto, and Contractor shall repair any damage thereto caused by The Work operations. Contractor shall:
1) Enclose the working area with a substantial barricade, and arrange work to cause minimum amount of inconvenience and danger to the public. 2) Provide substantial barricades around any shrubs or trees indicated to be preserved.
3) Deliver materials to the Project site over a route designated by the Engineer. 4) Provide any and all dust control required and follow the Applicable air quality regulations as appropriate. If the Contractor does not comply, the City shall have the immediate authority to provide dust control and deduct the cost from payments to the Contractor.
5) Confine Contractor’s apparatus, the storage of materials, and the operations of its workers to limits required by law, ordinances, permits, or directions of the Engineer. Contractor shall not unreasonably encumber the Project site with its materials.
6) Take care to prevent disturbing or covering any survey markers, monuments, or other devices marking property boundaries or corners. If such markers are disturbed by accident, they shall be replaced by an approved civil engineer or land surveyor, at no cost to the City. 7) Ensure that existing facilities, fences and other structures are all adequately protected and that, upon completion of all Work, all facilities that may have been damaged are restored to a condition acceptable to the City. 8) Preserve and protect from injury all buildings, pole lines and all direction, warning and mileage signs that have been placed within the right-of-way. 9) At the completion of work each day, leave the Project site in a clean, safe condition.
10) Comply with any stage construction and traffic handling plans. Access to residences and businesses shall be maintained at all times. 696

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These precautionary measures will apply continuously and not be limited to normal working hours. Full compensation for the Work involved in the preservation of life, safety and property as above specified shall be considered as included in the prices paid for the various contract items of Work, and no additional allowance will be made therefor. e. Should damage to persons or property occur as a result of The Work, Contractor shall be responsible for proper investigation, documentation, including video or photography, to adequately memorialize and make a record of what transpired.

The City shall be entitled to inspect and copy any such documentation, video, or photographs.

ARTICLE 18. CONTRACTORS MEANS AND METHODS
Contractor is solely responsible for the means and methods utilized to Perform The Work.

In no case shall the Contractor’s means and methods deviate from commonly used industry standards.

ARTICLE 19. AUTHORIZED REPRESENTATIVES
The City shall designate representatives, who shall have the right to be present at the Project site at all times. The City may designate an inspector who shall have the right to observe all of the Contractor’s Work. The inspector is not authorized to make changes in the Contract Documents. The inspector shall not be responsible for the Contractor’s failure to carry out The Work in accordance with the Contract Documents. Contractor shall provide safe and proper facilities for such access.

ARTICLE 20. HOURS OF WORK
a. Eight (8) hours of work shall constitute a legal day’s work. The Contractor and each subcontractor shall forfeit, as penalty to the City, twenty-five dollars ($25) for each worker employed in the execution of Work by the Contractor or any subcontractor for each day during which such worker is required or permitted to work more than eight (8) hours in any one day and forty (40) hours in any week in violation of the provisions of the Labor Code, and in particular, Section 1810 to Section 1815, except as provided in Labor Code Section 1815. b. Work shall be accomplished on a regularly scheduled eight (8) hour per day work shift basis, Monday through Friday, between the hours of 7:00 a.m. and 5:00 p.m. c. It shall be unlawful for any person to operate, permit, use, or cause to operate any of the following at the Project site, other than between the hours of 7:00 a.m. to 5:00 p.m., Monday through Friday, with no Work allowed on City-observed holidays, unless otherwise Approved by the Engineer:
1) Powered Vehicles
2) Construction Equipment
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3) Loading and Unloading Vehicles
4) Domestic Power Tool.

ARTICLE 21. PREVAILING RATES OF WAGES
This contract will be funded in whole or in part with federal housing and community development funds. The Federal Labor Standards Provisions, including prevailing wage requirements of the Davis-Bacon and Related Acts will be enforced. A copy of the Federal Wage Decision applicable to this project is included in the Bid Document.

This is project is a public work in the State of California, funded in whole or in part with public funds. Therefore, the higher of the two applicable prevailing wage rates, federal or state, will be enforced. The Contractor’s duty to pay State prevailing wages can be found under Labor Code Section 1770 et seq. Labor Code Sections 1775 and 1777.7 outline the penalties for failure to pay prevailing wages and to employ apprentices, including forfeitures and debarment. The State Wage Decision is on file at the City Clerk’s office, and is also available online at http://www.dir.ca.gov/dlsr/.

Apprenticeship Program: Attention is directed to Sections 1777.5, 1777.6 and 1777.7 of the California Labor Code and Title 8, California Administrative code, Section 200 et seq. to ensure compliance and complete understanding of the law regarding apprentices.

Minority and Women Owned Business: Bidders will be required to document their status as a Minority Business Enterprise (MBE), a Women-owned Business Enterprise (WBE) or a non-MBE/WBE firm. Bidders that are not MBE/WBE firms will be required to make a good faith effort, and to document their efforts to include firms as part of the contract bid.

Section 3 Statement: This is a HUD Section 3 construction contract. First preference will be given to a bidder who provides a reasonable bid and is a qualified Section 3 Business Concern. Second preference will be given to a bidder who provides a reasonable bid and commits to achieving the Section 3 employment, training and subcontracting opportunity goals by submitting a written commitment (Economic Opportunity Plan).

Conflict of Interest: In the procurement of supplies, equipment, construction, and services by sub- recipients, the conflict of interest provisions in (State LCA - 24 CFR

85.36 and Non-Profit Organizations – 24 CFR 84.4), OMB Circular A-110, and 24 CFR 570.611, respectively, shall apply. No employee, officer or agent of the sub-recipient 698

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shall participate in selection, or in the ward or administration of a contract supported by Federal funds if a conflict of interest, real or apparent, would be involved.

At the time of submitting a bid, the prime contractor and subcontractor shall possess a Class "B" contractor’s license or a Class “C” specialty license sufficient to perform the work. A Class “D-34” prefabricated equipment contractor’s license is also acceptable.

ARTICLE 22. NONDISCRIMINATION/EQUAL EMPLOYMENT OPPORTUNITY Pursuant to Labor Code Section 1735 and other applicable provisions of law, the Contractor and its subcontractors shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age, political affiliation, marital status, or handicap on this Project. The Contractor will take affirmative action to insure that employees are treated during employment or training without regard to their race, color, religion, sex, national origin, age, political affiliation, marital status, or handicap.

ARTICLE 23. LABOR/EMPLOYMENT SAFETY
The Contractor shall maintain emergency first aid treatment for his employees which complies with the Federal Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.), and California Code of Regulations, Title 8, Industrial Relations Division 1, Department of Industrial Relations, Chapter 4.

ARTICLE 24. WORKERS’ COMPENSATION INSURANCE
The Contractor shall Provide, during the life of this Contract, workers’ compensation insurance for all of the employees engaged in Work under this Contract, on or at the Project site, and, in case any of sublet Work, the Contractor shall require the subcontractor similarly to provide workers’ compensation insurance for all the latter’s employees as prescribed by State law. Any class of employee or employees not covered by a subcontractor’s insurance shall be covered by the Contractor’s insurance. In case any class of employees engaged in work under this Contract, on or at the Project site, is not protected under the Workers’ Compensation Statutes, the Contractor shall provide or shall cause a subcontractor to provide, adequate insurance coverage for the protection of such employees not otherwise protected. The Contractor is required to secure payment of compensation to his employees in accordance with the provisions of Section 3700 of the Labor Code. The Contractor shall file with the City certificates of his insurance protecting workers. Company or companies providing insurance coverage shall be acceptable to the City, if in the form and coverage as set forth in the Contract Documents.

ARTICLE 25. EMPLOYER’S LIABILITY INSURANCE
Contractor shall provide during the life of this Contract, Employer’s Liability Insurance, including Occupational Disease, in the amount of, at least, one million dollars ($1,000,000.00) per person per accident. Contractor shall provide City with a certificate of Employer’s Liability Insurance. Such insurance shall comply with the provisions of the Contract Documents. The policy shall be endorsed, if applicable, to provide a Borrowed 699

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Servant/Alternate Employer Endorsement and contain a Waiver of Subrogation in favor of the City.

ARTICLE 26. COMMERCIAL GENERAL LIABILITY INSURANCE
a. Contractor shall procure and maintain during the life of this Contract and for such other period as may be required herein, at its sole expense, Commercial General Liability insurance coverage, including but not limited to, premises liability, contractual liability, products/completed operations if applicable, personal and advertising injury – which may arise from or out of Contractor’s operations, use, and management of the Project site, or the performance of its obligations hereunder. Policy limits shall not be less than $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 project/location or the general aggregate limit shall be twice the required occurrence limit. b. Such policy shall comply with all the requirements of this Article. The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Contractor from liability in excess of such coverage, nor shall it limit Contractor’s indemnification obligations to the City, and shall not preclude the City from taking such other actions available to the City under other provisions of the Contract Documents or law. c. Contractor shall make certain that any and all subcontractors hired by Contractor are insured in accordance with this Contract. If any subcontractor’s coverage does not comply with the foregoing provisions, Contractor shall indemnify and hold the City harmless from any damage, loss, cost, or expense, including attorneys’ fees, incurred by the City as a result thereof.
d. All general liability policies provided pursuant to the provisions of this Article shall comply with the provisions of the Contract Documents.
e. All general liability policies shall be written to apply to all bodily injury, including death, property damage, personal injury, owned and non-owned equipment, blanket contractual liability, completed operations liability, explosion, collapse, under-ground excavation, removal of lateral support, and other covered loss, however occasioned, occurring during the policy term, and shall specifically insure the performance by Contractor of that part of the indemnification contained in these General Conditions, relating to liability for injury to or death of persons and damage to property. If the coverage contains one or more aggregate limits, a minimum of 50% of any such aggregate limit must remain available at all times; if over 50% of any aggregate limit has been paid or reserved, the City may require additional coverage to be purchased by Contractor to restore the required limits. Contractor 700

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may combine primary, umbrella, and as broad as possible excess liability coverage to achieve the total limits indicated above. Any umbrella or excess liability policy shall include the additional insured endorsement described in the Contract Documents.

ARTICLE 27. AUTOMOBILE LIABILITY INSURANCE
Contractor shall take out and maintain at all times during the term of this Contract Automobile Liability Insurance in the amount of, at least, one million dollars ($1,000,000).

Such insurance shall provide coverage for bodily injury and property damage including coverage for non-owned and hired vehicles, in a form and with insurance companies acceptable to the City. Such insurance shall comply with the provisions of Article 30 below.

ARTICLE 28. FORM AND PROOF OF CARRIAGE OF INSURANCE
a. Any insurance carrier providing insurance coverage required by the Contract Documents shall be admitted to and authorized to do business in the State of California unless waived, in writing, by the City Risk Manager. Carrier(s) shall have an A.M. Best rating of not less than an A:VIII. Insurance deductibles or self-insured retentions must be declared by the Contractor, and such deductibles and retentions shall have the prior written consent from the City. At the election of the City the Contractor shall either 1) reduce or eliminate such deductibles or selfinsured retentions, or 2) procure a bond which guarantees payment of losses and related investigations, claims administration, and defense costs and expenses. b. Contractor shall cause its insurance carrier(s) to furnish the City with either 1) a properly executed original Certificates(s) of Insurance and certified original copies of Endorsements effecting coverage as required herein, or 2) if requested to do so in writing by the City Risk Manager, provide original Certified copies of policies including all Endorsements and all attachments thereto, showing such insurance is in full force and effect. The City, its Director’s and officers, employees, agents or representatives are named as Additional Insureds and Provide a Waiver of Subrogation in favor of those parties. Further, said Certificates(s) and policies of insurance shall contain the covenant of the insurance carrier(s) that shall provide no less than thirty (30) days written notice be given to the City prior to any material modification or cancellation of such insurance. In the event of a material modification or cancellation of coverage, the City may terminate or Stop Work pursuant to the Contract Documents, unless the City receives, prior to such effective date, another properly executed original Certificate of Insurance and original copies of endorsements or certified original policies, including all endorsements and attachments thereto evidencing coverage’s set forth herein and the insurance required herein is in full force and effect. Contractor shall not take possession, or use the Project site, or commence operations under this Agreement until the City has been furnished original Certificate(s) of Insurance and certified original copies of Endorsements or policies of insurance including all 701

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Endorsements and any and all other attachments as required in this Section. The original Endorsements for each policy and the Certificate of Insurance shall be signed by an individual authorized by the insurance carrier to do so on its behalf. c. It is understood and agreed to by the parties hereto and the insurance company(s), that the Certificate(s) of Insurance and policies shall so covenant and shall be construed as primary, and the City’s insurance and/or deductibles and/or selfinsured retentions or self-insured programs shall not be construed as contributory. d. The City reserves the right to adjust the monetary limits of insurance coverage’s during the term of this Contract including any extension thereof-if in the City’s reasonable judgment, the amount or type of insurance carried by the Contractor becomes inadequate.
e. Contractor shall pass down the insurance obligations contained herein to all tiers of sub-contractors working under this Contract.

ARTICLE 29. TIME FOR COMPLETION AND LIQUIDATED DAMAGES
a. Time for Completion/Liquidated Damages. Work shall be commenced within ten (10) days of the date stated in the City’s Notice to Proceed and shall be completed by Contractor in the time specified in the Contract Documents. The City is under no obligation to consider early completion of the Project; and the Contract completion date shall not be amended by the City’s receipt or acceptance of the Contractor’s proposed earlier completion date. Furthermore, Contractor shall not, under any circumstances, receive additional compensation from the City (including but not limited to indirect, general, administrative or other forms of overhead costs) for the period between the time of earlier completion proposed by the Contractor and the Contract completion date. If The Work is not completed as stated in the Contract Documents, it is understood that the City will suffer damage. In accordance with Government Code section 53069.85, being impractical and infeasible to determine the amount of actual damage, it is agreed that Contractor shall pay to the City as fixed and liquidated damages, and not as a penalty, the sum stipulated in the Contract for each day of delay until The Work is fully completed. Contractor and its surety shall be liable for any liquidated damages.

Any money due or to become due the Contractor may be retained to cover liquidated damages.
b. Inclement Weather. Contractor shall abide the Engineer’s determination of what constitutes inclement weather. Time extensions for inclement weather shall only be granted when the Work stopped during inclement weather is on the critical path of the Contractor Schedule.
c. Extension of Time. Contractor shall not be charged liquidated damages because of any delays in completion of The Work due to unforeseeable causes beyond the 702

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control and without the fault or negligence of Contractor (or its subcontractors or suppliers). Contractor shall within five (5) Days of identifying any such delay notify the City in writing of causes of delay. The City shall ascertain the facts and extent of delay and grant extension of time for completing The Work when, in its judgment, the facts justify such an extension. Time extensions to the Project shall be requested by the Contractor as they occur and without delay. No delay claims shall be permitted unless the event or occurrence delays the completion of the Project beyond the Contract completion date.
d. No Damages for Reasonable Delay. The City’s liability to Contractor for delays for which the City is responsible shall be limited to only an extension of time unless such delays were unreasonable under the circumstances. In no case shall the City be liable for any costs which are borne by the Contractor in the regular course of business, including, but not limited to, home office overhead and other ongoing costs. Damages caused by unreasonable City delay, including delays caused by items that are the responsibility of the City pursuant to Government Code section 4215, shall be based on actual costs only, no proportions or formulas shall be used to calculate any delay damages.

ARTICLE 30. COST BREAKDOWN AND PERIODIC ESTIMATES
Contractor shall furnish on forms Approved by the City:
a. Within ten (10) Days of award of the Contract a detailed estimate giving a complete breakdown of the Contract price;
b. A itemized estimate of Work done for the purpose of making progress payments.

In order for the City to consider and evaluate each progress payment application, the Contractor shall submit a detailed measurement of Work performed and a progress estimate of the value.
c. Contractor shall submit, with each of its payment requests, an adjusted list of actual quantities, verified by the Project Manager, for unit price items listed, if any, in the Bid Form.
d. Following the City’s Acceptance of the Work, the Contractor shall submit to the City a written statement of the final quantities of unit price items for inclusion in the final payment request.
e. The City shall have the right to adjust any estimate of quantity and to subsequently correct any error made in any estimate for payment.

Contractor shall certify under penalty of perjury, that all cost breakdowns and periodic estimates accurately reflect the Work on the Project.
703

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ARTICLE 31. CITY’S RIGHT TO TERMINATE CONTRACT
a. Termination for Cause: The City may, without prejudice to any other right or remedy, serve written notice upon Contractor of its intention to terminate this Contract if the Contractor: (i) refuses or fails to prosecute The Work or any part thereof with such diligence as will ensure its completion within the time required; (ii) fails to complete The Work within the required time; (iii) should file a bankruptcy petition or be adjudged a bankrupt; (iv) should make a general assignment for the benefit of its creditors; (v) should have a receiver appointed; (vi) should persistently or repeatedly refuse or fail to supply enough properly skilled workers or proper materials to complete the work; (vii) should fail to make prompt payment to subcontractors or for material or labor; (viii) persistently disregard laws, ordinances, other requirements or instructions of the City; or (ix) should violate any of the provisions of the Contract Documents.

The notice of intent to terminate shall contain the reasons for such intention to terminate.

Unless within ten (10) Days after the service of such notice, such condition shall cease or satisfactory arrangements (acceptable to the City) for the required correction are made, this Contract shall be terminated. In such case, Contractor shall not be entitled to receive any further payment until the Project has been finished. The City may take over and complete The Work by any method it may deem appropriate. Contractor and its surety shall be liable to the City for any excess costs or other damages incurred by the City to complete the Project. If the City takes over The Work, the City may, without liability for so doing, take possession of and utilize in completing The Work such materials, appliances, plant, and other property belonging to the Contractor as may be on the Project site.
b. Termination For Convenience: The City may terminate performance of The Work in whole or, in part, if the City determines that a termination is in the City's interest.

The Contractor shall terminate all or any part of The Work upon delivery to the Contractor of a Notice of Termination specifying that the termination is for the convenience of the City, the extent of termination, and the effective date of such termination.

After receipt of Notice of Termination, and except as directed by the City, the Contractor shall, regardless of any delay in determining or adjusting any amounts due under this Termination for Convenience clause, immediately proceed with the following obligations:
1) Stop Work as specified in the Notice.
2) Complete any Work specified in the Notice of Termination in a least cost/shortest time manner while still maintaining the quality called for under the Contract Documents.
3) Leave the property upon which the Contractor was working and upon which the facility (or facilities) forming the basis of the Contract Documents is situated in a safe and sanitary manner such that it does not pose any threat to the public health or safety.
4) Terminate all subcontracts to the extent that they relate to the portions of The Work terminated.
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5) Place no further subcontracts or orders, except as necessary to complete the remaining portion of The Work.
6) Submit to the City, within ten (10) Days from the effective date of the Notice of Termination, all of the documentation called for by the Contract Documents to substantiate all costs incurred by the Contractor for labor, materials and equipment through the Effective Date of the Notice of Termination. Any documentation substantiating costs incurred by the Contractor solely as a result of the City's exercise of its right to terminate this Contract pursuant to this clause, which costs the Contractor is authorized under the Contract Documents to incur, shall: (i) be submitted to and received by the City no later than thirty (30) Days after the Effective Date of the Notice of Termination; (ii) describe the costs incurred with particularity; and (iii) be conspicuously identified as "Termination Costs Occasioned by the City's Termination for Convenience."
7) These provisions are in addition to and not in limitation of any other rights or remedies available to the City.
c. Notwithstanding any other provision of this Article, when immediate action is necessary to protect life and safety or to reduce significant exposure or liability, the City may immediately order Contractor to cease Work on the Project until such safety or liability issues are addressed to the satisfaction of the City or the Contract is terminated.

ARTICLE 32. WARRANTY AND GUARANTEE
a. Contractor warrants that all materials and equipment furnished under this Contract shall be new unless otherwise specified in the Contract Documents; and that all Work conforms to the Contract Document requirements and is free of any defect whether performed by the Contractor or any subcontractor or supplier. b. Unless otherwise stated, all warranty periods shall begin upon the filing of the Notice of Completion. Unless otherwise stated, the warranty period shall be for one year. c. The Contractor shall remedy at its expense any damage to City-owned or controlled real or personal property.
d. Contractor shall furnish the City with all warranty and guarantee documents prior to final Acceptance of the Project by the City.
e. The City shall notify the Contractor, in writing, within a reasonable time after the discovery of any failure, defect, or damage. The Contractor shall within ten (10) Days after being notified commence and perform with due diligence all necessary Work. If the Contractor fails to promptly remedy any defect, or damage; the county shall have the right to replace, repair, or otherwise remedy the defect, or damage at the Contractor’s expense.
f. In the event of any emergency constituting an immediate hazard to health, safety, property, or licensees, when caused by Work of the Contractor not in accordance with the 705

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Contract requirements, the City may undertake at Contractor’s expense, and without prior notice, all Work necessary to correct such condition.
g. With respect to all warranties, express or implied, from subcontractors, manufacturers, or suppliers for Work performed and Materials furnished under this Contract, the Contractor shall:
1) Obtain for City all warranties that would be given in normal commercial practice;
2) Require all warranties to be executed, in writing, for the benefit of the City; and
3) Enforce all warranties for the benefit of the City, unless otherwise directed in writing by the City.

This Article shall not limit the City’s rights under this Contract or with respect to latent defects, gross mistakes, or fraud. The City specifically reserves all rights related to defective work, including but not limited to the defect claims pursuant to California Code of Civil Procedure Section 337.15.

ARTICLE 33. NOTICE AND SERVICE THEREOF
All notices shall be in writing and either served by personal delivery or mailed to the other party as designated in the Bid Forms. Written notice to the Contractor shall be addressed to Contractor’s principal place of business unless Contractor designates another address in writing for service of notice. Notice to City shall be addressed to the City as designated in the Notice Inviting Bids unless City designates another address in writing for service of notice. Notice shall be effective upon receipt or five (5) Days after being sent by first class mail, whichever is earlier. Notice given by facsimile shall not be effective unless acknowledged in writing by the receiving party.

ARTICLE 34. INTEGRATION
a. Oral Modifications Ineffective. No oral order, objection, direction, claim or notice by any party or person shall affect or modify any of the terms or obligations contained in the Contract Documents.
b. Contract Documents Represent Entire Contract. The Contract Documents represent the entire agreement of the City and Contractor. 706
51 707
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1890 Agenda Date: 12/13/2022
Agenda #: AF. Category: Consent Calendar
FROM:

Innovation & Technology
SUBJECT:

Public Safety Voice Logging System Replacement
RECOMMENDATION:

1. Award and Authorize the Purchasing Office to issue a Purchase Order to Cogent Technologies for the Eventide voice logging system and implementation services in the amount of $83,217. (Bid. No. SP-47-IT-22).

2. Approve an increase in appropriations in the total amount of $83,217 in the Federal Asset Seizures Fund 223 in the Mid-Year Budget Report.

COUNCIL GOALS:
· Improve public safety by increasing operational efficiency, visibility and availability. · Improve public safety by maximizing fire and emergency medical service resources. · Operate in a businesslike manner by improving services through the effective use of technology.

DISCUSSION:

Current System
The current voice logging solution, Voiceprint, was implemented in 2015. The system is used to record audio from our phone system, 800Mhz radio channels, analog phone lines, 911 lines, and Dispatch consoles.

The system is at ”End of Expansion“ and ”End of Development“ as of December 31, 2020. Voiceprint will also be reaching ”End of Life“ on December 31, 2023. The system has limited ability to interface with our Mitel phone system. It is also unable to function with current web browsers, which will become an increasing problem as our workstation operating systems continue to evolve. The current system is out of date and will soon be completely out of service with no options for support.

Continued use of this system creates a significant security vulnerability to the city’s network.

Replacement System Requirements
The replacement system will need to be able to handle this mix of digital and analog audio sources and present them in a unified search and playback interface. The search and retrieval capabilities need to be easy and effective and provide the capability of recreating an incident from multiple audio sources connected to the system. The system will need to capture channel and call data information along with the audio in order to be effective. In the future there will also be a need to support City of Fontana Page 1 of 2 Printed on 12/7/2022
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File #: 21-1890 Agenda Date: 12/13/2022
Agenda #: AF. Category: Consent Calendar
NexGen 911 capabilities and other enhancements that may become available.

Vendor/System Selection
An RFP (SP-47-IT-22) was issued and of the three respondents the Eventide solution proposed by Capture Technologies was the selected as the preferred solution by the Evaluation Committee. The solution offers all the required capabilities as well as additional functionality that will be useful in our environment. The vendor demonstrated a working knowledge and experience within public safety space. They demonstrated audio retrieval of radio and phone traffic in a comprehensive search. The capability, locality, and reputation of the vendor are also factors that support this recommendation.

FISCAL IMPACT:

Funds for the implementation of Eventide by Capture Technologies are being requested from the Federal Asset Seizures Fund 223 in the amount of $83,217 and will be requested with the Mid-Year Budget Report. Appropriate budget change forms will be sent to the Budget office. Annual recurring maintenance costs currently budgeted from City Technology Fund #102 in the IT Budget.

MOTION:

Approve staff recommendation
City of Fontana Page 2 of 2 Printed on 12/7/2022
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Firms Total Score
Capture Technologies
Citrus Height, CA 92%
Maverick Networks
Pleasanton, CA 88%
Voice Products, Inc.

Wichita, KS 46%
Voice Logging Recording
Evaluation
SP-47-IT-22
710
Quotation
Number CAPQ7831-02
Date Nov 17, 2022
GSA# GS-35F-0415V
Capture Technologies, Inc. CMAS# 3-22-03-1070
6060 Sunrise Vista Dr. Suite 3000, Citrus Heights, CA 95610 DUNS# 00-923-9815 t. 800.544.5050 f. 510.534.0202
Sold To Ship To Account Executive
City of FONTANA City of FONTANA Chris Williams
John Skulavik John Skulavik 6060 Sunrise Vista Drive
Suite 3000
Citrus Heights, CA 95610
CSL #876993
8353 Sierra Ave. FONTANA, CA 923358353 Sierra Ave. FONTANA, CA 92335 [email protected]
Phone (909) 350-6690 Phone (909) 350-6690 Phone 510-967-2221

EMAIL EMAIL EMAIL
[email protected] [email protected] [email protected] Deposit Requested Terms SUB-Total $80,988.00
$0.00 Product Included
Services Included
S&H Included
Tax $2,228.90
Description $83,216.90
OPTION #2
QUOTED: Capture Technologies Providing:

QTY (1)
Turnkey EVENTIDE Hardware Server & Software 911 Dispatch Recording System for Fontana PD **INCLUDES: Licensing to RECORD - MITEL VOIP (200) + ANALOG Positions (11) + ANALOG Trunks (7) + ANALOG Radio (38)
(56 total channels ANALOG capable )
(ALL IN ONE PHYSICAL SERVER )
**INCLUDES: Shipping & Handling & Applicable Sales TAX
**INCLUDES: Capture Technologies Certified ONSITE & LOCAL Installing & Training & Project Management Personnel & Services
**INCLUDES: 5 Year (60 months) Onsite Tech support and Hardware & Software Warranty & SMA 24/7 **OPTIONS NOTED for adding CLOUD storage upload & SPEECH AI minutes per year! Part # Description Qty Unit Price Ext. Price
SINGLE NexLog 740-DX Physical Server for ANALOG+ VOIP
Recording Channels
1 $70,788.00 $70,788.00
NexLog740DX NexLog 740 DX-Series base system: 3U rack-mountable, Core i5 CPU, 16GB DDR4 RAM, 2 x2TB fixed-Mount HDDs (RAID 1), 1 Blu-ray Multi-Drive, 2 Network Ports (100/1000), Embedded Linux, NexLog DX-Series software, web- based configuration manager, audio controls & amplified speaker on front panel, dual hot- swap 120-240VAC 50/60Hz power supplies and first year hardware warranty. Requires ongoing Eventide DX Software Update Subscription (DXSUS) for access to critical DX-Series