Agenda packet — Fontana City Council, December 13, 2022 (part 4 of 5)

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Part # Description Qty Unit Price Ext. Price
Software & Security Updates. DX705-1 Upgrade NexLog 740 DX-Series (at time of order) 2x2TB HotSwap MegaRAID1=2TB storage
DX701 TOUCH--7" Color LCD Screen for NexLog 840 DX-Series Recorder 324430 Rack Mount Slides - 4 Post, 3U (for NexLog 740DX) MITEL VOIP Licensing INCLUDED:
(200) Licensed Channels VOIP MITEL integration Recording 271052 VOIP BASE Licensing QTY (1) 8 pack
DX939 (24) Additional VOIP Licensing- QTY (1) 8 pack
271126 MITEL-Integration to Mitel 3300 Secure Recording Connector (SRC) ANALOG Recording INCLUDED:
(56) Licensed Channels ANALOG
DXANA24 (2) 24-Channel Analog PCIe (PCI Express) Card + 24 Ch. Licenses (For use in DX-Series recorders only)
DXANA8 8-Channel Analog PCIe (PCI Express) Card, 8 Ch. Licenses 109033-007 (3) Quick Install Kit (23 ft Cable + "66" Block) **INCLUDES:

Active Directory Integration + RAPID SOS integration +
Playback + ANI/ALI + REPORTS Licensing & MORE!
271176 RapidSOS Integration for wireless 9-1-1 caller location display (1 license required for each NexLog Recorder that will connect to RapidSOS); Also requires ANI/ALI CAD Spill Integration (p/n 209029) and Geo Search/View option (p/n 271098). DX923 RapidSOS RAD(RapidSOS Additional Data) Requires RapidSOS (p/n 271176)
115021 Enhanced Reporting Package !!
271083 8 pack MediaWorks PLUS (web) concurrent license---Advanced browser-based HTML5 interface for Search, Replay, Incident Reconstruction, Incident Export, Live Monitoring, Instant Recall and more!
271111 Eventide MP3 option for MediaWorks DX
209029 911 NENA ANI/ALI CAD Spill Integration - USA/Canada only 271098 Geo Search/View (Requires Lat/Lon, MW PLUS, Google Maps) 271109 Eventide SSL Enabler option
271158 Enhanced Active Directory Integration + Configuration assistance DISC **NEW CUSTOMER added Discount INCLUDED!
Installation Onsite & Training Services
Inst--PM Capture Technologies Project Management & Certified Local 1 $4,100.00 $4,100.00 Installation Onsite.

INCLUDED Project Management
INCLUDED Server Burn In
INCLUDED Server Install
INCLUDED NEW Application Training performed by Installing Engineer Onsite

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Part # Description Qty Unit Price Ext. Price
**(1) YEAR 24/7 Warranty & Service Support Maintenance
--2023-2024
INCLUDES: 1 $6,100.00 $6,100.00
DXSUS-12MO 1ST YEAR Software Update Subscription (DXSUS) for complete DX-Series recording Solution, DX930 NexLogDX Monitoring License--Constant Health checks and Tech Support alert services
CNVL-Support Full Warranty Coverage including 800# Phone Remote & LOCAL Onsite Labor Support, Full Hardware & Software Warranty -24/7 - **Right to exercise Option to Renew Annually at same 1st Year sold Support rates. With no changes to Terms &
Conditions (waiving annual standrad increases)
**2nd YEAR - $6,100.00 (Invoiced ANNUALLY in November ) --24/7 Warranty & Service Support Maintenance
January 15th 2024 through January 15th 2025
DXSUS-12MO 2nd YEAR Software Update Subscription (DXSUS) for complete DX-Series recording Solution, DX930 NexLogDX Monitoring License--Constant Health checks and Tech Support alert services
CNVL-Support Full Warranty Coverage including 800# Phone Remote & LOCAL Onsite Labor Support, Full Hardware & Software Warranty -24/7 - **3rd YEAR -- $6,100.00 (Invoiced ANNUALLY in November ) --24/7 Warranty & Service Support Maintenance
January 15th 2025 through January 15th 2026
DXSUS-12MO 3rd YEAR Software Update Subscription (DXSUS) for complete DX-Series recording Solution, DX930 NexLogDX Monitoring License--Constant Health checks and Tech Support alert services
CNVL-Support Full Warranty Coverage including 800# Phone Remote & LOCAL Onsite Labor Support, Full Hardware & Software Warranty -24/7 - **4th YEAR -- $6,100.00 (Invoiced ANNUALLY in November ) --24/7 Warranty & Service Support Maintenance
January 15th 2026 through January 15th 2027
DXSUS-12MO 4th YEAR Software Update Subscription (DXSUS) for complete DX-Series recording Solution, DX930 NexLogDX Monitoring License--Constant Health checks and Tech Support alert services
CNVL-Support Full Warranty Coverage including 800# Phone Remote & LOCAL Onsite Labor Support, Full Hardware & Software Warranty -24/7 - **5th YEAR -- $6,100.00 (Invoiced ANNUALLY in November ) --24/7 Warranty & Service Support Maintenance
January 15th 2027 through January 15th 2028
DXSUS-12MO 5th YEAR Software Update Subscription (DXSUS) for complete DX-Series recording Solution, DX930 NexLogDX Monitoring License--Constant Health checks and Tech Support alert services
CNVL-Support Full Warranty Coverage including 800# Phone Remote & LOCAL Onsite Labor Support, Full Hardware & Software Warranty -24/7 -

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713
Part # Description Qty Unit Price Ext. Price
**RECOMMENDED Features OR add ons to consider
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DX925 **ADD $5,000.00** For FUTURE CPE & SIPREC i3 Enabler Licensing-Recording enterprise SBC SIPREC and NG911 SIPREC; ((MAY require additional VOIP licensing as well)
**CLOUD UPLOAD OPTION TO CONSIDER (1TB per YEAR x 5
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VM740DX-CLAS NexLog DX-Series "DX CloudSync" Initial Setup, admin and delivery. *Source NexLog DX-Series systems must be licensed individually for sending to DX Cloud-Sync
CLAS-SH 1 Year Storage and Hosting per TB per DX CloudSync ($300/mo/TB)
To accept this quotation and purchasing T&C's, sign here and return oe Provide a Purchase Order Signature Date
Thank You For Your Business!

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City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1903 Agenda Date: 12/13/2022
Agenda #: AG. Category: Consent Calendar
FROM:

Community Services
SUBJECT:

Fontana Community Senior Center Coffee/Juice Bar Lease Agreement RECOMMENDATION:

Authorize the City Manager to enter into a lease agreement with Very Special Mini Market to offer food and beverage preparation and retail services at the Fontana Community Senior Center and authorize the City Manager to execute any documents necessary to effectuate said agreement.

COUNCIL GOALS:
· Operate in a businesslike manner by creating a memorable customer experience with every interaction.
· Increase citizen involvement by promoting healthy lifestyle opportunities to residents of all ages.

DISCUSSION:

As part of the 43,855 square foot Fontana Community Senior Center, a coffee/juice bar is included to provide comprehensive services to center guests. Directly adjacent to the courtyard is a designated space for the Coffee/Juice Bar. Specifically, this space will provide an opportunity for patrons of the center to purchase coffee, juices, and foods, wirelessly access the internet, read a novel, or simply sit and chat with friends in a “coffee house” atmosphere.

The identified coffee bar space is 168 square feet, featuring wireless internet access and furnishings.

In addition, the Coffee/Juice Bar opens into a lounge area within the center where customers will be permitted to bring their coffee and/or packaged snack items to enjoy.

As part of a competitive application process, coffee vendors were solicited to lease the space and provide quality services, offering a range of beverage and food products and services, as well as work with the City of Fontana to offer special events. One application was received, and the company was invited to make a presentation of their operation proposal.

Very Special Mini Market was selected as the vendor for the Coffee/Juice Bar based on their application and the demonstration of their ability to create an atmosphere that compliments the programming offered within the facility (operated during the Fontana Community Senior Center operating hours and during City sponsored special events) The proposal provides for coffee, juices, fruit smoothies, fruit cups, and other foods.

The proposed Lease Agreement will have an initial term of one year and will automatically renew on City of Fontana Page 1 of 2 Printed on 12/7/2022
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File #: 21-1903 Agenda Date: 12/13/2022
Agenda #: AG. Category: Consent Calendar
an annual basis concurrent with the fiscal year cycle. The vendor will be required to make identified lease payments in an amount equal to the cost of the utilities for the space on a monthly basis. An annual adjustment has also been included to account for cost of utility increases, as well as an option to adjust the lease amount if the actual cost of utilities is higher than the original estimate. The cost of maintenance and custodial services will also be the responsibility of the vendor.

The lease amount is deliberately set low to facilitate a successful start of this business enterprise and to ensure that guests to the facility have comprehensive and high-quality services available. In addition, the vendor will be in operation during specified City events to provide food and beverage services for the benefit of the community.

Very Special Mini Market is planning to operate the Coffee/Juice Bar from 9:00 a.m. to 2:00 p.m.

Monday through Friday. This is within normal operating hours of the Fontana Community Senior Center.

By entering into this Lease Agreement, the City will be able to provide quality services and an enhanced center experience to the community through an experienced and professional vendor.

FISCAL IMPACT:

Lease revenues in the amount of $2,100.00 (the estimated cost of utilities to operate the coffee bar space on an annual basis) will be received by the City on an annual fiscal year basis. Revenue will be deposited into Org 10124200.

MOTION:

City of Fontana Page 2 of 2 Printed on 12/7/2022
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1 CITY OF FONTANA

C A L I F O R N I A

LEASING AGREEMENT
FOR

FONTANA COMMUNITY SENIOR CENTER

COFFEE/JUICE BAR
SP-83-CS-22
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2 FONTANA COMMUNITY SENIOR CENTER COFFEE/JUICE BAR LEASE

AGREEMENT
Tracking No. SP-83-CS-22
This Fontana Community Senior Center Coffee/Juice Bar Lease Agreement (“Lease” or “Agreement”) is dated for reference purposes as of the 2nd day of January, 2023 by and between the City of Fontana, a municipal corporation and general law city (hereinafter referred to as “City” or “Landlord”) and Vernon Wyllie-James a sole proprietor, d/b/a Very Special Mini Market (hereinafter referred to as “Tenant”). The Landlord and Tenant are sometimes referred to individually herein as “Party” and collectively as “Parties.”

RECITALS
A. Landlord is the owner of that certain real property generally located at 16710 Ceres Avenue in the City of Fontana, County of San Bernardino, State of California, which is commonly known as the Fontana Community Senior Center.

B. Landlord desires to establish food and beverage preparation and retail sales service areas at the Fontana Community Senior Center.

C. Tenant is a private company in the business of providing food and beverage preparation and retail sales services.

D. Tenant desires to locate food preparation and retail sales service facilities at the Fontana Community Senior Center to provide services to its customers.

E. Tenant agrees to operate and maintain a food and beverage preparation and retail sales service area at the Fontana Community Senior Center as more specifically described herein.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:

TERMS

1. INCORPORATION OF RECITALS. The Parties hereby affirm the facts set forth in the Recitals above. Said Recitals are incorporated herein and made an operative part of this Agreement.

2. LEASED PREMISES. Subject to the following terms and conditions, Landlord leases to Tenant and Tenant leases from Landlord that portion of the Fontana Community 718
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3 Senior Center commonly referred to as the “Coffee/Juice Bar.” The Coffee/Juice Bar is more specifically described and depicted in the attached Exhibit “A”, and contains approximately one hundred sixty eight (168) square feet of net leasable floor area. For purposes of this Lease, the approximate square footage noted herein shall be used as the actual total square footage leased whether or not such square footage actually exists.

2.1 Improvements. For the purposes of this Agreement, the term “Improvements” shall include any additions, alterations, attachments, fixtures, improvements, installations or property affixed to the Coffee/Juice Bar so that they cannot be removed without material damage to the Coffee/Juice Bar. Improvements shall be considered a permanent part of the Coffee/Juice Bar, regardless of whether made by Landlord or Tenant. Improvements shall not include furniture, or trade fixtures which can be removed without material damage to the Coffee/Juice Bar.

2.1.1 Upon the expiration or earlier termination of this Agreement, Improvements made by Tenant become the property of Landlord and shall remain on the Coffee/Juice Bar premises. Landlord shall have the option, however, on the expiration or earlier termination of this Lease, to require that Tenant, at Tenant’s sole cost and expense, remove any such Improvements made by Tenant.

3. EFFECTIVE DATE - The term of this Agreement shall commence on July 01, 2012.

4. TERM.

4.1 Initial Term. The initial term of this Agreement (“Initial Term”) shall commence on the Effective Date and shall terminate on June 30, 2025, unless earlier terminated as provided herein.

4.2 Extended Term. Provided that Tenant is not then in default under this Agreement, Tenant shall have the option and right to extend the Initial Term of this Agreement for consecutive periods of one (1) year, commencing on expiration of the Initial Term and ending on June 30th of the following calendar year (“Extended Term(s)”). This Agreement shall automatically be extended for each successive Extended Term unless a Party notifies the other Party in writing of said Party’s intention not to extend this Agreement at least sixty (60) days prior to the expiration of the Initial Term or the then applicable Extended Term. The terms and conditions of this Agreement shall apply equally to the Extended Term, if any.

5. HOLDOVER.

If Tenant fails to surrender possession of the Coffee/Juice Bar at the expiration, or earlier termination of this Agreement, Tenant's continued occupancy of the Coffee/Juice Bar shall be considered a month-to-month tenancy subject to all the terms and conditions of this Lease.
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4 6. RENT.

6.1 Base Rent. Upon the Effective Date, the monthly rent (“Rent”) shall be one hundred seventy five dollars and no cents ($175.00) per month and shall be adjusted annually as provided in Section 6.2. Rent shall be payable to the City of Fontana, Accounts Receivable or such other address provided by Landlord and shall be paid in advance on the first day of each and every calendar month and without demand, deduction, offset, or abatement. Rent for any partial calendar month shall be prorated appropriately.

6.2 Annual Adjustment. Rent shall be adjusted annually throughout the Initial Term and any Extended Term, on the anniversary of the first day of the first full calendar month following the Effective Date by an amount equal to (i) the increase in the Consumer Price Index-All Urban Consumers (“CPI”) for the Los Angeles-OrangeRiverside County (1982-84=100) during the prior twelve month period, or (ii) three percent (3%), whichever is greater.

6.3 Late Payment Charges. Tenant acknowledges that in the event Tenant fails to pay Rent within ten (10) business days of when due, such failure will cause Landlord to incur costs not contemplated in this Agreement, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing, personnel and accounting costs. Accordingly, if any such payment is not received by Landlord when due, Tenant shall pay Landlord a late payment charge equal to ten percent (10%) of the overdue payment as well as interest on the outstanding amount due that shall accrue at the rate of ten percent (10%) per annum. In no event shall the late charge exceed the maximum allowable by law. Tenant agrees that this late charge represents a fair and reasonable estimate of the costs Landlord will incur by reason of Tenant’s late payment. Landlord’s acceptance of such late charge shall in no event constitute a waiver by Landlord of Tenant’s default with respect to the overdue payment, nor prevent Landlord from exercising any of the other rights or remedies granted to Landlord under this Agreement, at law, or in equity.

7. USE OF PREMISES

7.1 During the term of this Agreement (including the Initial Term and any Extended Term), the Coffee/Juice Bar shall be used exclusively for the purpose of providing food and beverage preparations and retail sales services (“Services”) and for uses normally incident to that purpose. Services are more specifically described in the attached Exhibit “C”. Tenant shall not use or permit the Coffee/Juice Bar to be used for any other purpose, without the prior written consent of Landlord. Permitted use of the Coffee/Juice Bar includes the right to install, maintain, repair, replace and secure equipment necessary for the provision of Services.

7.2 During the term of this Agreement, Tenant shall operate the Coffee/Juice Bar in a diligent and business like manner.
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5 7.3 Tenant shall comply with all applicable laws, codes, rules and regulations relating to Tenant’s operation and use of the Coffee/Juice Bar, including without limitation:
(a) any and all zoning and development permits, plan reviews, and approvals issued by applicable governmental agencies. (b) any and all health and safety requirements, permits or approvals necessary for operation, including but not limited to ensuring (i) that the design, planning and installation of all improvements, fixtures and equipments meet with required codes and regulations; (ii) that all applications and notifications are filed with the appropriate government agency; and (iii) that any and all placards, licenses, and permits are secured and displayed as appropriate prior to operation.

7.4 Tenant acknowledges Landlord’s need to protect the public’s right to the quiet use and enjoyment of the Fontana Community Senior Center. Tenant shall use the Coffee/Juice Bar in a manner that does not unreasonably disturb the use and occupancy of the Fontana Community Senior Center. Upon notice from the Landlord, Tenant shall take reasonable steps to mitigate any such disturbance.

8. COFFEE/JUICE BAR HOURS AND OPERATIONS.

8.1 Normal Business Hours. The Coffee Bar shall be open to the public for business generally at the following times, which times represent Pacific Standard Time and shall be referred to herein, collectively, as the “Normal Business Hours”:
a. Monday through Friday, 9:00 a.m. - 2:00 p.m.
b. Saturday, Closed
c. Sunday, Closed
d. Approved Special Events, as defined below.

8.2 Special Events. Tenant shall work with Landlord in programming use of the Coffee/Juice Bar with special events, including but not limited to, live musical performances, performance art, and fine art displays (“Special Events”) and arranging for and facilitating the scheduling of such Special Events, provided that the Party proposing a Special Event shall provide advance written notice of such Special Event to the other Party. Approval of Special Events proposed by Tenant shall be in the Landlord’s sole and absolute discretion.

8.2.1 Additional Access. Access to the Coffee/Juice Bar outside of the Normal Business Hours for Coffee Bar maintenance and operational purposes shall be provided to Tenant and employees of Tenant, and to no other persons, between 7:00 AM and 8:00 PM, Pacific Standard Time. Access to the Coffee Bar outside of the Normal Business Hours or during Special Events shall be subject to change by Landlord upon twenty-four (24) hours notice.
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6 8.2.2 Change of Normal Business Hours. Landlord and Tenant may from time to time, agree to change the Normal Business Hours, but in no case shall the Coffee/Juice Bar be open for business earlier than 7:00 A.M., or later than 10:00 P.M., Pacific Standard Time.

8.3 Alcohol. The handling, sale, or consumption of alcohol within the Coffee/Juice Bar is prohibited unless otherwise permitted by the City of Fontana Municipal Code, or City Ordinance or Regulation, and approved in writing by the City.

8.4 Smoking. Smoking within the Coffee Bar is prohibited.

8.5 Music. Music may be played in the Coffee/Juice Bar in compliance with Landlord approved sound levels and in accordance with the following restrictions:

8.5.1 Permissible music shall include only radio-edited music that contains no profanity.

8.5.2 No music that contains a Parental Advisory rating may be played in the Coffee/Juice Bar.

8.5.3 Landlord reserves the right to approve the content of any music played.

8.5.4 The Landlord reserves the right to require that any music being played is discontinued, or may be discontinued by Landlord at any time without prior notice.

8.5.5 Any denial by Landlord of music content or music play lists shall be made on a viewpoint neutral basis, and shall be reasonable in light of maintaining the Fontana Community Senior Center for its intended purpose.

8.5.6 Tenant shall comply with all copyright laws and shall, prior to playing music on the Coffee/Juice Bar premises during the Normal Business Hours of the Coffee/Juice Bar, obtain any and all music licensing rights as may be required by law.

8.6 Parking. A marked loading and unloading zone will be at the back of the facility (north side of the building) that the Tenant may use for loading and unloading only. Parking for Tenant’s employees, patrons and deliveries shall also be available in the public parking areas, in accordance with the provisions and limitations of any applicable government code sections.

9. IMPERMISSIBLE USES

9.1 Hazards. Tenant shall not commit or permit the commission of any acts on the Coffee/Juice Bar premises, nor use or permit the use of the Coffee/Juice Bar premises in any manner that will increase the existing rates for, or cause the cancellation of, any insurance policy insuring the Coffee/Juice Bar or the Fontana Community Senior Center. Tenant shall, at its own cost and expense, comply with any and all requirements 722
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7 of Landlord's insurance carriers necessary for the continued maintenance, at reasonable rates, of Landlord’s insurance policies covering the Fontana Community Senior Center.

9.2 Waste or Nuisance. Tenant shall not commit or permit the commission by others of any waste on the Coffee/Juice Bar premises. Tenant shall not maintain, commit, or permit the maintenance or commission of any nuisance as defined in Civil Code Section 3479 on the Coffee Bar premises. Tenant shall not use or permit the use of the Coffee/Juice Bar for any unlawful purpose.

10. COMPLIANCE WITH LAWS.

Throughout the term of this Agreement, Tenant shall at its own cost and expense comply with all statutes, ordinances, regulations, and requirements, of all governmental entities, both federal and state and county or municipal, relating to Tenant's use, operation and occupancy of the Coffee/Juice Bar, including without limitation Section 3700 of the California Labor Code which requires every employer to be insured against liability for worker’s compensation or to undertake self-insurance in accordance with that Code.

11. UTILITIES.

11.1 Utility Service Costs. Landlord shall furnish, at its sole cost and expense, subject to Subsection 11.2 herein, the services described below to the Coffee/Juice Bar on an access and override basis.
(a) Electricity for normal lighting and equipment.
(b) Heat and air conditioning as required in Landlord’s sole and reasonable judgment for the comfortable use and
occupation of the Coffee/Juice Bar during the Normal
Business Hours, as defined in Section 8.1.
(c) Water in quantities reasonably required by Tenant.
(d) Gas in quantities reasonably required by Tenant.
(e) Refuse disposal in quantities reasonably required by Tenant.
(f) Building smoke detection, security alarm, including a security monitoring camera, and lighting reasonably
required for safe operation of the Coffee/Juice Bar.

11.2 Landlord shall not be liable for, and Tenant shall not be entitled to, any reduction of Rent by reason of Landlord’s failure to furnish any of the foregoing when such failure is caused by accident, breakage, repairs, strikes, lockouts or other labor disturbances or labor disputes of any character, or by any other cause, similar or dissimilar, beyond the reasonable control of Landlord. Landlord shall not be liable under any circumstances for the loss of or injury to property, however occurring, through or in 723
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8 connection with or incidental to failure to furnish any of the foregoing, except to the extent such loss or injury is directly caused by Landlord.

11.3 Tenant will not, without written consent of Landlord, use any apparatus or device in the Coffee/Juice Bar which will in any way increase the amount of utilities normally furnished or supplied for a food and beverage preparation and retail sales service facility. Tenant shall not connect any apparatus or device to a utility location/outlet located outside of the Coffee/Juice Bar, unless required for the provision of entertainment services during approved Special Events and as mutually agreed upon by Landlord and Tenant.

11.4 Landlord estimates that the cost of Tenant’s required utility use shall not exceed one hundred percent (100%) of the monthly Rent (“Estimated Utility Costs”). If Tenant’s utility usage shall exceed the Estimated Utility Costs, Landlord may, in its sole and reasonable discretion and after consultation with Tenant:
(a) cause a meter(s) to be installed in the Coffee/Juice Bar, so as to measure Tenant’s utility usage. The cost of any such meter(s) and of installation, maintenance and repair thereof shall be paid for by Tenant and Tenant agrees to pay to Landlord promptly upon demand therefore by Landlord, for all such utilities consumed as shown by said meter(s), at the rate charged for such services by the local public utility furnishing the same, plus any additional expense incurred in keeping account of the utilities so consumed;
(b) bill Tenant for all costs in excess of the Estimated Utility Costs.
(c) at Tenant’s request, and at Tenant’s sole cost and expense, Tenant may pay for the utility company or an electrical engineer, approved by Landlord, to provide an estimated allocation of costs in excess of the Estimated Utility Costs.

12. TAXES.

12.1 Personal Property Taxes. Tenant covenants and agrees to pay, before any fine, penalty, interest or cost may be added thereto for the nonpayment thereof, all taxes (including any possessory interest taxes which may be created hereby or imposed pursuant to law), assessments, and other governmental charges, general and special, ordinary and extraordinary, unforeseen as well as foreseen, of any kind and nature whatsoever, which shall during the term of this Lease be laid, assessed, levied or imposed upon or become due and payable with respect to any furniture, trade fixtures, appliances, and other personal property placed by Tenant in, on, or about the Coffee/Juice Bar, including, without limitation, any shelves, counters, vaults, vault doors, wall safes, partitions, fixtures, machinery, equipment, television, radio antenna, and communication equipment brought onto the Coffee/Juice Bar by Tenant.

12.2 Real Property Taxes. Tenant covenants and agrees to pay, before any fine, penalty, interest or cost may be added thereto for the nonpayment thereof, all taxes (including any possessory interest taxes which may be created hereby or imposed 724
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9 pursuant to law), assessments, and other governmental charges, general and special, ordinary and extraordinary, unforeseen as well as foreseen, of any kind and nature whatsoever, which shall during the term of this Lease be laid, assessed, levied or imposed upon or become due and payable with respect to the Coffee/Juice Bar imposed by any governmental entity for any reason whatsoever.

13. CONDITION OF PREMISES.

Tenant accepts the Coffee/Juice Bar, as well as any Improvements located on the Coffee/Juice Bar premises, in an “as is” condition without warranty, express or implied, as to the condition or usability of the Coffee/Juice Bar, except as may be expressly set forth in this Agreement. Tenant further agrees with and represents to Landlord that Tenant shall inspect the Coffee/Juice Bar prior to taking possession, and that the Coffee/Juice Bar is being leased by Tenant as a result of its own inspection and investigation and not as a result of any representations made by Landlord or any agent of Landlord except those expressly set forth in this Lease.

14. MAINTENANCE OF PREMISES.

14.1 Landlord Obligations. Landlord shall maintain the Structural Elements of the Fontana Community Senior Center, including the Coffee/Juice Bar, in good condition and repair. “Structural Elements” include the roof, exterior walls, structural support and foundation. Structural Elements shall not include show window glass.

14.1.1 Landlord may, for the purpose of maintaining the Structural Elements, erect scaffolding and other necessary structures where reasonably required by the character of the work to be performed. Landlord shall not block the entrance to the Coffee/Juice Bar during Normal Business Hours, except in the case of an emergency, and shall not unreasonably interfere with operation of the Coffee/Juice Bar. Tenant hereby waives any claim for damages, for any injury or inconvenience to or interference with Tenant’s business, or for any loss of occupancy or quiet enjoyment of the Coffee/Juice Bar, and any other loss occasioned thereby, provided that Landlord make a reasonable effort to avoid any such injury, inconvenience or interference.

14.1.2 Landlord shall have the right to use any and all means which Landlord may deem proper to open any doors or otherwise obtain access to the Coffee/Juice Bar in an emergency, without liability to Tenant, except for any failure to exercise due care for Tenant’s property, and any entry to the Coffee/Juice Bar obtained by Landlord by any of said means or otherwise shall not under any circumstances be construed or deemed to be forcible or unlawful entry into a detainer of the Coffee/Juice Bar or an eviction of Tenant from the Coffee/Juice Bar or any portion thereof.

14.2 Tenant’s Obligations. Tenant shall operate, maintain, and repair at no cost or expense to Landlord, the Coffee/Juice Bar throughout the Initial Term and any Extended Term of this Agreement. All Improvements and any items and equipment provided by the City for operation of the Coffee/Juice Bar, as specified in Exhibit “B”, shall be maintained in good and workable order and repair and in as safe and clean a 725
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10 condition as they were when received by Tenant, or as when they were installed by Tenant, reasonable wear and tear excepted.

14.2.1 Required maintenance includes, but is not limited to providing clean and sanitary custodial/janitorial services and removal of graffiti and safety hazards within twenty-four (24) hours of receiving written or verbal notification from Landlord.

14.2.2 Tenant shall make any repairs to the Coffee/Juice Bar and to any Improvements, items and equipment provided by the City for operation of the Coffee/Juice Bar, as specified in Exhibit “B”, caused by or incident to Tenant’s use of the Coffee/Juice Bar or implementation of this Agreement at its sole cost, expense and liability. Maintenance and repairs shall be made promptly to protect public safety.

14.2.3 Tenant shall be responsible for the repair of any damage to the Fontana Community Senior Center caused by Tenant or its contractors at its sole cost, expense and liability. All such work is to be performed in accordance with the standards approved by Landlord.

14.2.4 The janitorial closet as depicted in Exhibit “A”, are made available for the use of the Tenant and its employees and are the maintenance responsibility of the Tenant.

14.2.5 Tenant shall perform all non-safety and non-graffiti repairs within thirty (30) days of notification to Tenant by Landlord. Failure by Tenant to perform nonsafety or non-graffiti repairs within thirty (30) days of notification to Tenant by Landlord, Landlord may make any such repairs at Tenant’s expense. Tenant shall promptly reimburse Landlord for any such repairs.

14.2.6 Tenant shall provide site security during all construction and maintenance activities.

14.3 Maintenance of Plate Glass. Tenant shall be solely responsible for the cost and expense of maintenance, repair or replacement of plate glass in any Coffee/Juice Bar show window, unless such window is damaged or broken by Landlord or by an employee or agent of Landlord. Should Tenant fail to repair or replace any glass broken in a Coffee/Juice Bar show window, Landlord may replace or repair the broken window, and Tenant shall promptly reimburse Landlord for the cost of the repair, replacement.

15. ALTERATIONS AND LIENS.

15.1 Alterations. Tenant shall not make or allow to be made any alterations to the Coffee/Juice Bar, including interior design and color selections, without the prior written consent of Landlord, which consent shall not be unreasonably withheld.

15.1.1 In the event that Landlord consents to Tenant’s requested alterations, additions or improvements to the Coffee/Juice Bar, the same shall be made by Tenant at Tenant’s sole cost and expense.
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11 15.2 Liens. Tenant shall keep the Coffee/Juice Bar free and clear from any and all liens, claims, and demands for work performed, materials furnished, or operations conducted on the Coffee/Juice Bar premises at the instance or request of Tenant. Any construction of alterations, additions or improvements shall be completed in compliance with all laws and governmental requirements, including but not limited to the payment of Prevailing Wages.

16. ENTRY BY LANDLORD.

Landlord or Landlord's agents, representatives, or employees shall have the right, at any and all reasonable times during Normal Business Hours and upon twenty-four (24) hours prior notice to Tenant, except as expressly provided herein, to enter the Coffee/Juice Bar for the purpose of inspecting the Coffee/Juice Bar to determine whether Tenant is complying with the terms of this Lease, for the purpose of doing other lawful acts that may be necessary to protect Landlord's interest in the Coffee/Juice Bar, or for the purpose of performing Landlord's duties under this Lease, as Landlord may deem necessary or desirable. Tenant shall not be entitled for any abatement in rent upon such entry by Landlord.

17. SURRENDER OF PREMISES.

Upon the expiration or earlier termination of this Agreement, Tenant shall promptly vacate the Coffee/Juice Bar and deliver the Coffee/Juice Bar, including all Improvements thereto and all items and equipment provided by the City for operation of the Coffee/Juice Bar, as specified in Exhibit “B”, to Landlord in as good condition as the Coffee/Juice Bar existed on, as applicable: (i.) the Effective Date of this Agreement; or (ii.) on the date that such Improvements were made or installed, excluding reasonable wear and tear, and repairs required to be made by Landlord under this Lease.

18. INDEMNITY

18.1 Tenant’s Obligations. Tenant agrees to defend, indemnify, and hold Landlord, its directors, officials, officers, employees, agents, or volunteers, and each of them harmless from and against any all liability to third parties resulting from Tenant's occupation and use of the Coffee/Juice Bar, specifically including, without limitation, any claim, liability (including, without limitation attorney’s fees costs and expenses incurred in defending against such claims), loss, or damage (including, without limit, all consequential damages) arising by reason of:
(a) The death or injury of any person or persons, or by reason of the damage to or destruction of any property, including property owned by Tenant or any person who is an employee or agent of Tenant, and caused or allegedly caused by either the condition of the Coffee/Juice Bar, or some act or omission of Tenant or of some agent, contractor, employee, servant, customer, or concessionaire of Tenant on the Coffee/Juice Bar premises;
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12 (b) Any work performed on the Coffee/Juice Bar premises or materials furnished to the Coffee/Juice Bar at the instance or request of Tenant or any agent or employee of Tenant; and
(c) Tenant's failure to perform any provision of this
Agreement.

18.2 Landlord’s Obligations. Landlord agrees to defend, indemnify, and hold Tenant, its directors, employees, agents, and each of them harmless from and against any and all liability to third parties resulting from Landlord’s occupation and use of the Fontana Community Senior Center, excluding the Coffee/Juice Bar, or from Landlord’s maintenance or failure to maintain the Structural Elements of the Fontana community Senior Center, including the Coffee/Juice Bar. This obligation to defend, indemnify and hold harmless specifically includes, without limitation, any claim, liability (including, without limitation attorney’s fees costs and expenses incurred in defending against such claims), loss, or damage (including, without limit, all consequential damages) arising by reason of:
(a) The death or injury of any person or persons, or by reason of the damage to or destruction of any property, including property owned by Landlord or any person who is an employee or agent of Landlord, and caused or allegedly caused by either the condition of the Fontana Community Senior Center, excluding the Coffee/Juice Bar, or the Structural Elements of the Coffee/Juice Bar, or some act or omission of Landlord or of some agent, contractor, employee, or patron of Landlord on the Fontana Community Senior Center premises, including the Coffee/Juice Bar; (b) Any work performed on the Coffee/Juice Bar premises or materials furnished to the Coffee/Juice Bar by Landlord or its employees or agents; and (c) Landlord’s failure to perform any provision of this Agreement.

19. INSURANCE.

19.1 Tenant’s Insurance. At all times throughout the Initial Term and any Extended Term of this Agreement, Tenant shall, at its own cost and expense, provide the following insurance coverages:

19.1.1 Fire and casualty coverage insurance covering the Coffee/Juice Bar and all Improvements either now or hereafter located on the Coffee/Juice Bar premises, against loss or damage by fire or other risks or perils, including vandalism and malicious mischief, in an amount not less than one hundred percent (100%) of the full replacement cost of the Coffee/Juice Bar and Improvements.

19.1.2 Comprehensive public liability insurance against claims for personal injury, death, or property damage occurring in connection with the use and occupancy of the Coffee/Juice Bar and Improvements thereon by Tenant, and providing coverage with minimum limits of liability of not less than One Million and No/100 728
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13 Dollars ($1,000,000.00) for bodily injury or death in any one occurrence, Two Million and No/100 Dollars ($2,000,000.00) in the aggregate per policy year, and One Million and No/100 Dollars ($1,000,000.00) for property damage. Tenant's policy shall name the Landlord as an additional insured.

19.1.3 Such other insurance as Landlord may reasonably require from time to time in such amounts and against such insurable risks as may be commonly maintained for Lease Property similarly situated and containing comparable improvements.

19.1.4 Policies. All policies required to be maintained by Tenant pursuant to this Section 19 shall be effected under enforceable policies issued by insurers licensed to do business in the State of California. All policies shall contain language to the effect that: (a) Landlord to receive written notification of not less than ten (10) days prior to any cancellation or modification of Tenant's insurance coverage, and shall provide that Landlord’s interest shall not be invalidated by any acts, omissions or neglect of anyone other than Landlord; (b) the insurer waives the right of subrogation against Landlord and against Landlord’s agents and representatives; (c) the policies are primary and noncontributing with any insurance that may be carried by Landlord.

In the event Tenant fails to timely pay any premiums with respect to its insurance, Landlord shall have the right, but not the obligation, to pay the premiums and obtain the insurance, and any amounts paid by Landlord therefore shall be deemed additional rent payable by Tenant upon demand. Tenant shall cause the insurer(s) to furnish to Landlord certificate(s) evidencing any insurance required to be maintained by Tenant hereunder. Nothing contained in this Section 19 shall prohibit Tenant from carrying deductibles or self-insured retentions on any policies of insurance as deemed appropriate by Tenant.

19.2 Landlord’s Insurance. Landlord is self-insured with coverage in amounts at least equal to the amounts provided herein. The Landlord shall provide evidence of such insurance as reasonably requested by Tenant.

20. SIGNS AND TRADE FIXTURES

20.1 Installation and Removal of Trade Fixtures. During the term of this Agreement, Tenant may, at Tenant's sole cost and expense, install and affix in, to, or on the Coffee/Juice Bar any items, herein called ''trade fixtures,'' for use in Tenant's trade or business that Tenant may, in Tenant's sole discretion, deem advisable. Any and all trade fixtures that can be removed without structural damage to the Coffee/Juice Bar shall remain the property of the Tenant and may be removed by Tenant at any time before the expiration or earlier termination of this lease, subject to Section 20.3 herein, provided Tenant repairs any damage caused by the removal.

20.1.1 Landlord waives any lien rights it may have concerning the Coffee/Juice Bar for property that is deemed Tenant’s personal property. 729
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14 20.2 Unremoved Trade Fixtures. Any trade fixtures described in this Section that are not removed from the Coffee/Juice Bar by Tenant within thirty (30) days after the expiration or earlier termination regardless of cause, of this Agreement shall be deemed abandoned by Tenant and shall automatically become the property of Landlord as owner of the real property to which they are affixed.

20.3 Right of First Refusal. The Parties agree that upon the expiration or earlier termination of this Agreement, the Landlord shall have the first right of refusal to purchase Tenant’s removable trade fixtures. The purchase price offered to Landlord shall be based on the IRS deduction schedule.

20.4 Signs. Tenant shall not place any signage, logos, or graphics on the interior or exterior of the Coffee/Juice Bar, or the Fontana Community Senior Center, except as may be approved in writing by the Landlord, or as may be required by law.

21. DAMAGE AND DESTRUCTION

21.1 Tenant’s Options. If the Coffee/Juice Bar, or Tenant’s improvements located therein, are materially destroyed or damaged, by other than an act of Tenant, so as, in Tenant’s commercially reasonable judgment, to materially and adversely impair Tenant’s effective use of the Coffee/Juice Bar, Tenant may elect to terminate this Agreement as of the date of the damage or destruction by notifying Landlord no more than forty-five (45) days following the date of such damage or destruction. If Tenant elects to terminate this Agreement pursuant to this Section, all rights and obligations of the parties that do not survive the termination of this Agreement shall cease as of the date Landlord receives Tenant’s termination notice. If Tenant chooses not to terminate this Agreement, Rent shall be reduced or abated in proportion to the actual reduction or abatement of use of Coffee/Juice Bar for a period until such damage can be repaired by Tenant, not to exceed six (6) months, unless Tenant and Landlord determine in good faith that the Coffee/Juice Bar cannot be rebuilt in a commercially reasonable manner. In the event of damage or destruction to the Fontana Community Senior Center that prevents Tenant from operating Coffee/Juice Bar, Landlord shall abate the rent in its entirety until such a time as the damage can be corrected and the Tenant can return to normal operations, pursuant to the provisions of this Agreement. Landlord reserves the right to audit Tenant’s reduction or abatement request.

21.2 Landlord’s Options. In the event that the Coffee/Juice Bar and/or the Fontana Community Senior Center are materially and adversely damaged or destroyed, or Improvements thereto are determined by applicable law to be unsafe, Landlord shall have the right to terminate this Agreement upon written notice to Tenant, provided that Landlord shall give such notice within forty-five (45) days of the date of such damage or destruction or determination as to safety. If Landlord elects to terminate this Agreement pursuant to this Section, all rights and obligations of the parties that do not survive the termination of this Agreement shall cease as of the date of Coffee/Juice Bar's receipt of Landlord’s termination notice. In no event shall Landlord be obligated to repair any casualty or other damage or destruction to the improvements located in the Coffee/Juice 730
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15 Bar and/or the Fontana Community Senior Center, whether or not covered by Landlord’s insurance, if any.

21.3 Insurance Proceeds. If either Party exercises its right to terminate, Tenant may utilize insurance proceeds, if any, of the insurance required to be carried by Tenant pursuant to this Agreement, to satisfy liens expressly approved, in writing, by the Landlord. The Landlord shall be entitled to any and all remaining insurance proceeds.

22. EMINENT DOMAIN

22.1 In the event that the whole or substantial part of the Property shall be acquired or condemned by eminent domain for a public or quasi-public use or purpose, this Agreement shall terminate. The date of termination pursuant to the exercise of eminent domain authority by a governmental entity shall be the date on which title vests in said governmental entity.

22.2 An award for condemnation, if any, shall be paid first to the Tenant so that the Tenant may satisfy any other liens for which the Tenant obtained the express written consent of the Landlord to incur. The Landlord shall be entitled to the remainder of any condemnation award.

23. DEFAULT AND RIGHT OF REENTRY

23.1 Events of Default. Each of the following occurrences shall be an event of default hereunder:

23.1.1 If default shall be made by Tenant in any of the covenants, agreements, conditions or undertakings herein to be kept, observed and performed by Tenant and Tenant shall not have commenced to cure such default within thirty (30) calendar days after notice thereof in writing to Tenant.

23.1.2 If Tenant shall voluntarily file any petition, or have an involuntary petition filed on its behalf, under any chapter or section of the Federal Bankruptcy Code or any similar law, state or federal, whether now or hereafter existing, or shall file an answer admitting insolvency or inability to pay its debts; provided however, that Tenant shall not remain in default if Tenant shall continue to pay all Rent and Additional Charges and comply with all other terms and conditions of the Agreement.

23.1.3 If a trustee or receiver shall be appointed for Tenant or for a major portion of its property or for any portion of the Coffee/Juice Bar.

23.1.4 If any court shall have taken jurisdiction of a major portion of the property of Tenant or any potion of the Coffee/Juice Bar in any involuntary proceeding for dissolution, liquidation or winding up of Tenant and such jurisdiction shall not be relinquished or vacated within sixty (60) calendar days.

23.1.5 If Tenant shall make an assignment for the benefit of its creditors. 731
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16 23.2 Right of Reentry. Upon the occurrence of any default that is not cured within the applicable cure period, and at any time after the expiration of the applicable cure period, Landlord shall have the right, at its election, to reenter the Coffee/Juice Bar, or any part thereof, either with process of law, and to expel, remove and put out Tenant, using such force as may be necessary in so doing, and again to possess the Coffee/Juice Bar and enjoy the same as in their former estate and to take full possession of and control over the Coffee/Juice Bar and to have, hold and enjoy the same and to receive all rental income of and from the same. No reentry by Landlord shall be deemed an acceptance of a surrender of this Agreement, nor shall it absolve or discharge Tenant from any liability under this Agreement. Upon such reentry, all rights of Tenant to possess the Coffee/Juice Bar shall cease and terminate.

24. TERMINATION.

This Agreement may be terminated, without further liability on the part of the party terminating the Agreement, with sixty (60) days prior written notice (or upon such notice as otherwise expressly provided below) as follows:

24.1 By either party upon a default of any covenant, condition or term herein by the other party, which default is not cured within thirty (30) days of receipt of written notice of default, provided that the grace period for any monetary default is only ten (10) days from receipt of notice. No default will be deemed to exist if the party alleged to be in default has commenced to cure such default within such period and provided that such efforts are brought to completion with reasonable diligence; or

24.2 By Tenant after the Effective Date for any reason or for no reason, provided Tenant delivers written notice of early termination to Landlord no later than sixty (60) days prior to termination; or

24.3 By Landlord, upon sixty (60) days’ written notice to Tenant, in the event Landlord causes interference with the Landlord’s operation and maintenance of the Fontana Community Senior Center, provided, however, that Landlord has first given Tenant written notice of such interference and Tenant is unable to correct or cease such interference within thirty (30) days of written notice of such interference.

24.4 By either party in the event that any certificates, permits and other approvals (collectively the “Governmental Approvals”) that may be required by any Federal, State or Local authorities should be finally rejected or any Governmental Approval issued to Tenant is canceled, expires, lapses, or is otherwise withdrawn or terminated by governmental authority, by either party, upon ten (10) days’ notice, should Landlord fail to complete construction of the Coffee/Juice Bar or adjacent portions of the Fontana Community Senior Center within sixty (60) days of the date first referenced in this Agreement.

24.5 Rights Upon Termination. Upon termination neither party shall have any further rights, obligations or liabilities to the other except: (i) with respect to provisions of this Agreement that by their sense and context survive termination; (ii) with 732
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17 respect to the rights and remedies of the parties relating to the period prior to termination; and (iii) upon notice to Tenant within ten (10) days of Landlord’s receipt of a notice terminating the Agreement, Landlord may require that Tenant remove all construction caused by Tenant which has not been completed and restore the Coffee/Juice Bar within sixty (60) days of the termination notice, to the condition (to the extent such change in condition was caused by Tenant) existing prior to the full execution of this Agreement, wear and tear, and casualty excepted.

25. ASSIGNMENT. Tenant shall not encumber, transfer or assign this Agreement or any interest in this Agreement or sublet the Premises or any portion thereof without first obtaining the written consent of Landlord. Any attempted transfer, encumbrance, assignment or subletting, including any involuntary transfers or assignments by operation of law, without such written consent shall be void and confer no rights upon any third person. No such transfer, assignment or subletting shall relieve Tenant of its liability for the full performance of all of the terms, agreements, covenants and conditions of this Agreement.

25.1 Financing Arrangements. Notwithstanding Section 15.2, upon Landlord’s consent and written approval, Tenant may enter into an approved financing arrangement for the purchase of trade fixtures necessary for operation of the Coffee/Juice Bar, and for approved Improvements to the Coffee/Juice Bar. Any encumbrance shall be, at all times, subordinate to the ownership rights of the Landlord.

26. SAFETY AND ENVIRONMENTAL PROTECTION.

26.1 In carrying out its work, Tenant shall at all times, exercise all necessary precautions for the safety and environmental protection of the Coffee/Juice Bar, and be in compliance with all federal, state and local statutory and regulatory requirements including State of California, Division of Industrial Relations (Cal/OSHA) regulations, Cal/EPA, US/EPA and the U.S. Department of Transportation including the Omnibus Transportation Employee Testing Act (as applicable).

26.2 Tenant shall not use or allow anyone else to use the Coffee/Juice Bar to generate, manufacture, refine, transport, treat, store, handle, recycle, release or dispose of any hazardous material, other than as reasonably necessary for the operation of the Tenant’s activities as contemplated under this Agreement. The term "hazardous material" means any hazardous substance, material or waste, including but not limited to those listed in 49 CFR 172.101 (U.S. Department of Transportation), the Cal/EPA Chemical Lists of lists or petroleum products and their derivatives. However, this shall not apply to the use of petroleum products and related substances incidental to operation of motorized equipment and vehicles whose operation in the Coffee/Juice Bar is contemplated by this Agreement.

26.3 Tenant shall immediately notify the Landlord in writing upon becoming aware of any release of hazardous material, violation of any environmental law or actions brought by third parties against the Tenant alleging environmental damage. 733
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18 26.4 Landlord represents, warrants and agrees (1) that neither Landlord nor, to Landlord’s actual knowledge (without Landlord having researched the matter), any third party has used, generated, stored or disposed of, or permitted the use, generation, storage or disposal of, any hazardous material on, under, about or within the Coffee/Juice Bar in violation of any law or regulation, and (2) that Landlord has not, and will not permit any third party to use, generate, store or dispose of any hazardous material on, under, about or within the Fontana Community Senior Center in violation of any law or regulation.

26.5 Landlord and Tenant each agree to defend, indemnify and hold harmless the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and/or costs (including reasonable attorneys’ fees and costs) arising from any breach of any representation, warranty or Agreement contained in this section. This section shall survive the termination of this Agreement.

27. Notices. Any notice, demand or payment required to be given herein, or change of the address provided in this Section 27, shall be made by certified or registered mail, return receipt requested, or reliable overnight courier to the address of the respective parties set forth below:

Landlord:

City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Attention: City Manager
Tenant:

Vernon Wyllie-James
d/b/a Very Special Mini Market
PO Box 642
Palm Desert, CA 92260
Attn: Vernon Wyllie-James
Landlord or Tenant may from time to time designate any other address for this purpose by written notice to the other party.

28. MISCELLANEOUS PROVISIONS.

28.1 Nondiscrimination. Tenant herein covenants by and for itself and its assigns, and all persons claiming under or through Tenant, that this Lease is made and accepted upon and subject to the following conditions: that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the subleasing, transferring, use, occupancy, tenure, or enjoyment of the Coffee/Juice Bar nor shall the Tenant, itself, or any person claiming under or through Tenant, establish or permit any such practice or practices of discrimination or segregation. 734
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19 28.2 Attorney's Fees. In the event legal action by either party is brought to enforce any term hereof or in the recovery of damages for any breach hereof, or to determine any rights of the parties under this Agreement, the prevailing party in such actions may recover reasonable attorneys' fees.

28.2.1 When any provision of this Agreement entitles either party to receive costs or expenses from the other for a breach of any term herein, the terms costs and expenses shall include reasonable attorney's fees incurred, notwithstanding any reference or lack of reference to attorney's fees. When any article or provision of this Agreement provides that a party will hold an indemnitee harmless from claims, such shall pay all such indemnitee’s reasonable attorney's fees incurred in investigating and defending such claims.

28.3 Prevailing Wages. Tenant has been advised of California Labor Code section 1770 et seq. Tenant has also been advised of the Attorney General Opinion (No. 86 803) and California Senate Bill 975.

28.3.1 It shall be the sole responsibility of Tenant to determine whether to pay prevailing wages for any or all work required by this Agreement. Tenant shall be liable if it violates applicable law.

28.4 As a further material part of this Agreement, Tenant shall be liable to Landlord, its officials, officers, employees, consultants and agents from any and all claims, liability, loss, costs, damages, expenses, fines and penalties, of whatever type or nature, including all costs of defense and attorneys' fees, arising from any failure of the Tenant or Tenant's contractors to comply with the prevailing wage laws of the State of California.

28.5 Relationship. Nothing contained in this Lease shall be deemed or construed by the Parties or by any third Person to create the relationship of principal and agent, or of partnership or joint venture, or of any association between Landlord and Tenant, and none of the provisions contained in this Lease or any acts of the Parties shall be deemed to create any relationship other than lessor and lessee between Landlord and Tenant, nor shall this Lease be construed, except as expressly provided, to authorize either to act as agent for the other.

28.6 Entire Agreement. This Agreement constitutes the entire Agreement and understanding between the parties, and supersedes all offers, negotiations and other Agreements concerning the subject matter contained herein. Any amendments to this Agreement must be in writing and executed by both parties.

28.7 Severability. If any provision of this Agreement is invalid or unenforceable with respect to any party, the remainder of this Agreement or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 735
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20 28.8 Successors and Assigns. This Agreement shall be binding on and inure to the benefit of the successors and permitted assignees of the respective parties. Any reference to the "Landlord" or "Tenant" shall be deemed to refer to any authorized agent of such referenced party.

28.9 Applicable Law. 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.

28.10 Cooperation, Further Acts. In any case where the approval or consent of one party hereto is required, requested or otherwise to be given under this Agreement, such party shall not unreasonably delay or withhold its approval or consent.

28.11 Waiver or Modification. No waiver by a Party hereto at any time of any of the terms, conditions, or covenants of this Agreement shall constitute a waiver at any time thereafter of the same or any other term, condition, or covenant of this Agreement.

28.12 Exhibits. All Exhibits attached hereto are material parts of this Agreement and are hereby incorporated herein by reference.

28.13 Counterparts. This Agreement may be executed in duplicate counterparts, each of which shall be deemed an original.

28.14 Authority. Each party to this Agreement represents and warrants that it has all requisite power and authority to conduct its business and to sign, deliver and perform the Agreement. Each party warrants that the individual who has signed this Agreement has the legal power, right and authority to make and enter into this Agreement and bind each respective party.

28.15 Time. Time is of the essence in this Agreement and every provision hereof.
[SIGNATURES ON FOLLOWING PAGE]
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21 SIGNATURE PAGE
TO

FONTANA COMMUNITY SENIOR CENTER COFFEE/JUICE BAR LEASE

AGREEMENT
LANDLORD:

CITY OF FONTANA
By:

Matthew C. Ballantyne
City Manager
TENANT:

Vernon Wyllie-James, a sole proprietor,
d/b/a VERY SPECIAL MINI MARKET
By:

Attest:

By:

City Clerk
Approved as to form:

Best Best & Krieger LLP
City Attorney
By: _____________________________
Daniel Schneider, Department Head
By: _____________________________
Rakesha Thomas, Risk Management

IN COMPLIANCE WITH PURCHASING AND CONTRACT ADMINISTRATION POLICIES/PROCEDURES ,
Jessica Brown, Director of Management
Services

737
Exhibit A
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EXHIBIT “A”

DESCRIPTION AND DEPICTION OF THE COFFEE/JUICE BAR
[Map attached on following page]
Directly adjacent to the courtyard and near the entrance of this extraordinary new facility is a designated space for the coffee/juice bar. Specifically, this space will provide an opportunity for patrons of the Senior Center to purchase coffee, juice, smoothies and prepackaged foods, access wireless Internet, enjoy one of the many programs inside the facility or simply sit and visit with friends in a “coffee house” atmosphere. 738
Exhibit A
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(The area encompassing the Coffee Bar is circled in red on the map attached below) 739
Exhibit B
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EXHIBIT “B”

DESCRIPTION OF IMPROVEMENTS, ITEMS AND EQUIPMENT PROVIDED BY

CITY FOR OPERATION OF THE COFFEE BAR
ITEM 1 Refrigerator
True Food Service Equipment, INC. #T19
Solid door reach-in
300 series stainless steel solid doors
115 volt, single phase 8.9 amps
19 Cu. Ft. capacity
ITEM 2 Microwave
Solwave Commercial Microwave
#180MW1000SS
1000 Watts
.9 cu. ft cavity
3 power levels
ITEM 3 Espresso Machine Accorto Model 1000i
120 VAC, 20 Amp dedicated circuit
Built in refrigerator holds one gallon of milk
Produce 21 drinks at the push of a button
ITEM 4 Coffee Brewer (Qty. 2) Bunn Coffee Brewer Model #23400.0011 12 cup Coffee Brewers
Gravity flow dispense tube system
Thermally insulated
ITEM 5 Refrigerated/Dry Display Case Structural Concepts Model H5C4850LR Self contained unit furnished with front and rear locks 120 volts, 11.13 Amps
Shelf/shelves removable and adjustable
vertically
740
Exhibit C
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EXHIBIT “C”

SERVICES
The intention of the City of Fontana is to obtain a qualified, knowledgeable vendor to operate the coffee/juice bar. Qualified vendors will demonstrate the ability to create an atmosphere that compliments the programming offered within the facility (operated during the Fontana Community Senior Center operating hours and during City sponsored special events) and provide a relaxed setting for customers to enjoy their refreshments while surfing the Internet, reading a book, or enjoying one of the many programs at the facility. Current operating hours of the Fontana Community Senior Center are Monday through Friday 8 a.m. to 5:00 p.m.; Saturday 8 a.m. to 12 p.m. and closed on Sundays. Please note that the hours of operation may change.

The ideal vendor will demonstrate the ability to create an operations plan that will maintain the desired coffee/juice bar atmosphere and will be willing to work with City staff to offer customers access to scheduled and special programming. 741
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1908 Agenda Date: 12/13/2022
Agenda #: AH. Category: Consent Calendar
FROM:

Planning Department
SUBJECT:

Award Planning and Environmental Contract for the City of Fontana’s Arrow Boulevard and Tokay Avenue Land Use Redesignation and Homelessness Prevention Resources and Care Center Project RECOMMENDATION:

1. Approve and authorize the City Manager to award and execute a planning and environmental contract in an amount of up to $200,000.00 for environmental documentation for the City of Fontana’s Arrow Boulevard and Tokay Avenue Land Use Redesignation and Homelessness Prevention Resources and Care Center Project, located on eight parcels along Arrow Boulevard and Tokay Avenues (APNs: 0232-171-05, -06, -07, -08, -09, -12, -13, and -14).

2. Authorize the City Manager to execute any and all subsequent agreements and any other related items on behalf of the City of Fontana’s Arrow Boulevard and Tokay Avenue Land Use Redesignation and Homelessness Prevention Resources and Care Center Project, located on eight parcels along Arrow Boulevard and Tokay Avenues (APNs: 0232-171-05, -06, -07, -08, -09, -12, -13, and -14).

3. Authorize the City Manager to execute any and all contract amendments on behalf of the City of Fontana for the City of Fontana’s Arrow Boulevard and Tokay Avenue Land Use Redesignation and Homelessness Prevention Resources and Care Center Project, located on eight parcels along Arrow Boulevard and Tokay Avenues (APNs: 0232-171-05, -06, -07, -08, -09, -12, -13, and -14).

COUNCIL GOALS:
· Provide a diverse range of housing and affordability while addressing homelessness in the community by acquisition, substantial rehabilitation, and professional management of selected multi-family properties in an effort to provide more affordable housing units and reduce both crime and code enforcement activity.
· Provide a diverse range of housing and affordability while addressing homelessness in the community by promoting a diverse range of housing projects and levels of affordability. · Provide a diverse range of housing and affordability while addressing homelessness in the community through proactive programs, including the efforts of the COAST and MET teams.

DISCUSSION:

The City has initiated the Arrow Boulevard and Tokay Avenue Land Use Redesignation and Homelessness Prevention Resources and Care Center Project, located on eight parcels along Arrow Boulevard and Tokay Avenue (APNs: 0232-171-05, -06, -07, -08, -09, -12, -13, and -14).

City of Fontana Page 1 of 3 Printed on 12/7/2022
powered by Legistar™742
File #: 21-1908 Agenda Date: 12/13/2022
Agenda #: AH. Category: Consent Calendar
As part of the project’s development, environmental documentation and clearance is required. This includes compliance with California Environmental Quality Act (CEQA) regulations and documentation. Consequently, the city is seeking to obtain a contract with an environmental planning firm to assist with the CEQA process, and its documentation requirements to facilitate the construction of the Arrow Boulevard and Tokay Avenue Land Use Redesignation and Homelessness Prevention Resources and Care Center Project. The following a summary of the components of the project:

Arrow Boulevard and Tokay Avenue Land Use Redesignation and Homelessness Prevention Resources and Care Center Project:

The objective of the project is to construct a one-of-a-kind community care center to serve the homeless, those at risk of being homeless, and those experiencing medical and/or mental challenges. The goal is to end homelessness within the City and provide the necessary care and services for those individuals and families most in need.

The project, segmented into three primary neighborhoods, will provide housing and medical services to those San Bernardino County (regional) residents that fall into the most common categories for homelessness. The approach will be to address homelessness on an individual level, providing both shelter and support services based on the need of the person(s) or family.

This project is comprised of a City led effort to acquire, rehabilitate, and manage a total of 125 to 150 residential units, an administrative building, and site amenities on a seven (7) acre site (APNs: 0232- 171-05, -06, -07 and -08):
o Approximately three (3) acres of the site will be developed with three (3) neighborhoods of modular homes, each on approximately one (1) acre of land and will include multiple open spaces and site amenities such as sport courts, gathering places, exercise equipment, and walking trails.
§ Neighborhood One will include an administrative building of approximately 5,000 square feet and 12 modular single occupancy units (four (4) buildings, three (3) units per building)
§ Neighborhood Two will include 16 modular single occupancy units (eight (8) buildings, two (2) units per building)
§ Neighborhood Three will include 20 modular units that consist of a combination of single and family occupancy units (20 buildings, one (1) unit per building) o Approximately four (4) acres of the site will be developed in phases of 24-30 units per acre, per phase and will be a combination of single and family occupancy units.

The project also includes land use redesignation of certain adjacent properties. Properties with APNs 0232-171-05, -06, -07 and -08 that are currently zoned/general plan designated open space (resource area), would be redesignated to Industrial use to accommodate the operation and construction of a homelessness prevention resources and care facility. APNs: 0232-171-09, -12, -13, and -14 that are currently zoned/general plan designated as open space (resource area) would also City of Fontana Page 2 of 3 Printed on 12/7/2022
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File #: 21-1908 Agenda Date: 12/13/2022
Agenda #: AH. Category: Consent Calendar
be redesignated to Industrial use.

It is anticipated that a Planning and Environmental firm will be selected shortly after the City Council’s approval of this item. Staff is requesting that the City Manager be authorized to award and execute a planning and environmental contract in an amount up to $200,000.00 in order to expedite the contract approval process and accommodate the project schedules, provided that contract cost, including contingency, is within the project budget. In addition, staff is requesting that City Manager be authorized to execute any contract amendments in order to expedite the schedule.

FISCAL IMPACT:

Funds for the environmental work are budgeted in FY 2022/23 in the ARPA Fund 302, specifically in the Homelessness Prevention & Resource Center Project #36000041.

MOTION:

Approve staff recommendation.

City of Fontana Page 3 of 3 Printed on 12/7/2022
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City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1909 Agenda Date: 12/13/2022
Agenda #: AI. Category: Consent Calendar
FROM:

Finance
SUBJECT:

Amend Fontana City Purchasing Code and Administrative Policy Purchasing 20-50 RECOMMENDATION:

1. Approve Ordinance No. 1911, amending the Article V. “Purchasing” of Chapter 10 of the Municipal Code.

2. Adopt Resolution 2022- 139, of the City Council of the City of Fontana, amending Administrative Policy Section 20-50 (Purchasing Policies and Procedures Manual).

COUNCIL GOALS:
· Operate in a businesslike manner by correcting problems immediately. · Create and maintain a dynamic team by supporting the decisions of the majority once made. · Create and maintain a dynamic team by promoting stability and predictability by providing consistent policy direction.

DISCUSSION:

The City’s current purchasing practices are governed by both the Fontana Municipal Code (FMC) and the Administrative Policy - Purchasing Section 20-50. The purpose of the policy is to ensure that purchases and contracts for goods and services are in compliance with the FMC, Federal, State, and local laws. As a best practice, finance and related policies should be periodically reviewed to ensure that the policies and practices employed are not only in compliance with applicable laws but also to minimize risk, to ensure that the policies mirror actual business practices, and ensure that the procurement of goods and services are conducted in an open and competitive environment.

The Purchasing Policy was originally established in 1992 and includes six subsequent revisions with the last revision in 2021. City staff have conducted a comprehensive review of both the Fontana Municipal Code and Administrative Policy - Purchasing Section 20-50 and identified many areas of improvement. Notable areas of improvement include:
· Section 1.1.1 Delegation of Approval Authority - updated to reflect the current approval authorities of the City Manager (up to $100,000), Deputy City Manager (up to $50,000), and Department Head (up to $25,000) for the purchase of goods, services, and public works contracts
· Section 3.1 Purchasing Methods - established the following purchase methods of goods and services:

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o Micro-purchase - up to $10,000 without the soliciting of competitive quotations or proposals
o Small purchase - $10,000 to $100,000 through an informal competitive procedure o Sealed bid - $100,000 and above for goods and services (not including capital projects) through a formal competitive procedure
· Section 4.0 Prevailing Wage - developed to ensure compliance with all prevailing wage requirements
· Section 5.0 City Contract Policy - developed to ensure the use of proper contract templates · Section 6.0 Federal Emergency and Grant Procurement Procedures - developed to provide a detailed and comprehensive policy to define the practices and procedures governing the procurement of public works projects, services, and goods The proposed changes will improve the efficiency of the City’s purchasing processes by providing clear and detailed guidance to staff.

FISCAL IMPACT:

No Fiscal Impact
MOTION:

Approve staff recommendation
City of Fontana Page 2 of 2 Printed on 12/9/2022
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Ordinance No. 2022-____
ORDINANCE NO. ____

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FONTANA, CALIFORNIA AMENDING ARTICLE V “PURCHASING” OF CHAPTER 10

OF THE FONTANA MUNICIPAL CODE
WHEREAS, the City of Fontana, California (“City”) is a municipal corporation, duly organized under the California Constitution and the laws of the State of California; and
WHEREAS, the City is dedicated to operating efficiently, effectively and streamlining operations where possible; and
WHEREAS, the City’s current purchasing system is outlined in Article V “Purchasing” of Chapter 10 of the Fontana Municipal Code, adopted on March 25, 2008 and Administrative Policy Section 20-50 Purchasing Policies; and WHEREAS, the Article V “Purchasing” of Chapter 10 of the Fontana Municipal Code has remained largely untouched since its initial adoption; and WHEREAS, City staff has conducted a review of Article V “Purchasing” of Chapter 10 of the Fontana Municipal Code and has identified areas of improvement; and
WHEREAS, City staff has also conducted a similar review for potential changes to Administrative Policy Section 20-50 Purchasing Policies; and WHEREAS, Article V “Purchasing” of Chapter 10 of the Fontana Municipal Code requires an update to match the proposed changes to Administrative Policy Section 20- 50 Purchasing Policies.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FONTANA DOES ORDAIN AS FOLLOWS:

Section 1. Incorporation of Recitals. The above recitals are true and correct and are incorporated herein by this reference.

Section 2. Amendment of Article V “Purchasing” of Chapter 10 of the Fontana Municipal Code. Article V “Purchasing” of Chapter 10 of the Fontana Municipal Code is hereby amended in its entirety as set forth in Exhibit “A”, attached hereto and incorporated herein by this reference. The changes to Article V “Purchasing” of Chapter 10 of the Fontana Municipal Code are more particularly shown in Exhibit “B”, attached hereto and incorporated herein by this reference.
747
Ordinance No. 2022-____
Section 3. CEQA. The City Council determines that the Ordinance is categorically exempt from further review per State CEQA Guidelines (14 Cal. Code Regs., § 15000 et seq.). The whole of the Ordinance is exempt, because the code amendment is an administrative activity which will not result in a direct or reasonably foreseeable indirect physical change to the environment. (§ 15060(c)(2).) The whole of the Ordinance is also exempt because the code amendment is not a “project” as defined by section 15378, since it has no potential for resulting in a direct or indirect physical change to the environment. (§ 15060(c)(3).)
Section 4. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance, or any part thereof, is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portion of this Ordinance or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsection, subdivision, paragraph, sentence, clause or phrase be declared unconstitutional. If for any reason any portion of this ordinance is found to be invalid by a court of competent jurisdiction, the balance of this ordinance shall not be affected.

Section 5. Effective Date. This Ordinance shall take effect thirty (30) days after its adoption.

Section 6. Notice of Adoption. City Clerk of the City of Fontana shall certify to the adoption of this Ordinance and cause publication to occur in a newspaper of general circulation and published and circulated in the City in a manner permitted under section 36933 of the Government Code of the State of California.

APPROVED AND ADOPTED this 13th day of December 2022.

READ AND APPROVED AS TO LEGAL FORM:
________________________________
City Attorney
I, Germaine McClellan Key, City Clerk of the City of Fontana, and Ex-Officio Clerk of the City Council, do hereby certify that the foregoing Ordinance is the actual Ordinance adopted by the City Council and was introduced at a regular meeting on the 13th day of December, 2022, by the following vote to wit:

AYES:

NOES:

ABSENT:
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Ordinance No. 2022-____
ABSTAIN:
________________________________
Germaine McClellan Key, City Clerk
________________________________
Acquanetta Warren, Mayor
ATTEST:
________________________________
Germaine McClellan Key, City Clerk
749
Ordinance No. 2022-____
Exhibit “A”
Updated Article V “Purchasing” of Chapter 10 of the Fontana Municipal Code 750
Ordinance No. 2022-____
Exhibit “B”
Redline of Article V “Purchasing” of Chapter 10 of the Fontana Municipal Code 751
EXHIBIT “A”
Chapter 10 ARTICLE V. - PURCHASING
Sec. 10-136. – Definitions.

City. Means the City of Fontana.

City manager. For the purposes of this article, the term "city manager" shall mean the city manager or person designated by the city manager to perform all or some of the duties prescribed in this article.

Emergency. For the purposes of public projects, as defined in this article, the term "emergency" shall have the meaning provided in California Public Contract Code § 22050. For all other purchasing or contracting purposes, "emergency" shall mean a condition or possible safety situation which makes bidding procedures, either formal or informal, impractical or not in the best interests of the city.

Fontana formal bidding procedure. For purposes of this article, the term "Fontana formal bidding procedure" shall mean a procedure that meets the requirements for formal bidding on non-public projects, as specified in section 10-148 and in the purchasing manual.

Maintenance work. For the purpose shall have the definition given in section 22002 of the Public Contract Code or any successor statute thereto, and shall also include janitorial and custodial services.

Non-public project. For purposes of this article, the term "non-public project" shall mean any purchases and contracts for supplies, materials, equipment, and services that are not a public project or part thereof, as defined in this article, and that are not professional services.

Professional services. For the purposes of this article, the term "professional services" shall mean all services performed by persons in a professional occupation, including, but not limited to, consulting and performance services for accounting, auditing, computer hardware and software support, engineering, architectural, planning, environmental, redevelopment, financial, economic, personnel, social services, animal control, legal, management, cable television, communication and other similar professional functions which may be necessary for the operation of the city.

Purchasing manual. For the purposes of this article, the term "purchasing manual" shall mean the purchasing policies and procedures manual adopted by the city for the purpose of implementing this article.

Public project. For the purposes of this article, the definition given in section 22002 of the Public Contract Code or any successor statute thereto. "Public Project" does not include maintenance work.

Using agency. For the purposes of this article, the term "using agency" shall mean all departments, boards, commissions and offices of the city.

Sec. 10-137. – System adopted.
752
EXHIBIT “A”
In order to establish efficient procedures for the purchase of supplies, services and equipment, to secure for the city supplies, services and equipment at the best value commensurate with quality needed, to exercise positive financial control over purchases, to clearly define authority for the purchasing function, and to ensure the quality of purchases, a purchasing system is hereby adopted.

Sec. 10-138. – Centralized purchasing department created.

There is hereby created a centralized purchasing department, responsible to the city manager, for the purchase of supplies, services, and equipment.

Sec. 10-139. – Purchasing officer-Office created; duties generally.

There is hereby created the position of purchasing officer. The purchasing officer, under the direction of the city manager, shall have general supervision of the purchasing department.

The duties of purchasing officer may be combined with those of any other office or position.

Sec. 10-140. - Same—Authority.

The purchasing officer shall have authority to:
(1) Prepare and issue all notices inviting bids and, prior to issuance, determine the requested supplies, service or equipment is contained in the city's adopted budget. (2) Purchase or contract for supplies, services and equipment required by any using agency in accordance with purchasing procedures prescribed by this article. (3) Negotiate and recommend execution of contracts for the purchase of supplies, services and equipment.
(4) Act to procure for the city the needed quality in supplies, services and equipment at the best value to the city.
(5) Discourage uniform bidding and endeavor to obtain as full and open competition as possible on all purchases.
(6) Prepare and maintain for the city manager a purchasing manual. (7) Prepare and recommend to the city manager revisions and amendments to the purchasing manual.
(8) Keep informed of current developments in the field of purchasing, prices, market conditions and new products.
(9) Maintain such forms as reasonably necessary to the operation of this article and other rules and regulations.
(10) Supervise the inspection of all supplies, services and equipment purchased, to ensure conformance with specifications.
(11) Recommend to the city manager the transfer of surplus or unused supplies and equipment between departments as needed, and the sale of all supplies and equipment which cannot be used by any agency or which have become unsuitable for city use.
(12) Maintain a bidders' list, vendors' catalog file and records needed for efficient operation of the purchasing department.
(13) Enter into participating purchase agreements with other public agencies, such as the county and the state, for services, supplies and equipment. 753
EXHIBIT “A”
Sec. 10-141. – Exemptions from centralized purchasing.

The purchasing officer, with approval of the city council, may authorize in writing any agency to purchase or contract for specified supplies, services and equipment independently of the purchasing department, but he or she shall require that such purchases or contracts be made in conformity with the procedures established by this article and the purchasing manual. and shall further require periodic reports from the agency on the purchases and contracts made under such written authorization.

Sec. 10-142. Estimates of requirements to be filled with departments.

All using agencies shall file detailed estimates of their requirements in supplies, services and equipment in such manner, at such time and for such future periods as the purchasing officer shall prescribe.

Sec. 10-143. – Requisitions.

Using agencies shall submit requests for supplies, services and equipment to the purchasing officer by approved electronic means or methods.

Sec. 10-144. – Bidding procedures generally; dispensing with bidding.

Purchases of supplies, services, equipment and the sale of personal property shall be by bid procedures pursuant to this article. Bidding procedures shall be dispensed with only under the circumstances set forth in section 10-152, or as otherwise specified herein.

Sec. 10-145. – Purchase Orders.

Except for purchase of supplies, services, and equipment within the amount identified in the purchasing manual as a "small purchase," all purchase of supplies, services and equipment shall be made only by purchase order.

Sec. 10-146. – Budgeted funds required.

Except in cases of emergencies, the purchasing officer shall not issue any purchase order for supplies, services or equipment unless there exist budgeted funds against which such purchase is to be charged.

Sec. 10-147. - Public project contract procedures.
(a) Formal. Public projects, as defined in this article, shall be let to the lowest responsible, responsive bidder in accordance with the Public Contract Code section, 22032 et. seq., such additional procedures that may be established in the city's purchasing manual and the following requirements:
(1) Notice inviting bids. The notice inviting bids shall state the time and place for the receiving and opening of sealed bids and shall distinctly describe the project. At a minimum, the notice inviting formal bids shall: (1) describe the project; (2) state how to obtain more detailed information about the project; (3) state the date, time 754
EXHIBIT “A”
and place for the submission of sealed bids; and (4) include any other information required by this article, or as may be determined by the purchasing officer and city.

Published notice. Notice inviting formal bids shall state the time and place for the receiving and opening of sealed bids and distinctly describe the project. The notice shall be published at least 14 calendar days before the date of opening the bids in a newspaper of general circulation, printed and published in the jurisdiction of the public agency. The notice inviting formal bids shall also be sent electronically, if available, by either facsimile or electronic mail and mailed to all construction trade journals specified in Public Contract Code Section 22036. The notice shall be sent at least 15 calendar days before the date of opening the bids.

In addition to notice required by this section, the public agency may give such other notice as it deems proper.
(2) City authority. The city may reject any or all bids received, and may re-advertise at its discretion. The city may also waive any minor irregularities in each bid received.
(3) Bidder's security. Bidder's security in the amount of at least ten percent of the bid amount shall be required.
(4) Award of contracts. Contracts shall be awarded by the city council to the lowest responsible, responsive bidder, except as otherwise provided in this article. (5) Tie bids. If two or more bids received are for the same total amount or unit price, the city may accept the one it chooses or accept the lowest bid made by negotiation with the bidders at the time of the bid opening. (6) Emergency procedures. Contracts for public work projects may be let without following the procedures established in this article if such purchases are deemed by the city council to be of urgent necessity for the preservation of life, health, or property. Such determination shall be authorized by resolution of the city council passed by at least four affirmative votes. The resolution shall contain a declaration of facts that constitute the urgency.
(b) Informal. Informal bidding procedures is hereby being added to the Code as follows:
(1) Informal bid procedures. Public projects, as defined by the Act and in accordance with the limits listed in section 22032 of the Public Contract Code, may be let to contract by informal procedures as set forth in section 22032, et seq., of the Public Contract Code.
(2) Contractors list. A list of contractors shall be developed and maintained in accordance with the provisions of section 22034 of the Public Contract Code and criteria promulgated from time to time by the California Uniform Construction Cost Accounting Commission.
755
EXHIBIT “A”
(3) Notice inviting informal bids. Where a public project is to be performed which is subject the provisions of this section, a notice inviting informal bids shall be mailed, emailed or faxed to all contractors for the category of work to be bid, or to all construction journals as specified by the California Uniform Construction Cost Accounting Commission in accordance with section 22036 of the Public Contract Code or to both. Additional contractors and/or construction trade journals may be notified at the discretion of the department/agency soliciting bids, provided however:

If there is no list of qualified contractors maintained by the city for the particular category of work to be performed, the notice inviting bids shall be sent only to the construction trade journals specified by the commission.

If the product or service is proprietary in nature such that it can be obtained only from a certain contractor or contractors, the notice inviting informal bids may be sent exclusively to such contractor or contractors.
(4) Award of contracts. The city purchasing agent/officer is each authorized to award informal contracts pursuant to this section. The awarding of public projects pursuant to this section may also be authorized by the appropriate official or body pursuant to delegation of authority by the city council.

Sec. 10-148. - Non-public project formal contract procedure.

The city shall use the following Fontana formal bidding procedure for non-public projects in an amount equal to or greater than that amount specified in the purchasing manual as requiring use of the formal contract procedure.
(1) Awarding of bid. Contracts shall be awarded in the best interest of the city either: (i) to the lowest responsible, responsive bidder pursuant to the procedures established in this section and the purchasing manual, or (ii) to the bidder that provides the best value to the city based on the criteria and requirements established in the bid documents and the purchasing manual. The bid documents shall specify the basis upon which the contract shall be awarded.
(2) Notice inviting bids. Notice inviting bids shall include a general description of the articles to be purchased, shall state where bids and specifications may be secured, shall state the basis for award of the contract, and shall state the deadline and place for bid submission.
a. Published notice. Notice inviting bids shall be published on the city’s web page at least ten calendar days prior to the scheduled deadline for submission of bids. b. Bidder's list. The purchasing officer shall maintain a list of qualified contractors, suppliers and vendors, identified according to categories of work or supplies. The purchasing officer shall also solicit sealed bids from at least three responsible prospective suppliers and bidders whose names are on the bidders' list or who have requested their names to be added thereto.
756
EXHIBIT “A”
c. Bulletin board. The purchasing officer shall also advertise pending purchases by a notice posted on a public bulletin board in the city hall. (3) Bidder's security. When deemed necessary by the purchasing officer, bidder's security may be prescribed in the public notice inviting bids. If bid security is prescribed, the same type and rate of security shall be required of each bidder, and no contract may be awarded to any bidder failing to post the required bid security except upon approval of the city council. Each bidder shall be entitled to the return of his bid security within 30 days after the opening of bids for which security was posted or upon execution of a contract with the city by the successful bidder, whichever occurs first; provided that a successful bidder shall forfeit his bid security upon refusal or failure to execute the contract within ten days after the notice of award of contract has been mailed, unless the city is responsible for the delay. The city council may, upon the refusal or failure of the successful bidder to execute the contract, award it to the next bidder selected by the city on the basis of the criteria set forth in the bid documents. Alternatively, the city council may decide to reject all bids and rebid the contract. If the city council awards the contract to another bidder, the amount of the originally selected bidder's security shall be applied by the city to the difference between the originally selected bid and the next best bid, and the surplus, if any, shall be returned to the originally selected bidder. (4) Bid submission procedure. Sealed bids shall be submitted electronically through the city’s bid system, to the purchasing officer, or the city clerk, as specified in the bid documents.
(5) City authority. The city may reject any or all bids received, and may readvertise at its discretion. The city may any minor irregularities in each bid received. (6) Performance bonds. The city council shall have the authority to require a performance bond before entering into a contract in such amount as it shall find reasonably necessary to protect the best interests of the city. If the city council requires a performance bond, the form and amount of the bond shall be described in the notice inviting bids.

Sec. 10-149. – Professional services purchasing procedure.

Professional service contracts shall be awarded in the best interests of the city on the basis of demonstrated competence and qualifications necessary for the satisfactory performance of the professional services required to be performance at fair and reasonable price, pursuant to the following requirements:
(a) Awarding of bid. Professional service contracts shall be awarded in accordance with the procedures established in the purchasing manual. Selection of the winning bid shall be based on criteria and requirements specified in any bid documents and in the purchasing manual.

Sec. 10-150. – Formal contract procedure for sale of personal property.

Sale of personal property valued in an amount equal to or greater than that amount specified in the purchasing manual as requiring use of the formal contract procedure shall be 757
EXHIBIT “A”
made pursuant to the Fontana formal bidding procedure set forth in section 10-148 and the purchasing manual, provided that contracts for sale of personal property in such amount shall be awarded to the highest responsible, responsive bidder.

Sec. 10-151. - Informal contract procedure.

Non-public project purchases of supplies, materials, equipment and services and sales of property in an amount less than that amount set forth in the purchasing manual as requiring use of the formal contract procedure may be awarded by the purchasing officer in the open market without observing the Fontana formal bidding procedure prescribed in this article. Such purchase orders shall comply with all provisions of the purchasing manual and the following:
(1) Minimum number of bids. Open market purchases shall, whenever possible, be based on at least three bids, and shall be awarded in the best interests of the city. (2) Notice inviting bids. The purchasing officer shall solicit bids by written requests to prospective vendors, by telephone, email, or by posting on the city’s bid system. (3) Written bids. Sealed written bids shall be submitted to the purchasing officer, who shall keep a record of all open market orders and bids for a period of one year after the submission of bids or the placing of orders. This record, while so kept, shall be open to public inspection.
(4) In selecting the winning bid for commodities, the purchasing officer, or his or her designee, may apply a one percent discount, or an amount as may be established from time to time by resolution of the city council, to the total bid amount submitted by a local bidder.
(5) For purposes of this section, "local bidder" shall mean a local business enterprise whose business address at the point of sale is located within the geographical boundaries of the city and who maintains a valid license or permit to do business in the city.
(6) Limited purchase order. A limited purchase order procedure shall be established, implemented and used by the purchasing officer for the purchase of goods and/or services within the amount identified in the purchasing manual as a small purchase.

The limited purchase order procedures shall be established in the purchasing manual.

Sec. 10-152. – Exceptions from bid procedures.

Non-public project purchases or services and sale of personal property may be made without complying with any of the bidding procedures specified in this article in any of the situations described below. Under such conditions, any alternative procedure including no bidding; may be used.
(1) Emergencies. In situations determined by the authorized contracting party to constitute an emergency, as defined in section 10-136.
758
EXHIBIT “A”
(2) Micro-Purchases. When the amount of the purchase or sale involved is equal to or less than that amount identified in the purchasing manual as a "micro-purchase." (3) No competitive market/single source/sole source. When the purchasing officer determines that a competitive market does not exist, such as, but not limited to, when the needed supplies, services and equipment are proprietary and can only be provided by one vendor.
(4) Competitive bidding already completed. When the purchasing officer determines that a competitive bid procedure has been conducted by another public agency (e.g. through CMAS or GSA) and the price to the city is equal to or better than the price to that public agency;
(5) State purchase. When the purchase is made on behalf of the city by the state department of general services.
(6) No bids received. When no bids are received pursuant to any of the bidding procedures required or permitted by this article.
(7) Bidding impractical. When the city council determines by that bidding would be impractical, inefficient, or otherwise not in the best interest of the city, provided that the city council shall state the basis for its determination in the resolution. (8) Budgeted non-commodity items. Budgeted non-commodity items such as debt service payments, deposits, dues, insurance premiums, legal advertising, memberships, publications, self-insurance claim payments, seminar registration, subscriptions and travel expenses.
(9) Real property. Real property purchases and leases, utility services and related charges, work or services performed by another public agency.
(10) Unique Services. When the services are from Attorneys, Entertainers, Music Artists, Class Instructors, Counseling, and Motivational Speakers. (11) Otherwise authorized by this article. When otherwise authorized by this article.

Sec. 10-153. – Contract awards.

Contracts shall be awarded and executed by the body or official specified in the purchasing manual, or pursuant to any other delegation of authority adopted by the city council.

Sec. 10-154. - Inspection and testing.

The purchasing officer shall inspect supplies and equipment delivered, and contractual services performed, to determine their conformance with the specifications set forth in the order or contract. The purchasing officer shall have authority to require chemical and physical tests of samples submitted with bids and samples of deliveries which are necessary to determine their quality and conformance with specifications. 759
EXHIBIT “A”
Sec. 10-155. – Surplus supplies, vehicles and equipment. a) All using agencies shall submit to the purchasing officer, at such time and in such form as he or she shall prescribe, reports showing all supplies, vehicles and equipment which are no longer used, or which have become obsolete or worn out. b) The purchasing officer shall have authority to dispose of all surplus supplies, vehicles and equipment which cannot be used by any city agency or which have become unsuitable for city use by one or more of the following methods:
1) Any applicable provision of this article and the purchasing manual. 2) Trade-in, only when the purchasing officer determines that the trade-in value is expected to exceed the value estimated to be obtained through the sale or other disposition of such supplies, vehicles or equipment.
3) Public auction.
4) Scrap.
5) Other procedures permitted by law, as directed by the city council. c) City employees and their spouses are prohibited from bidding on city-owned surplus supplies, vehicles and equipment.

Sec. 10-156. – Conflicting provisions.

In the case of any conflict between the terms of this article and the purchasing manual, the terms of this article shall govern.
760
EXHIBIT “B”
Chapter 10 ARTICLE V. - PURCHASING
Sec. 10-136. – Definitions.

City. Means the City of Fontana.

Maintenance work. For the purposes of this article, the term "maintenance work" shall include, but shall not be limited to, all of the following:
(1) Routine, recurring, and usual work for the preservation or protection of any publicly owned or publicly operated facility for its intended purposes (2) Minor repainting.
(3) Street and highway maintenance, including utility patching, skin patching, crack filling, filling of pot holes, slurry sealing, edge grading, street striping, resurfacing of streets and highways at less than one inch, sign replacement, sidewalk repair and replacement, curb and gutter repair and replacement, and street and traffic light repair and replacement. Maintenance work shall not include striping of a new street or highway. (4) Sewer maintenance, including foaming, video taping, cleaning and manhole restoration. (5) Traffic signal maintenance. Maintenance work shall not include installation of new traffic signals.
(6) Storm drain related maintenance.
(7) Landscape maintenance, including mowing, watering, trimming, tree pruning, planting, tree and plant replacement, irrigation and sprinkler system servicing, retrofit and repair, and landscape rehabilitation.
(8) Maintenance of facilities, including roof repairs or replacements, heating and air conditioning repairs, and electric repairs.
(9) Vehicle and equipment maintenance and repairs.
761
EXHIBIT “B”
(10) Work performed to keep, operate, and maintain publicly owned water, power, or waste disposal systems, including, but not limited to, dams, reservoirs and powerplants.

Public project. For the purposes of this article, the term "public project" shall mean the erection, construction, reconstruction, alteration, improvement, or repair of any public structure, building, road, street or other public improvement or work, excluding maintenance work, for a cost equal to or greater than that specified in the Public Contract Code § 20162. Public project shall also include furnishing supplies or materials for any such project, including for maintenance and repair of streets or sewers.

Using agency. For the purposes of this article, the term "using agency" shall mean all departments, boards, commissions and offices of the city.

Sec. 10-137. – System adopted.

In order to establish efficient procedures for the purchase of supplies, services and equipment, to secure for the city supplies, services and equipment at the best value commensurate with quality needed, to exercise positive financial control over purchases, to clearly define authority for the purchasing function, and to ensure the quality of purchases, a purchasing system is hereby adopted.

Sec. 10-138. – Centralized purchasing department created.

There is hereby created a centralized purchasing department, responsible to the city manager, for the purchase of supplies, services, and equipment. 762
EXHIBIT “B”
Sec. 10-139. – Purchasing officer-Office created; duties generally.

There is hereby created the position of purchasing officer. The purchasing officer, under the direction of the city manager, shall have general supervision of the purchasing department.

The duties of purchasing officer may be combined with those of any other office or position.

Sec. 10-140. - Same—Authority.

Sec. 10-141. – Exemptions from centralized purchasing.

Sec. 10-142. Estimates of requirements to be filled with departments. 763
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All using agencies shall file detailed estimates of their requirements in supplies, services and equipment in such manner, at such time and for such future periods as the purchasing officer shall prescribe.

Sec. 10-143. – Requisitions.

Using agencies shall submit requests for supplies, services and equipment to the purchasing officer by approved electronic means or methods.

Sec. 10-144. – Bidding procedures generally; dispensing with bidding.

Sec. 10-145. – Purchase Orders.

Sec. 10-146. – Budgeted funds required.

Sec. 10-147. - Public project contract procedures.
(a) Formal (> $125,000.00). Public projects, as defined in this article, shall be let to the lowest responsible, responsive bidder in accordance with the Public Contract Code section 20160,22032 et. seq., such additional procedures that may be established in the city's purchasing manual and the following requirements:
(1) Notice inviting bids. The notice inviting bids shall state the time and place for the receiving and opening of sealed bids and shall distinctly describe the project. At a minimum, the notice inviting formal bids shall: (1) describe the project; (2) state how to obtain more detailed information about the project; (3) state the date, time and place for the submission of sealed bids; and (4) include any other information required by this article, or as may be determined by the purchasing officer and city.

Published notice. Notice inviting bids for public work projects shall be published in a newspaper of general circulation at least two times, the first of which shall be at least ten calendar days prior to the scheduled opening of bids.

Notice inviting formal bids shall state the time and place for the receiving and opening of sealed bids and distinctly describe the project. The notice shall be 764
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published at least 14 calendar days before the date of opening the bids in a newspaper of general circulation, printed and published in the jurisdiction of the public agency. The notice inviting formal bids shall also be sent electronically, if available, by either facsimile or electronic mail and mailed to all construction trade journals specified in Public Contract Code Section 22036. The notice shall be sent at least 15 calendar days before the date of opening the bids. In addition to notice required by this section, the public agency may give such other notice as it deems proper.
(2) City authority. The city may reject any or all bids received, and may re-advertise at its discretion. The city may also waive any minor irregularities in each bid received.
(3) Bidder's security. Bidder's security in the amount of at least ten percent of the bid amount shall be required.
(4) Award of contracts. Contracts shall be awarded by the city council to the lowest responsible, responsive bidder, except as otherwise provided in this article. (5) Tie bids. If two or more bids received are for the same total amount or unit price, the city may accept the one it chooses or accept the lowest bid made by negotiation with the bidders at the time of the bid opening. (6) Emergency procedures. Contracts for public work projects may be let without following the procedures established in this article if such purchases are deemed by the city council to be of urgent necessity for the preservation of life, health, or property. Such determination shall be authorized by resolution of the city council passed by at least four affirmative votes. The resolution shall contain a declaration of facts that constitute the urgency.
(b) Informal (< $125,000.00). Informal bidding procedures is hereby being added to the Code as follows:
(1) Informal bid procedures. Public projects, as defined by the Act and in accordance with the limits listed in section 22032 of the Public Contract Code, may be let to contract by informal procedures as set forth in section 22032, et seq., of the Public Contract Code.
(2) Contractors list. A list of contractors shall be developed and maintained in accordance with the provisions of section 22034 of the Public Contract Code and criteria promulgated from time to time by the California Uniform Construction Cost Accounting Commission.
(3) Notice inviting informal bids. Where a public project is to be performed which is subject the provisions of this section, a notice inviting informal bids shall be mailed, emailed or faxed to all contractors for the category of work to be bid, as shown on the list developed in accordance with section 10-151, or to all construction journals as specified by the California Uniform Construction Cost Accounting Commission in accordance with section 22036 of the Public Contract Code or to both. Additional 765
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contractors and/or construction trade journals may be notified at the discretion of the department/agency soliciting bids, provided however:

Sec. 10-148. - Non-public project formal contract procedure.

The city shall use the following Fontana formal bidding procedure for non-public projects in an amount equal to or greater than that amount specified in the purchasing manual as requiring use of the formal contract procedure.
(1) Awarding of bid. Contracts shall be awarded in the best interest of the city either: (i) to the lowest responsible, responsive bidder pursuant to the procedures established in this section and the purchasing manual, or (ii) to the bidder that provides the best value to the city based on the criteria and requirements established in the bid documents and the purchasing manual. The bid documents shall specify the basis upon which the contract shall be awarded.
(2) Notice inviting bids. Notice inviting bids shall include a general description of the articles to be purchased, shall state where bids blanks and specifications may be secured, shall state the basis for award of the contract, and shall state the deadline and place for bid submission.
a. Published notice. Notice inviting bids shall be published on the city’s web page at least once in a newspaper of general circulation published in the city at least ten calendar days prior to the scheduled deadline for submission of bids. b. Bidder's list. The purchasing officer shall maintain a list of qualified contractors, suppliers and vendors, identified according to categories of work or supplies. The purchasing officer shall also solicit sealed bids from at least three responsible prospective suppliers and bidders whose names are on the bidders' list or who have requested their names to be added thereto.
c. Bulletin board. The purchasing officer shall also advertise pending purchases by a notice posted on a public bulletin board in the city hall. (3) Bidder's security. When deemed necessary by the purchasing officer, bidder's security may be prescribed in the public notice inviting bids. If bid security is prescribed, the 766
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same type and rate of security shall be required of each bidder, and no contract may be awarded to any bidder failing to post the required bid security except upon approval of the city council. Each bidder shall be entitled to the return of his bid security within 30 days after the opening of bids for which security was posted or upon execution of a contract with the city by the successful bidder, whichever occurs first; provided that a successful bidder shall forfeit his bid security upon refusal or failure to execute the contract within ten days after the notice of award of contract has been mailed, unless the city is responsible for the delay. The city council may, upon the refusal or failure of the successful bidder to execute the contract, award it to the next bidder selected by the city on the basis of the criteria set forth in the bid documents. Alternatively, the city council may decide to reject all bids and rebid the contract. If the city council awards the contract to another bidder, the amount of the originally selected bidder's security shall be applied by the city to the difference between the originally selected bid and the next best bid, and the surplus, if any, shall be returned to the originally selected bidder. (4) Bid submission procedure. Sealed bids shall be submitted electronically through the city’s bid system, to the purchasing officer, or the city clerk, as specified in the bid documents., and shall specifically identify the bidder and the project on the envelope. (5) City authority. The city may reject any or all bids received, and may readvertise at its discretion. The city may any minor irregularities in each bid received. (6) Performance bonds. The city council shall have the authority to require a performance bond before entering into a contract in such amount as it shall find reasonably necessary to protect the best interests of the city. If the city council requires a performance bond, the form and amount of the bond shall be described in the notice inviting bids.

Sec. 10-149. – Professional services purchasing procedure.

Sec. 10-150. – Formal contract procedure for sale of personal property.

Sale of personal property valued in an amount equal to or greater than that amount specified in the purchasing manual as requiring use of the formal contract procedure shall be made pursuant to the Fontana formal bidding procedure set forth in section 10-148 and the purchasing manual, provided that contracts for sale of personal property in such amount shall be awarded to the highest responsible, responsive bidder.

Sec. 10-151. - Informal contract procedure.
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EXHIBIT “B”
Non-public project purchases of supplies, materials, equipment and services and sales of property in an amount less than that amount set forth in the purchasing manual as requiring use of the formal contract procedure may be awarded by the purchasing officer in the open market without observing the Fontana formal bidding procedure prescribed in this article. Such purchase orders shall comply with all provisions of the purchasing manual and the following:
(1) Minimum number of bids. Open market purchases shall, whenever possible, be based on at least three bids, and shall be awarded in the best interests of the city. (2) Notice inviting bids. The purchasing officer shall solicit bids by written requests to prospective vendors, by telephone, email, or by posting on the city’s bid system. public notice posted on a public bulletin board in the city hall. (3) Written bids. Sealed written bids shall be submitted to the purchasing officer, who shall keep a record of all open market orders and bids for a period of one year after the submission of bids or the placing of orders. This record, while so kept, shall be open to public inspection.
(4) In selecting the winning bid for commodities, the purchasing officer, or his or her designee, may apply a one percent discount, or an amount as may be established from time to time by resolution of the city council, to the total bid amount submitted by a local bidder.
(5) For purposes of this section, "local bidder" shall mean a local business enterprise whose business address at the point of sale is located within the geographical boundaries of the city and who maintains a valid license or permit to do business in the city.
(6) Limited purchase order. A limited purchase order procedure shall be established, implemented and used by the purchasing officer for the purchase of goods and/or services within the amount identified in the purchasing manual as a small purchase.

The limited purchase order procedures shall be established in the purchasing manual.

Sec. 10-152. – Exceptions from bid procedures.

Non-public project purchases or services and sale of personal property may be made without complying with any of the bidding procedures specified in this article in any of the situations described below. Under such conditions, any alternative procedure including no bidding; may be used.
(1) Emergencies. In situations determined by the authorized contracting party to constitute an emergency, as defined in section 10-136.
(2) Micro-Purchases Small value procurement. When the amount of the purchase or sale involved is equal to or less than that amount identified in the purchasing manual as a "micro-purchase small value procurement."
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(3) No competitive market/single source/sole source. When the purchasing officer determines that a competitive market does not exist, such as, but not limited to, when the needed supplies, services and equipment are proprietary and can only be provided by one vendor.
(4) Competitive bidding already completed. When the purchasing officer determines that a competitive bid procedure has been conducted by another public agency (e.g. through CMAS or GSA) and the price to the city is equal to or better than the price to that public agency;
(5) State purchase. When the purchase is made on behalf of the city by the state department of general services.
(6) No bids received. When no bids are received pursuant to any of the bidding procedures required or permitted by this article.
(7) Bidding impractical. When the city council determines by that bidding would be impractical, inefficient, or otherwise not in the best interest of the city, provided that the city council shall state the basis for its determination in the resolution. (8) Budgeted non-commodity items. Budgeted non-commodity items such as debt service payments, deposits, dues, insurance premiums, legal advertising, memberships, publications, self-insurance claim payments, seminar registration, subscriptions and travel expenses.
(9) Real property. Real property purchases and leases, utility services and related charges, work or services performed by another public agency.
(10) Unique Services. When the services are from Attorneys, Entertainers, Music Artists, Class Instructors, Counseling, and Motivational Speakers. (11) Otherwise authorized by this article. When otherwise authorized by this article.

Sec. 10-153. – Contract awards.

Contracts shall be awarded and executed by the body or official specified in the purchasing manual, or pursuant to any other delegation of authority adopted by the city council.

Sec. 10-154. - Inspection and testing.

Sec. 10-155. – Surplus supplies, vehicles and equipment. 769
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a) All using agencies shall submit to the purchasing officer, at such time and in such form as he or she shall prescribe, reports showing all supplies, vehicles and equipment which are no longer used, or which have become obsolete or worn out. b) The purchasing officer shall have authority to dispose of all surplus supplies, vehicles and equipment which cannot be used by any city agency or which have become unsuitable for city use by one or more of the following methods:
1) Any applicable provision of this article and the purchasing manual. 2) Trade-in, only when the purchasing officer determines that the trade-in value is expected to exceed the value estimated to be obtained through the sale or other disposition of such supplies, vehicles or equipment.
3) Public auction, upon prior approval by the city council. 4) Scrap.
5) Other procedures permitted by law, as directed by the city council. c) Following the disposition of such supplies, vehicles and equipment, the purchasing officer shall submit a written report to the city council describing the method of disposition, the results and consideration received by the city, and the basis for the purchasing officer's determination that such method used shall be in the judgment of the purchasing officer that which would provide maximum return to the city. d) City employees and their spouses are prohibited from bidding on city-owned surplus supplies, vehicles and equipment.

Sec. 10-156. – Conflicting provisions.

In the case of any conflict between the terms of this article and the purchasing manual, the terms of this article shall govern.
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Resolution 2022-
RESOLUTION NO. 2202-____

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FONTANA AMENDING ADMINISTRATIVE POLICY SECTION 20-50 PURCHASING POLICIES IN ITS ENTIRETY.

WHEREAS, the City Council of the City of Fontana has adopted Administrative Policies which detail the Rules and Regulations under which the City operates; and WHEREAS, Administrative Policy Section 20-50 Purchasing Policies sets thresholds for direct purchasing in line with an approved budget, rules and guidelines for bidding procedures, and a process for selecting firms to provide services or purchased goods; and
WHEREAS, on June 14, 2022, the City Council of the City of Fontana adopted Resolution No. 2022-035, which updated the spending authority limits for the City Manager, Deputy City Manager, and Department Heads; and WHEREAS, the Administrative Policies are periodically updated to reflect organizational needs; and
WHEREAS, Administrative Policy Section 20-50 Purchasing Policies requires a comprehensive update to better match the City’s purchasing needs and procedures.

NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Fontana does hereby amend Administrative Policy Section 20-50 Purchasing Policies in its entirety.

APPROVED AND ADOPTED this 13th day of December 2022.

READ AND APPROVED AS TO LEGAL FORM:
________________________________
City Attorney
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Resolution 2022-
I, Germaine McClellan 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 Council at a regular meeting on the 13th day of December, 2022, by the following vote to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:
________________________________
Germaine McClellan Key, City Clerk
________________________________
Acquanetta Warren, Mayor
ATTEST:
________________________________
Germaine McClellan Key, City Clerk
772
Resolution 2022-
Resolution No. 2022-______
Attachment A
Updated Administrative Policy Section 20-50 Purchasing Policies 773
Purchasing Policies and
Procedures Manual
REVISED: December 13, 2022
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1.0 General Purchasing Policy

PURPOSE
The purpose of this policy is to provide the City of Fontana a means of assuring continuity and uniformity in its purchasing operation, and to define the authority for the purchasing function, and responsibilities for purchasing supplies, services, and equipment for the City.

This policy ensures that the City of Fontana’s (the City) purchasing procedures and processes are in compliance with Fontana Municipal Code (FMC) – Chapter 10 - Article V. Purchasing, federal, state, and local laws, and it ensures appropriate stewardship of the City’s assets, integrity when acquiring goods and services, and accountability to its citizens.

POLICY
Purchases and contracts for goods and services made on behalf of the City shall be made in compliance with procurement laws and regulations, and with the highest ethical standards, including appropriate stewardship of the City’s resources when acquiring goods and services.

1.1 Approval of Purchases and Contracts for Goods, Services, and Public Works Projects All purchases and contracts for goods and services are under the control and direction of the City Manager. The City Council, City Manager, Deputy City Manager, and Department Heads are authorized to bind the City to contractual agreements for Goods, Services, and Public Works Projects.

1.1.1Delegation of Approval Authority
Pursuant to Resolution No. 2022-035, the Approval Authority applicable for the purchase of Goods, Services, and Public Works Projects shall be delegated as follows:

Award by City Manager. The City Manager may make purchases or contracts for Goods, Services, and Public Works Projects in an amount up to One Hundred Thousand ($100,000) Dollars. Contracts that exceed $100,000 are subject to review and approval by the City Council.

Award by Deputy City Manager. The Deputy City Manager may make purchases or contracts for Goods, Services, and Public Works Projects in an amount up to Fifty Thousand ($50,000) Dollars.

Award by Department Heads. Department Heads may make purchases or m a y m a k e p u r c h a s e s o r c o n t r a c t s f o r G o o d s , S e r v i c e s . P u b l i c W o r k s P r o j e c t s i n a m o u n t up to Twenty-Five Thousand ($25,000) Dollars.
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The following chart outlines the respective Approval Authority limits as described in this Section 1.1.1:

Authorized Official Limit
Department Head <$25,000.00
Deputy City Manager <$50,000.00
City Manager <$100,000.00
City Council >$100,000.00

1.1.2 Delegation of Authority for Purchase Orders
The Purchasing Manager has b e e n delegated authority to issue purchase orders for all purchases on forms approved by the Chief Financial Officer of the Department of Finance. Prior to the issuing a purchase order, the Purchasing Manager shall ensure that the requesting department has sufficient funds to purchase the goods and services and that the request has been approved in accordance with the purchasing approval authority above.

1.2 Procurement Law
Contracts for goods and services must comply with federal, state, and local laws. The primary governing authorities are determined by the source of funds being used, jurisdiction, and the governing body incorporated into the contract.

1.2.1Municipal Contract Law
Cities have governing authority to enter contracts for goods and services to carry out its necessary functions, including those expressly granted and those implied by necessity. Cities also have specific statutory authority to contract for special services, including financial, economic, accounting, engineering, legal, and administrative functions.

Public Works Contracts are governed by the State of California. The law relating to Public Works Contract for the City is found primarily in the California Public Contract Code (PCC) and secondarily in the California Government Code (GC), Labor Code (LAB), and Civil Code (CIV).

The City’s contract templates, and standard terms and conditions incorporate all applicable statutory requirements from the State of California and the City’s Municipal Code. All terms and conditions are incorporated and binding for all contracts and purchase orders using City’s resources.

1.2.2Government Grant Law
The primary governing authority for grants is the terms and conditions of the individual grant and the agencyspecific provisions imposed by the awarding agency. Federal grants are governed by the Office of Management and Budget (OMB) Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (2 CFR Part 200), also known as the Uniform Guidance. Contracts for goods and services using federal grants include various terms and conditions, including individual grant terms and conditions, program 776
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provisions, agency-specific provisions, and the City’s terms and conditions. All levels of terms and conditions are incorporated and binding. However, when there is a conflict, the order of precedence determines which terms and conditions prevail. For more details regarding federal grants, see Section 6.0 - Federal Emergency and Grant Procurement Procedures.

The City’s contract templates, and Government Grant provisions incorporate all applicable statutory requirements from the federal government and the City’s Municipal Code. All terms and conditions are incorporated and binding for all contracts and purchase orders under federal grants.

1.3 Ethics
City Employees shall always uphold the highest level of ethical conduct inperforming purchasing activities on behalf of the City. At a minimum, CityEmployees shall complywith the standards set forth in Fontana Administrative Policy 15-01 – Conflict of Ethics, the Political Reform Act, GC sections 8100 et seq., the Fair Political Practices Commission (FPPC) regulations, GC section 1090, and the Anti-Kickback Enforcement Act of 1986.

1.3.1Personal Conflict of Interest
City Employees are prohibited from soliciting or accepting any gift, money, favor, entertainment, hospitality, loan or any other item of value for the performance of an act which the City Employee is expected or required to render in the course and scope of City employment, regardless of whether the item of value is for the City Employee or for someone else.

A non-exclusive list of examples of gratuities which, if received, would violate this policy is as follows:
 Beverages and/or meals;
 “Tips” whether in the form of cash or merchandise;
 Discounts on personal purchases for goods and/or services; and  Gifts.

In general, if a City Employee would not have been offered a Gratuity but for the fact of being employed and serving in the capacity as a City Employee, then acceptance of any item of value is prohibited. Even if acceptance of a Gratuity is allowed under this policy, the City Employee shall comply with all reporting requirements under state and local law.

NOTE: Unsolicited gifts which cannot be reasonably returned (such as perishable foods, candy, or flowers) must be shared at large with all City Employees and the public or provided to a nonprofit charitable organization for use.

1.3.2Disciplinary Action
Failure to obey the foregoing policies will result in appropriate disciplinary action and may result in discharge from City employment.
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ROLES AND RESPONSIBILITIES
City Manager
All purchases and contracts for goods and services are under the control and direction of the City Manager.

Chief Financial Officer
The Chief Financial Officer is responsible for recommending policy changes and updates to establish and maintain compliance with government laws and to oversee the competitive procurement process while ensuring appropriate stewardship of the City’s assets.

Department Heads
Department Heads are responsible for holding their City Employees accountable for the purchasing activities they make on behalf of the City and to ensure that they comply with all purchasing policies and procedures.

Purchasing Manager
The Purchasing Manager has the authority and responsibility to carry out his or her job responsibilities, including the enforcement of purchasing policies and any guidelines promulgated by the City Manager as determined by the Chief Financial Officer of the Finance Department and approved by the City Manager.

City Employees
City Employees are responsible for understanding their liabilities and obligations when they communicate with vendors and contractors. City Employees are prohibited from making promises to vendors and contractors and signing contracts for goods and services on behalf of the City unless they have expressed authority to do so in accordance with the City’s Municipal Code. In the event a City Employee negotiates terms and conditions of a contract for goods and services, the City Employee must consult with the Purchasing Manager prior to making any commitments to a vendor or contractor.

DEFINITIONS
Approval Authority – means the City Council, City Manager, Deputy City Manager, or Department Head with the authority to approve a particular contract or purchase.

City Employee – a person employed by the City that earns a wage or salary, including elected officials, non-elected officials, executive staff, and non-executive staff.

Department Head – a director of a department within the City.

Ethics – moral principles governing or influencing conduct, including fairness, integrity, and transparency in the City’s purchasing activities.

General Services - mean furnishing of labor, time, or effort by a contractor for non-professional services as the City may, from time to time, find necessary and proper for the functioning of the City. Examples include, but are not limited to, janitorial, uniform cleaning, maintenance and other services which do not require any unique skill, special background or training.

Goods – mean any and all supplies, materials, articles, equipment, apparatus, vehicles, things, or property, other than real property, furnished to be used by the City.

Gratuity – anything of more than nominal value given in exchange for more than the market value of that which is provided.
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Maintenance Services– mean the furnishing of labor, time, or effort by a vendor, including but not limited to: as defined in PCC Section 22002, Maintenance is: (1) Routine, recurring, and usual work for the preservation or protection of any publicly owned or publicly operated facility for its intended purposes; (2) Minor repainting; (3) Resurfacing of streets and highways at less than one inch; (4) Landscape Maintenance, including mowing, watering, trimming, pruning, planting, replacement of plants, and servicing of irrigation and sprinkler systems; (5) Work performed to keep, operate, and maintain publicly owned water, power, or waste disposal systems, including, but not limited to, dams, reservoirs, powerplants, and electrical transmission lines of 230,000 volts and higher.

Professional Services – as defined means the services of attorneys, architects, auditors, consultants, engineers, specialized printers or other individuals or firms possessing a high degree of professional, unique, specialized, or technical skill or expertise.

Public Project or Public Works Project – as defined in PCC Section 22002, a Public Project/Public Works Project is: (1) Construction, reconstruction, erection, alteration, renovation, improvement, demolition, and repair work involving any publicly owned, leased, or operated facility; (2) Painting or repainting of any publicly owned, leased, or operated facility; (3) In the case of a publicly owned utility system, “Public Project/Public Works Project” shall include only the construction, erection, improvement, or repair of dams, reservoirs, powerplants, and electrical transmission lines of 230,000 volts and higher.

Public Works Contract – an agreement for the erection, construction, alteration, repair, or improvement of any public structure, building, road, or other public improvement of any kind.

Services – means general services, maintenance services, or professional services.

Uniform Guidance – The Office of Management and Budget (OMB) Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (2 CFR Part 200) is Federal legislation that governs the Federal grant process from pre-award to post-award administration. 779
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2.0 Purchasing Goods and Services Policy

PURPOSE
This policy is to ensure that City Employees are purchasing Goods and Services in compliance with the City of Fontana’s (the City) policies and procedures, federal, state, and local laws, while obtaining favorable pricing and terms that are most advantageous to the City.

POLICY
This policy ensures that contracts and purchases for Goods and Services are in accordance with all requirements outlined in the Fontana Municipal Code (FMC) – Chapter 10 - Article V. Purchasing, California Public Contract Code (PCC), the California Uniform Public Construction Cost Accounting Act (CUPCAA), and Office of Management and Budget (OMB) Uniform Administrative Requirements, Cost Principles Competitive Requirements (Uniform Guidance).

2.1 Purchasing Mechanisms
The following purchasing mechanisms must be used when purchasing Goods and Services on behalf of the City:

2.1.1 Purchase Order (PO)
The preferred mechanism to use to purchase Goods and one-time Services is by a Purchase Order (PO). To purchase by a PO, the Requestor from the department must submit a Purchase Requisition through the City’s Enterprise Resource Planning (ERP) System. The Requestor must ensure that all supporting documentation is attached to the Purchase Requisition, including a quotation or proposal, and a Competitive Source Selection Justification or a Non-Competitive Source Selection Justification if applicable.

The PO mechanism is used in the following instances:
 One-time purchases of various goods and services when required information about the purchase is known, including estimated costs, quantities, delivery schedules, and accounting distributions.  Annual Purchase Orders are for a repetitive nature, or when an exact dollar amount is unknown for the Fiscal Year.
 Multi-Year Purchase Orders that are a firm price agreement with a vendor for specific commodities or services for a per-determine period of time. Purchasing, in cooperation with the using department, will identify the need for a multi-year purchase order after examining past usage. Multi-year purchase orders are established through competitive bidding depending on the dollar value. Multi-year purchase orders are usually based on specific items or services, definite or indefinite quantities to be ordered as needed, over the contract period.
 POs must be used to encumber funds once a contract has been executed. After a contract has been executed and created in ERP System, the department will submit a Purchase Requisition to create a PO that is linked to the contract to encumber the funds.
.
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2.1.2 Purchasing Card (P-Card)
Authorized Cardholders can purchase low-value goods and services, in accordance with the Purchasing-Card Policy 20-55 (Administrative Policy).

2.1.3 Request for Check/Pay Voucher
The Request for Check/Pay Voucher mechanism to purchase Goods and Services is only used for certain types of purchases for which a PO is not required, or competitive bidding is not required. Any purchase for goods and services submitted by the Request for Check/Pay Voucher must adhere to the comprehensive listing of allowable exemptions can be accessed City’s intranet of the Purchasing’s CityNet Page. One-time purchases of supplies, services, and equipment of $3,000 or less, require a Request for Check/Pay Voucher. FMC 10-145

2.1.4 Petty Cash
Petty Cash may only be used for unplanned purchases totaling amount of $100.00 for supplies, mileage advance or reimbursement, parking and must adhere to the Petty Cash Policy 20-16 (Administrative Policy).

2.2 Purchase Requisitions
Purchase Requisitions authorize the Purchasing Manager to make purchases on behalf of the requesting department. Prior to submitting a Purchase Requisition through the ERP System, the Requestor must ensure the following:
 Purchase Requisitions must include all relevant information for the purchase, including the vendor/vendor’s contact information (e.g., contact person, company name and address, email address, and phone number), an attached written quote or proposal from the vendor, and any other relevant documents that may be useful to the Purchasing Office.); and
 Purchase Requisitions must include the appropriate attachments (e.g., staff reports, competitive quotes or proposals and a Competitive Source Selection Justification for competitive purchases, or a NonCompetitive Source Selection Justification for noncompetitive purchases) to meet the Competitive Threshold requirements for purchases that exceed $10,000 as outlined in Section 2.4 Competition.

2.2.1 Purchase Order Change Order
In the event the department wants to modify an existing PO that changes the price, quantity, period of performance, or terms and conditions, the Requestor must submit a Purchase Order Change Order (“Change Order”) through the ERP System. The Requestor must ensure the following when submitting a Change Order:
 If the Change Order amount causes the total amount of the PO to exceed $10,000, then the Requestor will need to include the appropriate attachments, including a Non-Competitive Source Selection Justification to meet the Competitive Threshold requirements as outlined in Section 2.4 Competition;  If the Change Order is for an existing PO that already exceeds $10,000, then at the Purchasing Manager’s discretion, may request a Non-Competitive Source Selection Justification that addresses the changes to the PO; and
 Change Order, as required, may include a revised quote or proposal that reflects the modifications of the contract or Purchase Order, including a revised statement of work (SOW), budget, quantities, prices, period of performance, or any other revised terms and conditions. 781
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2.3 Unauthorized Orders
Unauthorized Orders are those for which a Purchase Requisition is submitted after Goods or Services were received without a Purchase Order (e.g., reimbursements and invoice for receipt of goods and services without a PO).

Unauthorized Orders present a significant risk to the City, including entering into contractual agreements without the appropriate terms and conditions incorporated into the contract or Purchase Order, increased risk and liability to the City, and limited recourse in the event of a dispute with a vendor. Unauthorized Orders are not acceptable.

However, in the event of an emergency or a circumstance where an Unauthorized Order is unavoidable, the City Manager or designee will permit the transaction.

If an Unauthorized Order is submitted to Purchasing Office, the Purchase Requisition must comply with all the requirements outlined in Section 2.2. Purchase Requisitions and Section 2.4 Competition. In addition, reimbursements must have proof of payment documentation attached to the Purchase Requisition, including receipts, invoices, or credit card statements.

2.4 Competition
The City’s competitive purchasing requirements are to ensure that all contracts and purchases for goods and services are conducted in a manner that provides full and open competition consistent with FMC –Section 10 - Article V.

Purchasing, PCC, CUPCAA, and Uniform Guidance. The competitive purchasing requirements promote transparency, stimulate competition, prevent favoritism, and secure the best value of goods and services for the City. This is further described in Section 3.0 Bidding Procedure.

2.5 Documentation
All purchases that exceed $10,000 require the following supporting documentation:
 Competitive Source Selection Justification o r Non-Competitive Source Selection Justification and  Bid Tabulation for Evaluated Procurements must be included as a separate document which details the evaluation criteria.

All purchases that exceed $100,000 require the following supporting documentation:
 A Staff Report that has been approved by the City Council which justifies the rationale of the source selection (e.g., competitive, or noncompetitive).

2.6 Environmentally Preferable Purchases
The City of Fontana in order to comply with SB 1383 to purchase recycled content and environmentally preferred products whenever practicable, in accordance with the Administrative Policy 20-31.

2.7 Federal Grant Requirements
All purchases fully funded or partially funded by a Federal Grant require the following:
 Government Funded Grant Provisions incorporated and binding for all POs and contracts;  Equipment Screening for all equipment purchases that exceed $5,000;  Certification of Debarment is required for all purchases that are equal to or exceed $25,000;  Certification of Anti-Lobbying is required for all purchases that equal or exceed $100,000;  Independent Cost Estimate prior to issuing a solicitation for purchases that exceed $100,000; and 782 2-4
 Cost Price/Analysis for purchases that exceed $100,000.

PurchaseThreshold FederalGrants
> $5,000 • Equipment Screening
> $25,000 • Certification of Debarment
> $100,000
• Certification ofAnti-Lobbying
• Independent Cost Estimate prior to issuing a solicitation  Cost/PriceAnalysis

2.8 Purchase of Consumable Items
The City allows the purchase of food, beverages and/or other related consumable goods for certain official city programs and events. However, the purchase of food, beverage and/or other consumable goods for events such as staff meetings, holidays, birthdays, or retirements parties is generally prohibited unless: (1) the purchase is authorized by the City Manager or (2) the event falls within one of the following exceptions:
 City Council and Commission meetings
 Public Groundbreaking
 Outside interview panels for employment
 In-house training when employees are required to participate in the training program  Intra-department meetings
 Community Services Department Programs
 Volunteer Work Programs

ROLES AND RESPONSIBLITIES
City Manager
All purchases and contracts for goods and services are under the control and direction of the City Manager.

Department Heads
Department Heads are responsible for holding their employees accountable for the purchasing activities they make on behalf of the City and to ensure that they comply with all purchasing policies and procedures.

Purchasing Manager
Purchasing Manager is responsible for ensuring that all contracts and purchases for goods and services are conducted in a manner that provides full and open competition, appropriate documentation, including source justifications, Cost/Price Analysis, and the rationale of purchasing decisions. In addition, Purchasing Manager shall783 2-5
minimize the risk to City by assisting the Requestors by selecting the appropriate contract types, ensuring that vendors comply with our insurance requirements, and making prudent business decisions with the assistance of the City Attorney when vendors take exceptions to City’s terms and conditions.

Requestor
The Requestor must ensure that Purchase Requisitions are complete and accurate, including detailed itemized lines of the goods and services being purchased, correct funding sources, and correct expenditure types. Prior to submitting a Purchase Requisition to Purchasing, the Requestor is responsible for ensuring that all the appropriate supporting documentation is attached to the Requisition.

DEFINITIONS
As used in this policy:

Annual Purchase Order – a term contract or basic agreement between the City and a vendor to address recurring low-value purchases of goods and services for a specific period.

Bid Tabulation – a summary of the results of proposals or quotes submitted by suppliers to be evaluated based on a set of evaluation criteria.

California Uniform Public Construction Cost Accounting Act (CUPCAA) – the Uniform Public Construction Cost Accounting Act (Act), enacted in 1983 under Public Contract Code section 22000 et seq., allows local agencies to perform public project work of up to $60,000 with their own workforces if the agencies elect to follow the cost accounting procedures set forth in the Cost Accounting Policies and Procedures Manual by the California Uniform Construction Cost Accounting Commission.

Cardholders – an authorized individual who may make purchases for goods and services on behalf of the City with a P-Card.

City Council – the City Council serves as the legislative branch of City of Fontana Government and consists of a Mayor and four Council Members, all nonpartisan.

City Employee – a person employed by the City that earns a wage or salary, including elected officials, non-elected officials, executive staff, and non-executive staff.

Competitive Source Selection Justification – a summary of all the quotes or proposals received for a specific requirement and the rationale behind the selection of a successful vendor.

Competitive Threshold – a dollar threshold that requires competition, either by Informal or Formal Competition.

Cost/Price Analysis – a review to determine and evaluate the cost elements of a vendor’s proposal to determine how well the proposed costs represent what the cost of the contract should be, including price reasonableness.

Factors to be considered in determining price reasonableness include commodity markets, price lists, price quotations, negotiated pricing, input costs, transaction costs, relational costs, and landed costs.

Certification of Compliance to Anti-Lobbying – a certificate required by Office of Management and Budget (OMB) Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (2 CFR Part200) to ensure that vendors have not and will not lobby public officials with Federal funds.

Certification Regarding Debarment, Suspension, Proposed Debarment, and Other Responsibility Matters – a certificate required by Office of Management and Budget (OMB) Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (2 CFR Part 200) to ensure that vendors have not been suspended or debarred from doing business with the Federal Government.

Encumbrance – an amount of money that one is required to spend on a stated item or service in the future or the amount of money that remains on a Purchase Order after invoicing. 784
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Enterprise Resource Planning System – the system through which the City manages its day-to-day business activities including accounting, payroll, purchasing and other financial activities.

Equipment Screening – a screening process of ensuring, either prior to an equipment purchase or concurrently with the equipment purchase, that the same or equivalent piece of equipment is not in excess or otherwise available to share.

Evaluated Procurement – an award based on evaluated criteria other than the lowest price.

Fiscal Year – a one-year period to report the City’s financial information.

Federal Grant – an award of financial assistance from a federal agency to a recipient to carry out a public purpose of support or stimulation authorized by a law of the United States.

Formal Competition – a formal solicitation, including Request for Information (RFI), Sealed Bids, Request for Qualifications (RFQ), and Request for Proposals (RFP) that is publicly advertised online.

Goods – mean any and all supplies, materials, articles, equipment, apparatus, vehicles, things, or property, other than real property, furnished to be used by the City.

Informal Competition – an informal solicitation to vendors either by email or online for a Request for Qualifications (RFQ), Quotes, or Request for Proposal (RFP).

Independent Cost Estimate – documentation, in an organized effort, to gather cost and pricing data for targeted markets. Market research is used to support the Independent Cost Estimate.

Maintenance Services– mean the furnishing of labor, time, or effort by a vendor, including but not limited to: as defined in PCC Section 22002, Maintenance is: (1) Routine, recurring, and usual work for the preservation or protection of any publicly owned or publicly operated facility for its intended purposes; (2) Minor repainting; (3) Resurfacing of streets and highways at less than one inch; (4) Landscape Maintenance, including mowing, watering, trimming, pruning, planting, replacement of plants, and servicing of irrigation and sprinkler systems; (5) Work performed to keep, operate, and maintain publicly owned water, power, or waste disposal systems, including, but not limited to, dams, reservoirs, powerplants, and electrical transmission lines of 230,000 volts and higher.

Micro-Purchase – a purchasing method that does not require competition for purchases that, in the aggregate, do not exceed $10,000.

Multi-Purchase Order – is a firm price agreement with a vendor for specific commodities or services for a predetermined period of time.

Non-Competitive Source Selection Justification – a documented justification that underlines the reasons why only one source was solicited for a requirement, including that the item is only available through a single source, the purchase is being done through a cooperative purchasing agreement, the price obtained from the vendor is the same price that was offered to another public agency, the emergency for the requirement will not permit a delay from a competitive solicitation, it is a follow-on purchase, or after solicitation to a number of sources, competition was determined inadequate.

OMB Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (2 CFR Part 200) (Uniform Guidance) – Federal legislation that governs the Federal financial assistance (grants and cooperative agreements) process from pre-award to close-out. 785
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Petty Cash – Amount of City cash, kept on hand, to pay for minor or incidental expenses more particular described in Petty Cash Policy 20-16 (Administrative Policy).

Purchasing Card (P-Card) – a City credit card issued to an individual by Purchasing Office to purchase Goods and Services on behalf of the City. P-Cards are also used for travel expenses.

Purchase Order (PO) – a commercial document and first official offer issued by Purchasing Office to a seller, indicating types, quantities, agreed prices for Goods and Services, and the terms and conditions of the offer.

Purchase Order Change Order or Change Order – a Purchase Order Change Order/Change Order in ERP System that is used by the department to initiate a modification to an existing Purchase Order.

Purchase Requisition – a document generated through the ERP System to notify the Purchasing Office of Goods and Services needed by a department. It is a formal authorization to purchase Goods and Services on behalf of the department.

Purchasing Office – a division within the Department of Finance responsible for ensuring compliance with the City’s purchasing policies and procedures.

Request for Check/Pay Voucher – a method to purchase Goods and Services when certain types of purchases do not require a formal Purchase Order or where negotiation adds no value. Request for Check/Pay Vouchers are used for reimbursements, per-diems, travel, and miscellaneous items.

Request for Information (“RFI”) - a solicitation document used to obtain general information about products, services, or suppliers. It is an information request, not binding on either the supplier or the City, and is often used prior to specific requisitions for items. The purpose of an RFI is to gain familiarity with the current market for a particular supply or service and to gather information in a formal, structured, and comparable way.

Request for Proposal (“RFP”) - is a document that solicits firms to submit a proposal to perform the scope of work associated with a proposed project. Cost is not the sole basis for selection in an RFP; other qualifications including experience, turnaround time and approach to work are important factors when evaluating proposals. RFPs are project specific and preparation requires general knowledge of the project. It is expected that interested parties would do a limited amount of work to develop a quality proposal.

Request for Qualification (“RFQ”) - is a document that solicits firms to submit information about their qualification and capabilities to perform the type of work associated with a proposed project. The preparation of an RFQ generally does not require specific project knowledge or scope. An RFQ may be used as a pre-qualification step to engaging a service provider. If an RFQ is required, only those candidates who successfully respond to it and meet the qualification criteria will be included in the subsequent RFP process. An RFQ will contain specific reference to selection criteria.

Requestor – a City Employee that submits Purchase Requisitions through ERP System to make purchases on behalf of the City.

Services – means general services, maintenance services, or professional services.

Staff Report – a report prepared by staff and presented to the City Council for approval of some action taken by the department.

Unauthorized Order – Unauthorized Orders are those for which a Purchase Requisition was submitted after a purchase for Goods and Services was placed with an individual’s own financial resources or without a Purchase 786
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Order.
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CITY OF FONTANA

COMPETITIVE SOURCE SELECTION JUSTIFICATION
Contract/Req. No.: Amendment No.: Requestor: Date:

Pre-Tax Amount: $ Tax: $ Freight: $ Total Amount: $
Vendor Name:

FUNDING SOURCE AND AUTHORIZATION (check as applicable)
City Resources Gov’t Grant Other
Certifications: Debarment1 Anti-Lobby2
Certificate(s)
Attached
Not
Applicable
Fund: Object Code:

Equipment Screening3: Yes Not Applicable Title Vests: - Purchase Description:

1. Source Selection:

PROCUREMENTSELECTION RATIONALE
Vendor Total Amount
(With tax/freight)
Technically Acceptable
(Y/N)
AWARDED TO LOWEST RESPONSIVE AND RESPONSIBLE BIDDER. (Please attach bid tabulation or bid opening sheet if you have more than three bids)
NOT AWARDED TO LOWEST BIDDER (Explain rationale below: Only to be used for professional services or an evaluated procurement other than public works contracts):

2. Small Business’ Solicited (Federally Funded Procurements Only) Document whether Small Business, HUBZone Small Business, Small Disadvantaged Business, Women Owned Small Business or Service Disabled Veterans Owned Business or Veterans of Vietnam Era Owned Business concerns were solicited and, if not, why not.

Applicable Businesses’ referenced above were solicited.

No Applicable Businesses referenced above were solicited because Requestor Name (Print) Signature Date
Department Director Name (Print) Signature Date
1 Applies to purchases under a Federal Grant equal to or more than $25,000 2 Applies to purchases under a Federal Grant equal to or more than $100,000 3 Applies to equipment purchases under a Federal Grant equal to or more than $5,000 788
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CITY OF FONTANA

NON-COMPETITIVE SOURCE SELECTION JUSTIFICATION
Contract/Req. No.: Amendment No.: Requestor: Date:

Pre-Tax Amount: $ Tax: $ Freight: $ Total Amount: $
Vendor Name:

FUNDING SOURCE AND AUTHORIZATION (check as applicable)
City Resources Gov’t Grant Other
Certifications: Debarment4 Anti-Lobby5
Certificate(s)
Attached
Not
Applicable
Fund: Object Code:

Equipment Screening6: Yes Not Applicable Title Vests: - Purchase Description:

1. Source Selection - Competition is impracticable (Check appropriate box):

UNAVAILABLE FROM ANY OTHER SOURCE. No competitive advantage would be gained from competitive pricing, such as when equipment, goods, materials, supplies, personal property, or services are unique and are only available from one source. (Explain below. Include all contacts made to verify the sole source or single source situation.) COOPERATIVE PURCHASING AGREEMENT. This product or service required is being purchased under a cooperative purchasing agreement. (Explain below).

SAME PRICE PURCHASED BY ANOTHER PUBLIC AGENCY. The product or service required was awarded a bid by another public agency that has purchasing procedures substantially similar to those that the city would have been required to use, and the vendor offers the same price(s) to the city that it offered to the other agency.

EMERGENCY. This product or service required is due to an emergency, determined by the City Manager, which could not have been anticipated and critical need precludes any form of competition. (Purchases more than $50,000 must be presented at the next regular City Council Meeting for ratification by the City Council. Please attach supporting documentation and approval from City Manager).

OTHER REASON(S). (Explain below).

Detail information to support above justification(s):
4 Applies to purchases under a Federal Grant equal to or more than $25,000 5 Applies to purchases under a Federal Grant equal to or more than $100,000 6 Applies to equipment purchases under a Federal Grant equal to or more than $5,000 789
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2. Price/Cost Analysis(ONLY APPLICABLE TO PURCHASES/CONTRACTS THAT EXCEED $100,000):

The action taken in verifying price reasonableness is indicated below. Identify the method(s) listed below used to verify price reasonableness. Check one or more paragraphs below as applicable.

Current price schedule (verifiable catalogue, published price list, etc.) Schedule Name/No.: Unit Price: $
Supplier Contact: Date of Schedule:

Previous purchase.

Supplier: Unit Price:

PO No.: PO Date:

Similar item in related industry.

Price Source: Unit Price:

Supplier: Date:

Any other Reasonable basis:

3. Small Business’ Solicited (Federally Funded Procurements Only) Document whether Small Business, HUBZone Small Business, Small Disadvantaged Business, Women Owned Small Business or Service Disabled Veterans Owned Business or Veterans of Vietnam Era Owned Business concerns were solicited and, if not, why not.

Applicable Businesses’ referenced above were solicited.

No Applicable Businesses referenced above were solicited because Required Signatures:
---------------------Attach additional sheets as needed---------------------- Requestor Name (Print) Requestor Signature Date
Department Director Name (Print) Department Director Signature Date 790
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GOVERNMENT FUNDED GRANT PROVISIONS
A. If this Purchase Order/Contract is funded under a U.S. Government grant the following provisions as contained in Appendix II of the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards; Final Rule (2 CFR Part 200, et al) are part of this Order. If any conflict arises between the provisions of these Government Funded Grant Provisions and any other provisions of this Purchase Order/Contract, the Government Funded Grant Provisions shall prevail.

1. Equal Employment Opportunity (E.O. 11246 as amended by E.O. 11375 and supplemented by 41 CFR part 60).

2. For construction with Federal funds: the Davis-Bacon Act (40 U.S.C. 3141-3148) as supplemented by 29 CFR part 5.

3. Copeland “Anti-Kickback” Act (40 U.S.C. 3145 and 29 CFR part 3).

4. Where applicable, the Contract Work Hours and Safety Standards Act (40 U.S.C. 3701- 3708) as supplemented by 29 CFR part 5.

5. For non-profit organizations and small business, patent rights will be governed by 37 CFR part 401,“Rights to Inventions Made by Non-Profit Organizations and Small Business Firms under Government Grants, Contracts and Cooperative Agreements.”

6. The Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251-1387.), as amended.

7. Mandatory standards and policies relating to energy efficiency contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (42 U.S.C. 6201).

8. When applicable, this Order is subject to Debarment and Suspension (E.O.s 12549 and 12689) as provided in 2 CFR part 180.

9. The BYRD Anti-Lobbying Amendment (31 U. S. C. 1352): awards of $100,000.00 or more will file the required certification.

B. Other Provisions

1. The Federal awarding agency, the Comptroller General of the United States, or any of their duly authorized representatives, shall be provided with access to documents, papers and records directly pertinent to a specific program for audits, examinations, excerpts and transcriptions.
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CITY OF FONTANA

EQUIPMENT SCREENING FORM
Applicability: Purchasing Capital Equipment >$5,000, Reportable Agency Submission Process: Attach to Requisition
Originating Authority: 2 CFR 200.313; 2 CFR 200.318 (d) Effective Date: July 1, 2020
Awards
Requestor: Total
Amount:
$
Grant No./FAIN:

Fund:

Purchase Description:

Title Vests: Approved by
Funding Agency YES NO
Federal regulations require the City of Fontana to use capital equipment in the program or project(s) for which it was acquired (2 CFR 200.313). Additionally, regulations state that City of Fontana is to avoid the acquisition of unnecessary or duplicative items (2 CFR 200.318 (d)).

Using the below form, identify how the unique functions of the capital equipment will assist in meeting the aims of the project(s). If the equipment will benefit multiple projects, the below justification must describe the process for allocating costs.

Justification:

Any relevant documentation, such as written confirmation from the awarding agency must be attached to the requisition. Contact your Grant Program Administrator liaison with allowability questions or Finance Department.

To the best of my knowledge, the capacity and specific functionality provided by this equipment is not currently available at City of Fontana.

Requestor:

Grant Program Administrator: Date Submitted:
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CITY OF FONTANA

DEBARMENT AND ANTI-LOBBYING CERTIFICATION
Vendors must sign this form in the designated location on page 2.

To be completed by City of Fontana:

VendorName:

Requisition/Contract/Purchase OrderNumber:

A. DebarmentCertification
Vendors, please complete the following certification and sign the bottom of page 2.

MATTERS (FIRSTTIERSUBCONTRACTOR)
(a) (1) The Offeror certifies, to the best of its knowledge and belief,that— (i) CERTIFICATION REGARDING DEBARMENT, SUSPENSION, PROPOSED DEBARMENT, AND OTHER RESPONSIBILITY The Offeror and/or any of its Principals— (A) Are are not presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any Federal agency;
(B) Have have not , within a three-year period preceding this offer, been convicted of or had a civil judgment rendered against them for: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, state, or local) contract or subcontract; violation of Federal or state antitrust statutes relating to the submission of offers; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; and
(C) Are are not presently indicted for, or otherwise criminally or civilly charged by a governmental entity with, commission of any of the offenses enumerated in subdivision (a)(1)(i)(B) ofthis provision.
(ii) TheOfferor has has not , within a three-year period preceding this offer, had one or more contracts terminated for default by any Federal agency.
(2) "Principals," for the purposes of this certification, means officers; directors; owners; partners; and, persons having primary management or supervisory responsibilities within a business entity (e.g., general manager; plant manager; head of a subsidiary, division, or business segment, and similar positions).

THIS CERTIFICATION CONCERNS A MATTER WITHIN THE JURISDICTION OF AN AGENCY OF THE UNITED

STATES AND THE MAKING OF A FALSE, FICTITIOUS, OR FRAUDULENT CERTIFICATION MAY RENDER THE MAKER SUBJECT TO PROSECUTION UNDER SECTION 1001, TITLE 18, UNITED STATES CODE. (b) The Offeror shall provide immediate written notice to the City of Fontana if, at any time prior to subcontract award, the Offeror learns that its certification was erroneous when submitted or has become erroneous by reason of changedcircumstances.
(c) A certification that any of the items in paragraph (a) of this provision exists will not necessarily result in withholding of an award under this solicitation. However, the certification will be considered in connection with a determination of the Offeror's responsibility. Failure of the Offeror to furnish a certification or provide such additional information as requested by the City of Fontana may render the Offeror nonresponsible. (d) Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render, in good faith, the certification required by paragraph (a) of this provision. The knowledge and information of an Offeror is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
(e) The certification in paragraph (a) of this provision is a material representation of fact upon which reliance was placed when making award. If it is later determined that the Offeror knowingly rendered an erroneous certification, in addition to other remedies available to the City of Fontana, the City of Fontana may terminate To be completed by City of Fontana:

Federal grant or cooperative agreement: ≥ $25,000
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the contract resulting from this solicitation for default. (B) Anti-LobbyCertification

CERTIFICATIONAND DISCLOSUREREGARDING PAYMENTS TOINFLUENCE CERTAINFEDERAL TRANSACTIONS (SEPT2007)
(a) Definitions. As used in this provision-“Lobbying contact” has the meaning provided at 2 U.S.C. 1602(8). The terms “agency,” “influencing or attempting to influence,” “officer or employee of an agency,” “person,” “reasonable compensation,” and “regularly employed” are defined in the FAR clause of this solicitation entitled “Limitation on Payments to Influence Certain Federal Transactions”(52.203-12). (b) Prohibition. The prohibition and exceptions contained in the FAR clause of this solicitation entitled “Limitation on Payments to Influence Certain Federal Transactions” (52.203-12) are hereby incorporated by reference in this provision.
(c) Certification. The offeror, by signing its offer, hereby certifies to the best of its knowledge and belief that no Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress on its behalf in connection with the awarding of this contract. (d) Disclosure. If any registrants under the Lobbying Disclosure Act of 1995 have made a lobbying contact on behalf of the offeror with respect to this contract, the offeror shall complete and submit, with its offer, OMB Standard Form LLL, Disclosure of Lobbying Activities, to provide the name of the registrants. The offeror need not report regularly employed officers or employees of the offeror to whom payments of reasonable compensation were made.
(e) Penalty. Submission of this certification and disclosure is a prerequisite for making or entering into this contract imposed by 31 U.S.C. 1352.Any person who makes an expenditure prohibited under this provision or who fails to file or amend the disclosure required to be filed or amended by this provision, shall be subjectto a civil penalty of not less than $10,000, and not more than $100,000, for each such failure.

This certification must be signed by an authorized representative of your organization.

Certified by (Signature):

Printed Name:

Company Name:

Date:

To be completed by City of Fontana:

Federal grant or cooperative agreement: ≥ $100,000
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3.0 Bidding Procedure

PURPOSE
This procedure is to ensure that City Employees are purchasing Goods and Services in compliance with the City of Fontana’s (the City) policies and procedures, federal, state, and local laws, while obtaining favorable pricing and terms that are most advantageous to the City.

PROCEDURE
This procedure ensures that contracts and purchases for goods and services are in compliance with all bidding requirements outlined in the Fontana Municipal Code ( F M C ) – Chapter 10 - A r t i c l e V .

P u r c h a s i n g , California Public Contract Code (PCC), the California Uniform Public Construction Cost Accounting Act (CUPCAA), and Office of Management and Budget (OMB) Uniform Administrative Requirements, Cost Principles competitive requirements (Uniform Guidance).

3.1 Purchasing Methods
The following purchasing methods must be used when acquiring Goods and Services on behalf of the City in accordance with the Purchasing Method and Cost Threshold Matrix:

3.1.1 Micro-Purchase
Purchasing by the Micro-Purchase method must be used when acquiring Goods and Services when the aggregate dollar amount does not exceed $10,000. To the extent practicable, the City shall distribute Micro-Purchases equitably among qualified vendors. Micro-Purchases may be awarded without soliciting competitive quotations or proposals if the City considers the price to be fair and reasonable.

3.1.2 Small Purchase
The Small Purchase method is an Informal Competition procedure for relatively simple and informal procurements of Goods, Services, property, and Public Projects. The Small Purchase method shall be used for Goods, Services, and property when the proposed purchase amount is between $10,000 to $100,000. The Small Purchase method shall be used for Public Projects that are between $60,000 and $200,000.  Purchases of Goods and Services. If the Small Purchase method is used, the Requestor may informally solicit three (3) competitive vendors either written or via email request for quotations or proposals for goods and services. Once the Requestor receives at least three quotations or proposals, a Competitive Source Selection Justification, documenting the rationale of the selection, must be filled out, signed by the Department Director, and submitted with the Purchase Requisition to the Purchasing Office.  Maintenance. If the Small Purchase method is used for Maintenance contracts, then the appropriate solicitation type would be determined by the basis of selection. If the basis of selection is the lowest responsive and responsible bidder, then the Requestor shall use the same Informal Competition procedures as for Public Projects (Section 3.2.2 – Informal Competition Procedures for Public Projects (contracts that exceed $60,000 but less than or equal to $200,000). If the basis of selection is based on an Evaluated Procurement, then the Requestor may informally solicit three (3) competitive vendors either written or via 795
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email request for quotations or proposals for such Maintenance services.  Public Projects. If the Small Purchase method is used for Public Projects, Informal Competition procedures shall be used in accordance with CUPCAA and Section 3.2.2.

3.1.3 Sealed Bid
The Sealed Bid method is a formal advertisement online that is publicly solicited, and a firm fixed-price contract is awarded to the responsive and responsible bidder whose bid, conforms with all the material terms and conditions of the Invitation for Bid (IFB) and is the lowest price. This method must be used for all Public Projects that exceed $200,000. This method should also be used for Goods that exceed $100,000 for such purchases that cannot be used for the Competitive Proposal or Noncompetitive Proposal method.  Conditions for Sealed Bid Method. The following conditions should be present for the Sealed Bid method to be feasible:

1. A complete, adequate, and realistic specification or purchase description is available;

2. Two or more responsible bidders are willing and able to compete effectively; and

3. The purchase lends itself to a firm fixed-price contract and the selection of the successful bidder can be made based on price.
 Requirements for Sealed Bid Method. The following requirements shall be used for the Sealed Bid method:

1. All IFBs for Public Works Projects must use Formal Competition procedures in accordance with CUPCAA and Section 3.2.3 Formal Competition Procedures for Public Projects (contracts that exceed $200,000);

2. An Independent Cost Estimate or Engineer’s Estimate must be developed prior to issuing the IFB;

3. IFBs must be solicited from an adequate number of known bidders, providing sufficient response time prior to the date set for opening the bids;

4. The IFBs, which include any specifications and pertinent attachments, must define the items or services for the bidder to properly respond;

5. All bids will be opened at the time and place prescribed in the IFB whether opened publicly at the City or opened electronically on the city’s online bid system;

6. A firm fixed-price contract award will be made in writing to the lowest responsive and responsible bidder; and

7. Any or all bids may be rejected if there is a sound documented reason.

8. City Council shall award sealed bids.

3.1.4 Sealed Proposal
The Sealed Proposal method is a formal advertisement online, Request for Proposal (RFP), that is publicly solicited for Services, , to award either a firm fixed-price, cost-reimbursement, or time-and-materials type contract when the source selection is based on an Evaluated Procurement. The Sealed Proposal method must be used for all purchases exceeding $100,000.
 Requirements for Sealed Proposal Method. The following requirements shall be used for the Sealed Proposal method:
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1. RFPs must be publicized online and identify all evaluation factors and their relative importance.

Any response to publicized RFPs must be considered to the maximum extent practical;

2. Proposals must be solicited from an adequate number of qualified vendors;

3. An Independent Cost Estimate must be used for all purchases that exceed $100,000;

4. An Evaluation Committee must be established for all purchases that exceed $100,000 of at least three individuals. The Evaluation Committee must have a written method for conducting technical evaluations of the proposals received and for selecting the successful vendor;

5. Contracts must be awarded to the responsible vendor whose proposal is most advantageous to the City, with price and other factors considered; and

6. The City may use the Qualified Proposal method for Qualifications-Based Selection (QBS) of Architectural/Engineering (A/E) Professional Services whereby vendors’ qualifications are evaluated and the most qualified vendor is selected, subject to negotiation of a fair and reasonable price. The method, where price is not used as a selection factor, can only be used in procurement of A/E Professional Services. QBS cannot be used to purchase other types of services through A/E vendors as a potential source to perform the proposed service.

7. City Council shall award sealed proposals.

3.1.5 Non-Competitive Proposal
The Non-Competitive Proposal method may be used only when one or more of the following circumstances apply:
 Single Source/Sole Source. No competitive advantage would be gained from competitive pricing, such as when equipment, goods, materials, supplies, personal property, or services are unique and are only available from one source;
 Cooperative Purchasing Agreement. The product or service required is being purchased under a cooperative purchasing agreement;
 Same Price Purchased by Another Public Agency. The product or service required was awarded a bid by another public agency that has purchasing procedures substantially similar to those that the City would have been required to use, and the vendor offers the same or better price(s) to the City that it offered to the other agency;
 Unique Services. Services from Attorneys, Entertainers, Music Artists, Class Instructors, Counseling, and Motivational Speakers.
 Emergency. The product or service required is due to an emergency, determined by the City Manager, which could not have been anticipated and critical need precludes any form of competition. (Purchases more than $100,000 must be presented at the next regular City Council meeting for ratification by the City Council. Please attach supporting documentation and approval from City Manager); and  Bidding impractical. When the City Council determines by that bidding would be impractical, inefficient, or otherwise not in the best interest of the City, provided that the City Council shall state the basis for its determination in the resolution.
 Budgeted non-commodity items. Budgeted non-commodity items such as debt service payments, deposits, dues, insurance premiums, legal advertising, memberships, publications, self-insurance claim payments, seminar registration, subscriptions and travel expenses.
 Real property. Real property purchases and leases, utility services and related charges, work or services 797
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performed by another public agency.
 Other Circumstances. The following circumstances permit the use of the Non-Competitive Proposal method and shall be documented in the Non-Competitive Source Selection Justification:

1. A purchase that is a follow-on procurement, where the non-competitive purchase is placed with an incumbent vendor, either by a separate new contract or by a supplemental contract, to continue or augment a City program to maintain continuity of that program, where such placement was necessitated by prior procurement decisions;

2. A purchase under a grant where the awarding agency expressly authorizes the Non-competitive Proposal method in response to a written request from the City;

3. After solicitation of several vendors, competition is determined inadequate;

4. When the Design-Build project delivery method is used; and

5. For renewable energy and energy efficiency projects.

3.2 Bidding Procedures for Public Projects
The following bidding procedures apply to all Public Projects and are in compliance with PCC, CUPCAA, andUniform Guidance.

3.2.1 Public Works Projects $60,000 or less
Public Projects with an estimated cost of $60,000 or less may be performed by City Employees by force account or else may be awarded by negotiated contract or by purchase order without competitive bidding.

3.2.2 Informal Competition Procedures for Public Projects (contracts that exceed $60,000 but less than or equal to $200,000)
Public Projects that exceed $60,000 but less than or equal to $200,000 shall be solicited in accordance with the CUPCAA Cost Accounting Policies and Procedures Manual, including the following:

1. IFBs are to be sent via online bid system to the trade journals specified by the Commission:

The IFB must be published in each of the following two trade journals:

The IFB must be published in at least two of the following three trade journals:

Construction Bidboard (eBidboard)
11662 El Camino Real
San Diego, CA 92130
Phone: 800-479-5314
E-mail: [email protected]
Website: www.ebidboard.com
Dodge Data & Analytics
830 Third Avenue, 6th Floor
New York, NY 10022 Phone:
877-784-9556
E-mail: [email protected]
Website: www.construction.com
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2. The IFB must be sent ten (10) days before the bids are due;

3. Bidders must send all required bid documents, including all applicable certifications and Bid Bonds; and

4. The award must go to the lowest responsive and responsible bidder.

3.2.3 Formal Competition Procedures for Public Projects (contracts that exceed $200,000) Public Projects that exceed $200,000 shall be solicited in accordance with the CUPCAA Cost Accounting Policies and Procedures Manual, including the following:

1. IFBs are prepared with general terms with a time and place to submit bids;

2. IFBs must be published at least 14 calendar days before the date of opening the bids in a newspaper printed and published in the City or published in at least 3 places within the jurisdiction of the City; and

3. IFBs must be sent electronically to all construction trade journals specified by the Commission pursuant to PCC Section 22036 at least 15 calendar days before the date of opening the bids.

3.3 Surety Bond Requirements
Surety Bonds, including Bid Bonds, Performance Bonds, and Payment Bonds are established to protect the best interests of the City. All Surety Bond requirements must be stated in all solicitations, if required, and the City, at its discretion, may waive the requirement for Surety Bonds subject to compliance with state and federal laws.

3.3.1 Public Projects
All Public Projects that exceed $60,000 require the following Surety Bonds:

1. Bid Bond equal to ten percent (10%) of the bid price;

2. Performance Bond equal to one hundred percent (100%) of the bid price; and

3. Payment Bond equal to one hundred percent (100%) of the bid price.

Associated General Contractors of
America
San Diego Chapter, Inc.
6212 Ferris Square
San Diego, CA 92121
Phone : 858-558-7444
E-mail : [email protected]
Website : www.agcsd.org
Southern California Builders Association
732 N. Diamond Bar Blvd, @224 Diamond
Bar, CA 91765
Phone: 909-396-1451
E-mail: [email protected]
Website: www.socalbuilders.org
BidAmerica
41085 Elm Street
Murrieta, CA 92562
Phone: 909-677-4819
E-mail: [email protected]
Website: www.bidamerica.com
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3.3.2 Non-Public Projects
Surety Bonds may be required for Non-Public Projects as determined by the City Manager, City Attorney, Risk Manager and/or the Department Head. All Maintenance contracts that exceed $25,000 may require the following Surety Bonds:

1. Bid Bond equal to ten percent (10%) of the bid price (The Bid Bond only applies if the basis of selection is the lowest responsive and responsible bidder by using the Sealed Bid method. The Bid Bond would not be required if the basis of selection is based on an Evaluated Procurement by using the Competitive Proposal or Non-Competitive Proposal methods);

2. Performance Bond equal to one hundred percent (100%) of the proposed price; and

3. Payment Bond equal to one hundred percent (100%) of the proposed price.

3.4 Licensing

3.4.1 City Business License Requirements
All vendors that perform Services, or Public Project work are required to obtain a City Business License upon award of a contract if the following applies:

1. The vendor has a place of business in the City;

2. The vendor will perform services within the City; or

3. The vendor performs services with other businesses or customers within the City;

3.4.2 Contractor License Requirements
 Solicitations and Contracts. All solicitations and plans for Public Projects or Maintenance Services (if applicable) must specify the classification of the contractor’s license requirements. The vendors must include their license numbers in the construction contract, subcontracts, solicitations for subcontracts, and advertisements for bids.
 Failure to Have Contractor’s License. A bid submitted by a vendor for a Public Project who is not properly licensed must be considered nonresponsive and be rejected by the City. However, if a bid submitted by a vendor is not properly licensed for contracts funded fully or partially by a federal agency, the bid does not become invalid, but the vendor must be properly licensed at the time the contract is awarded.  Verification of Contractor’s License. Except for contracts fully or partially funded by a federal agency, the City must verify that the contractor was properly licensed at the time it submitted its bid, before awarding a contract or before issuing a purchase order.

3.5 Local Business Preference
Businesses within the City may take advantage of the City’s local business preference for City contracts in accordance with FMC 10-151. The local business preference in awarding contracts does not apply to Public Projects, emergencies, or contracts that are funded by a federal award.

3.5.1 Qualified Local Businesses
To be a Qualified Local Business the vendor must satisfies the following:

1. It has maintained its primary office, distribution point or place of business within the City;

2. It has secured all necessary licenses to conduct business in the City and it has paid all fees and taxes 800
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imposed by the City;

3. It meets all other qualifications required to perform the contractfor which its bid has been submitted.

ROLES AND RESPONSIBILITIES
City Manager
All purchases and contracts for goods and services are under the control and direction of the City Manager.

Chief Financial Officer
The Chief Financial Officer of Finance is responsible for recommending policy changes and updates to establish and maintain compliance with government laws and to oversee the competitive procurement process while ensuring appropriate stewardship of the City’s assets.

Purchasing Manager
Purchasing Manager is responsible for ensuring that all solicitations for goods and services are conducted in a manner that provides full and open competition; assisting Department Heads and Requestors with selecting the appropriate solicitation types; and facilitating the administration of solicitations and contracts for goods and services.

Requestor
The Requestor must ensure to provide the Purchasing Division with detailed information regarding the solicitation within a reasonable time prior to advertising. The Requestor shall include detailed information, including the name of the project, the due date of the solicitation, project duration or contract period, any required licenses or certifications, a detailed scope of work, a list of detailed items or equipment, and detailed specifications and requirements.

DEFINITIONS
As used in this procedure:

Bid Bond – a Surety Bond issued by a vendor to the City, to provide guarantee, that the lowest responsive and responsible bidder will undertake the contract under the terms and conditions at which the vendor submitted its bid.

California Public Contract Code (PCC) – State of California Statutes that clarify laws regarding the public competitive bidding requirements to eliminate favoritism, fraud, and corruption in the awarding of public contracts.

California Uniform Public Construction Cost Accounting Act (CUPCAA) – The Uniform Public Construction Cost Accounting Act (Act), enacted in 1983 under Public Contract Code section 22000 et seq., allows local agencies to perform Public Project work of up to $60,000 with their own workforces if the agencies elect to follow the cost accounting procedures set forth in the Cost Accounting Policies and Procedures Manual by the California Uniform Construction Cost Accounting Commission.

City Employee – a person employed by the City that earns a wage or salary, including elected officials, non-elected officials, executive staff, and non-executive staff. 801 3-8
Sealed Proposal – a purchasing method by Request for Proposals (RFP) (publicized online, identify all evaluation factors, etc.) from an adequate number of qualified sources with a written method for conducting technical evaluations and for selecting recipients; qualifications-based procurement for architectural/engineering services and professional service agreements.

Competitive Source Selection Justification – a summary of all the quotes or proposals received for a specific requirement and the rationale behind the selection of a successful vendor.

Design-Build – a project delivery method used in the construction industry where the City would solicit a DesignBuild Team, which consists of a general contractor that will provide construction management and construction for a project that subcontracts an architectural/engineering firm to perform the design portion of the project.

Evaluated Procurement – An award based on evaluated criteria other than the lowest price.

Formal Competition – A formal solicitation, including Request for Information (RFI), Invitation for Bids (IFB), Request for Qualifications (RFQ), and Request for Proposals (RFP) that is publicly advertised.

Goods – mean any and all supplies, materials, articles, equipment, apparatus, vehicles, things, or property, other than real property, furnished to be used by the City.

Informal Competition – An informal solicitation to vendors either written or by email for a Quote, Request for Qualifications (RFQ) or Request for Proposal (RFP).

Independent Cost Estimate – Documentation, in an organized effort, to gather cost and pricing data for targeted markets. Market research is used to support the Independent Cost Estimate.

Instructional Services –services provided by an individual with the necessary credentials to teach specific classes to the City of Fontana residents.

Local Business Preference Application – a City application form for vendors to participate in the local business preference program to submit a Preference Bid.

Maintenance Services– mean the furnishing of labor, time, or effort by a vendor, including but not limited to: (1) Routine, recurring, and usual work for the preservation or protection of any publicly owned or publicly operated facility for its intended purposes; (2) Minor repainting; (3) Resurfacing of streets and highways at less than one inch; (4) Landscape Maintenance, including mowing, watering, trimming, pruning, planting, replacement of plants, and servicing of irrigation and sprinkler systems; (5) Work performed to keep, operate, and maintain publicly owned water, power, or waste disposal systems, including, but not limited to, dams, reservoirs, powerplants, and electrical transmission lines of 230,000 volts and higher.

Micro-Purchase – a purchasing method that does not require competition for purchases that, in the aggregate, do not exceed $10,000.

Non-Competitive Proposal – a purchasing method by soliciting only one source and may be used only when one or more of the following circumstances apply: (1) Single or sole source; (2) Cooperative purchasing agreement; (3) Same price purchased by another public agency for the same product or service; (4) Emergency determined by the City Manager; and (5) Other reasons that can be justified depending upon the nature of the purchase.

Non-Competitive Source Selection Justification – A documented justification that underlines the reasons why only one source was solicited for a requirement, including that the item is only available through a single source, the 802
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purchase is being done through a cooperative purchasing agreement, the price obtained from the vendor is the same price that was offered to another public agency, the emergency for the requirement will not permit a delay from a competitive solicitation, it is a follow-on purchase, or after solicitation to a number of sources, competition was determined inadequate.

Office of Management and Budget (OMB) Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (2 CFR Part 200) (Uniform Guidance) – Federal legislation that governs the federal financial assistance (grants and cooperative agreements) process from pre-award to close-out.

Payment Bond – a Surety Bond issued by a vendor to the City, to provide guarantee, that its subcontractors and material suppliers on a project will be paid, including labor and material bonds.

Performance Bond – a Surety Bond issued by a vendor to the City, to provide guarantee, that the vendor will complete a project that is acceptable to the City.

Online Bid System – a software/license package used by the City that includes a comprehensive e-procurement tool to facilitate the solicitation and contracting process for the City.

Preference Bid – the amount of the bid computed after reducing the original bid by a factor equal to as much as five percent (1%) of the original bid amount.

Purchasing Method and Cost Threshold Matrix – a guide created to help City Employees with their purchasing and contracting needs for goods and services.

Qualifications-Based Selection (QBS) – a basis of a competitive selection of architectural and engineering services under which the highest qualified professional or firm is selected based on qualifications, including knowledge, skill, experience, and other project-specific factors, rather than solely on price.

Qualified Local Business – a business which applies for local business preference and satisfies all requirements.

Requestor – a City Employee that submits Purchase Requisitions through Munis to make purchases on behalf of the City.

Request for Qualification (“RFQ”) - is a document that solicits firms to submit information about their 803
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qualification and capabilities to perform the type of work associated with a proposed project. The preparation of an RFQ generally does not require specific project knowledge or scope. An RFQ may be used as a pre-qualification step to engaging a service provider. If an RFQ is required, only those candidates who successfully respond to it and meet the qualification criteria will be included in the subsequent RFP process. An RFQ will contain specific reference to selection criteria.

Sealed Bid – a purchasing method by Sealed Bids (formal advertising). Bids are publicly solicited, and a firm fixedprice contract (lump sum or unit price) is awarded to the lowest responsible bidder whose bid conforms with all the material terms and conditions of the Invitation for Bid (IFB).

Services – means general services, maintenance services, or professional services.

Small Purchase – a purchasing method that is simple and informal that requires competition, including written price or rate quotations from at least 3 sources.

Surety Bond – a Surety Bond serves the purpose of guaranteeing the vendor’s performance of a contract for a Public Project
804
Purchasing Method and Cost Threshold Matrix

PURCHASING METHOD NON-PUBLIC WORKS PUBLIC WORKS
Micro-Purchase ≤$10,000 ≤$60,000
SmallPurchase Use when between $10,000 to $100,000 Use when between $60,000 to $200,000 Sealed Bid (IFB) Use when greater than $100,000 Use when greater than $200,000 Sealed Proposal/Qualification(RFP/RFQ) Use when greater than $100,000 Does not apply to Public Projects Non-CompetitiveProposal Use when greater than $10,000 Only use for Public Project emergencies Micro-Purchase
 a purchasing method that does not require competition for purchases that, in the aggregate, do not exceed $10,000  required by the Federal Acquisition Regulation (FAR) and Office of Management and Budget(OMB) Uniform Guidance for purchases less than the Micro-Purchase Threshold (MPT) (currently set at $10,000)
Small Purchase
 a purchasing method that is simple and informal that requires competition, including written price or rate quotations from at least 3 sources  required by FAR and OMB Uniform Guidance for purchases that exceed the MPT but are less than the Simplified Acquisition Threshold (SAT) (currently set at $250,000) Sealed Bid
 purchasing by Sealed Bids (formal advertising online / Public Projects online and newspaper). Bids are publicly solicited, and a firm fixed-price contract (lump sum or unit price) is awarded to the lowest responsible bidder whose bid conforms with all the material terms and conditions of the Invitation for Bid (IFB).

Sealed Proposal/Qualification
 a purchasing method by Request for Proposals/Qualifications (RFP/RFQ) (publicized online, identify all evaluation factors, etc.) from an adequate number of qualified sources with a written method for conducting technical evaluations and for selecting recipients; qualifications may be-based procurement for architectural/engineering services and professional service agreements.

Noncompetitive Proposal
 purchasing method by soliciting only one source and may be used only when one or more of the following circumstances apply:
o single or sole source
o cooperative purchasing agreement
o same price purchased by another public agency for the same product or service o entertainer, music artists, class instructor, counseling, and motivational speaker o emergency determined by the City Manager
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INDEPENDENT COST ESTIMATE (ICE)
This form must be filled out prior to issuing a formal solicitation (purchases exceeding $100,000). Failure to do so may result in delays while additional information is obtained.

Requestor Name: Date: Estimate: $
Description: Federally Funded: Yes No
Method of Obtaining Estimate:

Attach additional documentation such as previous pricing documentation, emails, internet screen shots, estimates on letterhead, etc.

PUBLISHED PRICE LIST (attach source and date)
HISTORICAL PRICING (attach copy of documentation from previous PO/Contract).

ENGINEERING OR TECHNICAL ESTIMATE (attach a copy of the Engineer’s Estimate or Technical Estimate) INDEPENDENT THIRD-PARTY ESTIMATE (attach copy of documentation) OTHER (Explain below.)
Detail information to support above estimate:

THROUGH THE METHOD(S) STATED ABOVE, IT HAS BEEN DETERMINED THE ESTIMATED TOTALCOST OF THE GOODS/SERVICES IS $______________________________________. THE PRECEDING INDEPENDENT COST ESTIMATE WAS PREPARED BY:

Name Signature Date
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4.0 Prevailing Wages Policy

PURPOSE
This policy is to provide guidance to City Employees to ensure that the City of Fontana (the City) is compliant with all federal, state, and local Prevailing Wage Laws.

POLICY
This policy ensures that contracts and purchases for goods and services are compliant with all Prevailing Wage Laws in accordance with California Public Contract Code (PCC), California Uniform Public Construction Cost Accounting Act (CUPCAA), California Labor Code (LAB), and Office of Management and Budget (OMB) Uniform Administrative Requirements, Cost Principles competitive requirements (Uniform Guidance).

4.1 General Requirements
The State labor law requires payment of Prevailing Wages on “Public Works” contracts that exceed $1,000. The LAB defines “Public Works” differently than the PCC and CUPCAA. There may be circumstances in which public bidding or other statutory Public Works requirements are not required but payment of Prevailing Wages is required.

Regardless if a Public Works contract is publicly solicited or not, the City’s contracts require all contractors and its subcontractors to pay Prevailing Wages and maintain certified payroll records evidencing such payment of Prevailing Wages.

4.1.1 Bidding
All contractors and subcontractors must be registered with the California Department of Industrial Relations (DIR) before bidding on, being listed on a bid for, or performing any work on a Public Works contract. If a contractor and its subcontractors are not registered with the DIR when the prime contractor submits its bid, then the City must reject the bid as nonresponsive. The DIR registration requirement does not apply to the following:

1. A Public Works contract of $25,000 or less when the work is for construction, alteration, demolition, installation, or repair work; or

2. Work performed on a Public Works contract of $15,000 or less when the contract is for Maintenance.

4.1.2 Awarding
The City must provide notice to DIR within thirty (30) days of award and failure to do so will result in a civil penalty of $100 per day, not to exceed $10,000. The City must file a PWC-100 Form with the DIR within five (5) days of the award for the following Public Works contracts:
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1. APublic Works contract of $25,000 or morewhen the work is for construction, alteration, demolition, installation, or repair work; or

2. Work performed on a Public Works contract of $15,000 or more when the contract is for Maintenance.

4.2 Applicability of Prevailing Wages
Public and private projects that are paid for in whole or in part out of public funds are subject to Prevailing Wages.

Prevailing Wages do not apply to work performed by the City’s employees with its on forces. Since the definition of “Public Works” is very broad, the Prevailing Wage Decision Tree and the following should assist City Employees with determining the applicability of Prevailing Wages.

4.2.1 “Public Works”
As defined in LAB, Public Works includes the following:

1. Construction, alteration, demolition, installation, repair, or maintenance work done under contract and paid for in whole or in part out of public funds, and tree removal work done in the execution of any such work (construction includes work performed during the design and preconstruction phases of construction, including but not limited to inspection and land surveyors’ work, as well as postconstruction phases of construction, including but not limited to all cleanup work at the jobsite);

2. Work done for certain special districts (e.g., irrigation, utility, reclamation, and improvement districts);

3. Street, sewer, or other improvement work done under the direction and supervision or by the authority of any charter or general law city;

4. The laying of carpet paid for out of public funds;

5. Public transportation demonstration projects;

6. Hauling refuse from a Public Works site to an outside disposal location;

7. Hauling and delivery of ready-mixed concrete to carry out a Public Works contract; and

8. Maintenance which is defined as the following:
• Routine, recurring and usual work for the preservation, protection and keeping of any publicly owned or publicly operated facility (plant, building, structure, ground facility, utility system or any real property) for its intended purposes in a safe and continually usable condition for which it has been designed, improved, constructed, altered or repaired. • Carpentry, electrical, plumbing, glazing, touchup painting, and other craft work designed to preserve the publicly owned or publicly operated facility in a safe, efficient and continuously usable condition for which it was intended, including repairs, cleaning and other operations on machinery and other equipment permanently attached to the building or realty as fixtures. • Landscape maintenance, including mowing, watering, trimming, pruning, planting, replacement of plants, and services of irrigation and sprinkler systems.

Exceptions to the “Public Works” definition which are excluded from Prevailing Wages are the following:

1. Janitorial or custodial services of a routine, recurring or usual nature; 808
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2. Protection of the sort provided by guards, watchmen, or other security forces; and

3. Landscape maintenance work by “sheltered workshops.”

4.2.2 Paid in Whole or Part with Public Funds
Prevailing Wages may apply to projects done under contract, even otherwise private projects, when the City pays money or its equivalent, performs construction work, transfers assets for less than their market price, pays project costs (such as bond costs), makes credits, reduces or waives fees, or permits repayment on a contingent basis. The definition of paid for in whole or in part out of public funds excludes certain construction or rehabilitation of affordable housing units for low- or moderate-income people. As defined in LAB, “paid for in whole or in part out of public funds” includes the following:

1. Payment of money or the equivalent by a public agency to or on behalf of the Public Works contractor, subcontractor, or developer;

2. Performance of construction work in execution of the project;

3. Transfer of an asset of value for less than the fair market price;

4. Fees, costs, rents, insurance or bond premiums, loans, interest rates, or other obligations normally required in the execution of the contract that are paid, reduced, charged at less than fair market value, waived, or forgiven;

5. Money loaned by the state to be repaid on a contingent basis; or

6. Credits that are applied against repayment obligations.

4.2.3 Exemptions
An exemption from Prevailing Wages is for the following circumstances:

1. Private residential projects on private property that are not built according to an agreement with the City or any other public agency;

2. When the City requires a private developer to perform construction, alteration, demolition, installation, or repair work on a Public Work of improvement as a condition of regulatory approval of an otherwise private project, and the City contributes no more money or its equivalent than required to perform the public improvement work, and the City maintains no proprietary interest in the overall project, Prevailing Wage requirements apply only to the public improvement work;

3. Public agency reimbursements to private developers for costs normally allowed by the public, or direct or indirect public subsidies to a private development project that are de minimis in the context of the project, do not in themselves make an otherwise private development project subject of Prevailing Wages; and

4. Construction or rehabilitation of privately owned residential projects that meet certain specified conditions are also exempt from Prevailing Wages.

4.3 Federal Requirements and Davis-Bacon Act
In accordance with the Uniform Guidance, all construction contracts awarded by the City as a Prime Recipient or a Subrecipient of more than $2,000 must include a provision for compliance with the Davis-Bacon Act (40 USC 3141 et seq.), and as supplemented by Department of Labor regulations. (29 CFR pt 5). .
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4.4 Conflicting Provisions
The City is not exempt from complying with existing State Public Works requirements when expending federal funds. However, unless a federal requirement conflicts with a state requirement, the City will be required to comply with both requirements. For example:

1. If a contract is subject to both the Davis-Bacon Act and State Prevailing Wage Laws, then the contractor will be required to pay the higher of the two wages. However, the Davis-Bacon Act might not apply to a particular federally funded contract, but the City will still be required to comply with State Prevailing Wage Laws.

ROLES AND RESPONSIBILITIES
City Manager
All purchases and contracts for goods and services are under the control and direction of the City Manager.

Chief Financial Officer
The Chief Financial Officer is responsible for recommending policy changes and updates to establish and maintain compliance with government laws and to oversee the procurement process while ensuring appropriate stewardship of the City’s assets.

Department Heads
Department Heads are responsible for holding their employees accountable for reporting Public Works contracts to the DIR to ensure compliance with Prevailing Wage Laws.

Purchasing Manager
Purchasing Manager is responsible for ensuring that all solicitations for goods and services are conducted in a manner that provides full and open competition and in compliance with Prevailing Wage Laws; assisting Department Heads and City Employees with selecting the appropriate solicitation types; and facilitating the administration of solicitations and contracts for goods and services.

Departments/City Employees
The Departments/City Employees must ensure to provide the Purchasing Office with detailed information regarding the scope of work to assist in the determination whether a particular project is subject to Prevailing Wages or not. Once the determination has been decided and a contract is awarded, the Department/City Employee is responsible for filing the PWC-100 Form with the DIR within five (5) days of award.

DEFINITIONS
As used in this policy:

California Department of Industrial Regulations (DIR) – a state agency that enforces and codifies California Labor Statutes.

California Labor Code (LAB) – State of California statutes that clarify laws regarding labor laws.

California Uniform Public Construction Cost Accounting Act (CUPCAA) – the Uniform Public Construction Cost Accounting Act (Act), enacted in 1983 under Public Contract Code section 22000 et seq., allows local agencies to perform public project work of up to $60,000 with their own workforces if the agencies elect to follow the cost 810
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accounting procedures set forth in the Cost Accounting Policies and Procedures Manual by the California Uniform Construction Cost Accounting Commission.

City Employee – a person employed by the City that earns a wage or salary, including elected officials, non-elected officials, executive staff, and non-executive staff.

Davis-Bacon Act – a Prevailing Wage Law imposed by the federal government on federal awards that requires contractors and subcontractors to pay local Prevailing Wages on Public Works projects more than $2,000.

Maintenance – as defined in LAB, Maintenance includes the following: (1) Routine, recurring and usual work for the preservation, protection and keeping of any publicly owned or publicly operated facility (plant, building, structure, ground facility, utility system or any real property) for its intended purposes in a safe and continually usable condition for which it has been designed, improved, constructed, altered or repaired; (2) Carpentry, electrical, plumbing, glazing, touchup painting, and other craft work designed to preserve the publicly owned or publicly operated facility in a safe, efficient and continuously usable condition for which it was intended, including repairs, cleaning and other operations on machinery and other equipment permanently attached to the building or realty as fixtures; and (3) Landscape maintenance, including mowing, watering, trimming, pruning, planting, replacement of plants, and services of irrigation and sprinkler systems.

Prevailing Wages – hourly wages, benefits and overtime required to pay the labor force under the performance of a government contract for Public Works.

Prevailing Wage Laws – State and federal statutes that require contractors and subcontractors to pay Prevailing Wages.

Prevailing Wage Decision Tree – a guide for departments to use when deciding if Prevailing Wages would apply to a particular project or scope of work.

Prime Recipient – a non-federal entity that expends federal awards received directly from a federal awarding agency to carry out a federal program.

Public Works – as defined in LAB, Public Works includes the following: (1) Construction, alteration, demolition, installation, repair, or maintenance work done under contract and paid for in whole or in part out of public funds, and tree removal work done in the execution of any such work (construction includes work performed during the design and preconstruction phases of construction, including but not limited to inspection and land surveyors’ work, as well as post-construction phases of construction, including but not limited to all cleanup work at the jobsite); (2) Work done for certain special districts (e.g., irrigation, utility, reclamation, and improvement districts); (3) Street, sewer, or other improvement work done under the direction and supervision or by the authority of any charter or general law city; (4) The laying of carpet paid for out of public funds; (5) Public transportation demonstration projects; (6) Hauling refuse from a Public Works site to an outside disposal location; (7) Hauling and delivery of ready-mixed concrete to carry out a Public Works contract; and (8) Maintenance.

PWC-100 Form – a form that fulfills the required Public Works project award notification as required by LAB sec. (replacing former DAS-13 notification) and 8 Cal. Code Reg. sec. 16451(a).

Subrecipient – a non-federal entity that receives a subaward from a pass-through entity to carry out part of a federal program.
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Prevailing Wage Decision Tree
Exceptions
 Janitorial or custodial services of a routine, recurring or usual nature;  Protection of the sort provided by guards, watchmen, or other security forces; and  Landscape maintenance work by “sheltered workshops” where “sheltered workshops” are nonprofit organizations licensed by the Division of LaborStandards Enforcement (DLSE) employing mentally and/or physically handicapped workers. 4-6
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5.0 City Contract Policy

PURPOSE
This policy is to ensure that City Employees are using the appropriate City Contract Templates in compliance with the City of Fontana’s (the City) policies and procedures, federal, state, and local laws, and to provide guidance when selecting the appropriate contract template for goods and services.

POLICY
The City’s Attorney has developed several City Contract Templates for City Employees to use when acquiring goods and services for different types of contracts, including Public Projects, Professional Services, Instructional Services, and Special Events. The City Contract Templates define the parties’ responsibilities and terms and conditions that govern each contract.

5.1 City Contract Templates
The City Contract Templates must be used when entering into an agreement with a vendor, consultant, or contractor to provide goods and services to the City. Anytime a vendor, consultant, or contractor takes exceptions to the terms and conditions, the Purchasing Manager must be notified, and the City Attorney must review and approve prior to obtaining the Department Head, Deputy City Manager, and City Manager’s signature. All City Contract Templates can be found on the Purchasing’s CityNet intranet page.

5.2 Exceptions to City Contract Templates
City Employees must always use the City Contract Templates. However, there may be some circumstances where the City Contract Templates do not fit the purpose for a specific type of good or service.

5.2.1 Contracts for Goods and Services
The following goods and services are examples of when the City Contract Templates may not be the appropriate contract type: equipment leases/purchases, software licenses/renewals, software maintenance agreements, contracts with financial institutions, and complex construction contracts. Vendors that provide such goods and services require the City to agree to their terms and conditions. In these circumstances, the City Employee must notify the Purchasing Manager to assist in reviewing the terms and conditions to minimize the risk to the City.

Prior to obtaining the Department Head, Deputy City Manager, and City Manager’s signature, the City Attorney must reviewand approve all contracts when the City Contract Templates are not used.

5.2.2 Other Contractual Agreements
The City enters into many other contractual agreements other than goods and services for which the above City Contract Templates would not be appropriate, including multi-agency agreements with other public agencies, cooperative agreements, memorandums of understanding, easement acquisitions, right-of-way contracts, fiduciary agreements, bond purchasing agreements, development agreements, grants, and subawards. 813
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ROLES AND RESPONSIBILITIES
City Manager
All purchases and contracts for goods and services are under the control and direction of the City Manager.

Purchasing Manager
Purchasing Manager is responsible for assisting departments with selecting the appropriate contract template, assisting with negotiating contracts to mitigate risk to the City, and to facilitate the contracting process to ensure compliance with the City’s policies and procedures.

City Employees
City Employees who acquire goods and services on behalf of the City must ensure that they use the appropriate City Contract Templates, seek assistance from the Purchasing Manager when necessary, and ensure all purchasing decisions are in compliance with the City’s policies and procedures.

DEFINITIONS
As used in this policy:

City Attorney – the attorney selected to represent the City of Fontana.

City Contract Templates – contract templates that are either developed or approved by the City Attorney.

City Employee – a person employed by the City that earns a wage or salary, including elected officials, non-elected officials, executive staff, and non-executive staff.

Instructional Services –services provided by an individual with the necessary credentials to teach specific classes to the City of Fontana residents.

Professional Services –means the services of attorneys, architects, auditors, consultants, engineers, specialized printers or other individuals or firms possessing a high degree of professional, unique, specialized, or technical skill or expertise. "Professional services" also means Maintenance work.

Public Project/Public Works Project – as defined in PCC Section 22002, a Public Project/Public Works Project is: (1) Construction, reconstruction, erection, alteration, renovation, improvement, demolition, and repair work involving any publicly owned, leased, or operated facility; (2) Painting or repainting of any publicly owned, leased, or operated facility; (3) In the case of a publicly owned utility system, “Public Project” shall include only the construction, erection, improvement, or repair of dams, reservoirs, powerplants, and electrical transmission lines of 230,000 volts and higher.

Special Events – performing arts or other special events that take place on City property. 814
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6.0 Federal Emergency
and Grant Procurement
Procedures

PURPOSE
The purpose of these Federal Emergency and Grant Procurement Procedures is to define the practices and policies governing the procurement of public works projects, services, and goods (i) in preparation of, during, and after an emergency that may be subject to federal funding or reimbursement; (ii) when using federal grant funds subject to the regulations set forth in the following sentence.

POLICY
These Federal Emergency and Grant Procurement Procedures are compliant with Title 2 of the Code of Federal Regulations Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (“Uniform Guidance”).

6.1 Federally Declared Emergencies and Federal Grants; Procurement and Contracting Requirements

6.1.1 In the event of an emergency declared by the President of the United States, the City must comply with Federal procurement standards as a condition of receiving public assistance funding from the Federal Emergency Management Agency (FEMA) for contract costs for eligible work. FEMA funding is governed by the Uniform Guidance.

6.1.2 In addition, most federal grant funding is also subject to the Uniform Guidance. Federal grant compliance requires the grantee to conduct procurements in accordance with written procurement policies and procedures that comply with the requirements set forth in the Uniform Guidance. These procurement procedures shall be complied with in connection with utilization of federal grant funding by the City, in addition to any other specific grant requirements.

6.1.3 These procedures are in addition to and are not intended to replace or supersede the City’s other procurement requirements in this Policy or state law. In the case of a conflict between these procedures, the more stringent requirement shall govern, provided that the more stringent requirement would not violate a federal procurement requirement. In such case, for federally funded contracts, the federal requirement shall govern.

6.2 Conflicts of Interest

6.2.1 Standards of Conduct for Conflicts of Interest. No City Employee 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. Such a conflict would arise when: City Employees; any member of their immediate family; their partner; or an organization which employs, or is about to employ, any of the above, has a financial or other interest in the firm selected for award. City Employees or agents will neither solicit nor accept gratuities, favors or anything of monetary value from contractors, potential contractors, or parties to sub-agreements. Such a conflict will not arise where the financial interest is not substantial or the gift is an unsolicited item of nominal intrinsic value. City Employees must follow applicable laws, rules, and regulations in regard to conflicts of interest including, but not limited to, the Political Reform Act, the prohibition against contractual conflicts of interest, and guidelines in the California Code of Regulations regarding acceptance of gifts.

6.2.2 Violations. Disciplinary actions to be applied for violations of the above standards are as follows:
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(1) The violation of these standards of conduct by City Employees will subject the violator to any disciplinary proceedings or action deemed appropriate by the City Manager. City Employees may correct a violation in any manner provided for under the Political Reform Act, and its implementing regulations. (2) The violation of any of these standards of conduct by City Employees will require correction of the violation in any manner provided for under the Political Reform Act, and its implementing regulations. (3) Contractors or subcontractors that violate these standards of conduct as relates to an active federallyfunded procurement may be prohibited from bidding on the procurement, or may be subject to other action as deemed appropriate by the City Manager.
(4) Agents of the City that violate these standards of conduct as relates to federally-funded procurements may be prohibited from participation on behalf of the City on federally funded projects, or subject to other action as deemed appropriate by the City Manager.

6.3 Procurement Standards

6.3.1 Oversight. The City shall maintain administrative oversight of contractors to ensure that contractors perform in accordance with the terms, conditions and specifications of their contracts or purchase orders.

6.3.2 Economical Approach. The City must avoid acquisition of unnecessary or duplicative items.

Consideration should be given to consolidating or breaking out procurements to obtain a more economical purchase. Where appropriate, an analysis will be made of lease versus purchase alternatives, and any other appropriate analysis to determine the most economical approach. The City will enter into state and local intergovernmental agreements or inter-entity agreements where appropriate for procurement or use of common or shared goods and services. If feasible and it reduces project costs, the City will explore using federal excess and surplus property in lieu of purchasing new equipment and property. When appropriate, the City will investigate using value engineering clauses in contracts for construction projects of sufficient size to offer reasonable opportunities for cost reductions.

6.3.3 Detailed Records. The City shall maintain records sufficient to detail the history of each procurement.

These records will include, but are not necessarily limited to the following: rationale for the method of procurement, selection of contract type, contractor selection or rejection, and the basis for the contract price.

6.3.4 Procurement Issues. The City alone shall be responsible, in accordance with good administrative practice and sound business judgment, for the settlement of all contractual and administrative issues arising out of procurements. These issues include, but are not limited to, source evaluation, protests, disputes and claims. Protest procedures or information on obtaining the procedures shall be included in the procurement documents.

6.4 Competition

6.4.1 Full and Open Competition. In order to ensure objective contractor performance and eliminate unfair competitive advantage, contractors that develop or draft specifications, requirements, statements of work, or invitations for bids or requests for proposals must be excluded from competing for such procurements. Some of the situations considered to be restrictive of competition include but are not limited to:
(1) Placing unreasonable requirements on firms in order for them to qualify to do business; (2) Requiring unnecessary experience and excessive bonding; (3) Noncompetitive pricing practices between firms or between affiliated companies; (4) Noncompetitive contracts to consultants that are on retainer contracts; (5) Organizational conflicts of interest, as further detailed herein; (6) Specifying only a “brand name” product instead of allowing “an equal” product to be offered and describing the performance or other relevant requirements of the procurement; and (7) Any arbitrary action in the procurement process.
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6.4.2 Organizational Conflicts of Interest. An unfair competitive advantage could result if a contractor were allowed to submit a bid or proposal for work described in a specification or statement of work that the contractor itself developed. For the purpose of eliminating a potential unfair competitive advantage, and in compliance with applicable state and federal laws and regulations, a contractor that develops or assists in developing specifications, requirements, statements of work, invitation for bids, and/or request for proposals for City procurement is excluded from competing for the resultant procurement, unless an appropriate waiver is issued by the City. All waivers will be assessed by the City on a case-by-case basis.

6.4.3 Geographical Preference. The City shall conduct procurements in a manner that prohibits the use of statutorily or administratively imposed in-state or local geographical preferences in the evaluation of bids or proposals, except in those cases where applicable federal statutes expressly mandate or encourage geographic preference. When contracting for architectural and engineering (A/E) services, geographic location may be a selection criteria provided its application leaves an appropriate number of qualified firms, given the nature and size of the project, to compete for the contract.

6.4.4 Procurement Transactions. The City shall require the following information for procurement transactions:
(1) A clear and accurate description of the technical requirements for the material, product or service to be procured. Such description shall not, in competitive procurements, contain features which unduly restrict competition. The description may include a statement of the qualitative nature of the material, product or service to be procured, and when necessary, shall set forth those minimum essential characteristics and standards to which it must conform if it is to satisfy its intended use. Detailed product specifications should be avoided if at all possible. When it is impractical or uneconomical to make a clear and accurate description of the technical requirements, a brand name or equal description may be used as a means to define the performance or other salient requirements of procurement. The specific features of the named brand which must be met by offerors shall be clearly stated; and
(2) All requirements which the offerors must fulfill and all other factors to be used in evaluating bids or proposals.

6.4.5 Prequalification Lists. The City shall ensure that all prequalified lists, if used, of persons, firms or products which are used in acquiring goods and services are current and include enough qualified sources to ensure maximum open and free competition. The City shall not preclude potential bidders from qualifying during the solicitation period.

6.5 Procurement Procedures
The thresholds below are federal thresholds. If City thresholds are lower, the more restrictive requirement shall govern, notwithstanding the provisions herein.

6.5.1 Micro-Purchases. Purchases within the micro-purchase threshold (e.g., currently set at purchases of $10,000 or less but periodically adjusted for inflation) may be awarded without soliciting competitive quotations if the City considers the price to be reasonable. To the extent practicable, the City must distribute micro-purchases equitably among qualified suppliers.

6.5.2 Small Purchases. Purchases within the simplified acquisition threshold (e.g., currently set at purchases of $250,000 or less) shall not be required to be formally bid. Price quotations must be received from no less than three (3) sources.

6.5.3 Formal, Sealed Bidding.
(1) Bids are publicly solicited and a firm-fixed-price contract (lump sum or unit price) is awarded to the responsible bidder whose bid, conforming to all the material terms and conditions of the invitation for bids, is 817
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the lowest in price. Formal, sealed bidding is required for purchases greater than the simplified acquisition threshold, which is currently set at $250,000, or as may be adjusted by the Federal Acquisition Regulation, pursuant to 48 CFR § 2.101.
(2) This is the preferred method for procuring construction, if a complete, adequate, and realistic specification or purchase description is available; two or more responsible bidders are willing and able to compete effectively and for the business; and the procurement lends itself to a firm-fixed-price contract and the selection of the successful bidder can be made principally on the basis of price. (3) The City must publicly advertise the Invitation for Bids and publicly open all bids at the time and place prescribed in the invitation.
(4) Any contracts awarded pursuant to this procedure shall be to the lowest responsible bidder submitting a responsive bid and shall be for a firm fixed price. Any or all bids may be rejected if there is a sound documented reason.

6.5.4 Competitive Proposals
(1) When the nature of a procurement does not lend itself to formal, sealed bidding, the District may solicit competitive proposals. The technique of competitive proposals is normally conducted with more than one source submitting an offer, and either a fixed-price or cost-reimbursement type contract is awarded. (2) A request for proposals (RFP) must be publicly advertised, and the District must solicit proposals from an adequate number of sources. The RFP must identify all evaluation factors and their relative importance; however, the numerical or percentage ratings or weights need not be disclosed. (3) Evaluation factors that will be considered in evaluating proposals shall be tailored to each procurement and shall include only those factors that will have an impact on the selection decision. a. The City’s procurement officer shall establish a formal evaluation committee, of at least two persons.

The size of an evaluation committee should be based on the size and complexity of the goods or services being procured and well balanced and represented by individuals involved with the procurement and/or affected by the goods or services being procured.
b. The evaluation committee will be charged with responsibility for evaluating proposals in accordance with the evaluation criteria in the solicitation, short listing firms, establishing a competitive range, and/or recommending a firm or firms for contract award.
(4) Any contract awarded based on the competitive proposal procurement process cannot be based exclusively on price or price-related factors.
(5) If a contract is awarded, it shall be to the responsible firm whose proposal is most advantageous to the City (“best value”), with price and other factors considered.

6.5.5 Competitive Proposals for A&E Services. The competitive proposal procedures above may be used for procurement of architect and engineering (A&E) services, provided that proposers must be evaluated based on competence and qualifications, without regard to price. For A&E procurements, price will not be used as a selection factor. The City will rank proposers based on qualifications only, and attempt to negotiate fair and reasonable compensation with the highest ranked proposer. If negotiations with the highest ranked proposer are unsuccessful, such negotiations will be terminated and the City will commence negotiations with the next highest ranked proposer. This process shall be continued with successive qualified proposers until agreement is reached that is determined to be fair and reasonable.
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6.5.6 Noncompetitive Procurements
(1) Contracts may be procured through a noncompetitive proposal only when:
a. The item is only available from a single source;
b. The public exigency or emergency for the requirement will not permit a delay resulting from competitive solicitation;
c. The Federal awarding agency or pass-through entity expressly authorizes noncompetitive proposals in response to a written request from the District; or
d. Competition is deemed inadequate after the solicitation of a number of sources.

6.5.7 Public Projects. Public projects shall be procured by the City’s formal contract bid procedures outlined by Section 3.0 Bidding Procedure, and the formal, sealed bidding in this section. If there is conflict between the foregoing, the more restrictive requirements shall apply.

6.5.8 Award.
(1) Responsible Contractor. The City shall award contracts only to responsible contractors possessing the ability to perform successfully under the terms and conditions of a proposed procurement. Consideration will be given to such matters as contractor integrity, compliance with public policy, record of past performance, and financial and technical resources.
(2) Debarment and Suspension. In accordance with 2 CFR 200.213, in connection with the responsibility determination, a check of debarment and suspension using the System for Award Management (SAM), www.sam.gov, must be performed and documented in the procurement records prior to award.

6.6 Contracting with Small and Minority Firms, Women’s Business Enterprises, and Labor Area Surplus Firms

6.6.1 The City must take all necessary affirmative steps to ensure the use of minority businesses, women’s business enterprises, and labor surplus area firms when possible, as set forth at 2 CFR § 200.321 and detailed below. The City shall:
(1) Place qualified small and minority businesses and women's business enterprises on solicitation lists; (2) Assure that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources;
(3) Divide total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses, and women's business enterprises; (4) Establish delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women's business enterprises; (5) Use the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Minority Business Development Agency of the Department of Commerce; and (6) Require the prime contractor, if subcontracts are to be let, to take the affirmative steps listed in paragraphs (1) through (5) of this section.

6.6.2 The City shall document the steps above, and any relevant findings applicable to any of the steps above in its procurement file.

6.7 Cost and Price

6.7.1 Cost or Price Analysis. The City shall perform a cost or price analysis in connection with every procurement action, including contract modifications, in excess of the simplified acquisition threshold. While the method and degree of analysis depend on the facts surrounding the particular procurement situation, the City must, at a minimum, make independent estimates before receiving bids or proposals. 819
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6.7.2 Profit. The City shall negotiate profit as a separate element of the price for each contract in which there is no price competition and in all cases where a cost analysis is performed as required by 2 CFR § 200.323(b).

6.7.3 Estimated Costs. Costs or prices based on estimated costs for contracts are allowable only to the extent that costs incurred or cost estimates included in negotiated prices would be allowable for the City under 2 CFR 200.400 et seq.

6.8 Payment Procedures

6.8.1 Method of Contracting. Contracts entered into pursuant to these procedures shall utilize only fixedprice, cost-reimbursement, or, to a limited extent, time and materials payment methods.

6.8.2 Prohibited Methods of Contracting. The City shall not use the cost plus a percentage of cost or percentage of construction cost methods of contracting for any work for which federal reimbursement will be sought.

6.8.3 Time and Materials (“T&M”) Contracts
(1) T&M contracts should be used rarely, and the use of T&M contracts should be limited to a reasonable time period (e.g., no more than 70 hours) based on circumstances during which the District cannot define a clear scope of work.
(2) The City shall only enter into a time and materials contract if all of the following apply:
a. The City has determined and documented in the project file that no other contract is suitable; b. The contract has a guaranteed maximum price that the contractor exceeds at its own risk; and c. The City provides a high degree of oversight to obtain reasonable assurance that the contractor is using efficient methods and effective cost controls.
(3) The City must define the scope of work as soon as possible to enable procurement of a more acceptable type of contract (i.e., non-T&M).

6.8.4 Separate Invoicing. All purchases made during a proclaimed emergency shall require separate invoicing from routine (i.e., non-emergency related) purchases. All invoices shall state the goods, services, or equipment provided and shall specify where the goods or services were delivered. All invoices shall specify the location(s) where the goods or services were used, if possible. Any invoice which fails to properly identify the emergency nature of the purchase and provide details as to the date(s) and location(s), as appropriate, shall not be paid until such errors are corrected by the vendor and re-submitted in correct form.

6.8.5 Auditing of Invoices for Debris Removal. All invoices for debris clearance and removal shall be audited prior to payment to the contractor. Contractors shall be notified of this requirement prior to the award of any contract for debris clearance and/or removal. Audits shall be in accordance with procedures for debris removal monitoring specified in FEMA’s Publication 325, Debris Management Guide.

6.9 Bonding Requirements

6.9.1 Bonding. For construction or facility improvement contracts or subcontracts exceeding the simplified acquisition threshold (See 2 CFR 200.88), the City shall require at a minimum:
(1) A bid guarantee from each bidder equivalent to five percent of the bid price. (2) A performance bond on the part of the contractor for 100 percent of the contract price. (3) A payment bond on the part of the contractor for 100 percent of the contract price. 820
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6.10 Procurement of Recovered Materials

6.10.1 For procurements covered under these procedures, the City and its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. In accordance with these requirements, the City shall only procure items designated in the guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.

6.10.2 This requirement applies to purchases of items when the purchase price of the item exceeds $10,000, or the value of the quantity acquired during the preceding fiscal year exceeded $10,000.

6.11 Contract Provisions
The City’s contracts shall contain the applicable provisions described in Appendix II to Part 200 – Contract Provisions for Non-Federal Entity Contracts Under Federal Awards.

ROLES AND RESPONSIBILITIES
City Manager
All purchases and contracts for goods and services are under the control and direction of the City Manager.

DEFINITIONS
As used in this policy:

City Employee - a person employed by the City that earns a wage or salary, including elected officials, non-elected officials, executive staff, and non-executive staff.

Federal Emergency Management Agency (FEMA) - An agency of the United States Department of Homeland Security (DHS) with the primary purpose is to coordinate the response to a disaster that has occurred in the United States and that overwhelms the resources of local and state authorities.

Micro-Purchases - Purchases within the micro-purchase threshold (e.g., currently set at purchases of $10,000 or less but periodically adjusted for inflation) may be awarded without soliciting competitive quotations if the City considers 821
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the price to be reasonable.

Political Reform Act - California law that is requires the detailed disclosure of the role of money in California politics.

This includes the disclosure of contributions and expenditures in connection with campaigns supporting or opposing state and local candidates and ballot measures as well as the disclosure of expenditures made in connection with lobbying the State Legislature and attempting to influence administrative decisions of state government.

Request for Proposal – is a document that solicits firms to submit a proposal to perform the scope of work associated with a proposed project. Cost is not the sole basis for selection in an RFP; other qualifications including experience, turnaround time and approach to work are important factors when evaluating proposals. RFPs are project specific and preparation requires general knowledge of the project. It is expected that interested parties would do a limited amount of work to develop a quality proposal.

Resource Conservation and Recovery Act - the principal federal law in the United States governing the disposal of solid waste and hazardous waste.

Small Purchases - Purchases within the simplified acquisition threshold (e.g., currently set at purchases of $250,000 or less) shall not be required to be formally bid
Uniform Guidance – The Office of Management and Budget (OMB) Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (2 CFR Part 200) is Federal legislation that governs the Federal grant process from pre-award to post-award administration. 822
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7.0 Surplus Property Policy

PURPOSE
This policy is to ensure that City Employees are purchasing supplies and equipment in accordance with the City of Fontana’s (the City) policies and procedures, Federal, State, and local laws, while ensuring adequate control, appropriate use, and disposition.

POLICY
This policy ensures that acquisitions, internal controls, and disposition of supplies and equipment are in compliance with all requirements outlined in the (FMC 10-155), California Government Code (GC) and Office of Management and Budget (OMB) Uniform Administrative Requirements, Cost Principles Competitive Requirements (Uniform Guidance).

7.1 City Property
City Property consists of all supplies and equipment purchased for the City regardless of the dollar amount, including Fixed Assets.

7.2 Fixed Assets
Fixed Assets are tangible assets having a value equal to or greater than $5,000. Therefore, any supplies or equipment purchased that has a value of $5,000 or greater mustbe acquired,tagged, and disposed in accordance with this policy.

7.2.1 Acquiring Fixed Assets Under Grants
The City receives grants from various Federal, State, and local agencies to fund specific programs. All Fixed Assets acquired under a grant shall comply with the terms and conditions of the grant. All Fixed Assets fully funded or partially funded by a Federal Grant shall perform an Equipment Screening prior to purchasing which verifies the following:
 If prior written approval was obtained from the Federal awarding agency or pass-through to purchase the Fixed Asset;
 If the title of the Fixed Asset will vest in the Federal awarding agency, a pass-through, or the City; Description of the Fixed Asset;
 Source of funding (Federal Award Identification Number (FAIN)); and

7.3 Disposition of Surplus Property
Supplies, equipment, and Fixed Assets are considered Surplus Property if they are no longer being utilized by the City for reasons, including decreased use, poor condition, damaged beyond repair, and/or obsolescence. Once Surplus Property has been identified and a disposition method has been determined, the department will need to submit a Surplus Property Disposition Form to the Purchasing Manager. The Department Head will need to 823
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approve the disposition of all Surplus Property for their department regardless of the value. If the value of the Surplus Property is equal to or more than $5,000, the Purchasing Office will coordinate with Maintenance to transport the Surplus Property to dispose by one of the following disposition methods. Once the disposition is complete, the Purchasing Office will notify Accounting to update the asset record.

7.4 Transfer to Another Department
Departments can transfer Surplus Property from one department to another. The department transferring out the Surplus Property will need to submit a Surplus Property Disposition Form with the necessary approvals.

7.5 Trade-In
Surplus Property can be offered as a trade-in or a credit towards the acquisition of new supplies, equipment, or Fixed Assets.

7.6 Sell
Surplus Property may be offered for sale, and any sales must be directed and approved by the Purchasing Manager. All Surplus Property sales are “as is” with no warranty, guarantee, expressed or implied, as to the condition, utility or usability of the Surplus Property being sold. City Employees may not purchase Surplus Property. The following sale methods for Surplus Property may be used:
 Public Auction. the Purchasing Office may conduct public auctions, utilize public auction internet providers, or contract a public auctioneer company to sell Surplus Property on behalf of the City.  Sealed Bids. the Purchasing Office may solicit sealed bids in which the highest responsible bidder will be sold the Surplus Property.
 Negotiated Sale. the Purchasing Office may negotiate a sale if there is only one known buyer available and willing to purchase the Surplus Property.
 Selling as Salvage. the Purchasing Office may sell Surplus Property as salvage if the value of the raw materials exceeds the value of the property.

7.7 Donate
Surplus Property may be donated to a non-profit organization or charitable group.

7.8 Scrap
If no other disposition method for Surplus Property is available, including transferring to a different department, trading in, selling, donating, and/or selling as salvage, then the Surplus Property may be thrown away.

7.9 Surplus Property Under Grants
If the City has Surplus Property that was acquired with grant funds, then the disposition of such property shall comply with the terms and conditions of the grant, regardless of the funding agency. All Fixed Assets fully funded or partially funded by a Federal Grant shall be disposed in accordance with the Federal awarding agency’s disposition instructions.
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ROLES AND RESPONSIBILITIES
City Manager
All sales and disposition of Surplus Property are under the control and direction of the City Manager.

Chief Financial Office
The Chief Financial Officer is responsible for recommending policy changes and updates to establish and maintain compliance with government laws and to oversee the Surplus Property process while ensuring appropriate stewardship of the City’s assets.

Department Heads
Department Heads are responsible for holding their employees accountable for the Surplus Property activities to ensure that they comply with the City’s purchasing policies and procedures.

Purchasing Manager
The Purchasing Manager is responsible for ensuring that the disposition of Surplus Property is conducted in a manner that is compliant with the City’s purchasing policies and procedures, Federal, State, and local laws.

Purchasing Office
The Purchasing Office will review completed Surplus Property Disposition Forms, ensure the appropriate method of disposition. Once approved, the Purchasing Office will coordinate the disposition of the Surplus Property with Maintenance and notify Accounting if any asset records need to be updated.

Accounting
In coordination with the Purchasing Office, Accounting enters and maintains Fixed Asset records in accordance with the City’s purchasing policies and procedures.

Maintenance
In coordination with the Purchasing Office, Maintenance assists with the transportation of Surplus Property to and from departments within the City, or from City buildings to the yard for disposition.

City Employees
City Employees are responsible for adhering to this policy whenever purchasing Fixed Assets or disposing Surplus Property.

DEFINITIONS
As used in this policy:

Accounting – a division within the Department of Finance that performs accounting functions and reporting for the City.

Maintenance – a division within the Department of Public Works that is responsible for building maintenance services for the City.

City Property – consists of all supplies and equipment purchased for the City regardless of the dollar amount, including Fixed Assets.
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City Employee – a person employed by the City that earns a wage or salary, including elected officials, non-elected officials, executive staff, and non-executive staff.

Federal Grant – an award of financial assistance from a Federal agency to a recipient to carry out a public purpose of support or stimulation authorized by a law of the United States.

Fixed Asset – tangible assets having a value equal to or greater than $5,000.

Purchasing Office – a division within the Department of Finance responsible for ensuring compliance with the City’s purchasing policies and procedures.

Surplus Property – supplies, equipment, and Fixed Assets that are no longer being utilized by the City for reasons, including decreased use, poor condition, damaged beyond repair, and/or obsolescence.

Surplus Property Disposition Form – a form used whenever a department wants to transfer, trade-in, sell, donate, or scrap Surplus Property.
826
7-5
Surplus Property Disposition Form
This form must be submitted to the Purchasing Office for the disposition of City owned property, including supplies, equipment, materials, and fixed assets.

Department Division Date
/ /
Method of Transfer of Property Donate
Disposition: Trade-in Scrap
Sell
Additional Detail:

Transfer to Department/Division (If Applicable): Are All Items Available for Pickup? YES NO
Date Available for Pickup
/ /
Property
Tag Number
(If Applicable)
Detailed description, including serial number,
manufacturer, model
Title to City Operational Estimated
Value
Received
Price
YES NO YES NO $ $
YES NO YES NO $ $
YES NO YES NO $ $
YES NO YES NO $ $
YES NO YES NO $ $
YES NO YES NO $ $
YES NO YES NO $ $
YES NO YES NO $ $
YES NO YES NO $ $
YES NO YES NO $ $
YES NO YES NO $ $
YES NO YES NO $ $
YES NO YES NO $ $
YES NO YES NO $ $
Total $ $
In the space below, describe the circumstances surrounding the method of disposition. Please be specific:

If the title vests with the awarding agency, did you follow the disposition instructions or the terms and conditions of the grant?

YES NOT APPLICABLE
Requestor Name/Title Signature Date

PURCHASING USE ONLY
Date Received:

Date Processed:

Date to Accounting:

Disposition Complete:

Initial/Signature Date
Name:

Approved by Department Head
Signature Date:

Name/Title:

Approved by City Manager (If total estimated value exceeds $5,000) Signature Date:

Name/Title:
827
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1910 Agenda Date: 12/13/2022
Agenda #: AJ. Category: Consent Calendar
FROM:

Public Works
SUBJECT:

Award Bid for Landscape Maintenance Services, SP-53-PW-23 RECOMMENDATION:

1. Award bids in the total amount of $14,556,118, and authorize the City Manager to enter into an agreement for two (2) years, for Landscape Maintenance Services (SP-53-PW-23) to the following bidders in the amounts of:
a. Area 1 - California Landscape and Design, Inc, $4,023,745 b. Area 2 - California Landscape and Design, Inc. $2,786,517 c. Area 3 - Stay Green, Inc. $4,223,624
d. Area 4 - Mariposa Landscape, Inc. $3,522,229

2. Authorized the City Manager to execute future contract amendments for remaining three (3) additional one-year (1) renewals for a total 5-year contract.

3. Approve a budget adjustment in the amount of $360,777 to increase appropriations to be included in the 2022-23 Mid-Year Budget Report.

COUNCIL GOALS:
· Invest in the City’s infrastructure (streets, sewers, parks, etc.) by maintaining and improving the city's existing infrastructure.
· Invest in the City’s infrastructure (streets, sewers, parks, etc.) by improving the aesthetics of the community through code enforcement, street sweeping, and landscape maintenance.

DISCUSSION:

The Public Works Department is responsible for the maintenance of over 26 million square feet of parks, streetscapes, and other active landscaped areas. The City has been divided into four distinct landscape maintenance contract areas to better manage the overall quality of the contracted work the City receives. The scope of work includes regular weekly landscape maintenance services in all General Fund, Landscape Maintenance District (LMD) and Community Facility District (CFD) landscape areas under the City's control. In accordance with the City's purchasing policies, Staff has completed the formal bidding process for landscape maintenance services. Three-hundred-thirty-four (334) vendors were notified of this bid opportunity. Proposal packets were downloaded by thirty-six City of Fontana Page 1 of 2 Printed on 12/9/2022
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File #: 21-1910 Agenda Date: 12/13/2022
Agenda #: AJ. Category: Consent Calendar
(36) vendors, and we received six (6) responses. Twenty (20) Fontana vendors were notified, and we received one (1) Fontana vendor response. Each vendor had the opportunity to submit proposals for all four of the landscape maintenance contract areas. The proposals were evaluated by Public Works Department staff with the assistance of the City's Purchasing Department. The evaluation criteria for these proposals were based on the qualifications of the vendors, the vendor's technical approach to the scope of work, and the total proposed cost. Based upon the evaluation of the proposals received it was determined that the following vendor proposals provided the best overall value to the City:

AREA 1 - California Landscape and Design, Inc.

AREA 2 - California Landscape and Design, Inc
AREA 3 - Stay Green, Inc.

AREA 4 - Mariposa Landscapes, Inc.

Staff recommends that contracts for landscape maintenance services be awarded to vendors listed above, as they are the most qualified, responsible, and responsive bidders to complete the scope of work for this contract. The proposed contracts will be for a two-year period with three additional oneyear extensions at the City's sole discretion, effective February 1, 2023.

FISCAL IMPACT:

The total fiscal impact associated with the approval of this item is $14,556,118 which reflects an annual increase of $980,620 as compared to the current contracts and no increases during the initial two-year term. The impact by fiscal year is as follows; $3,032,525 for 2022-23, $7,278,059 for 2023- 24, and $4,245,534 for 2024-25. Funds in the amount of $6,949,400 are included in the 2022-23 operating budget from various CFDs, LMDs and the General Fund where these activities are performed. Public Works Department will be requesting a five-month proration (February - June 2023) in the amount of $360,777 during the Mid-Year Budget adjustments as follows: General Fund - $71,901, Fire Funds - $1,131, LMD Funds - $67,302 and CFD Funds - $220,443. The majority of the increases requested for the LMD and CFD funds will be funded through available fund balance.

Increases from July - December 2023 will be requested with 2023-24 operating budget.

MOTION:

Approve Staff Recommendation
City of Fontana Page 2 of 2 Printed on 12/9/2022
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CITY OF FONTANA

CALIFORNIA
PURCHASING November 30, 2022
TO: Dan West, Public Works Manager
FROM: Ticha Loera, Purchasing Specialist
SUBJECT: RECAP OF BID SP-06-PW-20, LANDSCAPE MAINTENANCE SERVICES The bid for the above-named project was opened electronically at 2:00 P.M. on November 17, 2022. Three hundred thirty-four (334) vendors were notified of the bid. Proposal packets were downloaded by thirty-six (36) vendors and we received six (6) responses.

Twenty (20) Fontana vendors were notified and one (1) Fontana vendor response was received. After evaluating the vendor responses, the Landscape Maintenance Services Evaluation Committee is recommending the following award of contracts: Area 1 – California Landscape and Design, Inc.; Area 2 – California Landscape and Design, Inc., and Area 3 – Stay Green, Inc.; and Area 4 – Mariposa Landscape Landscapes, Inc.

If you agree with the Landscape Maintenance Services Evaluation Committee’s recommendation, please forward, at your earliest convenience, an Action Report to Fontana City Council for their concurrence with the recommendation.

If you have any questions, please contact me at x6696.
cc: Purchasing File
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City of Fontana
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City of Fontana
Landscape Maintenance Services (SP-53-PW-23), bidding on 11/17/2022 2:00 PM (PST)

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City of Fontana
Landscape Maintenance Services (SP-53-PW-23), bidding on 11/17/2022 2:00 PM (PST)

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City of Fontana
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Landscape Maintenance Services (SP-53-PW-23), bidding on 11/17/2022 2:00 PM (PST)

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City of Fontana
Landscape Maintenance Services (SP-53-PW-23), bidding on 11/17/2022 2:00 PM (PST)

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City of Fontana
Landscape Maintenance Services (SP-53-PW-23), bidding on 11/17/2022 2:00 PM (PST)

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Landscape Maintenance Services (SP-53-PW-23), bidding on 11/17/2022 2:00 PM (PST)

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Landscape Maintenance Services (SP-53-PW-23), bidding on 11/17/2022 2:00 PM (PST)

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City of Fontana
Landscape Maintenance Services (SP-53-PW-23), bidding on 11/17/2022 2:00 PM (PST)

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Landscape Maintenance Services (SP-53-PW-23), bidding on 11/17/2022 2:00 PM (PST)

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Landscape Maintenance Services (SP-53-PW-23), bidding on 11/17/2022 2:00 PM (PST)

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City of Fontana
Landscape Maintenance Services (SP-53-PW-23), bidding on 11/17/2022 2:00 PM (PST)

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City of Fontana
Landscape Maintenance Services (SP-53-PW-23), bidding on 11/17/2022 2:00 PM (PST)

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Landscape Maintenance Services (SP-53-PW-23), bidding on 11/17/2022 2:00 PM (PST)

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Landscape Maintenance Services (SP-53-PW-23), bidding on 11/17/2022 2:00 PM (PST)

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Landscape Maintenance Services (SP-53-PW-23), bidding on 11/17/2022 2:00 PM (PST)

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Landscape Maintenance Services (SP-53-PW-23), bidding on 11/17/2022 2:00 PM (PST)

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Landscape Maintenance Services (SP-53-PW-23), bidding on 11/17/2022 2:00 PM (PST)

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Landscape Maintenance Services (SP-53-PW-23), bidding on 11/17/2022 2:00 PM (PST)

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111mmii 1 iii
Find address or place 
-117.203 34.194 Degrees
+
–
Parks and Funding Districts City of Fontana
899
To: Phil Burum, Deputy City Manager
CC: Gia Kim, City Engineer/Public Works Director
From: Dan West, Public Works Manager
Date: 12/5/2021
Re: Award of Contracts for Landscape Maintenance Services SP-53-PW-23 _________________________________________________________________________________________________________ The City received bids from six (6) different contractors for Landscape Maintenance Services, SP-53-PW-23. After evaluating these bids, the following vendors have been selected for award of contracts at the next City Council meeting scheduled for December 13th, 2022:

Contract Area 1 - California Landscape and Design, Inc. - Area 1 square footage – 6,287,103
- Bid Price - $2,011,872.96 per year
- Price per sq. ft. per year - $0.32
Contract Area 2 – California Landscape and Design, Inc. - Area 2 square footage – 6,057,646
- Bid Price - $1,393,258.58 per year
- Price per sq, ft. per year - $0.23
Contract Area 3 – Stay Green, Inc.
- Area 3 square footage – 7,511,646
- Bid Price - $2,111,812.00 per year
- Price per sq, ft. per year - $0.282
Contract Area 4 – Mariposa Landscapes, Inc.
- Area 4 square footage – 6,363,784
- Bid Price - $1,761,114.55 per year
- Price per sq, ft. per year - $0.277
See the attached contract area exhibit included for reference. 900
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1925 Agenda Date: 12/13/2022
Agenda #: AK. Category: Consent Calendar
FROM:

Development Services
SUBJECT:

Adoption of a Resolution Approving the First Amendment to the Integrated Waste Agreement with Burrtec Waste Industries, Inc. and Finding the Action Exempt from the California Environmental Quality Act
RECOMMENDATION:

1. Adopt Resolution Approving the First Amendment to the Integrated Waste Agreement with Burrtec Waste Industries, Inc.

2. Authorize the City Manager to execute any documents necessary or appropriate to effectuate said amendment and/or associated approvals.

3. Find the action exempt from the California Environmental Quality Act.

COUNCIL GOALS:
· To ensure the implementation of mandatory organic waste diversion requirements under the SB 1383 Regulations.
· To comply with the deadlines in the Notification of Intent to Comply (“NOIC”) with the SB 1383 Regulations the City had submitted to CalRecycle earlier in the year.

DISCUSSION:

The City of Fontana (“City”) has an exclusive franchise agreement with Burrtec Waste Industries, Inc. (“Burrtec”) to provide municipal solid waste collection services within the City. The current Integrated Solid Waste Agreement (“Agreement”) between the City of Fontana and Burrtec Waste Industries, Inc. was entered into on January 1, 1997. Recent changes to state law relative to organic waste collection have necessitated modifications to the existing Agreement. The proposed First Amendment to Integrated Solid Waste Agreement Between the City of Fontana and Waste Industries, Inc. (“First Amendment”) includes the new organic waste collection services required by regulations implementing Senate Bill (SB) 1383 (Chapter 395, Statutes of 2016) (“SB 1383 Regulations”).

The deadline for local jurisdictions to adopt enforceable mechanisms, such as franchise agreements or amendments to franchise agreements, to implement the SB 1383 Regulations was January 1, 2022. However, the City and Burrtec needed additional time to negotiate the SB 1383 services Burrtec will provide to the City. To avoid incurring penalties from CalRecycle in calendar year 2022 for a delayed approval of the First Amendment, the City had adopted a resolution that approved a Notification of Intent to Comply with the SB 1383 Regulations in accordance with a schedule approved by CalRecycle. The approval of the First Amendment will satisfy the City’s requirements to comply with the Notification of Intent to Comply by the end of the 2022 calendar year and prevent the City of Fontana Page 1 of 2 Printed on 12/9/2022
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File #: 21-1925 Agenda Date: 12/13/2022
Agenda #: AK. Category: Consent Calendar
City from incurring penalties in 2023 or retroactively from January 1, 2022.

Background:

The California Department of Resources Recycling and Recovery (“CalRecycle”) adopted regulations to implement Senate Bill 1383 (Lara, Statutes of 2016) (“SB 1383 Regulations”) in order to achieve organic waste reduction goals established in Health and Safety Code Section 39730.6 through a 50 percent reduction in the level of the statewide disposal of organic waste from the 2014 level by 2020 and a 75 percent reduction in the level of the statewide disposal of organic waste from the 2014 level by 2025. The SB 1383 Regulations took effect January 1, 2022, and jurisdictions that are determined to be out of compliance are potentially subject to administrative civil penalties of up to $10,000 per day.

The proposed First Amendment would update the Agreement to reflect the additional obligations required by the SB 1383 Regulations. Under the SB 1383 Regulations, residents and businesses must separate organic waste (such as yard waste and food waste) from other trash to be managed at a facility other than the landfill. To accomplish this, all property owners, residents, and businesses will be required to enroll in collection services for trash, recyclables, and organic waste. In addition, the First Amendment authorizes the City, at its discretion, to place solid waste service charges on the property tax roll, provides that Burrtec will indemnify the City if there are challenges to the Agreement by referendum, updates the regional Consumer Price Index (“CPI”) used for inflationary adjustments to the CPI, All Urban Consumers for the Riverside-San Bernardino-Ontario, CA Metropolitan Area, and provides that Burrtec will be responsible for sending Prop. 218 notices and annual rate adjustment notices to property owners and solid waste customers.

Exempt from CEQA
This action is not subject to the requirements of the California Environmental Quality Act (“CEQA”).

The approval of the First Amendment it is not a “project” within the meaning of 14 CCR Section 15378 (“State CEQA Guidelines”) because it has no potential for resulting in direct or indirect physical change in the environment. The approval of the amendment to the franchise agreement is exempt from CEQA review because it does not constitute a project under CEQA pursuant to Section 15378 (b)(5) of the State CEQA Guidelines
FISCAL IMPACT:

Adopting the attached First Amendment will ensure the City is not retroactively fined for the 2022 calendar year or in 2023 at the rate of up to $10,000 per day for failing to amend the franchise agreement to comply with the SB 1383 Regulations, which took into effect on January 1, 2022.

MOTION:

Approve staff recommendation.

City of Fontana Page 2 of 2 Printed on 12/9/2022
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1 RESOLUTION NO. 2022-____

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FONTANA,

CALIFORNIA APPROVING FIRST AMENDMENT TO THE INTEGRATED

WASTE AGREEMENT BETWEEN THE CITY OF FONTANA AND BURRTEC WASTE INDUSTRIES, INC. AND FINDING THE ACTION EXEMPT FROM

THE CALIFORNIA ENVIRONMENTAL QUALITY ACT
WHEREAS, Burrtec Waste Industries, Inc. (“Burrtec”) provides solid waste collection services within the City of Fontana (“City”) pursuant to an exclusive solid waste franchise agreement; and
WHEREAS, on January 1, 1997, the City and Burrtec entered into an Integrated Solid Waste Agreement Between the City of Fontana and Burrtec Waste Industries, Inc. (the “Agreement”); and
WHEREAS, since the approval of the original agreement, California law changed to now require the City to implement additional solid waste diversion programs that were not included as part of the original agreement; and
WHEREAS, as a result of regulations implementing Senate Bill 1383 (Chapter 395, Statutes of 2016) that took effect January 1, 2022, organic waste can no longer be disposed of in landfills and organic waste collection services must be provided to all residents and businesses; and
WHEREAS, the City wishes to amend the Agreement to reflect the additional services that Burrtec will perform for solid waste collection services, update the index used for inflationary adjustments, and make other changes to the Agreement.

NOW, THEREFORE, the City Council of the City of Fontana does hereby resolve, determine, and order as follows:

The above recitals are all true and correct and are incorporated herein.

Section 1. The City Council hereby approves the First Amendment to Integrated Solid Waste Agreement Between the City of Fontana and Burrtec Waste Industries, Inc., attached hereto as Exhibit “A” and incorporated herein by this reference.

Section 2. This Resolution is not subject to the requirements of California Environmental Quality Act (“CEQA”). This Resolution is not a “project” within the meaning of Section 15378 of Title 14 of the California Code of Regulations (“State CEQA Guidelines”) because it has no potential for resulting in direct or indirect physical change in the environment. The approval of the amendment to the franchise agreement is exempt from CEQA review because it does not constitute a project under CEQA pursuant to Section 15378(b)(5) of the State CEQA Guidelines, which provides that organizational and administrative activities of governments that will not result in physical changes in the environment are not considered projects for CEQA purposes. If the actions were considered a project, they would be exempt under CEQA Guidelines Sections 15307 and 903
2 15308, as an action by a regulatory agency taken to protect the environment and natural resources, and 15061(b)(3), as these existing services are continuing with additional services provided to implement requirements of state law. The documents and materials that constitute the record of proceedings on which these findings have been based are located 8353 Sierra Avenue, Fontana, CA 92335. The custodian for these records is the City Clerk of the City.

Section 3. If any section, subsection, subdivision, sentence, clause, or phrase in this Resolution or any part thereof is for any reason held to be unconstitutional, invalid, or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Resolution or any part thereof.

The City Council hereby declares that it would have adopted each section irrespective of the fact that any one or more subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional, invalid, or ineffective.

Section 4. This Resolution shall take effect immediately upon adoption.

Section 5. The City Manager or his or her designee is hereby authorized to take all actions necessary to implement this Resolution.

Section 6. The City Clerk shall certify to the passage and adoption of this Resolution.

APPROVED AND ADOPTED this 13th day of December, 2022.
_______________________________________
Acquanetta Warren, Mayor
ATTEST:
_______________________________________
Germaine McClellan Key
City Clerk
904
3 I, Germaine McClellan Key, City Clerk of the City of Fontana, California, hereby certify that the foregoing Resolution is the actual resolution that was duly and regularly adopted by the City Council of the City of Fontana at a regular meeting on the 13th day of December, 2022, by the following vote, to wit:

AYES:

NOES:

ABSENT:
_______________________________________
Germaine McClellan Key
City Clerk
905
4 EXHIBIT A
First Amendment to Integrated Solid Waste Agreement
Between the
City of Fontana and Burrtec Waste Industries, Inc.
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1 FIRST AMENDMENT TO THE

INTEGRATED WASTE AGREEMENT

BETWEEN THE CITY OF FONTANA
AND
BURRTEC WASTE INDUSTRIES, INC.

THIS FIRST AMENDMENT to is made and entered into this _____ day of ________, 2022, by and between the CITY OF FONTANA (the “City”), and BURRTEC WASTE INDUSTRIES, INC., a California corporation, (“Contractor”), sometimes jointly referred to as “Parties.”

RECITALS
WHEREAS, on or about January 1, 1997, the City and Contractor entered into that certain Integrated Solid Waste Agreement (“Agreement”) under which Contractor agreed to provide solid waste handling and collection services; and
WHEREAS, pursuant to Section 24 of the Agreement, the Agreement may only be amended by written agreement signed by both the City and Contractor; and WHEREAS, the Parties wish to amend the Agreement implement changes required by SB 1383 and the SB 1383 Regulations as defined in the Fontana Municipal Code and as set forth below.

AGREEMENT
NOW, THEREFORE, in good and valuable consideration of the mutual promises and covenants contained herein, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:

1. Section 1 of the Agreement is amended to read in full as follows:
“1. INCORPORATION BY REFERENCE OF THE SOLID WASTE AND

RECYCLING ORDINANCE
Chapter 24 of the Code of the City of Fontana, California ("City Code"), is expressly made a part of this Agreement and is incorporated herein by reference as though set forth in full herein. A copy of said Chapter, is attached hereto as Exhibit "B" Contractor and City agree to be bound by the terms of Chapter 24 of the City Code and any amendments thereto that may be adopted from time to time which affect the collection, disposal, composting, and/or recycling of refuse garbage, rubbish and solid waste in the City, including any defined terms in the City Code. It is understood that said Chapter 24 sets forth the minimum standards pertaining to Contractor's obligations under this Agreement and that higher standards and regulations may apply to Contractor under this Agreement. 907
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2 In the event of any conflict between the City Code and this Agreement, the provision containing the higher standard shall control. Without limiting the foregoing, Contractor understands and agrees that it shall comply with any changes to Chapter 24 adopted by City necessary or advisable to ensure compliance with SB 1383 and the SB 1383 Regulations.

2. Section 2(b)(1) of the Agreement is amended to read in full as follows:
“1. Franchise Fee
The Contractor shall pay to the City an amount equal to 12.0 percent of the gross monthly receipts of the Contractor derived from the Contractor’s business conducted within the boundaries of the City of Fontana in consideration for this Agreement under which the Contractor may utilize refuse, recyclables, garbage, rubbish, organic waste, and solid waste as it now, or in the future exits, from residential and commercial properties within the City of Fontana, and for the administration of the City of Fontana’s Integrated Solid Waste Management (AB 939) Act’s responsibilities. Contractor and City agree that the compensation under this subsection is a negotiated amount that is reasonably related to the value of the rights granted to Contractor under this Agreement.

City may use the franchise fee for any lawful purpose.”

3. Section (23)(c)(iii) is amended to the Agreement to read in full as follows:
“(iii) Provide a recycling and organic waste program at City buildings, as directed by the City and in compliance with the SB 1383 Regulations.”

4. Section (3)(b)(vi) is amended to the Agreement to read in full as follows:
“(vi) Recyclable materials and organics donated or sold by customers to any party of their choice and any other exception provided by law, including the City Code as it may be amended.

5. Section (2)(d) is amended to the Agreement to read in full as follows:

1. “(d) Aid to Handicapped and Frail. At no direct cost to the City or to the Contractor's customers, the Contractor shall provide service to move collection containers between special residential customers individual storage and collection points, and then back again. Special customers are those whose health, handicap, age, frailty, or other physical or mental condition prevents them from safely moving their containers.

The determination of which citizens qualify as special citizens is to be made by the City Manager based on: the severity of the special residents' frailty or handicap; whether the 908
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3 special resident lives with or near a friend or relative who is able to take out the special residents' containers; and whether the special resident can have his or her contractor, such as a gardener, take out the containers. The City shall routinely verify the above qualifications of the special residential customers who shall be notified by first class U.S. mail if they no longer qualify and are to be returned to regular service.”

6. The first paragraph of Section (3) of the Agreement is amended to read as follows:
“The Contractor shall provide all necessary labor, equipment and materials to ensure that all solid waste, recyclables and organic waste is picked up, recycled, processed and/or disposed of at the frequency specified herein. The Contractor hereby agrees, at his or her own expense and cost, to collect, recycle, process and dispose of residential and industrial solid waste, recyclables and organic waste within the City of Fontana and to perform all the work herein set forth and described, and in the manner herein prescribed.

In consideration therefor, the Contractor shall charge his or her customers the rates set forth in Exhibit A as said rates may be amended from time to time by resolution of the City Council.

7. Section (3)(d) of the Agreement is amended to read in full as follows:
“(d) Scope of Services: Recyclables and Organic Waste. The Contractor shall provide all necessary labor, equipment, and materials to ensure a successful collection program that meetsthe requirements of the California Integrated Waste Management Act of 1989 (as it is thereafter amended, substituted, or interpreted) ("AB 939"), including SB 1383 and the SB 1383 Regulations:
(i) Except for exemptions and exceptions permitted under the City Code and authorized by the City, one or more of each a recycling and a green waste containers shall be provided by the Contractor for each customer served with a household solid waste container with the container approved by the City.
(ii) For customers served by refuse bins, the Contractor shall develop a plan, in cooperation with the owner or manager of the property, for the provision of recycling and green waste containers which shall meet the requirements of SB 1383. The plan shall consider the appropriate location for the containers, space availability, and the amount of materials generated at the property.
(iii) Intentionally deleted.
(iv) Solid waste, recyclable, and organic waste containers shall be appropriately marked and color coded for their particular uses, with design, color and markings subject to the approval of the City and meeting the requirements of SB 1383. (v) The contents of recyclable and organic waste containers shall be collected from 909
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4 the same location on the same day, although not necessarily at the same time, as solid waste containers, at a frequency determined by the City, but at least once a week (or less frequently if approved by the City).
(vi) Recyclable items to be collected in the recyclables container shall be source separated recyclable materials. Organic waste items to be collected in the organic waste shall be source separated Organic waste, provided that Contractor may require customers to place food waste in bags within the organic waste container if permitted by the City Code and the SB 1383 Regulations.
(vii) The Contractor shall conduct an extensive public information program, as directed and approved by the City and meeting the requirements of SB 1383 and the SB 1383 Regulations, to inform and remind residents of the recycling and organic waste programs and their operation. Such program shall include media releases, advertisements, public appearances, community involvement programs. A program plan shall be submitted to the City prior to January 1st of each year for approval. Contractor shall, consistent with 14 CCR Section 18985.1, provide generators with information on properly separating materials, organic waste prevention, on-site recycling, composting, methane reduction benefits, how to recycle organic waste, approved haulers, public health and environmental impacts associated with landfilling organic waste, self-haul requirements, and edible food donation. Contractor shall prepare and distribute public education and outreach materials in non-English languages spoken by a substantial number of the public that are provided organic waste collection services, consistent with the requirements of Government Code section 7295. Annually, commencing in 2022, Contractor shall provide Tier One and Tier Two Commercial Edible Food Generators with information on the City’s edible food recovery program, generator requirements, and food recovery.

Contractor shall cooperate and coordinate with the City Manager or his or her designee on public education activities to minimize duplicative, inconsistent, or inappropriately timed education campaigns. Contractor shall obtain approval from the City Manager or his or her designee on all Contractor -provided public education materials including, but not limited to: print, radio, television, or internet media before publication, distribution, and/or release. City shall have the right to request that Contractor include City identification and contact information on public education materials and approval of such requests shall not be unreasonably withheld.
(viii) The Contractor shall diligently seek the most productive markets for recycled materials in the most revenue effective manner, as approved by the City, so that the revenues from recycled materials can offset the costs of collection to the maximum extent possible while ensuring the City receives diversion credit under AB 939 and remains in compliance with the SB 1383 Regulations and other applicable law. 910
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5 (vii) The Contractor shall seek the most cost effective organic waste processing location(s) as approved by the City, so that the processing and disposal costs for organic waste collected can be reduced to the maximum extent possible while ensuring the City receives diversion credit under AB 939 and remains in compliance with the SB 1383 Regulations and other applicable law. Contractor warrants and agrees all facilities have sufficient capacity to receive and process City organic waste and shall provide written confirmation or documentation if requested by the City or otherwise required by CalRecycle.
(viii) The Contractor shall keep records and produce reports as are required herein and as may be required by the City or the State of California. Such records and reports shall be accurate and timely.
(ix) The Contractor shall keep separate records of the costs and revenues of the Fontana recycling and organic waste program distinct from those of the Contractor's other operations. If any costs are pro-rated, the Contractor shall report to the City how the costs were pro-rated and the basis for the pro-rations. (x) The Contractor shall keep separate records of the sale of recyclables and organic waste from Fontana. Such records shall list each sale, the materials old, the amount of such material, the buyer and the revenue received.
(xi) The Contractor shall keep records of the level of participation in the programs. (xii) The Contractor shall report costs, revenues and participation levels to the City on a monthly basis within 30 days of the end of each month. (xiii) The Contractor agrees to assist the City in complying AB 939. The Contractor understands that the City's Integrated Waste Management Plan's Source Reduction and Recycling Element (SRRE) contains an implementation schedule which shows that the City will divert 50 percent of all solid waste from landfill or transformation facilities by January 1, 2000, by means of source reduction, recycling, and composting activities. (xiv) The Contractor shall prepare annual reports and draft SRRE updates in a format consistent with the Act and applicable regulations and submit to the City for approval and submission to the State.
(xv) Contractor shall assist in minimizing contamination by helping to educate customers on acceptable and non-acceptable materials, by monitoring the contents of collection containers, and by refusing to collect containers with visible prohibited container contaminants. Contractor shall, at its sole expense, either (1): conduct hauler route reviews each calendar year for prohibited container contaminants in containers in a manner that is deemed safe by the Contractor, is approved by the City, and is conducted in a manner that results in all hauler routes being reviewed, in accordance with 14 CCR 911
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6 Section 18984.5(b) or (2) conduct waste evaluations for prohibited container contaminants though sampling of materials from all container types and shall do so at least twice per year and in two distinct seasons of the year in a manner that complies with the requirements of 14 CCR Section 18984.5(c).

Number of Containers to Review. Contractor shall visually inspect the contents of a reasonably representative number of containers, as directed and approved by the City, per hauler route to search for prohibited container contaminants, for each and every hauler route. The containers shall be randomly selected by a method approved by the City.

Route Review Methodology. Contractor shall develop a hauler route review methodology that complies with the requirements of 14 CCR Sections 18984.5(b) or 18984.5(c).

Contractor shall submit its proposed hauler route review methodology for the coming year to the City no later than January 15 of each year describing its proposed methodology for the calendar year and schedule for performance of each hauler route review. Company’s proposed hauler route review methodology shall include its plan for container inspections and shall also include its plan for prioritizing the inspection of customers that are more likely to be out of compliance. City shall review, comment on, and approve the proposed methodology. Contractor may commence with the proposed methodology upon approval. If the City notifies the Contractor that the methodology is inadequate to meet the requirements of SB 1383, Contractor shall, at its sole expense, revise the methodology and, after obtaining City approval, conduct additional hauler route reviews, increased container inspections, or implement other changes using the revised procedure.

Scheduling. The City may request, and Contractor shall accept, modifications to the schedule to permit observation by the City. In addition, Contractor shall provide email notice to the City no less than ten (10) working days prior to each scheduled hauler route review that includes the specific time(s), which shall be within the City’s normal business hours, and location(s).

Documentation. Contractor shall document contamination with still pictures or video, and will notify the customer of the contamination and recycling requirements. Contractor may, at its discretion collect the container as recyclable materials, organic waste, or as solid waste.

Reporting Requirements. Contractor shall maintain records and report to the City on contamination monitoring activities and actions taken.
(xvi) SB 1383 Monitoring and Inspections. Contractor shall perform customer compliance reviews described in this subsection annually, beginning January 1, 2022, unless otherwise noted.

Commercial Generator Compliance Reviews. Contractor shall complete a compliance 912
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7 review of all commercial businesses that generate two (2) cubic yards or more per week of solid waste, including organic waste, to determine their compliance with: (i) generator requirements under the City Code and this Agreement; and, (ii) if applicable for the customer, self-hauling requirements per 14 CCR Section 18988.3. The compliance review shall mean a “desk” review of records to determine customers’ compliance with the above requirements and does not necessarily require on-site observation of service.

Compliance Review Process. Contractorshall conduct inspections of entities described in this subsection at a minimum of once per year or as directed by City to adequately determine the entities’ overall compliance with SB 1383. City may require the Contractor to prioritize inspections of entities that the City determines are more likely to be out of compliance.

Non-Compliant Entities. From the commencement date through December 31, 2023, when compliance reviews are performed by Contractor pursuant to this subsection, Contractor shall provide City-approved educational materials, in response to violations.

Contractor shall provide these educational materials to the non-compliant customers within two (2) working days of determination of non-compliance or immediately upon determination of non-compliance if such non-compliance is determined during an inspection or hauler route review. Contractor shall document the non-compliant customers and the date and type of education materials provided and report such information to the City. Beginning January 1, 2024, the Contractor shall document noncompliant customers determined through Contractor’s compliance reviews, and shall report all customers with SB 1383 violations to the City. The City shall be responsible for subsequent enforcement action.

Documentation of Inspection Actions. The Contractor shall generate a written or electronic record and maintain documentation for each inspection, hauler route review, and compliance review conducted.

Documentation of SB 1383 Non-Compliance Incidents. Contractor shall maintain a computer database of all oral and written SB 1383-related non-compliance incidents reported to Contractor from customers or other persons.

Reports of SB 1383-Noncompliance Incidents. For reports received in which customers or other persons allege that an entity is in violation of SB 1383 requirements, Contractor shall document such incident investigations. Contractorshall provide this information in a brief incident report to the City for each SB 1383-noncompliance incident within five (5) working days of receipt of such incident, and a quarterly summary report of SB 1383- noncompliance incidents.

Investigation of SB 1383-Noncompliance Incidents. Contractor shall assist City in meeting its obligation to investigate non-compliance incidents by commencing an 913
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8 investigation within thirty (30) days of receiving notice of an incident in the following circumstances: (i) upon Contractor receipt of an incident that an entity may not be compliant with SB 1383 and if City determines that the allegations against the entity, if true, would constitute a violation of SB 1383; and, (ii) upon City request to investigate an incident received by City, in which City determines that the allegations against the entity, if true, would constitute a violation of SB 1383. Contractor is required to investigate incidents against customers and generators, including Tier One and Tier Two Commercial Edible Food Generators, against Edible Food recovery organizations, Edible Food recovery services, and other entities regulated by SB 1383.

Contractor shall investigate the incident by:
i. Reviewing the service level of the customer (if the entity is a customer of the Contractor);
ii. Reviewing the waiver list, if applicable, to determine if the entity has a valid, City-approved de minimis or physical space constraint waiver; iii. Reviewing the self-haul registration list, if applicable, to determine if the entity has registered and reviewing the entities reported self-haul information; iv. Inspecting premises of the entity identified in the incident notice, if warranted; and,
v. Contacting the entity to gather more information, if warranted; vi. Affixing a City-approved notice of non-compliance incident report on the customer’s container that includes SB 1383 generator requirements and, if applicable, provides a City-approved deadline for correction.

Reporting. Within ten (10) days of completing an investigation of an SB 1383- noncompliance incident, Contractorshall submit to City an investigation incident report that documents the customer account in question, the nature of the incident, the investigation performed, and recommends to City whether or not the entity investigated is in violation of SB 1383 based on the Contractor’sinvestigation. The City shall make a final determination of the allegations against the entity.

Contractor shall provide to City in its reports a list of all customer non-compliance incident notices that have not been resolved by Contractor within thirty (30) days of receiving such notice. The Contractor incident list shall include the customer’s account information, including customer’s then-current service level, the nature of the incident, and Contractor’s efforts to resolve the incident. City, or its designee, shall be responsible for investigating such outstanding incidents received by Contractor.

Within three (3) business days of the City’s or its designee’s request, Contractor shall 914
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9 provide City or its designee with customer account information and other documentation that may be useful in the investigation such as records of the customer’s most recent change(s) in service level and other customer service records. (xvi) Contractor shall purchase or procure compost, renewable natural gas, or other materials necessary to meet the City’s purchasing requirements under SB 1383 and the SB 1383 Regulations without additional charge to the City or the customers.”

8. Section (3)(e)(iii) of the Agreement is added as follows:
“(iii) City may, in its discretion, allow solid waste service charges to be billed on the property tax rolls pursuant to the City Code.”

9. Section (3)(f) of the Agreement is amended in its entirety to read in full as follows:
“(f) Liens. Pursuant to the City Code, if bills to residential and commercial accounts are unpaid to the Contractor beyond 90 days, then the Contractor may cause a report of delinquent solid waste service charges to be sent to City. City may, in its discretion, allow delinquentsolid waste service charges to be billed on the property tax rolls pursuant to the City Code. Within 60 days after collection of fees by City pursuant to the process set forth in the City Code, the City shall provide to Contractor payment of the unpaid charges. City shall retain any administrative fee.”

10. Section (3)(g) of the Agreement is added as follows:
“(g) No Legal Challenge. Contractor understands and acknowledges that the award of this Agreement may be subject to review and repeal by City’s citizens through a referendum or similar petition, and to various types of legal and environmental challenges (such referenda, similar petition and legal and environmental challenges being referred to collectively as “Legal Challenges”). Accordingly, this Agreement shall not become effective until the City Manager reasonably determines that (i) any Legal Challenges that had been initiated as of the time of such determination have been resolved in favor of the City’s award of this Agreement to Contractor; and (ii) the deadline to initiate any additional Legal Challenges has expired. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold the City, its Mayor, Council, officers, representatives, agents, employees and volunteers, harmless against any and all liability, claims, losses, damages, or expenses including reasonable attorney’s fees, arising from any Legal Challenges. In the event of any election regarding a Legal Challenge, CONTRACTOR shall reimburse CITY for its reasonable costs of doing so.”

11. Section (11)(b) of the Agreement is amended to read in full as follows:
915
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10 “(b) Any rate adjustment due to Contractor’s cost changes shall be made no more than on a yearly basis (except for changes to tipping fees, city franchise fees or charges, or City-required service level changes), based on Contractor’s actual costs and not to exceed the percentage change in the published Consumer Price Index (CPI), All Urban Consumers for the RiversideSan Bernardino-Ontario, CA Metropolitan Area. This adjustmentshall not exceed four percent (4%) per annum, regardless of the percentage change in the CPI. If the CPI for the previous year was in excess of four percent (4%), the additional percentage may be rolled over to the following year so long as the CPI adjustment for that year does not exceed four percent (4%). Contractor shall submit a request for evidence of such rate adjustment 60 days prior to the proposed implementation. No later than 30 days prior to the date the adjusted rates become effective each year, Collector shall notify Customers of any changes in their rates. The Contractor shall be responsible for the costs of printing and mailing any Proposition 218 hearing notice and the notification required in accordance with Government Code section 53756.

If at any time, a rate adjustment determined to be appropriate by both City and Contractor to compensate Contractor for increases in costs as described in this Agreement cannot be implemented for any reason, Contractor and City shall negotiate in good faith, a reduction of services equal to the value of the rate adjustment that cannot be implemented.

If City and Contractor are unable to reach agreement about such a reduction in services, then City may terminate this Agreement upon one hundred eighty (180) days’ prior written notice to Contractor, in which case Contractor and City shall each be entitled to payment of amounts due for contract performance through the date of termination but otherwise will have no further obligation to one another pursuant to this Agreement after the date of such termination.”

12. This First Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

13. This First Amendmentshall affect only the items specifically set forth herein, and all other terms and conditions of the Agreement shall remain in full force and effect.

IN WITNESS WHEREOF, the City and Contractor have entered into this First Amendment to the Agreement, as of the date first set forth herein.
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11 THE CITY OF FONTANA
By:

Matthew Ballantyne
City Manager

Date: _______________________________
ATTEST:

By:

Germaine McClellan Key
City Clerk
APPROVED AS TO FORM:

By:

Ruben Duran
City Attorney
BURRTEC WASTE INDUSTRIES, INC.

By:

Name: ______________
Title: _______________
Date: _______________________________
By:

Name: ______________
Title: _______________
Date: _______________________________
ATTEST:

By:

Name: ______________
Secretary to Board of Directors
917
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1845 Agenda Date: 12/13/2022
Agenda #: A. Category: Public Hearing
FROM:

Planning Department
SUBJECT:

Zoning Code Amendment No 22-013; A request for the adoption of an Urgency Ordinance by repealing and replacing Chapter 30, Article 5, Division 5, Section No. 30-467 of the City of Fontana Municipal Code relating to accessory dwelling units and junior accessory dwelling units, and determining the ordinance to be exempt from CEQA RECOMMENDATION:

1. Determine that the project is exempt pursuant to Section 15061 (b) (3) (General Rule Exemption), of the California Environmental Quality Act (CEQA) and Section No. 3.07 of the 2019 Local Guidelines for Implementing CEQA and direct staff to file the Notice of Exemption; and,

2. Read by title only and waive further reading of and introduce Ordinance No. 1910, an Urgency Ordinance of the City Council of the City of Fontana, approving amendments to Chapter 30 (Zoning and Development Code) of the Fontana Code to repeal and replace Chapter 30, Article 5, Division 5, Section No. 30-467 of the City of Fontana Municipal Code relating to accessory dwelling units and junior accessory dwelling units, and that the reading of the title constitutes the first reading thereof.

COUNCIL GOALS:
· Promote economic development by establishing a quick, consistent development process. · 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:

In recent years, the California Legislature has approved, and the Governor has signed into law, a number of bills that, among other things, amended Government Code sections 65852.2 and 65852.22 to impose new limits on local authority to regulate accessory dwelling units (“ADUs”) and junior accessory dwelling units (“JADUs”). In 2022, the California Legislature approved, and the Governor signed into law, a new bill (SB 897) that further amends Government Code sections 65852.2 and 65852.22 (“New Amendments”). Among other things, the state requirements:
· Require a 0’ front setback for certain ADUs,
· Require the City to justify a denial with a full set of detailed comments describing the deficiencies in the application and explaining how to remedy them, and City of Fontana Page 1 of 2 Printed on 12/7/2022
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File #: 21-1845 Agenda Date: 12/13/2022
Agenda #: A. Category: Public Hearing
· Remove the automatic repeal in 2025 (now the ADU statute is permanent).

SB 897 takes effect January 1, 2023. If the City’s ADU ordinance does not comply with requirements of SB 897 by that date, the City’s entire existing ADU ordinance becomes null and void as a matter of law, and the City will have to allow ADUs with no local regulation except for the few requirements in the state ADU law itself.

The proposed ordinance amends the City’s local regulatory scheme for the construction of ADUs and JADUs to comply with recently amended provisions of Government Code sections 65852.2 and 65852.22.

Failure to comply with Government Code sections 65852.2 and 65852.22 (as amended) by January 1, 2023, renders the City’s ADU ordinance null and void, thereby limiting the City to the application of the few default state standards provided in Government Code sections 65852.2 and 65852.22. The approval of ADUs and JADUs based solely on these default statutory standards, without local regulations governing height, setback, landscape, and architectural review, among other things, would threaten the character of existing neighborhoods, and negatively impact property values, personal privacy, and fire safety.

The attached proposed Urgency Ordinance includes changes to Section No. 30-467 of the Fontana Municipal Code substantially in the form attached.

The ADU code amendments are proposed for adoption by urgency ordinance, in accordance with Government Code section 36937, subdivision (b), and will be followed at the earliest possible time by a non-urgency ordinance that will be considered for approval by the Planning Commission before returning to the City Council for ultimate adoption.

ENVIRONMENTAL REVIEW:

Under California Public Resources Code section 21080.17, the California Environmental Quality Act (“CEQA”) does not apply to the adoption of an ordinance by a city or county implementing the provisions of section 65852.2 of the Government Code, which is California’s ADU law and which also regulates JADUs, as defined by section 65852.22. Therefore, the proposed ordinance is statutorily exempt from CEQA in that the proposed ordinance implements the State’s ADU law.

FISCAL IMPACT:

None.

MOTION:

Approve staff’s recommendation
City of Fontana Page 2 of 2 Printed on 12/7/2022
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ATTACHMENT NO. 1
URGENCY ORDINANCE NO. ________

AN URGENCY ORDINANCE OF THE CITY COUNCIL OF

THE CITY OF FONTANA REPEALING AND REPLACING
CHAPTER 30, SECTION NO. 30-467 OF THE CITY OF

FONTANA MUNICIPAL CODE RELATING TO

ACCESSORY DWELLING UNITS AND JUNIOR

ACCESSORY DWELLING UNITS AND DETERMINING THE

ACTION TO BE EXEMPT FROM CEQA
WHEREAS, the City of Fontana, California (“City”) is a municipal corporation, duly organized under the constitution and laws of the State of California; and WHEREAS, state law authorizes cities to act by ordinance to provide for the creation and regulation of accessory dwelling units (“ADUs”) and junior accessory dwelling units (“JADUs”); and
WHEREAS, in recent years, the California Legislature has approved, and the Governor has signed into law, a number of bills that, among other things, amended Government Code sections 65852.2 and 65852.22 to impose new limits on local authority to regulate ADUs and JADUs; and
WHEREAS, in 2022, the California Legislature approved, and the Governor signed into law, new bills (SB 897 and AB 2011) that further amend Government Code sections 65852.2 and 65852.22; and
WHEREAS, the new bills take effect January 1, 2023, and if the City’s ADU ordinance does not comply with the requirements imposed by SB 897 and AB 2011 by that date, the City’s entire existing ADU ordinance becomes null and void as a matter of law; and
WHEREAS, the City desires to amend its local regulatory scheme for the construction of ADUs and JADUs to comply with the amended provisions of Government Code sections 65852.2 and 65852.22; and
WHEREAS, there is a current and immediate threat to the public health, safety, or welfare based on the passage of SB 897 because if the City’s ordinance does not comply with the amended laws as of January 1, 2023, and the City’s ADU ordinance becomes null and void, the City would thereafter be limited to applying the few default standards that are provided in Government Code sections 65852.2 and 65852.22 for the approval of ADUs and JADUs; and
WHEREAS, the approval of ADUs and JADUs based solely on the default statutory standards, without local regulations governing height, setback, and architectural review, among other things, would threaten the character of existing neighborhoods, and negatively impact property values, personal privacy, and fire safety. These threats to public safety, health, and welfare justify adoption of this ordinance as an urgency 920
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Fontana City CouncilDecember 13, 2022

Fontana City Council
December 13, 2022