Fontana City Council
December 10, 2024

RESOLUTION NO. 2024-_____

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

CALIFORNIA, A DEVELOPMENT IMPACT FEE DEFERRAL

AGREEMENT WITH ALDEA FONTANA FOOTHILL, LLC FOR THE

ALDEA LEGACY APARTMENTS MULTI -FAMILY RESIDENTIAL

HOUSING PROJECT AND AUTHORIZE CITY MANAGER TO EXECUTE

AGREEMENT AND TAKE CERTAIN ACTIONS TO COMPLETE THE

TRANSACTION

WHEREAS, pursuant to California Government Code Section 66000 et seq. (the “Mitigation Fee Act”), the City of Fontana has exercised its authority to establish and impose development impact fees upon new development within the City of Fontana; and WHEREAS, Aldea Fontana Foothill, LLC (“Owner”) is the owner of that certain real property locate d at 15186 Foothill Blvd., Fontana, CA 92335, in San Bernardino County, California, identified with Assessor’s Parcel Number 1110 -161-44-0000 (former APN 1110-161-09-0000) ("Property"); and
WHEREAS, the Owner is constructing a multi -family residential hous ing development project on the Property (“Project”); and
WHEREAS, the Fontana Housing Authority, (the “Tenant”) and Owner (the “Landlord”) entered into that certain Lease Agreement dated _______________ (“Lease Agreement”) whereby Tenant leased the Propert y and will take possession and operate the Property as an affordable housing apartment complex when construction of the Project has been completed; and
WHEREAS, in order to assure that the Project is financially feasible and that the Owner is able to deli ver the needed affordable housing and supportive services, the Owner has requested that the City development impact fees that are imposed in connection with the Project be deferred; and
WHEREAS, the City is willing to defer the payment of City development impact fees pursuant to certain terms as set forth in this resolution, in furtherance of the substantial public benefits that will be provided by the Project.

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

Section 1. The recitals set forth above are true and correct and are hereby incorporated into this Resolution by this reference.

Section 2. Based on the information provided in the staff report, the City Council authorizes the deferral of payment of the development impact fees levied against the Project on the following terms:

A. This deferral shall only apply to development impact fees le vied by the City. It shall not apply to any other fees levied by the City, nor 217
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Resolution No. 2024-____

shall it apply to fees levied by the County, School District or any other public entity.

B. Owner shall pay the total amount of fees deferred upon the occurrence that 1) the Property is sold, or 2) the date the Lease Agreement expires, whichever is earlier but in no event shall the Deferred Fees for the Project be paid later than September 30, 2034.

C. Owner shall execute a Development Impact Fee Deferral Agreement with the City to provide the terms and conditions for the deferral of the development impact fees.

D. City shall record this Agreement against the Property upon full execution by the City and Owner and will file a release of lien when the Deferred Fees plus any interest, charges and fees have been fully paid and satisfied.

Section 3 . The City Council further authorizes the City Manager to execute a Development Impact Fee Deferral Agreement in a form as approved by the City Attorney with the terms as set forth in this Resolution, and to execute any other documents and carry out such actions as are necessary or appropriate to carry out the City Council’s direction as set forth herein.

Section 4 . If any provision of this Resolution or the application of any such provision to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Resolution that can be given effect without the invalid provision or application, and to this end the provisions of this Resolution are severable. The City declares that the City would have adopted this Resolution irrespective of the invalidity of any particular portion of this Resolution.

Section 5. This Resolution shall become effective immediately upon its adoption.

Section 6. The City Clerk shall certify adoption of this Resolution.

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Resolution No. 2024-___

APPROVED AND ADOPTED this _______day of ______________, 2024.

READ AND APPROVED AS TO LEGAL FORM:

_____________________________________
City Attorney

I, Germaine 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 _____ day of ___________, 2024, by the following vote to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

City Clerk of the City of Fontana

Mayor of the City of Fontana

ATTEST:

City Clerk
219
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-3452 Agenda Date: 12/10/2024
Agenda #: J. Category: Consent Calendar
FROM:

Development Services
SUBJECT:

A Resolution of the City Council of the City of Fontana Approving A Development Impact Fee Deferral Agreement Between the City of Fontana and Casa Del Sol Investments, LLC for a Multi-Family Residential Housing Apartment Complex Project and Authorize the City Manager to Execute the Agreement and take certain actions to complete the transaction.

RECOMMENDATION:

Adopt Resolution No. 2024-129, Approving a Development Impact Fee Deferral Agreement Between the City of Fontana and Casa Del Sol Investments, LLC for a Multi-Family Residential Housing Apartment Complex Project and Authorize the City Manager to Execute the Agreement and take certain actions to complete the transaction.
..End
FONTANA HOUSING AUTHORITY GOALS:
· To promote affordable housing by construction of high-quality multi-family housing which also serves to address the affordability needs of this community. · To promote affordable housing by acquisition, substantial rehabilitation, and professional management of selected multi-family properties as a vehicle to reduce crime and code enforcement activity and to address the affordability needs of this community. · To preserve the local environment for generations to come and to create a healthy economic and environmental future by adopting policies that promote compact and efficient development in new and existing communities.
· To assure that the Project is financially feasible, and that the Owner is able to deliver the needed affordable housing and supportive services.

DISCUSSION:

Casa Del Sol Investments, LLC (“Casa Del Sol”) is the owner of a multi-family residential development at the location of 16427 Foothill Boulevard, Fontana, California, 92335 (“Property”). The Property is an apartment complex that consists of 7 apartment buildings with a total of 106 units and associated amenities, including a recreation center, on approximately 3.89 acres of land. Casa Del Sol has requested for a deferment of the development impact fees from the City and the City is willing to defer the payment of City development impact fees pursuant to the terms and conditions of the Development Impact Fee Deferral Agreement (“DIF Deferral Agreement”). The impact fees deferred are only those impact fees imposed or levied by the City upon the development of the Property, but such deferment does not apply to other fees imposed by the City, nor shall it apply to fees levied by the County, School Districts, or any other public agency. The key terms of the DIF Deferral Agreement and for the deferment of the impact fees are as follows:

1. This deferral shall only apply to development impact fees levied by the City. It shall not apply City of Fontana Printed on 12/5/2024Page 1 of 2
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Agenda #: J. Category: Consent Calendar
to any other fees levied by the City, nor shall it apply to fees levied by the County, School District, or any other public entity.

2. The fees deferred by the City shall accrue interest at a rate of 3% simple interest annually if not paid by the Maturity Date.

3. Owner shall pay the principal sum of the Deferred Fees on or before the date of receiving the final occupancy clearance (the “Certificate of Occupancy” or “COO”) for the last of Building Nos. 1-7 and the recreation center, Permit Nos. BLD22 006289, BLD22-006291, BLD22- 006293, BLD22-006294, BLD22-008711, BLD22-008713, BLD22-008714, and BLD22- 006389, but in no event shall the Deferred Fees for the Project be paid later than December 31, 2026.

4. Owner shall execute a Development Impact Fee Deferral Agreement with the City to provide the terms and conditions for the deferral of the development impact fees.

5. City shall record this Agreement against the Property upon full execution by the City and Owner and will file a release of lien when the Deferred Fees plus any interest, charges and fees have been fully paid and satisfied.

FISCAL IMPACT:

The deferment of the impact fees will mean that the City will not receive the impact fees of $2,166,600.88 until the date of issuance of the final certificate of occupancy for the project described above, but not later than December 31, 2026.

MOTION:

Approve staff’s recommendation.

City of Fontana Printed on 12/5/2024Page 2 of 2
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When Recorded Mail to:

The City of Fontana
City Clerk’s Office
8353 Sierra Avenue
Fontana, CA 92335

EXEMPT FROM FILING FEES GOVERNMENT CODE § 6103 (Space above for Recorder's Use)

DEVELOPMENT IMPACT FEE DEFERRAL AGREEMENT

between

THE CITY OF FONTANA
a California municipal corporation

and

CASA DEL SOL INVESTMENTS, LLC
a California limited liability company

[Dated as of December 1, 2024 for reference purposes only] 222
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DEVELOPMENT IMPACT FEE DEFERRAL AGREEMENT
This Development Impact Fee Deferral Agreement ("Agreement") is entered into between the CITY OF FONTANA, a California municipal c orporation, ("City") and CASA DEL SOL INVESTMENTS, LLC, a California limited liability company ("Owner"). City and Owner are sometimes individually referred to herein as “Party” and together as “Parties.” This Agreement is effective on the date (“Effective Date”) it is fully executed by the Parties.

RECITALS

1. Owner is the fee simple owner of that certain real property located at 16427 Foothill Blvd., Fontana, CA 92335, in San Bernardino County, California, identified with Assessor’s Parcel Number 0191-061-34-0000 ("Property"). The Property is more particularly described in Exhibit A, attached hereto and incorporated herein by reference, and consists of approximately 3.89 gross acres.

2. The Owner or Owner 's designees desires to develop a multi-family residential housing project on the Property consisting of seven (7) buildings with collectively one hundred six (106) residential units and a recreation center ("Project").

3. Owner has applied to the City for those permits and entitlements necessary to allow the construction of the Project.

4. In connection with the granting of such permits and entitlements, the City has imposed certain development impact fees and charges (hereinafter referred to individuall y as an "Impact Fee," and collectively as "Impact Fees") as allowed by the City's Municipal Code and adopted resolutions.

5. Owner has requested that the City defer the collection of certain Impact Fees imposed against the Project in order to make the Pro ject financially viable. The City has determined that this Project will benefit and enhance the economic strength of the community through the payment of property taxes and generally contribute to the economic and commercial well-being of the City and its residents. The Impact Fees that are eligible for deferment are only those development impact fees which are directly imposed and levied by the City. The deferment of any Impact Fees under this Agreement shall not apply to any other fees levied by the City, nor shall it apply to fees levied by the County, School District or any other public entity. Accordingly, the City has agreed, subject to the terms, conditions and limitations of this Agreement, to defer payment of the following Impact Fees payable with respect to the Project as more particularly set forth in this Agreement:

The aggregate sum of the foregoing Impact Fees in the amount of Two Million One Hundred Sixty Six Thousand Six Hundred and 88/100 ($2,166,600.88) shall be hereinafter collectively referred to as the "Deferred Fees."

AGREEMENT
NOW THEREFORE, IN CONSIDERATION of the above Recitals, incorporated herein by this reference, the mutual agreements and covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

Section 1.Deferred Fees. The City hereby agrees, subject to the terms, conditions and 223
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limitations of this Agreement, to defer payment of the Deferred Fees until such time as described in Section 1.1 below . For purposes of this Agreement,, “development impact fee” shall have the meaning ascribed to it in Chapter 21, Article V, Sections 21-120 of the Fontana Municipal Code.

1.1 Owner’s Obligation. Owner, or its successor in interest to the Property, or any portion thereof, shall be liable for the payment of the applicable development impact fees that are temporarily deferred pursuant to this Agreement. Owner will be responsible to pay the cur rent development impact fee rate that is in effect at the time of actual payment. Owner shall satisfy its payment obligations under this Agreement by the following means and upon th e corresponding dates:

Pay the principal sum of the Deferred Fees on or be fore the date of receiving the final occupancy clearance (the “Certificate of Occupancy” or “COO”) for the last of Building No s. 1-7 and the recreation center , Permit No s. BLD22 006289, BLD22-006291, BLD22 -006293, BLD22 -006294, BLD22 -008711, BLD22 - 008713, BLD22-008714, and BLD 22-006389, but in no event shall the Deferred Fees for the Project be paid later than December 31, 2026 (“Maturity Date”).

The Deferred Fees may be prepaid, without penalty, in whole or in part, at any time prior to the Maturity Date.

1.2 As consideration to the City for the City granting the deferment of the Deferred Fees, the Owner shall be obligated to pay the late charges, fees and interest on any outstanding fees due. If the Deferred Fees are not paid by the Maturity Date, Owner acknowledges and agrees to pay to City: i) a ten percent (10%) penalty charge on the principal sum of the Deferred Fees outstanding; and ii) interest at a rate of three percent (3 %) simple interest annually which is due and payable each month the Deferred Fees are outstanding following the Maturity Date.

1.3 Notwithstanding the above provisions, all unpaid principal and any accrued interest, charges and fees, shall be due upon the occurrence of any of the following events:
(a) a sale or transfer of any portion of the Project or the Property; (b) the occurrence of an Event of Default under this Agreement; or (c) the failure of the Owner to obtain a final Certificate of Occupancy for the Project by December 31, 2026.

Section 2. Conditions to Deferment. The City shall defer the payment of the Impact Fees upon satisfaction of the following conditions:
(a) the Owner’s execution and delivery to the City of this Agreement; and (b) the Owner’s delivery of a proforma or other financial information evidencing that upon completion, the Project will have adequate value to provide payment of the Deferred Fees.

Section 3. Security. Owner acknowledges City is under no obligation to grant a deferment of the Impact Fees due and payable upon the Project. In-lieu of the City requiring Owner to obtain a letter of credit as security for this Agreement th e Parties agree that a recorded lien related to the Project shall serve as security for this Agreement. Owner hereby acknowledges and agrees that the obligation to pay the defer red development impact fees shall continue and remain an obligation of Owner, as well as (jointly and severally) any successors in interest of Owner, 224
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including, without limitation, any successor in interest to the Property or any portion of the Property. Without limiting the nature of the foregoing, any deferred development impact fees that remain unpaid following the time that they are required to be pa id may be collected by the City , as a lien against the applicable portion of the Property, as a special assessment against the applicable portion of the property (collected at the same time and in the same manner as ad valorem property taxes), or by any combination of the foregoing. Additionally, should Owner fail to pay the Deferred Fees pursuant to this A greement, the City shall reserve the right to revoke all prior COO’s issued for the Project until such time as the Deferred Fees are paid in full.

Section 4. Rights Not Granted Under Agreement. This Agreement is not, and shall not be construed to be, an approval or an agreement to issue permits or a granting of any right or entitlement by City concerning the construction of the Project, or any other project, development or other construc tion by Owner within the City. This Agreement does not, and shall not be construed to, exempt Owner from paying any fees for any permits, licenses or other approvals which may be required by the City, and (other than the Deferred Fees) at the time required by the City, concerning the construction of the Project, or any other project, development or other construction by Owner within the City. This Agreement does not, and shall not be construed to, exempt Owner in any way from the requirement to obtain permits and/or other discretionary or non-discretionary approvals as may b e necessary for the development, maintenance or operation of the Project, or any other project, development or other construction by Owner within the Cit y.

This Agreement does not, and shall not be construed to, exempt Owner or the Property from the application and/or exercise of City power of eminent domain, or its police powers including, but not limited to, the regulation of land uses, and the taking of any actions necessary to protect the health, safety and welfare of its citizenry.

Section 5. Default.
a. Events of Default . Each of the following events shall constitute an "Event of Default":
(1) Owner fails to pay when due any principal payment or other sum due under this Agreement;
(2) Owner defaults in the performance of any other term, covenant, or agreement contained in this Agreement; or
(3) Pursuant to or within the meaning of the United States Bankruptcy Code or any other federal or state law relating to insolvency or relief of debtors (a “Bankruptcy Law ”): (1) Owner (i) commences a voluntary case or proceeding, (ii) consents to the entry of an order for relief against it in an involuntary case, (iii) applies for or consents to the appointment of a trustee, receiver, assignee, liquidato r or similar official, (iv) makes an assignment for the benefit of its creditors, or (v) admits in writing its inability to pay its debts as they become due; or (2) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that ( i) is for relief against Owner in an involuntary case, (ii) appoints a trustee, receiver, assignee, liquidator or similar official for Owner or substantially all of Owner’s assets, (iii) orders the liquidation of Owner, or (iv) issues or levies a judgment, writ, warrant of attachment or similar process against the 225
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Property or any other property of Owner, and in each case the order or decree is not released, vacated, dismissed or fully bonded within sixty (60) days after its issuance.
b. Rights Upon Event of Default. In addition to all other available legal or equitable remedies, upon an Event of Default, the City shall have the right to do any one or more of the following:
(1) Withhold the issuance of a Final COO for the Project, including revocation of previously issued COOs for other structures related to the Project; or (2) Accelerate the Maturity Date to the date of the Event of Default.

Section 6. Cumulative Remedies. The rights or remedies of City, as provided in this Agreement, or pursuant to any applicable laws, rules or regulations, may be pursued singly, successively, together or other wise against the Owner , at the sole discretion of City. The City's failure to exercise any such right or remedy shall in no event be construed as a waiver or release of such rights or remedies, or of the right to exercise them at any later time.

Section 7. Indemnification. Owner agrees to indemnify, defend and hold harmless City, its elected and appointed officials, officers, employees, contractors and agents from and against all claims, demands, causes of action, costs, damages, liabilities and obligations of any kind or nature arising out of the deferral of Impact Fees provided to Owner, the Deferred Fees, this Agreement, including, without limitation, all costs of collection, including actual attorneys’ and expert witness fees.

Section 8. Prevailing Wages. Developer is aware of the requirements of California Labor Code Sections 1720 et seq, as well as California Code of Reg ulations, Title 8, Section 16000 et seq (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” projects. It shall be Developer’s sole obligation to determine whether, and to what extent if any, the Prevailing Wage Laws apply to the Project. Owner shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any actual or alleged failure by Developer or its employees, agents and contractors to comply with the Prevailing Wage Laws, if applicable to the Project.

Section 9. No Set-Off Rights. Owner understands and agrees that it shall not have any rights whatsoever to set-off against amounts due hereunder or otherwise due City for any amount or obligation due to Owner or claimed to be due Owner from City.

Section 10. Successors and Assigns. Owner may not assign this Agreement, in whole or in part, without the prior written consent of City, and any attempt to make such assignment shall be null and void. This Agreement shall be binding on any and all successors and permitted assigns of the Parties.

Section 11. Governing Laws and Venue. This Agreem ent shall be governed by the laws of the State of California, without regard to the conflict of laws principles. The Superior Court of the State of California in the County of San Bernardino, California, shall have exclusive jurisdiction of any litigation between City and Owner arising out of this Agreement. The Owner hereby expressly waives the provisions of any federal or state law providing for a change of venue to any other state court or to federal district court, due to any reason whatsoever, including, without 226
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implied limitation, the fact that the City (a public agency) is a Party to this Agreement, due to any diversity of citizenship between the City and the Owner, or due to the fact that a federal question may be involved. Without limiting the ge nerality of the foregoing, the Owner expressly waives, to the maximum legal extent, the benefit of California Code of Civil Procedure Section 394 and all other state and federal statutes and judicial decisions of similar effect.

Section 12. Notices. All notices required to be delivered under this Agreement or applicable law shall be delivered by personal delivery, express mail or by United States mail, certified, postage prepaid. Notices personally delivered or delivered by express mail shall be deemed received upon receipt. Notices delivered by certified mail shall be deemed received the earlier of three (3) days following deposit of such notice with the United States Postal Service or actual receipt. Notices shall be sent as follows:

To City: City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Attn: Phillip Burum, Deputy City Manager
To Owner: Casa Del Sol Investments, LLC
400 N Mountain Ave, Ste 224
Upland, CA 91786
Attn: Barbara Monroy
Section 13. Attorneys' Fees and Costs . Should either party bring any action or proceeding against the other that in any way relates to or arises due to the existence of this Agreement, then the prevailing party in that action or proceeding shall be entitled to recover from the other party, in addition to all other relief to which the prevailing party may be entitled, the litigation costs and attorneys' fees, in an amount to be determined by the court. The "prevailing party" shall be as determined by the court in accordance with the provisions of California Code of Civil Procedure Section 1032. Recoverable litigation costs and attorneys' fees include those incurred by the prevailing party in the enforcement of any judgment or other judicial order, and during the defense of any appeal taken from such underlying judgment or other judicial order.

Section 14. Entire Agreement. This Agreement constitutes the entire agreement of City and Owner and supersedes all previous agreements, oral or written, on the subject matter of this Agreement.

Section 15. Modification. This Agreement shall be amended or modified only by an Agreement in writing signed by each of the Parties.

Section 16. Headings. Section headings contained in this Agreement are for convenience only, and shall not impact the construction or interpretation of any provision.

Section 17. Further Acts. The Parties agree to execute such additional documents and to take such further actions as are reasonably necessary to accomplish the objectives and intent of this Agreement.

Section 18. Severability. If a ny provision or clause of this Agreement or any application of it to any person, firm, organization, partnership or corporation is held invalid, such 227
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invalidity shall not affect any other provision of this Agreement, and the Agreement shall be construed as if such provisions or clauses did not exist.

Section 19. Good Faith Negotiations. The City and the Owner acknowledged that this Agreement are the product of mutual, good faith arms-length negotiations in that the City and the Owner each have been, or have had the opportunity to have been, represented by legal counsel of its own choosing in the negotiation and drafting of this Agreement. Accordingly, the rule of construction which provides that ambiguities in a document are to be construed against the drafter of that document shall have no application to either the interpretation or the enforcement of this Agreement. In any action or proceeding brought to interpret or enforce this Agreement, the trier of fact may refer to such extrinsic evidence which is not in direct conflict with any express term or provision hereof to ascertain and give effect to the intent of the Parties hereto.

Section 20. Time is of the Essence. Time is of the essence in this Agreement.

Section 21. No Third Party Beneficiary. This Agreement and the performance of the City's and the Owner's obligations hereunder are for the sole and exclusive benefit of the City and the Owner. No person or entity who or which is not a signatory to this Agreement shall be deemed to be benefited or intended to be benefited by any provision hereof, and no such person or entity shall acquire any rights or causes of action against either the City or the Owner hereunder as a result of the City's or the Owner's performance or nonperformance of their respect ive obligations under this Agreement.
[Signatures on following pages]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date last written below.

CITY OF FONTANA CASA DEL SOL INVESTMENTS, LLC
a California municipal corporation a California limited liability company

By: ____________________________ By: ______________________________ Acquanetta Warren, Mayor
Its: ______________________________
Date: ______________________________ Date: ______________________________

ATTEST:

___________________________
Germaine Key, City Clerk
Date: ______________________________

APPROVED AS TO FORM:

Best, Best & Krieger, LLP

By: __________________________
Ruben Duran, City Attorney
Date: ______________________________

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EXHIBIT "A"

Legal Description of Property -16427 Foothill Blvd, Fontana, California 92335.

______________________________________________________________________________ ______________________________________________________________________________ _____________________________________________________________________________ 230
16498.00100\42962411.1

RESOLUTION NO. 2024-_____

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

CALIFORNIA, A DEVELOPMENT IMPACT FEE DEFERRAL

AGREEMENT WITH CASA DEL SOL INVESTMENTS, LLC FOR A

MULTI-FAMILY RESIDENTIAL HOUSING APARTMENT COMPLEX

PROJECT AND AUTHORIZE CITY MANAGER TO EXECUTE

AGREEMENT AND TAKE CERTAIN ACTIONS TO COMPLETE THE

TRANSACTION

WHEREAS, pursuant to California Government Code Section 66000 et seq. (the “Mitigation Fee Act ”), the City of Fontana has exercised its authority to establish and impose development impact fees upon new development within the City of Fontana; and WHEREAS, Casa Del Sol Investments, LLC (“Owner”) is the owner of that certain real property located at 16427 Foothill Blvd., Fontana, CA 92335, in San Bernardino County, California, identified with Assessor’s Parcel Number 0191-061-34-0000 ("Property"); and
WHEREAS, the Owner is constructing a multi -family residential housing development project on the Property (“Project”); and
WHEREAS, in order to assure that the Project is financially feasible and that the Owner is able to deliver the needed affordable housing and supportive services, the Owner has requested that the City’s development impact fees imposed in connection with the Project be deferred; and
WHEREAS, the City is willing to defer the payment of City development impact fees pursuant to cert ain terms as set forth in this R esolution, in furtherance of the substantial public benefits that will be provided by the Project.

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

Section 1. The recitals set forth above are true and correct and are hereby incorporated into this Resolution by this reference.

Section 2. Based on the information provided in the staff report, the City Council authorizes the deferral of payment of the development impact fees levied against the Project on the following terms:

A. This deferral shall only apply to development impa ct fees levied by the City. It shall not apply to any other fees levied by the City, nor shall it apply to fees levied by the County, School District or any other public entity.

B. The fees deferred by the City shall accrue interest at a rate of 3% simple interest annually.
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Resolution No. 2024-____

C. Owner shall pay the principal sum of the Deferred Fees on or before the date of receiving the final occupancy clearance (the “Certificate of Occupancy” or “COO”) for the last of Building Nos. 1 -7 and the recreation center, Permit Nos. BLD22 006289, BLD22 -006291, BLD22-006293, BLD22 -006294, BLD22 -008711, BLD22 -008713, BLD22-008714, and BLD22 -006389, but in no event shall the Deferred Fees for the Project be paid later than December 31, 2026.

D. Owner shall execute a Development Impact Fee Deferral Agreement with the City to provide the terms and conditions for the deferral of the development impact fees.

E. City shall record this Agreement against the Property upon full execution by the City and Owner and will file a release of li en when the Deferred Fees plus any interest, charges and fees have been fully paid and satisfied.

Section 3 . The City Council further authorizes the City Manager to execute a Development Impact Fee Deferral Agreement in a form as approved by the City Attorney with the terms as set forth in this Resolution, and to execute any other documents and carry out such actions as are necessary or appropriate to carry out the City Council’s direction as set forth herein.

Section 4 . If any provision of this Resolutio n or the application of any such provision to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Resolution that can be given effect without the invalid provision or application, and to thi s end the provisions of this Resolution are severable. The City declares that the City would have adopted this Resolution irrespective of the invalidity of any particular portion of this Resolution.

Section 5. This Resolution shall become effective immedi ately upon its adoption.

Section 6. The City Clerk shall certify adoption of this Resolution.

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Resolution No. 2024-___

APPROVED AND ADOPTED this _______day of ______________, 2024.

READ AND APPROVED AS TO LEGAL FORM:

_____________________________________
City Attorney

I, Germaine 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 _____ day of ___________, 2024, by the following vote to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

City Clerk of the City of Fontana

Mayor of the City of Fontana

ATTEST:

City Clerk
233
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-3454 Agenda Date: 12/10/2024
Agenda #: K. Category: Consent Calendar
FROM:

Community Services
SUBJECT:

Co-Sponsorship Application Cycle Two (2) FY 2024/2025
RECOMMENDATION:

Review and approve the seven (7) Co-Sponsorship Applications recommended by the Parks, Community, and Human Services Commission for the 2024/2025 fiscal year (January 2025 through June 2025). These applications include City support and in-kind services in the amount of $26,050.00.

COUNCIL GOALS:
· Operate in a businesslike manner by creating a memorable customer experience with every interaction.
· Operate in a businesslike manner by ensuring that the public debate is based on accurate information.
· Increase citizen involvement by seeking community input.

DISCUSSION:

The current Co-Sponsorship procedure, as approved by the Parks, Community, and Human Services Commission and City Council, requires organizations to submit all Co-Sponsorship requests for City support of events and activities between February 1 and February 28 (cycle one) for events taking place during the following July 1 through June 30 period. A second application review process will be accepted between September 1 and September 30 (cycle two) for events taking place from January 1 through June 30 of the same fiscal planning year.

All organizations in consideration for Co-Sponsorship must meet all Co-Sponsorship criteria as outlined in Attachment A - Co-Sponsorship Policy:
· proof of non-profit status (501 c3) or proof that the event is not for profit · organizations must be based in the incorporated boundaries of the City of Fontana · The event must benefit and be open, free of charge, to Fontana residents · The organization must adhere to the Co-Sponsorship tier rating A brief description of the individual applications is provided in Attachment B - Co-Sponsorship Application Descriptions.

The seven (7) eligible applications were received during the September 2024 (cycle two) request City of Fontana Printed on 12/5/2024Page 1 of 3
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period; (5) applications are requesting assistance with community events and (2) applications are facility use requests. (Attachment C - organizations applying for Co-Sponsorship and Attachment D - Co-Sponsorship in-kind cost breakdown).

Tier Levels
Tier One:

The organization provides a minimum of eighty percent (80%) of program resources and funding.

Tier Two:

The organization provides a minimum of seventy percent (70%) of program resources and funding.

Tier Three:

The organization provides a minimum of fifty percent (50%) of program resources and funding.

Although all organizations requesting funding must provide a minimum of fifty percent (50%) of program funding, tier funding levels are not applicable to organizations requesting the use of facilities during regular center hours.

Approved Applications
All applications were discussed and reviewed at the special Parks, Community, and Human Services Commission meeting on November 14, 2024. The Commission individually reviewed the seven (7) applications and approved the recommendation for Co-Sponsorship requests to be forwarded for the City Council to review and consider.

Below are the recommended applications that were approved:

Group Event In-Kind Request Commission
Recommended
Funding
Ephesians New
Testament Church
MLK Celebration $1,102.00 $1,102.00
Concerned Citizens
for Development of
North Fontana
Black History Parade
and Expo
$7,112.00 $7,112.00
Fontana Aquatics
Club
USA Swimming Meet $6,880.00 $6,880.00
Working Dogs for
Warriors
Walk for Wellness &
Suicide Prevention
$9,220.00 $9,220.00
New Life Church of
Fontana
Juneteeth Freedom
Production
$1,736.00 $1,736.00
Girl Scouts of San
Gregorino
Troop Monthly
Meetings
Facility Use Facility Use
Fontana Chamber of
Commerce
Chamber of
Commerce Lunch
Facility Use Facility Use
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FISCAL IMPACT:

The City Council approves funding for Co-Sponsorships of $37,500 in the FY 2024-2025 operating budget. Year-to-date expenditures for the February (cycle one) application period totaled $3,421.14, which provides an available balance of funding allocation of $34,078.86. Requested funding for the September (cycle two) filing period totals $26,050.00. If approved, the seven (7) applications received in cycle two would result in an overall balance of $8,028.86 within the Co-Sponsorship budget for FY2024/25.

The Co-Sponsorship budget reflects the staff’s work outside of regular hours to support various events. In addition, this budget does not affect other programs, services, or resources.

MOTION:

Approve Parks, Community, and Human Services Commission recommendation.

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Attachment A

New Section Distribution: All Employees
File in City Administrative Manual

City of Fontana

POLICY AND PROCEDURES

Subject:

POLICY TITLE
Co-Sponsorship of Events
Page
1 of 5
Section
20-58
Effective Date
7-1-06
Issued Date
6-13-06

Resolution Number:

Approval Date:

I. PURPOSE

To establish guidelines for the City co-sponsorship of Fontana based events and/or programs.

II. GENERAL POLICY

The City of Fontana allocates certain funds annually for the purposes of assisting non -profit Fontana-based organizations hosting community events. The City does not provide funds for these co-sponsored events, but in kind services. The City shall develop co -sponsorship criteria to prioritize and select co -sponsorship applicants on a biannual basis and to effectively distribute finite budgetary allocations based on classifications and ratings of applicants.

III. DEFINITION

City Co-sponsored Event means an event that is planned and conducted by a Fontana-based non-profit organization that meets the criteria for co-sponsorship and the City participates by contributing staff time, public safety services, equipment use, and/or the use of facilities.

IV. PROVISIONS

1. An organization may fall into the following categories within the co-sponsorship criteria:

A. Classification 1:

A group demonstrating a clear, broad based community benefit demonstrated through the application process.

B. Classification 2:

A group demonstrating a clear community benefit targeted toward a specific segment of the community demonstrating an identified need.

2. An organization may apply for co-sponsorship in one of the following three co-sponsorship tier ratings.

A. Tier #1

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Organization provides a minimum of eighty percent of program resources and funding.

B. Tier #2

Organization provides a minimum of seventy percent of program resources and funding.

C. Tier #3

Organization provides minimum of fifty percent of program resources and funding.

NOTE: An organization must provide a minimum of fifty percent of the program’s resources (i.e. funding, equipment, advertisement) to be eligible to apply for co-sponsorship with the City.

3. The tier rating is based on the total amount of resources the organization allocates to the event.

4. Co-sponsorship applications will be accepted February 1 through February 28 for co- sponsorship of events taking place during the following July 1 through June 30 period. A second application review process will be offered for events that are identified after the February application deadline. The second round of applications will be accepted September 1 through September 30 for events taking place January 1 through June 30 of the same fiscal planning year.

5. The City will rate each application according to the established criteria and will provide co- sponsorship support based upon the available funding resources.

6. Community Services Department staff will review all requests for co-sponsorship to ensure the organization meets the above criteria.

7. Requests for co-sponsorship will be classified by their overall benefit to the community and will be ranked by tier rating prior to being sent to the Parks and Recreation Commission and City Council for consideration.

8. Organizations will be funded based upon classification and priority of ranking until budgeted co-sponsorship funds have been fully allocated.

V. CO-SPONSORSHIP RATING CRITERIA

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1. The applicant’s event must be a benefit to the Fontana community. One or several of the following would qualify a proposed event for consideration by the Parks and Recreation Commission and staff for City co-sponsorship:

A. The event responds to an identified community need. (These are needs that have been either ratified or initiated by the City Council.)

B. The event enhances current department programming efforts. (A local organization is willing to fund and operate a current Special Event or organize an Adult Sports program that provides recreation opportunities to local residents.)

C. The event provides a unique leisure or community service opportunity for either the community at large or for a targeted group. (A local group that wants to organize an event that the staff, Parks and Recreation Commission and/or City Council believes benefits the community.)

D. The event raises funding for either Community Services Department programs or for services that benefit either the community at large or for a targeted group.

2. Application must show proof of 501 (c) 3 non-profit status or group must demonstrate the event is not for profit.

3. Applicant must be based in the incorporated boundaries of the City of Fontana.

4. When applicable, the applicant must have a valid charitable solicitation permit on file with the Management Services Department.

5. Applicant’s event must be open to all Fontana residents.

6. The applicant must qualify within Tier #1, Tier #2, or Tier #3 based on overall resources allocated.

7. The applicant must complete and submit the Co-Sponsorship Application and budget form along with a Special Event Application to the Community Services Department during one of the two identified application filing periods.

VI. ASSESSMENT CRITERA
Assessment(s) will be conducted at the conclusion of the event/activity to determine how well the objectives of the event/activity were met. Total attendance, activities offered, and overall benefit to the community will be reported on. Assessments will be conducted by:

1. Self Assessment
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A self assessment form will be provided to the applicant for the purpose of reporting on the outcome of the event.

2. Parks and Recreation Commission Assessment
When possible, one or more Parks and Recreation Commissioners will attend events to observe and provide feedback to the entire Parks and Recreation Commission.

3. Community Services Department Assessment
When applicable, a Community Services Department employee will be assigned to attend the event and provide feedback to both the applicant and the Parks and Recreation Commission.

VII. PROCEDURES

1. Complete the Co-sponsorship of Event Application and budget form in addition to a Special Event Application.

2. Submit application in February or September of each year to:

Co-Sponsorship Events
Community Services Department
16860 Valencia Avenue
Fontana, CA 92335

3. Upon receipt of applications, Community Services Department staff will verify eligibility, determine classification and assign tier rating.

4. Staff liaison shall place the request for co-sponsorship on the Parks and Recreation Commission agenda for review and consideration.

5. Staff liaison shall notify the applicant request co-sponsorship of the date, time, and location of the Parks and Recreation Commission meeting at which the request will be considered.

6. The request for co-sponsorship will be reviewed and either approved or denied by the Parks and Recreation Commission and then by the City Council.

A. If the request is approved by the Parks and Recreation Commission, staff will forward the request to City Council for consideration as part of the annual Budget Adoption Process or Mid-year Review of Budget Allocations.

i. Organizations that receive approval must recognize support of the City of Fontana as a co-sponsorship of the event or activity. All publicity and marketing for the event or activity must include the approved City of Fontana logo.

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ii. If the request is approved by the City Council, the staff liaison will notify the applicant and appropriate departments in writing within seven days of the City Council’s action.

B. If the request is denied staff will notify the applicant in writing.

i. Appeal process: In the event the request is denied, the applicant may appeal the Park and Recreation Commission’s decision in writing, care of the Community Services Director at 16860 Valencia Avenue, Fontana, CA 92335 within seven business days of decision.

7. If applying for use of a facility, a Request for Use of Facility must be completed in addition to the Co-sponsorship of Events Application and Special Event Application.

8. The Community Services Director, or designee, can approve a co-sponsorship request for use of a City facility if the requested date and time does not impact facility rentals and/or programs AND which do not exceed $5,000 cumulatively, annually.

9. An applicant approved for co-sponsorship of facility use from the City that does not provide (30) days notice of cancellation of said event to the City will be charged a Class 3 facility rental fee according to the Facility Rental Policy.

10. After the conclusion of the co-sponsored event or activity, the approved Post Event/Activity Assessment will be conducted to determine the benefit to the community.

Note: Parks & Community Services Commission meetings are held on the fourth Thursday of the month. The City Council meetings are held on the second and fourth Tuesday of the month. 241
*Events in RED are new events
2024/2025 Co-Sponsorship Descriptions Attachment B
Event Information Description 2023/2024 Evaluation
Ephesians New Testament Church 2024: attendance 75
MLK Cultural Awareness Jazz Concert
January 17, 2025 | 7pm-10pm
Set-up: 11am | Tear-down: 10pm-10:30
Steelworkers Auditorium
Estimated Attendance: 200
Concerned Citizens for N. Fontana 2024: attendance 300
Black History Parade and Expo
February 22, 2025 | 10am-4pm
Set-up: 8am | Tear-down: 4pm-5
Citrus Ave/Summit to Sierra Lakes Pkwy
Estimated Attendance: 1,000
Fontana Aquatics Club 2024: attendance 1,500
Swim Meet
April 12 - April 13, 2025 | 7am - 5pm
Set-up: Fri 12pm | Tear-down: Sun 4pm-6
Fontana Park Aquatic Center
Estimated Attendance: 2,000
Working Dogs for Warriors 2024: attendance 400
Walk for Wellness & Suicide Prevention
May 17, 2025 | 9am-1pm
Set-up: 6am | Tear-down: 1pm-2
Fontana Park
Estimated Attendance: 500
New Life Church of Fontana 2023: attendance 150
Juneteeth: "Freedom Production"
June 20, 2025 | 7pm-9:30pm
Set-up: 3pm | Teardown 9:30pm-10
Steelworkers Auditorium
Estimated Attendance: 300
Girl Scouts of San Gregorino Council 2023: attendance 15 Girl Scout Troop 203
Every other Tuesday | 4pm-6:30pm
Set-up: 3:30pm | 6:30pm-7:00
Jessie Turner Community Center
Meeting room or conference room
6 Troop meeting to promote learning environment
for girl scouts members. Reoccuring meetings with no issues.

Event ended on time but clean up took longer than expected.

Event charged for admission. Event organizer Bishop Emory James requested meetings and walk-throughs prior to the event. The event day was rushed and required last-minute changes.

Event usually has a late start and could be better
organized.

Although Pastor Casey was not on-site for
rehearsals, he did have an alternate contact that
was on-site and provided information to staff.

MLK Celebration featuring a Jazz Concert, with the
goal of providing scholarships to high school
students (Reoccuring 12 years)
2 Parade celebrating Black History Month and ending
with an information and remebrance Expo for
Martin Luther King Jr. held in Home Depot parking
lot. (Reocurring 58 years)
1 4
5 Two day swim meet hosting teams from all over
San Bernardino County. Set up day before.
(Reoccuring 15 years)
Well organized event that ran on schedule. Works
well with staff.
3 Well organized event and ran smoothly. The event
provides about 30 resource vendors.

The production, titled Freedom, will highlight the
significance of Juneteenth and the ongoing journey
toward unity and freedom. Rehersal to take place
from Monday, June 16, 2025 - Thursday, June 19,
2025 from 6pm-10pm (Reoccuring 2 years)
Mental health awareness resource fair. (Reocurring
1 year)
242
*Events in RED are new events
2024/2025 Co-Sponsorship Descriptions Attachment B
Chamber of Commerce 2024: attendance 50
Chamber of Commerce Luncheon Reoccurring meetings with no issues. 2nd Thursday meetings once a month
11:30am - 1pm
Set-up: 10:00 | Tear-down: 1pm-2
Jessie Turner Center
Estimated attendance 115
7 Monthly Luncheons held at Jessie Turner
Community Center January-June
243
*Events in RED are new events
2024/2025 Co-Sponsorships
Organizations Applying for Event Co-Sponsorship
Attachment C
Item
# Organization Event Event Budget Value of In-Kind
City Support Tier Level
1 Ephesians New
Testament Church MLK Celebration $42,000 $1,102 Tier 1
2 Concerned Citizens for
the Development of N.

Fontana
Black History Parade and
Expo $9,150 $7,112 Tier 3
3 Fontana Aquatics Club USA Swimming Meet $11,000 $6,880 Tier 2 4 Working Dogs for
Warriors
Walk for Wellness & Suicide
Prevention $7,607 $9,220 Tier 3
5 New Life Church of
Fontana
Juneteeth Freedom
Production $7,650 $1,736 Tier 2
6 Girl Scouts of San
Gregorino Troop Monthly Meetings
Every other
Tuesday 4pm-6:30pm
Jessie Turner
Community
Center
7 Fontana Chamber of
Commerce
Chamber of Commerce
Luncheon
2nd Thursday of
each month 10am-2pm
Jessie Turner
Community
Center
TOTAL: $26,050
Facility Reservation Only
244
*Events in RED are new events
2024/2025 Co-Sponsorship
Cost Breakdown
Attachment D
# Organization Events Date & Time Location Requested Support City Support January 17, 2025 Use of Steelworkers
7pm-10pm (1) Public Works (Facilities) $55p/h x 4hrs = $220 (2) AV Staff $24p/h x 2 x 5hrs = $240
(2) CSD Staff (Arts) $18p/h x 2 x 12hrs = $432
(2) CSD Staff (Events) $21p/h x 2 x 5hrs = $210
$1,102
February 24, 2025 Closure of Ralph M Lewis
November 1, 1918 (2) Public Works (Parks) $55p/h x 2 x 4hrs = $440 (6) Public Works (Streets) $55p/h x 6 x 4hrs = $1,320
(2) AV Staff $33p/h x 2 x 8hrs = $528
Fontana PD $90p/h x 8 x 6hrs = $4,320
(4) CSD Staff (Events) $21p/h x 4 x 6hrs = $504
$7,112.00
April 12 - April 13, 2025 Use of FPAC
7am-5pm (Both Days) (4) Public Works (Parks) $55p/h x 4 x 4hrs = $880 (6) CSD Staff (Lifeguards) $20p/h x 6 x 22hrs = $2,640
(2) Pool Managers $24p/h x 2 x 22hrs = $1,056
(2) Assisstant Pool Managers $22p/h x 2 x 22hrs = $968
(2) CSA $18p/h x 2 x 22hrs = $792
(2) Aquatics Coordinators $34p/h x 2 x 8hrs = $544
$6,880.00
May 17, 2025 Closure of Fontana Park
9am-1pm Fontana PD for traffic control $90p/h x 12 x 6hrs = $6,480 (4) Public Works (Streets) $55p/h x 4 x 6hrs = $1,320
(4) Public Works (Parks) $55p/h x 4 x 4hrs = $880
(2) AV Staff $24p/h x 2 x 6hrs = $288
(2) CSD Staff (Events) $21p/h x 2 x 6hrs = $252
$9,220.00
June 20, 2025 Steelworkers Auditorium
7pm-9:30pm (1) Public Works (Facilities) $55p/h x 4hrs = $220 Public Works (Streets) $55p/h x 4hrs = $220
(2) AV Staff $24p/h x 2 x 8hrs = $384
(2) CSD Staff (Arts) $18p/h x 2 x 16hrs rehearsal = $576 (2) CSD Staff (Arts) $21p/h x 2 x 8hrs =$336
$1,736.00
TOTAL: $26,050.00
Fontana Park Aquatic
Center
4 Fontana Park
1 Ephesians New Testament Church MLK Cultural
Awareness Celebration
Steelworkers'
Auditorium
2 Concerned Citizens for
N. Fontana
Black Histrory Parade
and Expo
Summit/Citrus Ave to
Sierra Lakes Pkwy
Walk for Wellness &
Suicide Prevention
Working Dogs for Warriors
3 Fontana Aquatics Club USA Swimming Meet
Steelworkers'
Auditorium
5 New Life Church of Fontana Juneteeth: Freedom
Production
245
*Events in RED are new events
2024/2025 Co-Sponsorship
Cost Breakdown
Attachment D
6 Girl Scouts Troop 203 Troop 203 Meetings Every other Tuesday Jessie Turner Center $0 Facility Use ONLY
$07 Chamber of Commerce Luncheon Once a month
(Thursdays) Jessie Turner Center
246
Attachment E
Priority
1-12 Organization Event Name
Amount
Requested
Commission
Recommended
Funding
1 Ephesians New Testament Church MLK Cultural Awareness Celebration $1,102 2 Concerned Citizens for N. Fontana Black History Parade and Expo $7,112 3 Fontana Aquatics Club USA Swimming Meet $6,880
4 Working Dogs for Warriors Walk for Welnnes & Suicide Prevention $9,220 5 New Life Church of Fontana Juneteeth: Freedom Production $1,736 6 Girl Scouts Troop 203 Troop 203 Meetings $0
7 Chamber of Commerce Luncheon $0
TOTAL $26,050
Priority Rating Matrix - Parks, Community & Human Services Commission (September 2024) *Rankings are based on Commissioners prioritization
247
Attachment E
248
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-3460 Agenda Date: 12/10/2024
Agenda #: L. Category: Consent Calendar
FROM:

Community Services
SUBJECT:

Accept Donation from Bel-Air Swap-Meet, Inc. (2024 Festival of Winter) RECOMMENDATION:

Accept donation from Bel-Air Swap-Meet, Inc. in the amount of $5,000 for use towards the 2024 Festival of Winter.

COUNCIL GOALS:
· Operate in a businesslike manner by creating a memorable customer experience with every interaction.
· Increase citizen involvement by seeking community input. · Invest in the City’s infrastructure (streets, sewers, parks, etc.) by creating and promoting community through people, parks, and programs.

DISCUSSION:

The Community Services Department receives donations and sponsorships from many local companies to help support and enhance various programs, activities, and events. Bel-Air Swap- Meet, Inc. donated $5,000 towards the 2024 Festival of Winter and is recognized as a Presenting Title Sponsor of this event.

FISCAL IMPACT:

The $5,000 was deposited into account 101.3509 for use in offsetting costs for the 2024 Festival of Winter.

MOTION:

Approve staff recommendation.

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City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-3472 Agenda Date: 12/10/2024
Agenda #: M. Category: Consent Calendar
FROM:

Community Services
SUBJECT:

Accept Donation from Burrtec Waste Industries, Inc. (2024 Festival of Winter) RECOMMENDATION:

Accept donation from Bel-Air Swap-Meet, Inc. in the amount of $2,500 for use towards the 2024 Festival of Winter.

COUNCIL GOALS:
· Operate in a businesslike manner by creating a memorable customer experience with every interaction.
· Increase citizen involvement by seeking community input. · Invest in the City’s infrastructure (streets, sewers, parks, etc.) by creating and promoting community through people, parks, and programs.

DISCUSSION:

The Community Services Department receives donations and sponsorships from many local companies to help support and enhance various programs, activities, and events. Burrtec Waste Industries, Inc. donated $2,500 towards the 2024 Festival of Winter and is recognized as a Presenting Title Sponsor of this event.

FISCAL IMPACT:

The $2,500 was deposited into account 101.3509 for use in offsetting costs for the 2024 Festival of Winter.

MOTION:

Approve staff recommendation.

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City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-3462 Agenda Date: 12/10/2024
Agenda #: N. Category: Consent Calendar
FROM:

Development Services
SUBJECT:

Option and Purchase and Sale Agreement for City owned property-14355 Foothill Blvd.

RECOMMENDATION:

1. Approve the Option and Purchase and Sale Agreement in the amount of $265,000 with Ava Property Investments, LLC for city owned land located at 14355 Foothill Blvd, more specifically described as APN # 0230-051-03.

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

COUNCIL GOALS:
· Provide a diverse range of housing types and levels of affordability while addressing homelessness in the community by construction of affordable high-quality multi-family housing.
· Promote economic development by pursuing business attraction, retention, and expansion.

DISCUSSION:

The City of Fontana acquired this parcel as part of the Foothill Boulevard widening project. The parcel, approximately 20,300 square feet, is located on the south side of Foothill Blvd, 300 feet east of Almond Avenue.

The property was deemed surplus in 2023. The only respondent to the notice was Ava Property Investments, LLC who seek to acquire the property for development. No project is included in this recommended action.

General Terms of Purchase:
· Option term expires on first anniversary of the Effective Date. · The Purchase Price shall be $265,000.00, which was determined by a 3rd party appraisal commissioned by the City of Fontana.
· Buyer shall gain approval of a development project for the property prior to exercising the option to purchase.

Approval of the Option and Purchase Agreement and a successful close of escrow on the subject property will provide an opportunity for the development of new housing units in the city while also removing the burden of annual upkeep and maintenance of the property from the city.

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File #: 21-3462 Agenda Date: 12/10/2024
Agenda #: N. Category: Consent Calendar
FISCAL IMPACT:

This transaction will result in sale proceeds to the city in the amount of $265,000.00 upon the completion of the sale.

MOTION:

Approve staff recommendation.

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1 REAL ESTATE OPTION AND PURCHASE AND SALE AGREEMENT

AND JOINT ESCROW INSTRUCTIONS
This Real Estate Option and Purchase and Sale Agreement and Joint Escrow Instructions (this “Agreement”), dated for reference purposes only as of _______________ (the “Effective Date”) is entered into between, A v a P r o p e r t y I n v e s t m e n t s , L L C, a California limited liability company (“Buyer”), and the City of Fontana, a California municipal corporation (“City” or “Seller”), for the purchase and sale of that certain real Option Property consisting of approximately .47 acres located in the City of Fontana, County of San Bernardino (“County”), State of California, as legally described on Exhibit A attached hereto and identified on the map attached hereto as Exhibit A-1 (the “Option Property”). As used herein the term “ Option Property” shall include all of Seller’s right, title and interest in and to all entitlements, easements, mineral rights, oil a nd gas rights, water, water rights, air rights, development rights and privileges appurtenant thereto and all improvements located thereon, excepting any right, title or interest to any public rights of way or public easements.

R E C I T A L S3
This Agreement is entered into with reference to the following facts:

A. City owns the fee interest in the Option Property;
B. City has declared that the Option Property is no longer necessary for the City’s use and is surplus land;
C. Buyer desires to purchase the Option Property for the fair market value as set forth in the Appraisal defined below;
D. Notwithstanding the value of the Option Property arrived at through the appraisal conducted for the Option Property by Bender Rosenthal, Inc. dated May 31, 2024, (the “Appraisal”), the Parties have agreed that the purchase price of the Option Property shall be TWO HUNDRED SIXTY-FIVE THOUSAND DOLLARS ($265,000.00); and
E. Seller desires to grant an option to purchase the Option Property and Buyer desires to acquire an option to purchase the Option Property as specifically described herein.

F. No application for any land use entitlement involving the Property has been submitted to any public agency.

G. The specifics of any potential future use of the Property are not yet known in sufficient detail to allow for the completion of "meaningful environmental assessment" under California Environmental Quality Act ("CEQA") as discussed further under Section 4.3.

H. Any application (if any) for future land use entitlement would require the local land use authority to undertake all required environmental review pursuant to CEQA.

I. This Agreement does not anticipate or approve any land use or development entitlement, does not grant any vested development rights, and does not otherwise restrict the City's full and complete consideration and adoption of any feasible mitigation measures or feasible alternatives (expressly including the "no project" alternative) that may be required as part of any future CEQA 259
2 process.

NOW, THEREFORE, the parties hereto agree as follows:
1 GRANT OF OPTION
A. Grant of Option. SELLER hereby grants to BUYER an option to purchase the Option Property on the terms and conditions specified in this Agreement.

B. Option Consideration. Failure to make any payment required by this section on or before the date specified shall cause this option to terminate. As used in this Agreement, the term “Option consideration” includes consideration both for the initial option and for any extension term.

The consideration for the initial term of the option shall be the Deposit described in sections 3.A. and

3.B., below.

If Buyer desires to extend the term as provided in Section 1.C, below, Buyer, prior to the expiration of the then current term shall (i) give written notice to Seller of Buyer’s electi on to extend, and (ii) deposit with Escrow Holder additional option consideration. Additional option consideration for the single six-month extension shall be ONE THOUSAND DOLLARS ($1,000.00).

If this Agreement is terminated pursuant to Section 7, below regarding title matters, option consideration for the initial term of the option shall be refunded to Buyer. Otherwise, except as provided in Section 1, all option consideration shall be nonrefundable unless Seller defaults under this Agreement. The consideration for the initial option and option extensions is to be disbursed to Seller within forty -eight (48) hours of deposit thereof by Buyer. This Agreement constitutes irrevocable instructions to Escrow Holder that consideration for the initial option and option extensions is to be disbursed to Seller within forty-eight (48) hours of deposit thereof by Buyer.

All option consideration (including extensions) shall be applicable to the purchase price.

A. Option Term. The initial term of this option shall expire at 5:00 p.m. on first anniversary of the Effective Date (“Option Term”). If this option has not theretofore expired, Buyer may extend the Option Term for up to one (1) Six-month period only if Buyer timely deposits the additional option consideration pursuant to Section 1.B and timely gives notice of election to extend as provided in that Section. Each extension period shall expire at 5:00 p.m. on the last day of a calendar [month/year] unless such day is not a Business Day, in which case the extension period shall expire on the next following day which is a Business Day. A Business Day shall mean Monday through Friday, except for holidays on which the San Bernardino County Recorder’s office is closed.

C. Permission To Enter. SELLER hereby grants to BUYER, or its authorized agents, permission to enter upon the Option Property at all reasonable times from the Effective Date until the expiration of the Option Term, and if the option is exercised, from and after such exercise until close of this transaction for the purpose of conducting due diligence, including making necessary or appropriate inspections.

BUYER will give SELLER at least twenty-four (24) hours’ written or oral notice before going on the Option Property. BUYER does hereby inde mnify and hold harmless SELLER, SELLER’s heirs, successors, assigns, officers, employees, agents and representatives free and harmless from and against any and all liability, loss, damages and costs and expenses, demands, causes of action, claims or judgme nts, arising from or that is in any way connected with BUYER’s inspections or non - 260
3 permanent improvements involving entrance onto the Option Property pursuant to this Section 1D.

If BUYER fails to acquire the Option Property due to BUYER’s default, this license will terminate upon the termination of BUYER’s right to purchase the Option Property. In such event, BUYER will remove or cause to be removed all of BUYER’s personal Option Property, facilities, tools and equipment from the Option Property. If BUYER does not remove all of BUYER’s personal Option Property, facilities, tools, and equipment from the Option Property within ten (10) business days of the date that BUYER’s license terminates under this Section, SELLER has the right to remove said personal Option Property, facilities, tools and equipment from the Option Property. In the event BUYER fails to remove BUYER’s personal Option Property, facilities, tools and equipment from the Option Property after entering the Option Property to perform due diligence, including to make necessary or appropriate inspections as specified in this Section 1D, BUYER is responsible for all reasonable costs incurred by SELLER in any such removal by SELLER. 2 EXERCISE OF OPTION
A. Exercise. The option shall be exercised, if at all, prior to the expiration of the initial term, or, if extended, prior to the expiration of the applicable extension term. In order to exercise the option, BUYER must give written notice to SELLER of election to exercise on or before the deadline for exe rcise which is the Option Term (“ Option Exercise”). If an expiration date or deadline would otherwise be a day which is not a Business Day, then the expiration date or deadline shall be the next following Business Day.

B. Memorandum of Option. The parties shall execute a memorandum or short form of this Agreement to be recorded, filed, or published in the public records of San Bernardino County within 3 Business days of the execution of this Agreement.

C. Quitclaim Deed. Upon expiration or termination of this option without the option having been effectively exercised, BUYER agrees that it shall, within five (5) Business days of any request therefor, execute and deliver to SELLER a quitclaim deed to the Option Property. The provisions of this section shall survive the termination of this Agreement. 3 PURCHASE PRICE/ DEPOSIT/ INDEPENDENT CONSIDERATION
A. The purchase price for the Option Property shall be Two Hundred and Sixty- Five Thousand Dollars ($265,000.00) (the “Purchase Price”) to be paid to Seller at Closing, less the Deposit made by Buyer pursuant to Section 2.

Buyer has deposited a cash sum equal to Five Thousand Dollars (the “Deposit”) at First American, 4380 La Jolla Village Dr., Suite 200, San Diego, CA, Attn: Sheri Keene (“Escrow Holder”). Buyer may replace the Deposit held with Escrow so long as Buyer pays any and all fees and costs associated with the Deposit replacement; Seller shall cooperate with the Deposit replacement but shall not be responsible for any fees or costs. The Deposit, also the option consideration, shall be held in the Escrow until the Feasibility Deadline (as defined in Section 11 below) with the interest earned thereon inuring to the benefit of Buyer. If on or before the Feasibility Deadline, Buyer delivers to Seller and Escrow Holder written notice approving the feasibility of the Option Property, the Deposit shall thereafter be non-refundable to Buyer, except as otherwise set forth in this Agreement, and shall remain in Escrow until the Closing or earlier termination of this Agreement, and provided further that until the Closing occurs or until Seller receives the Deposit as liquidated damages pursuant to Section 8.E. hereof, Buyer shall be deemed the owner of the Deposit, 261
4 and Seller and its successors and assigns shall not be entitled to withdraw from Escrow or to receive from Escrow all or any part of the Deposit. If this Agreement is terminated or deemed terminated on or before the Feasibility Deadline, Seller hereby authorizes Escrow Holder to immediately release the Deposit (and all of the interest earned on the Deposit) to Buyer without any additional documentation required from the parties. Seller releases Escrow Holder from all liability in connection with the release of the Deposit to Buyer in accordance with the preceding sentence, and following such release of the Deposit, neither party shall have any further rights or obligations hereunder (other than those arising from a party’s breach of this Agreement). The Deposit shall be credited against the Purchase Price at the Closing.

B. Within three (3) business days following the mutual execution and delivery of this Agreement to Escrow, Buyer shall deposit into Escrow the amount of One Hundred Dollars ($100.00) (the “ Independent Consideration ”). The Independent Consideration shall be non - refundable to Buyer as independent consideration for the rights and options extended to Buyer hereunder, including, without limitation, the right and option to terminate this Agreement as provided herein. The Independent Consideration shall b e disbursed to Seller immediately following Buyer's deposit thereof into Escrow. In all instances under this Agreement in which Buyer elects to terminate or is deemed to have terminated this Agreement and the Deposit is returned to Buyer, Seller shall retain the Independent Consideration when the Deposit is returned to Buyer. The Independent Consideration shall not be applicable to the Purchase Price or treated as consideration given by Buyer for any purpose other than as provided herein. The parties agree that it is their intention that the amount of the Independent Consideration is sufficient consideration, as such term is defined in Steiner v. Thexton, 48 Cal. 4th 411 (2010). Buyer and Seller hereby acknowledge and confirm that they have had an opportunity to review this provision with their respective, independent counsel. 4 FAIR MARKET VALUE; NO SUBSIDY BY SELLER; NO AGENCY

OBLIGATIONS
Buyer and Seller acknowledge and agree that the Purchase Price represents the current fair market value of the Option Property. Buyer and Seller further acknowledge and agree that neither Seller not City, in their regulatory capacity or otherwise, has provided or agreed to provide any subsidy to the Buyer in connection with Buyer’s acquisition, development, use and /or operation of the Option Property, nor is there any plan to provide any such subsidy to the Buyer. 5 REQUIRED SUBMITTALS TO CITY
A. Within 90 days of the Effective Date, plus any additional days attributable to force majeure, or corrections, changes, delays, or other events attributable to the City or any other government authority, Buyer shall submit its complete application for all required entitlements to the City.

B. Without representation of intent to approve, City shall commit to processing all plan submittals expeditiously. Notwithstanding anything to the contrary contained herein, prior to the end of Feasibility, Buyer shall have satisfied itself regarding all entitlement approvals. 6 ESCROW
A. Closing. The parties shall open an escrow within one (1) business day of Option Exercise on which Buyer exercises its Option. Close of Escrow means the date on which the 262
5 Grant Deed is recorded in the Official Records of the County of San Bernardino. The Close of Escrow will be 30 days after the Option Exercise, subject to satisfaction of all conditions precedent as described under Section 12 and Section 13, but in no event shall the Close of Escrow be later than ninety (90) days after the Option Exercise (the “Closing Date” or “Closing”). The Closing Date may be extended by the City Manager as set forth in Section 10. Buyer may elect to close the Escrow before the Closing Date upon thirty (30) days prior written notice to Seller.

B. Escrow Instructions; Costs . The provisions hereof shall constitute joint instructions to Escrow Holder to consummate the purchase in accordance with the terms and provision hereof. The parties shall execute such additional escrow instructions, not inconsistent with the provisions hereof, as may be deemed reasonably necessary to carry out the intentions of the parties as expressed herein; provided, however, if the provisions of any such additional instructions contradict with the provisions of this Agreement, then the provisions of this Agreement shall control.

At Closing, (i) real estate taxes shall be prorated between Buyer and Seller as of the closing date, and (ii) all other closing costs and prorations shall be paid by county custom, which includes the seller paying for the transfer tax and title insurance.

C. Deposit of Documents.
(1.) At or before the Closing, Seller shall deposit into escrow the duly executed and acknowledged Deed (defined below) conveying the Option Property to Buyer; (2.) At or before the Closing, Buyer shall deposit into escrow the funds necessary to close this transaction;
(3.) At or before the Closing, Buyer and Seller shall each deposit into escrow an executed copy of the Affordable Housing Land Covenant attached hereto as Exhibit C (“Affordable Covenant”) and;
(4.) Seller and Buyer shall each deposit such other instruments as are reasonably required by the “Title Company” (defined below) or otherwise required to close the escrow and consummate the purchase of the Option Property in accordance with the terms hereof.

D. Prorations. The Current Taxes shall be prorated as of the Closing Date based on the tax assessor’s most recent tax bill for the Option Property except all delinquent taxes and assessments shall be paid by Seller. The parties shall cooperate in good faith following the Closing (and outside of the Escrow) to reconcile any prorations made at the Closing that do not accurately reflect the actual prorated cost or revenue. All prorations of amounts for which Seller is responsible but which Buyer pays or agrees to pay in the future shall be credited against the Purchase Price.

E. Balance of Purchase Price. Prior to 10:00 a.m. on the day of Closing, Buyer shall deposit with wire to Escrow Holder in immediately available funds the balance of the Purchase Price, together with such other amounts as may be required in order to pay Buyer’s share of closing costs and prorations.

F. Closing Procedure. Upon receipt of all funds and instruments described in this Section 5, and upon satisfaction or waiver of all contingencies and conditions set forth in this Agreement, Escrow Holder shall:
263
6 (1.) Record the Grant Deed in the Official Records of San Bernardino County, California.
(2.) Issue the Title Policy (as defined below) to the Buyer. (3.) Deliver the Purchase Price to Seller, less any costs and expenses shown on the closing statements approved by Seller and Buyer, which costs and expenses shall be disbursed as instructed by Seller and Buyer in escrow instructions delivered to Escrow Holder prior to the Closing Date.
7 TITLE
Buyer has procured that current preliminary title report respecting the Option Property issued by First American Title (the “ Title Company ”) attached hereto as Exhibit B , along with legible copies of the documentation evidencing all exceptions shown therein (the “Title Report”). Within thirty (30) days following the Effective Date, Buyer shall disapprove in writing any exceptions contained in the Title Report to which Buyer objects (the “Disapproved Exceptions”); all exceptions not so objected to by Buyer in writing shall be referred to as “ Approved Exceptions”. Seller shall have ten (10) days after Buyer delivers such notice to advise Buyer if Seller will agree to remove any of such Disapproved Exceptions from title. If Seller does not so agree in writing to remove all of the Disapproved Exceptions, then, until the Feasibility Deadline, Buyer may elect to terminate this Agreement and recover the Deposit previously made and any interest actually earned thereon, in which event the parties shall have no further rights or obligations hereunder; or, alternatively, Buyer may elect to waive its objection to those Disapproved Exceptions in which event such Disapproved Exceptions will be deemed to be Approved Exceptions. At the Closing, Seller shall convey its fee interest in and to the Option Property to Buyer (or to such other . affiliated entity as may be specified in Buyer’s escrow instructions and approved by Agency) by deed in a form reasonably mutually acceptable to Buyer and Seller (the “Deed”). Title to the Option Property shall be subject only to (i) a lien for then current taxes, bonds and assessments not yet delinquent and (ii) the Approved Exceptions (collectively, the “ Permitted Exceptions”). Immediately following recordation of the Deed, Escrow Holder shall issue to Buyer an A.L.T.A. Standard Co verage Owner’s policy of title insurance, with coverage in the amount of the Purchase Price for the Option Property, showing fee simple title to the Option Property vested in Buyer, subject only to the Permitted Exceptions (the “Title Policy”). Buyer may elect to obtain an extended coverage policy at Buyer’s cost. 8 “AS IS” PURCHASE; RELEASE OF SELLER; LIQUIDATED DAMAGES A. Buyer’s Independent Investigation. Buyer represents and warrants to Seller that Buyer shall, prior to the Feasibility Deadline, perform a diligent and thorough inspection and investigation of each and every aspect of the Option Property, either independently or through agents of Buyer's choosing, including, without limitation, the following matters (collectively, the “ Option Property Conditions”):
(1.) All matters relating to title including, without limitation, the existence, quality, nature and adequacy of Seller’s interest in the Option Property and the existence of physically open and legally sufficient access to the Option Property. (2.) The zoning and other legal status of the Option Property, including, without limitation, the compliance of the Option Property or its operation with any applicable codes, 264
7 laws, regulations, statutes, ordinances and private or public covenants, conditions and restrictions, and all governmental and other legal requirements such as taxes, assessments, use permit requirements and building and fire codes.
(3.) The quality, nature, adequacy, and physical, geological, and environmental condition of the Option Pro perty (including soils and any groundwater), and the presence or absence of any Hazardous Materials in, on, under or about the Option Property or any other real Option Property in the vicinity of the Option Property. As used in this Agreement, “Hazardous M aterial” shall mean any material that, because of its quantity, concentration or physical or chemical characteristics, is now or hereafter deemed by any federal, state or local governmental authority to pose a present or potential hazard to human health or safety or to the environment.
(4.) The suitability of the Option Property for Buyer’s intended use of the Option Property.
(5.) The economics and development potential, if any, of the Option Property.
(6.) All other matters of material significance affecting the Option Property.

B. Hazardous Materials Disclosure. California law requires sellers to disclose to buyers the presence or potential presence of certain Hazardous Materials. Accordingly, Buyer is hereby advised that occupation of the Option Property may lead to exposure to Hazardous Materials such as, but not limited to, gasoline, diesel and other vehicle fluids, vehicle exhaust, office maintenance fluids, tobacco smoke, methane and building materials containing chemicals, such as formaldehyde. By execution of this Agreement, Buyer acknowledges that the notices and warnings set forth above satisfy the requirements of California Health and Safety Code Section 25359.7 and related statutes.

C. As-Is Purchase . Buyer specifically acknowledges and agrees that Seller is selling and Buyer is purchasing Seller’s interest in the Option Property on an “as is with all faults” basis. E x c e p t f o r t h e r e p r e s e n t a t i o n s a n d w a r r a n t i e s o f t h e S e l l e r s e t f o r t h h e r e i n , Buyer is relying solely on its independent investigation and not on any representations or warranties of any kind whatsoever, express or implied, from Seller or its agents as to any matters concerning the Option Property, its suitability for Buyer's intended uses or any of the Option Property Conditions. Seller does not guarantee the legal, physical, geological, environmental or other conditions of the Option Property, nor does it assume any responsibility for the compliance of the Option Property or its use with any statute, ordinance or regulation. It is Buyer's sole responsibility to determine all building, planning, zoning and other regulations relating to the Option Property and the uses to which it may be put.

D. [Intentionally left blank.]
E. Release/Indemnity. Buyer shall defend, indemnify, and hold harmless Seller, the City and their respective officials, officers, emp loyees, consultants, contractors and agents (collectively, “ Indemnitees”) from and against any and all actual and alleged claims, losses, damages, fines, costs, penalties, expenses (including reasonable attorneys’ fees, costs of experts and 265
8 other litigation expenses), and liabilities of any type or nature, including those related or due to death or injury to any person and injury to any Option Property, proximately resulting from any negligent acts or omissions by Buyer related to the activities described or contemplated by this Agreement. No officials, officers, employees, consultants, contractors or agents of Seller or City shall be personally liable to Buyer, any voluntary or involuntary successors or assignees, or any lender or other party holding an interest in the Option Property, in the event of any default or breach by Seller or City, or for any amount which may become due to Buyer or to its successors or assignees, or on any obligations arising under this Agreement. No officials, officers, employees, consultants, contractors or agents of Buyer shall be personally liable to City or Seller in the event of any default or breach by Buyer, or for any amount which may become due to Seller or City, or on any obligations arising under this Agreement.

The provisions of this Section 8.E. shall survive the Closing hereunder or the termination of this Agreement and shall not be merged into the Deed.

F. LIQUIDATED DAMAGES : BUYER AND SELLER AGREE THAT IF,

AFTER THE FEASIBILITY DEADLINE, BUYER DEFAULTS ON ITS OB LIGATION TO

PURCHASE THE OPTION PROPERTY PURSUANT TO THE TERMS AND CONDITIONS OF

THIS AGREEMENT, THE DAMAGES TO SELLER WOULD BE DIFFICULT AND IMPRACTICAL TO DETERMINE. ACCORDINGLY, BUYER AND SELLER HAVE AGREED TO FIX AS LIQUIDATED DAMAGES THE DEPOSIT OF $5,000 SPECIFIED IN SECTION 3,

AND SUCH AMOUNT SHALL BE PAYABLE TO SELLER AS LIQUIDATED DAMAGES, AND SHALL CONSTITUTE SELLER’S SOLE AND EXCLUSIVE REMEDY FOR SUCH DEFAULT.

BUYER AND SELLER AGREE THAT THIS LIQUIDATED DAMAGES PROVISION IS

REASONABLE UNDER THE CIRCUMSTANCES EXISTING AS OF THE EFFECTIVE DATE, GIVEN THE DIFFICULTY AND IMPRACTICALITY OF DETERMINING SELLER’S

DAMAGES, THE COSTS OF NEGOTIATING AND DRAFTING THIS AGREEMENT, PERFORMING SELLER’S OBLIGATIONS HEREUNDER, KEEPING THE OPTION

PROPERTY OUT OF THE MARKETPLACE, COSTS OF SEEKING ANOTHER BUYER AND OTHER COSTS INCURRED IN CONNECTION HEREWITH. PAYMENT OF SUCH AMOUNT

TO SELLER AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY UNDER CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT INSTEAD, IS

INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO SECTIONS 1671, 1676 AND 1677 OF THE CALIFORNIA CIVIL CODE. SELLER HEREBY

WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE
SECTION 3389. SELLER AGREES THAT THESE LIQUIDATED DAMAGES SHALL BE IN

LIEU OF ANY OTHER MONETARY RELIEF OR OTHER REMEDY, INCLUDING WITHOUT

LIMITATION SPECIFIC PERFORMANCE, TO WHICH SELLER OTHERWISE MIGHT BE ENTITLED UNDER THIS AGREEMENT, AT LAW OR IN EQUITY. BUYER AND SELLER

SPECIFICALLY ACKNOWLEDGE THEIR AGREEMENT TO THE FOREGOING

LIQUIDATED DAMAGES PROVISION BY INITIALING THIS SECTION IN THE APPROPRIATE SPACES PROVIDED BELOW:

Buyer’s Initials _ _ _ _ _ _ Seller’s Initials ________

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9 9 POSSESSION; MAINTENANCE OF OPTION PROPERTY
Seller shall deliver to Buyer possession of the Op tion Property immediately on Closing, free of all uses, tenancies and occupancies unless approved by Buyer. Until possession is delivered to Buyer, subject to Buyer’s authorization to enter the Option Property as set forth in Section 11, Seller agrees, at its sole cost and expense, to maintain and keep the Option Property and all the improvements thereon in not less than the same order and condition as they are on the date this Agreement is executed by Seller. Pending the Closing, Seller shall continue to manage and operate the Option Property and maintain insurance covering the Option Property in substantially the same manner as Seller has managed and operated the Option Property for the last twelve (12) months, and shall not commit waste or otherwise materially and adversely affect the Option Property. 10 CITY MANAGER AUTHORITY
The City Manager of the City (“City Manager”) shall have the authority to take all actions and execute all documents required or necessary for the City to perform its obligations under this Agreement, to extend each of the Closing Date or Feasibility Deadline for up to 180 days (or for an additional period beyond said 180 days), and to otherwise complete the Closing and conveyance of the Option Property to Buyer pursuant to this Agreeme nt. Further, City Manager may execute any entitlement applications in connection with the Buyer’s future use of the Option Property, where the signature of the City is required as the owner of the Option Property. 11 DUE DILIGENCE
Buyer shall have until the date that is two hundred and seventy (270) days following the Effective Date (the “Feasibility Deadline”) to determine the feasibility of the Option Property for Buyer’s intended use in Buyer’s sole discretion by its delivery of its written notice of feasi bility approval (the “Buyer Feasibility Approval”) to Seller and Escrow Holder on or before 5:00 p.m.

Pacific Time on or before the Feasibility Deadline. Buyer’s failure to deliver to Seller and Escrow Holder the Buyer Feasibility Approval on or before the Feasibility Deadline shall automatically be deemed to constitute Buyer’s termination of this Agreement.

Upon the Effective Date of this Agreement, Buyer may enter upon the Option Property until the earlier of the Closing or termination of this Agreement to conduct any investigation, test, study or analysis related to the development thereof, including, but not limited to, soils studies, Phase I and/or Phase II toxic studies, engineering studies, tree surveys, archeological studies, biological studies, utilities and constraints study, hydrology studies and any other matters necessary to evaluate the development of the Option Property. Buyer shall pay all costs with respect to such studies and tests and shall be solely responsible for the disposal of any soil samples (including any Hazardous Materials or other wastes in these samples), which obligation shall survive the termination of this Agreement. Buyer shall exercise due care, follow best commercial practices in connection with such entry and testing, and shall comply with all laws, ordinances, rules, regulations, orders and the like in connection with any entry onto or testing of the Option Property. Prior to any entry onto the Option Property, Buyer shall obtain and maintain, and shall require that its agents, consultants, contractors and representatives (collectively, the “Agents”) to obtain and maintain in full force during the term of this Agreement, at Buyer’s sole cost and expense, a policy of comprehensive liability insurance, including Option Property damage, which will insure the City and their respective officers, members, employees and agents against liability for injury to persons, damage to Option Property, and death of any person arising in connection with Buyer or its Agents entry upon the Option Property and/or 267
10 conducting of tests or studies thereon. The policy shall be approved as to form and insurance (including approval of the insurance company) by the City and shall be in an amount not less than One Million Dollars ($1,000,000.00). Buyer shall provide City with a certificate for any insurance policy required hereunder, including an endorsement that states that the policy will not be cancelled except after thirty (30) days' notice in writing to City and names the additional insureds as required herein. Buyer shall provide City with evidence of such insurance coverage prior to any entry onto the Option Property by Buyer or its Agents. Following any such tests or studies, Buyer shall leave the Option Property in substantially similar condition as of the Effective Date of this Agreement, and Buyer shall indemnify, defend and hold harmless Seller, City, and their respective officers, members, employees and agents from and against any liabilities, claims, damages (including injury or damage to person or Option Property), losses, costs, expenses and fees (including reasonable attorneys’ and experts’ fees and costs) to the extent resulting from the entry, inspections and studies conducted by Buyer and its Agents on, under, or about the Option Property, except that Buyer shall have no liability under this Section 11 for, and no obligation to remedy, any liabilities, claims, damages, costs, expenses, fees, conditions or defects on or under the Option Property to the extent (i) not caused by Buyer or its Agents, (ii) resulting from any conditions or defects discovered during Buyer’s investigations and inspections, including the discovery of any Hazardous Materials and the results or findings of any tests, or (iii) to the extent resulting from the acts or omissions of Seller, or Seller’s agents, engineers, contractors, consultants and representatives. Without limiting the foregoing, Buyer shall have no liability for any diminution in the value of the Option Property resulting from the activities excluded in (ii) above, provided in the event Buyer or its Agents discover any toxic or Hazardous Materials on or under the Option Property, Buyer and its Agents shall cease any further investigation in that area of the Option Property, notify Seller by phone and email within twenty-four (24) hours of that discovery, exercise reasonable due care so as not to exacerbate that condition and properly dispose of any soils samples which contai n such toxic or Hazardous Materials. Nothing in this Section is intended to limit or modify the indemnity contained in Section 8.E. The foregoing indemnity shall survive beyond the Closing, or, if the sale is not consummated, beyond the termination of this Agreement.

To the extent Seller has not previously done so, Seller shall make available to Buyer for Buyer’s review and inspection, during the term of this Agreement at the office of Seller and upon at least twenty-four (24) hours’ prior notice, and in each case to the extent the materials are in the Seller’s possession or control, copies of all soil and hydrology reports, environmental or toxic material reports, biological reports, archeological reports, engineering reports, traffic studies, environmental impact studies, or any public records which concern the Option Property(collectively the “Documents”). Buyer shall have the right, at Buyer’s cost, to make copies of the Documents for Buyer’s review and approval but if this Agreement is terminated, Buyer shall, upon the written request of Seller, return all such Documents and copies to Seller. Seller makes no representation or warranties whatsoever regarding the existence, availability, completeness or accuracy of the Documents. Buyer shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Option Property performed by Buyer or its agents, employees or contractors (the “ Buyer Work Product”), but shall not deliver copies of any such reports to any other person or entity without Seller’s prior written approval. Seller acknowledges and agrees that any and all of the Buyer Work Product is provided by Buyer for informational purposes only and do not constitute representations or warranties of Buyer of any kind, inc luding any representations and warranties concerning the accuracy or completeness of any information in the Buyer Work Product. 12 CONDITIONS TO BUYER’S PERFORMANCE
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11 Buyer’s obligations to purchase the Option Property under this Agreement are subject to Buyer’s written approval of the following conditions precedent (“Buyer’s Closing Conditions”), but Buyer shall have the right to waive any such condition(s) in writing within the time period specified in such condition, or if not specified, prior to the Closing. If Buyer waives any of Buyer’s Closing Conditions, then Seller shall be relieved of any further obligation or liability, including any representation or warranty, in connection with such condition. In the event Buyer determines that any such condition is objectionable, unacceptable, or cannot be satisfied within the period specified below, or if no time period is specified then prior to Closing, Buyer may, in its sole and absolute discretion, fail to approve said condition. In such event, then (without limiting Buyer’s remedies in the event of a breach of this Agreement by Seller which are provided in Section 21 below) the Deposit and all interest earned thereon while in Escrow, shall be returned immediately to Buyer by Escrow Holder, and neither party shall have any further rights or obligations hereunder. If the Closing occurs and Buyer has failed to disapprove of any of the following Buyer’s Closing Conditions, then such condition(s) shall be deemed waived.

A. Feasibility Study. Buyer’s approval of the feasibility of the Option Property for Buyer’s intended use in accordance with Section 11 prior to the Feasibility Deadline.

B. Truth and Accuracy of Seller’s Representations and Warranties . Seller’s representations and warranties as set forth in this Agreement shall be true and correct on the Effective Date of this Agreement and on the Closing Date.

C. Title. Escrow Holder is irrevocably and unconditionally committed to issue to Buyer the Title Policy with no exceptions to coverage other than the Permitted Exceptions, and no person or entity has any right to use or occupy the Option Property, except as shown in any Permitted Exceptions in the Title Policy.

D. Seller’s Other Obligations . Seller shall have performed all of its other covenants and obligations as set forth in this Agreement.

E. Buyer shall have received final approval (beyond any challenge or appeal period with no challenge or appeal then pending) of all necessary land-use approvals, authorizations and entitlements, including, without limitation approval by the City Planning Commission and, entering into a development agreement between Buyer and the City (collectively, the “Entitlements”), to develop the Option Property.
13 CONDITIONS TO SELLER’S PERFORMANCE
The following are conditions precedent to Seller’s obligation to sell the Option Property to Buyer (“Seller’s Closing Conditions”):

A. Buyer shall have received final approval (beyond any challenge or appeal period with no challenge or appeal then pending) of all Entitlements to develop the Option Property, including approval by the City Planning Commission.

B. Seller shall have completed all required review under CEQA, including an evaluation of the significant adverse effects, alternative projects (including the “no project alternative”), and mitigat ion measures. This Option Agreement merely confirms the fiscal and business-related terms relative to the potential purchase and sale of the Property. This Option 269
12 Agreement shall not be construed as, and does not approve, any land use or development entitlement, does not grant any vested development rights, and does not otherwise restrict the lead agency's full and complete consideration and adoption of any feasible mitigation measures or alternatives (expressly including the "no project" alternative) that may be required as part of any future CEQA process. Further, any potential future uses of the Property are not yet known in sufficient detail to allow for the completion of "meaningful ... environmental assessment," such that undertaking environmental review would be premature under State CEQA Guidelines Section 15004. As such, this Agreement does not bind or commit the lead agency or any other governing jurisdiction to any definite course of action with regard to the property, and this Option Agreement doe s not constitute the approval of a "project" pursuant to CEQA. Nonetheless, the Closing of escrow and any transfer of title under this Agreement, as well any consideration by the governing jurisdictions of future actions allowing for potential future development of the Property, are expressly made contingent upon the completion of all required environmental review under CEQA, as permitted by State CEQA Guidelines Section 15004(b).

C. Seller’s approval of Buyers proof of construction financing and construc tion contracts, such approval not to be unreasonably withheld.

D. Buyer shall have approved the Affordability Covenant or other similar restriction on the Property imposed by the Department of Housing and Community Development pursuant to the California Surplus Land Act, Government Code sections 54220 et seq. (“SLA”).

E. Buyer shall have performed all of its obligations hereunder and all of Buyer’s representations and warranties shall be true and correct.

Each of Seller’s conditions precedent are intended solely for the benefit of Seller and is deemed to be material to and of the essence of this Agreement. If any of Seller’s conditions precedent are not satisfied as provided above, Seller may, at its option, terminate this Agreement. In such event, then (without limiting Seller’s remedies) the Deposit and all interest earned thereon while in Escrow, shall be delivered to Seller by Escrow Holder except in the event that Seller terminates this agreement pursuant to Section 13.A, in which case such amounts shall be returned immediately to Buyer by Escrow Holder, and neither party shall have any further rights or obligations hereunder. If the Closing occurs and Seller has failed to disapprove of any of Seller’s Closing Conditions, then such condition(s) shall be deemed waived.
14 SELLER’S REPRESENTATIONS AND WARRANTIES
Seller hereby makes the representations and warranties set forth in this Agreement for the benefit of Buyer and its successors and assigns for a period of six (6) months from and after the Closing Date, after which Seller’s representations and warranties will be of no further force or effect.

Seller shall notify Buyer in writing within ten (10) business days after Seller’s City Manager receives actual knowledge that any representation or warranty has become untrue or misleading in light of information obtained by Seller after the Effective Date of this Agreement, and if such ten (10) business day period would expire after the Closing, then the Closing shall be extended until the expiration of the ten (10) business day period. As used herein, “Seller’s knowledge” shall mean the present actual, not constructive, knowledge of Seller’s current City Manager, without any investigation or inquiry or duty to do so. All representations and warranties contained in the Agreement shall be deemed remade at Closing except as otherwise disclosed to Buyer in writing, shall survive the Closing for the prescribed six-month period and shall not merge with the Deed. 270
13 A. To Seller’s knowledge, there is no litigation, arbitration or pr oceeding pending, or threatened, before any court or administrative agency or any other condition that relates to or affects the Option Property, Seller’s performance hereunder, Buyer’s intended use of the Option Property, or which will result in a lien, charge, encumbrance or judgment against any part of or any interest in the Option Property, except (i) as disclosed in the Title Report, or (ii) as otherwise disclosed to Buyer in writing.

B. To Seller’s knowledge, the Option Property is not in violation of any federal, state or local law, statute, regulation, code or ordinance.

C. Seller is not a foreign person, foreign corporation, foreign partnership, foreign trust or foreign estate, as those terms are defined in the Internal Revenue Code Section 1145 and any related regulations and Seller is exempt from the withholding obligations imposed by California Revenue and Taxation Code Sections 18805, 18815, and 26131.

D. To Seller’s knowledge, no person or entity has the right to use, occupy, possess or reside on the Option Property except as disclosed in the Title Report and Seller has not, to Seller’s knowledge, nor has City, to Seller’s knowledge, granted any person or entity any such rights. 15 BUYER’S REPRESENTATIONS, WARRANTIES AND COVENANTS
A. Buyer represents and warrants that it is a limited liability company duly organized under the laws of California, in good standing and authorized to conduct business in State of California, has the capacity and full power and authority to enter into and carry out the agreements contained in and the transactions contemplated by this Agreement, and that this Agreement has been duly authorized and executed by Buyer, and upon delivery to and execution by Seller, shall be a valid and binding agreement of Buyer.

B. There is no action, suit, arbitration, unsatisfied order or judgment, government investigation or proceeding pending or, to the actual knowledge of Buyer threatened, against Buyer which, if adversely determined, could individually or in the aggregate mater ially interfere with the consummation by Buyer of the transaction contemplated by this Agreement. The term “actual knowledge” means the present actual, not constructive, knowledge of Robert Martin without any further investigation or inquiry or duty to do so.

C. In compliance with Executive Order 13224 and the USA Patriot Act of 2001, Buyer and Seller each affirmatively represents and warrants to the other that (a) neither it, nor any of its officers, directors, or principals, has committed or supported terror ist acts; or (b) neither it, nor any of its officers, directors, or principals is identified on the list of Specially Designated Nations and Blocked Persons generated by the Office of Foreign Assets Control. 16 COMMISSIONS
Each party represents to the other that it has not dealt with any broker, agent, or finder for which a commission or fee is payable with respect to the Option Property or this Agreement, and each party shall indemnify, defend and hold harmless the other from any claims, demands, liabilities, or judgments for commissions or fees arising from such party’s breach of this Section. The foregoing indemnification, defense and hold harmless obligations of the parties shall survive Clo sing and any termination of this Agreement.
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14 17 FOREIGN INVESTOR DISCLOSURE
Seller understands that if Seller is unable to certify that it is U.S. citizen or a resident of the State of California at the time of the Closing, Buyer shall be entitled to withhold from the purchase price such amounts as are necessary to satisfy Buyer’s withholding obligations under the Foreign Investment in Real Property Tax Act and under California Revenue and Taxation Code Sections 18805, 18815 and 26131.
18 FUTURE LEASES, COMMITMENTS AND ENCUMBRANCES
From and after the Effective Date of this Agreement, except to the extent required by law or otherwise, Seller shall not (a) execute, modify and/or approve any leases, contracts or commitments affecting the Option Property that would ext end beyond the Closing Date without Buyer’s written approval; which approval may be given or withheld in Buyer’s sole discretion; or (b) voluntarily encumber the Option Property with any liens, encumbrances or other instruments creating a cloud on title or securing a monetary obligation with the Option Property. 19 CONDEMNATION/CASUALTY
If after the Effective Date of this Agreement and prior to the Closing all or any part of the Option Property is taken or threatened to be taken by eminent domain or condemnation or is destroyed by fire, earthquake or other casualty, Buyer may elect either (a) to terminate this Agreement as to the entire Option Property, in which event all the Deposit and interest earned thereon while in Escrow, shall be returned to Buyer, and this Agreement shall be null and void and of no further force or effect, or (b) to consummate purchase of the Option Property as herein provided, in which event Seller shall pay or assign to Buyer all condemnation awards or payments in respect of the Option Property and/or all insurance proceeds paid or payable to Seller as a consequence of such casualty. If this Agreement is terminated in full pursuant to this Section 19, neither party shall have any further rights, duties, obligations or liabilities, at law or in equity, arising out of or relating to this Agreement except for those that specifically survive termination of this Agreement pursuant to other provisions hereof. 20 PREVAILING WAGE REQUIREMENTS.

A. Buyer acknowledges that the Seller has made no representation, express or implied, to Buyer or any person associated with Buyer regarding whether or not laborers employed relative to the construction , installation and maintenance of improvements on the Option Property, if any, must be paid the prevailing per diem wage rate for their labor classification, as determined by the State of California, pursuant to California Labor Code Sections 1720, et seq. Buyer agrees with Seller that Buyer shall assume the responsibility and be solely responsible for determining whether or not laborers employed relative to any construction of capital improvements on the Property must be paid the prevailing per diem wage rate for their labor classification, as determined by the State of California, pursuant to Calif ornia Labor Code Sections 1720, et seq.

B. Buyer, on behalf of itself, its successors, and assigns, waives and releases Seller from any right of action that may be available to any of them pursuant to California Labor Code Sections 1726 and 1781. Buyer acknow ledges the 272
15 protections of California Civil Code Section 1542 relative to the waiver and release contained in this Section which reads as follows:

A GENERAL RELEASE DOES NOT EXTEND TO

CLAIMS THAT THE CREDITOR OR RELEASING

PARTY DOES NOT KNOW OR SUSPECT TO EXIST

IN HIS OR HER FAVOR AT THE TIME OF

EXECUTING THE RELEASE AND THAT, IF

KNOWN BY HIM OR HER, WOULD HAVE

MATERIALLY AFFECTED HIS OR HER

SETTLEMENT WITH THE DEBTOR OR
RELEASED PARTY.

BY INITIALING BELOW, OWNER KNOWINGLY

AND VOLUNTARILY WAIVES THE

PROVISIONS OF CALIFORNIA CIVIL CODE
SECTION 1542 SOLELY IN CONNECTION WITH

THE WAIVERS AND RELEASES OF THIS
SECTION:
__________________________
Buyer
C. Additionally, Buyer shall indemnify, defend with counsel acceptable to Seller and hold harmless Seller against any claims pursuant to California Labor Code Section 1781 arising from this Agreement or the construction or installation or maintenance of any improvements on or in the Option Property, in accordance with the terms of Section 3.2 of this Agreement.

If Civil Code sections 9550 et seq. require contractors to procure a payment bond, then the Buyer shall ensure that its contractors deliver the required bond. 21 SURPLUS LAND ACT COMPLIANCE
The City has determined the Property falls within the definition of “surplus land” pursuant to Government Code section 54221 and is not necessary for the City’s use. As such, the City is selling the Property in accordance with the process and requirements set forth in the SLA. 22 AMENDMENTS
This Agreement expresses the agreement of the parties. There are no other understandings, oral or written, which in any manner alter or enlarge its terms. This Agreement supersedes any and all prior agreements between the par ties hereto regarding the Option Property. Seller and Buyer agree to execute such additional documents as may be reasonable and necessary to carry out the provisions of this Agreement. This Agreement may be amended, but only in writing and only if such writing is executed by both parties.
23 BUYER’S REMEDIES; NO MONEY DAMAGES
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16 If Seller defaults on its obligation to deliver title to the Option Property to Buyer in the manner required hereby or otherwise breaches this Agreement, Buyer shall have the right to seek specific performance of this Agreement or Buyer may terminate this Agreement, in which case Buyer shall be entitled to an immediate return of the Deposit and any interest earned thereon while in the Escrow and Buyer shall have no further right to seek damages. The failure of Buyer to receive approval of any applicable development permits, maps, or other entitlements for the Option Property shall not constitute a default or breach of Seller’s obligations contained in this Agreement. Buyer acknowledges that Seller would not have entered into this Agreement if doing so would subject it to the risk of incurring liability in money damages, either for breach of this Agreement, anticipatory breach, repudiation of the Agreement, or for any actions with respect to its negotiation, preparation, implementation or application. The parties further acknowledge that money damages and remedies at law generally are inadequate, and specific performance is the most appropriate remedy for the enforcement of this Agreement and should be available to Buyer. Therefore, the parties hereby acknowledge and agree that it is a material part of Buyer’s consideration to Seller that Seller shall not be at any risk whatsoever of liability for money damages relating to or arising from this Agreement, and except for the express indemnity obligations hereunder and non - damages remedies, including the remedy of specific performance, Buyer, for itself, its successors and assignees, hereby release Agency, the City and their respective officers, members, employees and agents from any and all claims, demands, actions, or suits of any kind or nature arising out of any liability, known or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth and Fourteenth Amendments of the United States Constitution, or any other law or ordinance which seeks to impose any money damages, whatsoever, upon the parties because the parties entered into this Agreement, because of the terms of this Agreement, or because of the manner of implementation or performance of this Agreement. 24 ATTORNEYS’ FEES
If this Agreement or the transaction contemplated herein gives rise to a lawsuit or other legal proceeding between the parties hereto, the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees and costs of litigation in addition to any other judgment of the court. 25 ASSIGNMENT
Without Seller’s written consent, Buyer’s rights and obligations hereunder may be assigned to any other party; provided that Buyer notifies Seller in writing within twenty (20) business days of such assignment, and provided that said assignee assumes all o f the obligations of Buyer under this Agreement and agrees to perform all the obligations of Buyer hereunder as if such assignee were the original Buyer hereunder. Any such approved assignee shall have all the benefits, including rights to specific performance, damages, and enforcement of Seller’s representations and warranties that Buyer has under this Agreement. No such assignment, however, shall relieve Buyer of any of its obligations hereunder.
26 NOTICES
All notices or tender required or permitted herein shall be in writing and shall be sent to the address set forth below (or such other address as a party may hereafter designate for itself by written notice to the other parties as required hereby) of the party for whom such notice or communication is intended:
274
17 If to Seller: Attn: Matthew C. Ballantyne
City of Fontana
8353 Sierra Ave.

Fontana, CA 92336
With copy to: Best Best & Krieger LLP
2855 E. Guasti Road
Suite 400
Attn: Ruben Duran
Email: [email protected]
If to Buyer: Attn: _Ara Tchaghlassian________________
2875 POMONA BLVD
POMONA, CA 91768
____________________
_____________________
______________________
Email: [email protected]______________
Any such notice or communication shall be sufficient if sent by registered or certified mail, return receipt requested, postage prepaid; by hand delivery; by overnight courier service; or by fax or electronic mail if receipt is confirmed by the recipient. Any such notice or communication shall be effective on the business day delivered to the office of the addressee or upon refusal of such delivery, or three business days after deposit by first class mail. Notice transmitted after 5:00 p.m. or on Saturday or Sunday shall be deemed to have been given on the next business day. Should any act or notice required hereunder fall due on a weekend or holiday, the time for performance shall be extended to the next business day.
27 MISCELLANEOUS
A. Section headings contained herein are included solely for convenience of reference and shall in no way affect the construction of this Agreement.

B. Time is of the essence of this Agreement.

C. This Agreement shall be governed by the laws of the State of California.

D. Each party shall execute, acknowledge, and deliver, after the Effective Date of this Agreement, including at or after closing, such further assurances, instruments and documents as the other may reasonably request in order to fulfill the intent of this Agreement and the transactions contemplated hereby.

E. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect and shall in no way be impaired or invalidated, and the parties agree to substitute for the invalid or unenforceable provision a valid and enforceable provision that most closely approximates the intent and economic effect of the invalid or unenforceable provision. 275
18 F. This Agreement may be executed in counterparts and transmitted by facsimile by and to each of the parties, and each such counterpart shall be deemed an original, and all of them together shall constitute a single instrument.

G. If a party hereto believes the other party is in breach or default under this Agreement, the non-breaching party shall deliver written notice of the alleged breach or default to the other party, and the other party shall have ten (10) business days after receipt of such written notice in which to cure the breach or default, and if the breach or default is actually cured within such ten (10) business day period, the breaching party shall not be in breach or default under this Agreement by reason of the matter(s) alleged in the non-breaching party’s notice that have been so cured.

H. Except as expressly set forth herein, this Agreement is not intended nor shall it be construed to create any third-party beneficiary rights in any person who is not expressly made a party and signatory hereto.

I. If Buyer executes this Agreement before Seller, such execution and delivery of the Agreement shall be deemed an offer to buy the above-described Option Property for the price and upon the terms and conditions herein stated.

INTENTIONALLY LEFT BLANK;

SIGNATURES FOLLOW IMMEDIATELY ON NEXT PAGE

276
19 SELLER: BUYER:

City of Fontana Ava Property Investments, LLC

By: By:

Name: Matthew C. Ballantyne Name: A r a T c h a g h l a s s i a n Title: City Manager Title: M a n a g e r
Date: Date:

APPROVED AS TO FORM: APPROVED AS TO FORM:

By:

Name: Ruben Duran
Title: City Attorney
Date:

ATTEST:

By:

Name:

Title: City Clerk
Dated:

List of Exhibits
A Description of Option Property
A-1 Map of Option Property
B Title Report
C Affordable Housing Land Covenant

277
20 The undersigned representative of Escrow Holder hereby accepts the foregoing instructions and agrees to comply with them in connection with the purchase and sale of the Option Property.

Escrow Holder:

:

Effective Date:

By:

Authorized Representative

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Exhibit A
Description of the Option Property
Approximately ________ square feet, known as the following in the City of Fontana, County of San Bernardino, California:

Assessor’s Parcel Number _________________________

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Exhibit A-1
Map of Option Property

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Exhibit B
Title Report
[To be inserted]

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Exhibit C

RECORDING REQUESTED BY

AND WHEN RECORDED MAIL TO

City of _______________
_____________________
_____________________
_____________________

EXEMPT FROM RECORDING FEES PURSUANT
TO GOVERNMENT CODE SECTION 27383

SPACE ABOVE THIS LINE FOR RECORDER'S USE
APNs: ______________________

Affordable Housing Land Covenant or Restriction
(per Government Code Section 54233 and/or 54233.5)
If ten (10) or more residential units are developed on the Property, not less than 15 percent of the total number of residential units developed on the property shall be sold or rented at affordable housing cost, as defined in Section 50052.5 of the California Health and Safety Code, or affordable rent, as defined in Section 50053 of the California Health and Safety Code, to lower income households, as defined in Section 50079.5 of the California Health and Safety Code. Rental units shall remain affordable to and occupied by lower income households for a period of 55 years for rental housing and 45 years for ownership housing. The initial occupants of all ownership units shall be lower income households, and the units shall be subject to an equity sharing agreement consistent with the prov isions of paragraph (2) of subdivision (c) of 65915 of the California Government Code. These requirements shall be covenants or restrictions running with the land and shall be enforceable against any owner who violates a covenant or restriction and each su ccessor-in-interest who continues the violation by any of the entities described in subdivisions (a) to (f), inclusive, of Section 54222.5 of the California Government Code.

BUYER:

___________________________

By: By:

Name: Name:

Title: Title:

Date: Date:
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APPROVED AS TO FORM:

By:

Name: Ruben Duran
Title: City Attorney
Date:

ATTEST:

By:

Name:

Title: City Clerk
Dated:

283
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-3464 Agenda Date: 12/10/2024
Agenda #: O. Category: Consent Calendar
FROM:

Community Services
SUBJECT:

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

1. Authorize the City Manager to enter into a lease agreement with Paperboy Roasting Company to offer food and beverage preparation and retail services at the Fontana Community Senior Center; and

2. Authorize the City Manager to enter into any documents necessary to effectuate said agreement.

COUNCIL GOALS:
· Operate in a businesslike manner.
· Increase citizen involvement.
· Become more service oriented.

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 of this facility, is a designated space for the Coffee/Juice Bar. Specifically, this space will provide an opportunity for patrons of the center to purchase coffee and foods, wireless access to the internet, read a novel, or sit and chat with friends in a “coffee house” atmosphere.

The identified coffee bar space is 168 square feet and includes furnishings for operation. 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.

Paperboy Roasting Company 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). Paperboy Roasting Company’sproposal City of Fontana Printed on 12/5/2024Page 1 of 2
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Agenda #: O. Category: Consent Calendar
for services in the space includes offering freshly roasted coffee, teas, juice, and fresh pastries.

The proposed Lease Agreement will have an initial term of one year and will automatically renew on 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 built in 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.

Paperboy Roasting Company 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:

Approve staff recommendation.

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CITY OF FONTANA

C A L I F O R N I A

LEASING AGREEMENT
FOR

FONTANA COMMUNITY SENIOR CENTER

COFFEE/JUICE BAR

SP-XX-CS-24

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FONTANA COMMUNITY SENIOR CENTER COFFEE/JUICE BAR LEASE

AGREEMENT
Tracking No._SP-XX-CS-24

This Fontana Community Senior Center Coffee/Juice Bar Lease Agreement (“Lease” or “Agreement”) is dated for reference purposes as of the 1st day of January 2025 by and between the City of Fontana, a municipal corporation and general law city (hereinafter referred to as “City” or “Landlord”) and Paul Nguyen a sole proprietor, d/b/a Paperboy Roasting Company (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 d esires to establish food and beverage preparation and retail sa les 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 s ervice 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 287

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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 leas able 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 ter mination of this Le ase, 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 January 01, 2025.

4. TERM.

4.1 Initial Term . The initial term of t his Agreement (“Initial Term”) shall commence on the Effective Date and shall terminate on June 30, 20 26, 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 a nd 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 autom atically 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 cont inued o ccupancy 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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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 -Orange- Riverside County (1982 -84=100) during the prior t welve month p eriod, 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 no t 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 whe n 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 exce ed 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 wa iver 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 Agre ement ( 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 rig ht t o i nstall, 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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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 a nd a ll health a nd sa fety requirements , permits or approvals necessary for operation, including but not limited to ensuring (i) that the design, planning and installation of all improvement s, 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 p rotect 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 u se 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 r epresent Pacific Standard Time and shall be referred to herein, collectively, as the “Normal Business Hours”:
a. Monday through Friday, 8:00 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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8.2.2 Change of Normal Business Hours. Landlord and Tenant may from time to time, ag ree 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 u nless 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 playe d 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 sha ll, 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 p arking 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 291

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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 t he 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 c ounty o r mun icipal, 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, a nd l ighting 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 ca used by accident, br eakage, 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 292

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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 connec t an y a pparatus or d evice 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 (10 0%) 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 an d 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 inc urred i n kee ping acc ount 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 el ectrical 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 the reof, 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 a ny 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 Prop erty 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 293

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pursuant to law), assessments, a nd ot her governmental charges, general and special, ordinary and extraordinary, unforeseen as well as foreseen, of a ny 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” cond ition 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 St ructural Elements of the Fontana Community Senior Center , including the Coffee/Juice Bar, in good condition and repair. “Structural Elements” include the roof , ex terior w alls, st ructural 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 requir ed 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. T enant h ereby 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 mak e 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, with out 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 t he 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 r epair a nd in as safe and clean a 294

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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 provide d by the Cit y f or op eration 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 rep air 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 accord ance 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 non - safety or non-graffiti repairs within thirty (30) days of notification to Tenant by Landlord, Landlord may make any such repairs at Tenant ’s e xpense. 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 sole ly 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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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 op erations 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, exc ept 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 L ease, 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 opera tion 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, e xcluding rea sonable 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 fee s 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, serv ant, customer, or concessionaire of Tenant on the Coffee/Juice Bar premises;
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(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 p erform 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 f rom Landlord’s o ccupation and use of the Fontana Community Senior Center , excluding the Coffee/Juice Bar, or from Landlord’s maintenance or failure to maintain the St ructural 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 damag e (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 p atron 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 occurr ing in connection wi th 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/100 297

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Dollars ($1,000,000.00) for bodily injury or death in a ny one occurrence, T wo 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 insura nce 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 m aintained 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 n otification 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) th e in surer wa ives 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 a ny 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 therefor e shall be deemed additional rent payable by Tenant upon demand. Tenan t sh all cause t he in surer(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 a ny p olicies 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 fixtur es,'' 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 r emoved 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. 298

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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 re gardless 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 o r 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 th e 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, T enant ma y 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 Agr eement 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 b e re duced 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 dama ge 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 tim e as the dam age 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 t he 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 t o Te nant, pr ovided t hat 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 obligation s 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 299

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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 t hat t he 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 def ault shall b e m ade b y 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, o r sh all 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. 300

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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 La ndlord no la ter 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 operatio n and maintenance of the Fontana Community Senior Center , provi ded, however, t hat L andlord 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 certifi cates, permits and o ther 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 othe rwise w ithdrawn or terminated by governmental authority, b y 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 o f 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 301

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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 Te nant 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 a ny 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 , up on 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 Transportat ion including t he Om nibus 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 hazar dous 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 4 9 C FR 17 2.101 (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 motori zed equipment a nd ve hicles 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 ac tions brought by third parties against the Tenant alleging environmental damage. 302

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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 o ther 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 re ceipt r equested, 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:

Paul Nguyen
d/b/a Paperboy Roasting Company
17543 Pine St.

Fontana, CA 92335

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 a nd f or itself and its assigns, and all persons c laiming 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 pers ons 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 th rough T enant, establish or permit any such practice or practices of discrimination or segregation.

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 303

RVPUB\HSHANE\747813.1 19
determine an y rights of the parties under this A greement, 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 an y term herein, the terms costs and expenses shal l 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 su ch 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 a dvised 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 par t 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 s hall 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 o r any acts of the Parties shall be deemed to cre ate 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 a ny 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 inv alid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

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 partie s. Any 304

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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 t he State of California. If any action is brough t 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 a t any time of any of the terms, conditions, or c ovenants 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 t his 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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SIGNATURE PAGE
TO

FONTANA COMMUNITY SENIOR CENTER COFFEE/JUICE BAR LEASE

AGREEMENT

LANDLORD:

CITY OF FONTANA
By:

Matthew C. Ballantyne
City Manager
TENANT:

Paul Nguyen, a sole proprietor, d/b/a

PAPERBOY ROASTING COMPANY

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

306

Exhibit A

RVPUB\HSHANE\747813.1
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 wirel ess Internet, enjoy one of th e many programs inside the facility or simply sit and visit with friends in a “coffee house” atmosphere.

307

Exhibit A

RVPUB\HSHANE\747813.1
(The area encompassing the Coffee Bar is circled in red on the map attached below)

308

Exhibit B

RVPUB\HSHANE\747813.1
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. #T-
19 Solid door reach-in
300 series stainless steel solid doors
115 volt, single phase 8.9 amps
19 Cu. Ft. capacity

ITEM 2 Espresso Machine ECM Michelangelo DS 2 220V
220 VAC, 20 Amp dedicated circuit
Heat Exchanger Dual Boiler

ITEM 3 Coffee Brewer (Qty. 2) Bunn Coffee Brewer Model #23400.0011 12 cup Coffee Brewers
Gravity flow dispense tube system
Thermally insulated

ITEM 4 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

309

Exhibit C

RVPUB\HSHANE\747813.1

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 relaxe d 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 Co mmunity S enior Center are Monday through Thursday 8 a.m. to 7:00 p.m.; 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.

310
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-3474 Agenda Date: 12/10/2024
Agenda #: P. Category: Consent Calendar
FROM:

Innovation & Technology
SUBJECT:

Fontana 311 Support Services
RECOMMENDATION:

1. Award bid (IT-25-52-SP) and authorize the City Manager to execute a contract with StackNexus, Inc. for $346,000.

2. Authorize the City Manager to execute any future amendments to the StackNexus agreement.

COUNCIL GOALS:
· Operate in a businesslike manner by creating a memorable customer experience with every interaction.
· Operate in a businesslike manner by improving services through the effective use of technology.
· Operate in a business-like manner by ensuring that the public debate is based on accurate information.
· Promote economic development by pursuing business attraction, retention, and expansion. · ..End
DISCUSSION:

In January 2022, Council approved the purchase of a 311 Customer Relationship Management (CRM) system (Salesforce) that would help residents, visitors, and businesses locate services, information, file forms/complaints, or report problems like graffiti or road damage through the use of a unified online portal. This platform has been running for two years, and to continue improving and building on the platform to meet the future needs of residents and businesses.

For the last two years, Fontana's use of the 311 / Salesforce Platform has expanded. Fontana has found new ways to leverage the 311 / Salesforce platform by adding additional online functionality to the public and streamlining internal workflows. This growth has created the demand for additional programming and development in the SalesForce platform.

A formal Request for Proposals (RFP) IT-25-52-SP was conducted, and the city received nineteen (19) proposals. During the bid review, the City was looking for a partner that has extensive past experience with 311 CRM solutions, implemented numerous 311 projects, has local government experience, and has a strong background in service cloud and marketing cloud. Innovation and Technology department reviewed the proposals, and the top seven firms were ranked based on the criteria outlined in the RFP. Staff is recommending awarding the contract to StackNexus, Inc. for the Salesforce Consulting Services. The proposal cost ranges from $245,000 to $650,000. After City of Fontana Printed on 12/5/2024Page 1 of 2
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File #: 21-3474 Agenda Date: 12/10/2024
Agenda #: P. Category: Consent Calendar
Salesforce Consulting Services. The proposal cost ranges from $245,000 to $650,000. After extensive analysis and budget considerations, staff recommends awarding bid (#IT-25-52-SP) to StackNexus as its Salesforce support partner.

BB&K, legal counsel, reviewed and approved the ARPA eligibility of the Fontana 311 project under Federal Use Category 3 Public Health-Negative Economic Impact: Public Sector Capacity subsection

3.14 Public Sector Capacity: Effective Delivery. Additionally, this project is included as part of the council approved ARPA expenditure plan.

FISCAL IMPACT:

StackNexus Support services contract is funded through APRA funding in SF 311 System Project #26101023 in the amount of $346,000.

These ARPA expenditures would be categorized under the 3.0 PH Negative Economic Impact Public Sector Capacity category.

MOTION:

Approve staff recommendation
City of Fontana Printed on 12/5/2024Page 2 of 2
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Firms Total Score
StackNexus
Sacramento, CA 96%
Vertex CS
North Royalton, OH 91%
Rialtes Technologies
Irvine, CA 78%
Argus Associates
Playa Del Rey, CA 66%
Intelectyx
Denver, CO 56%
Ksolves LLC
San Jose, CA 53%
ASAP Analysis
Fairfax, VA 46%
Salesforce Consulting Services
Evaluations
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1 16498.00150\32126437.1

CITY OF FONTANA

PROFESSIONAL SERVICES AGREEMENT
IT-25-52-SP
This Agreement is made and entered into as of 12th of November, 2024 by and between the City of Fontana, a public agency organized and operating under the laws of the State of California with its principal place of business at 8353 Sierra Avenue, Fontana, California 92335 (“City”), and StackNexus, Inc., a Corporation with its principal place of business at 251 State Street, Suite 302, Schenectady, New York 12305 (hereinafter referred to as “Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.

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

Fontana 311 Support Services (hereinafter referred to as “the Project”).

B. Consultant is duly licensed and has the necessary qualifications to provide such services.

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

AGREEMENT
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

1. Services.

Consultant shall provide the City with the services described in the Scope of Services attached hereto as Exhibit “A.”

2. Compensation.
a. Subject to paragraph 2(b) below, the City shall pay for such services in accordance with the Schedule of Charges set forth in Exhibit “A.” b. In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of $346,000.00. This amount is to cover all printing and related costs, and the City will not pay any additional fees for printing expenses. Periodic payments shall be made within 30 days of receipt of an invoice which includes a detailed description of the work performed. Payments to Consultant for work performed will be made on a monthly billing basis.

3. Additional Work.

If changes in the work seem merited by Consultant or the City, and informal consultations with the other party indicate that a change is warranted , it shall be processed in the following manner: a letter outlining the changes shall be forwarded to the City by Consultant with a statement of estimated changes in fee or time schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services, or 314
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the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement.

4. Maintenance of Records.

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

5. Time of Performance.

The term of this Agreement shall be from December 13, 2024 to December 31, 2026, unless earlier terminated as provided herein. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Project. Consultant shall perform its services in a prompt and timely manner within the term of th is Agreement and shall commence performance upon receipt of written notice from the City to proceed (“Notice to Proceed”). The Notice to Proceed shall set forth the date of commencement of work.

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

7. Compliance with Law.
a. Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Cal/OSHA requirements. b. If required, Consultant shall assist the City, as requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies. c. If applicable, Consultant is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement.

8. Standard of Care
Consultant’s services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions. 315
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9. Assignment and Subconsultant
Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Nothing contained herein shall prevent Consultant from employing independent associates, and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder.

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

11. Insurance. Consultant shall not commence work for the City until it has provided evidence satisfactory to the City it has secured all insurance required under this s ection. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. a. Commercial General Liability
(i) The Consultant shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City. (ii) Coverage for Commercial General Liability insurance shall be at least as broad as the following:
(1) Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. (iii) Commercial General Liability Insurance must include coverage for the following:
(1) Bodily Injury and Property Damage
(2) Personal Injury/Advertising Injury
(3) Premises/Operations Liability
(4) Products/Completed Operations Liability
(5) Aggregate Limits that Apply per Project
(6) Explosion, Collapse and Underground (UCX) exclusion deleted
(7) Contractual Liability with respect to this Agreement (8) Property Damage
(9) Independent Contractors Coverage
(iv) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4 ) contain any other exclusion contrary to the Agreement.
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(v) The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (vi) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured. b. Automobile Liability
(i) At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City.
(ii) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto).
(iii) The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status. (iv) Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention.
c. Workers’ Compensation/Employer’s Liability
(i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self -insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement.

(ii) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contempla ted under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this section.

d. Professional Liability (Errors and Omissions)
At all times during the performance of the work under this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein.

This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered P rofessional Services” as designated in the policy must 317

5 16498.00150\32126437.1
specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. e. Minimum Policy Limits Required
(i) The following insurance limits are required for the Agreement:

Combined Single Limit
Commercial General Liability $1,000,000 per occurrence/ $2,000,000 aggregate for bodily injury, personal injury, and property
damage

Automobile Liability $1,000,000 combined single limit Employer’s Liability $1,000,000 per accident or disease Professional Liability $1,000,000 per claim and aggregate (errors and omissions)

(ii) Defense costs shall be payable in addition to the limits. (iii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement. f. Evidence Required
Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25 -S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance.
g. Policy Provisions Required
(i) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior writte n notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration.
(ii) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant’s policy is primary insurance and that any 318
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insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss.
(iii) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroa ctive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims -made policy with a retroactive date subsequent to the effective date of this Agreement.
(iv) All required insurance coverages , except for the professional liability coverage, shall contain or be endorsed to provide a waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
(v) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability.

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

Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants.

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

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

13. California Labor Code Requirements.
a. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws . It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which 320

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include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1) . The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4. b. If the services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such services must be registered with the Department of Industrial Relations. Consultant shall main tain registration for the duration of the Project and require the same of any subconsultants, as applicable. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1. c. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor that affect Con sultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultan t shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor.

14. Verification of Employment Eligibility.

By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subconsultants and sub-subconsultants to comply with the same.

15. Reserved.

16. Laws and Venue.

This Agreement shall be interpreted in accordance with the laws of the State of California.

If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of San Bernardino, State of California. 17 Termination or Abandonment
a. City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) calendar days written notice to Consultant. In such event, City shall be immediately given title and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed for that portion of the work completed and/or being abandoned. City shall pay Consultant the reasona ble value of services rendered for any portion of the work completed prior to termination. If said termination 321
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occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed duri ng such task shall be the reasonable value of such services, based on an amount mutually agreed to by City and Consultant of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the c harges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work.
b. Consultant may terminate its obligation to provid e further services under this Agreement upon thirty (30) calendar days’ written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant.
18 Documents. Except as otherwise provided in “Termination or Abandonment,” above, all original field notes, written reports, Drawings and Specifications and other documents, produced or developed for the Project shall, upon payment in full for the services described in this Agreement, be furnished to and become the property of the City.

19. Organization
Consultant shall assign Suma Akula as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City.

20. Limitation of Agreement.

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

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

CITY:

City of Fontana
8353 Sierra Avenue
Fontana, California 92335
Attn: Jennifer Barcenas
[email protected]
CONSULTANT:

StackNexus, Inc.
251 State St, Suite 302
Schenectady, New York 12305
Attn: Swati Iyyanki
[email protected]
and shall be effective upon receipt thereof.
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22. Third Party Rights
Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant.

23. Equal Opportunity Employment.

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

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

25. Severability
The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the remaining provisions unenforceable, invalid or illegal.

26. Successors and Assigns
This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, admi nistrators and assigns of each P arty to this Agreement. However, Consultant shall not assign or transfer by operation of law or o therwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void.

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

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

29. City’s Right to Employ Other Consultants
City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects.
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30. Prohibited Interests
Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agree ment without liability. For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material be nefit arising therefrom.

31. Federal Requirements
When funding for the services is provided, in whole or in part, by an agency of the federal government, Consultant shall also fully and adequately comply with the p rovisions included in Exhibit “ C” (Federal Requirements) attached hereto and incorporated herein by reference (“Federal Requirements”). With respect to any conflict between such Federal Requirements and the terms of this Agreement and/or the provisions of state law, the more stringent requirement shall control.
[SIGNATURES ON FOLLOWING PAGE]
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CITY OF FONTANA

SIGNATURE PAGE
CONTRACT NO. IT-25-52-SP

CITY OF FONTANA
By:

Matthew C. Ballantyne
City Manager
STACKNEXUS, INC.

By:

Swati Iyyanki
CEO
Attest:

By:

Germaine McClellan Key
City Clerk
By:

Ray Ebert
Deputy City Manager
Approved as to form:

Best Best & Krieger LLP
City Attorney
By: _____________________________
Jennifer Barcenas
Innovation & Technology Director

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

IN COMPLIANCE WITH PURCHASING AND CONTRACT ADMINISTRATION POLICIES/PROCEDURES ___________________________________
Jessica Brown
Chief Financial Officer
Sid Lambert
Purchasing Manager
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EXHIBIT A
Scope of Services
326

CITY OF FONTANA

SCOPE OF SERVICES
IT-25-52-SP
SCOPE OF SERVICES:

Th
e City is soliciting proposals for regular maintenance and support for the “Fontana 311” system related to Salesforce products. The work will be done on a “Time and Materials” basis.
• Reg
ular Maintenance and Support 5,000 hours.
• Upd
ating production and develop small and large changes to Salesforce Marketing Cloud, Salesforce Service Cloud and Agentforce, AWS IVR, and other Salesforce products as needed.
• Cons
ultant will assist in maintaining the City’s Salesforce Marketing Cloud, Salesforce Cloud and Agentforce, AWS IVR, and other Salesforce products as needed.
• Cons
ultant will provide support to the City as new enhancements and initiatives are identified.
• Ter
m of the service will be November 2024 through December 2026.

Team Structure the Consultant must provide during the term of the contract:

Project Lead
Business Analyst
Salesforce Developer
Quality Analyst
Service Response Levels:
• Level 1: Critical
• High-impact problem, no workaround.
• Response Time: 3 hours
• Resolution Time: 8 hours
• Level 2: Urgent
• Possible workaround, but not satisfactory.
• Response Time: 6 hours
327
• Resolution Time: 24 hours
• Level 3: Important
• Less critical issues or queries with minimal workflow impact. • Response Time: 8 hours
• Resolution Time: 36 hours
• Level 4: Minor
• General technical questions.
• Response Time: 8 hours
• Resolution Time: 48 hours
328
Salesforce Consulting Services
RFP#IT-25-52-SP
© 2024 StackNexus, Inc. 2
Proposed Team Composition and Cost
Enlisted below is the estimated team composition to support the City, their corresponding hourly rates, and our proposed total cost for services.

Role Rate
Engagement Lead Non- Billable
Project Manager $100
Business Analyst $80
Marketing Cloud Specialist $65
Developer $65
Quality Assurance $65
Total Cost
Role Hours Rate
Project Manager 300 $30,000
Business Analyst 700 $56,000
Marketing Cloud Specialist 1000 $65,000
Developer 2000 $130,000
Quality Assurance 1000 $65,000
Total 5,000 $346,000
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1 EXHIBIT B
Federal Requirements
Funds from the Coronavirus State Fiscal Recovery Fund and/or the Coronavirus Local Fiscal Recovery Fund, together known as the Coronavirus State and Local Fiscal Recovery Funds (“CSLFRF”) program, will be used to fund all or a portion of this Agreement. As applicable, Consultant shall comply with all federal requirements including, but not limited to, the following, all of which are expressly incorporated herein by reference:
• Sections 602 and 603 of the Social Security Act as added by Section 9901 of the American Rescue Plan Act of 2021 (“ARPA”);
• CSLFRF Final Rule, codified at 31 CFR Part 35;
• CSLFRF Guidance on Recipient Compliance and Reporting Requirement, the most current version;
• 2 C.F.R. Part 200 – Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, other than such provisions as the U.S. Department of the Treasury may determine are inapplicable to the CSLFRF program and subject to such exceptions as may be otherwise provided by the U.S. Department of the Treasury; • Treasury Coronavirus Local Fiscal Recovery Fund Award Terms and Conditions; and Subcontracts, if any, shall contain a provision making them subject to all of the provision s stipulated in this Agreement. With respect to any conflict between the Federal Contract Provisions and the Agreement and/or the provisions of state law and, except as otherwise required under federal law or regulation, the Federal Contract Provisions shall control.

Consultant shall also comply with the following provisions:

1. REQUIRED CONTRACT PROVISIONS IN ACCORDANCE WITH APPENDIX II TO PART 200 – CONTRACT PROVISIONS FOR NON -FEDERAL ENTITY CONTRACTS UNDER FEDERAL AWARDS (2 C.F.R. § 200.327)
(a) Appendix II to Part 200 (A); Appendix II to Part 200 (B): Remedies for Breach; Termination for Cause/Convenience . The Agreement includes remedies for breach and termination for cause and convenience.
(b) Appendix II to Part 200 (C) – Equal Employment Opportunity: Except as otherwise provided under 41 C.F.R. Part 60, if this Agreement meets the definition of a “federally assisted construction contract” in 41 C.F.R. § 60 -1.3, then Consultant shall comply with the following equal opportunity clause, in accordance with Ex ecutive Order 11246 of September 24, 1965 entitled “Equal Employment Opportunity,” as amended by Executive Order 11375 of October 13, 1967 and implementation regulations at 41 C.F.R. Chapter 60:
(i) The Consultant will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or 330
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2 national origin. The Consultant will take affirmative action to ensure that applicants are employed, and that employees are treated during employment wi thout regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising ; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. (ii) The Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant, state that all qualified applicants will receive consideration for employment w ithout regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(iii) The Consultant will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal compla int or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the Consultant's legal duty to furnish information. (iv) The Consultant will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Consultant’s commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (v) The Consultant will comply with all provisions of E xecutive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
(vi) The Consultant will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulat ions, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. (vii) In the event of the Consultant’s noncompliance with the nondiscrimination clauses of this Agreement or with any of the said rules, regulations, or orders, this Agreement may be canceled, terminated, or suspended in whole or in part and the Consultant may be declared ineligible for further Government contracts or federally assisted 331
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3 construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and rem edies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. (viii) The Consultant will include the portion of the sentence immediately preceding paragraph (i) and the provisions of paragraphs (i) through (vii) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that s uch provisions will be binding upon each subcontractor or vendor. The Consultant will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:

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

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

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

The applicant further agrees that it will refrain from entering into any contract o r contract modification subject to Executive Order 11246 of September 24 , 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the eq ual opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the appl icant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings. 332
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4 (c) Appendix II to Part 200 (D) – Davis-Bacon Act: Not applicable to this Agreement since it is funded by the CSLFRF.
(d) Appendix II to Part 200 (D) – Copeland “Antti -Kickback” Act: Not applicable to this Agreement since it is funded by the CSLFRF.
(e) Appendix II to Part 200 (E) – Contract Work Hours and Safety Standards Act:
(i) If this Agreement is in excess of $100,000 and involves the employment of mechanics or laborers, Consultant sh all comply with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. Part 5). Under 40 U.S.C. 3702, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchas es of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.
(ii) Overtime Requirements. No contractor or subcontractor contracting for any part of the Contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic r eceives compensation at a rate not less than one and one -half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. (iii) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the cla use set forth in paragraph (ii) of this section the Consultant and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such Consultant and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (ii) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wa ges required by the clause set forth in paragraph (ii) of this section.
(iv) Withholding for unpaid wages and liquidated damages. The City shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Consultant or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally -assisted contract subject to the 333
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5 Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such Consultant or subcontractor for unpaid wages and liquidated damages as provided in the c lause set forth in paragraph (iii) of this section.
(v) Subcontracts. The Consultant or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (ii) through (v) of this Section and also a clause requiring the subcontractors to incl ude these clauses in any lower tier subcontracts. The Consultant shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (ii) through (v) of this Section. (f) Appendix II to Part 200 (F) – Rights to Inventions Made Under a Contract or Agreement:
(i) If the Federal award meets the definition of “funding agreement” under 37 C.F.R. § 401.2(a) and the non -Federal entity wishes to enter into a contract with a small business firm or nonprofit organiza tion regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the non -Federal entity must comply with the requirements of 37 C.F.R. Part 401 (Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements), and any implementing regulations issued by the Federal awarding agency.
(ii) The regulation at 37 C.F.R. § 401.2(a) currently defines “funding agreement” as any contract, grant, or cooperative agreement entered into between any Federal agency, other than the Tennessee Valley Authority, and any contractor for the performance of experimental, developmental, or research work funded in whole or in p art by the Federal government. This term also includes any assignment, substitution of parties, or subcontract of any type entered into for the performance of experimental, developmental, or research work under a funding agreement as defined in the first sentence of this paragraph. (g) Appendix II to Part 200 (G) – Clean Air Act and Federal Water Pollution Control Act: If this Agreement is in excess of $150,000, Consultant shall comply with all applicable standards, orders, or requirements issued pursuant to t he Clean Air Act (42 U.S.C. 7401 -7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). (i) Pursuant to the Clean Air Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to t he Clean Air Act, as amended, 42 U.S.C. § 7401 et seq., (2) Consultant agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agen cy and the appropriate Environmental Protection Agency Regional Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000.
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6 (ii) Pursuant to the Federal Water Pollution Control Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq., (2) Consultant agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000. (h) Appendix II to Part 200 (H) – Debarment and Suspension: A contract award (see 2 C.F.R. § 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelin es at 2 CFR 180 that implement Executive Orders 12549 (3 C.F.R. part 1986 Comp., p. 189) and 12689 (3 C.F.R. part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by ag encies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. (i) This Agreement is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such Consultant is required to ver ify that none of the Consultant, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). (ii) Consultant must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into.
(iii) This certification is a material representation of fact relied upon by City. If it is later determined that Consultant did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the City, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. (iv) Consultant warrants that it is not debarred, suspended, or otherwise excluded from or ineligible for participation in any federal programs. Consultant also agrees to verify that all subcontractors performing work under this Agreeme nt are not debarred, disqualified, or otherwise prohibited from participation in accordance with the requirements above. Consultant further agrees to notify the City in writing immediately if Consultant or its subcontractors are not in compliance during the term of this Agreement. (i) Appendix II to Part 200 (I) – Byrd Anti-Lobbying Act: If this Agreement is in excess of $100,000, Consultant shall have submitted and filed the required certification pursuant to the Byrd Anti-Lobbying Amendment (31 U.S.C. § 135 3). If at any time during the Contract term funding exceeds $100,000.00, Consultant shall file with the City the Federal Standard Form LLL titled “Disclosure Form to Report Lobbying.” Consultants that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of 335
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7 Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non -Federal funds that t akes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the awarding agency. (j) Appendix II to Part 200 (J) – §200.323 Procurement of Recovered Materials:
(i) Consultant shall comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environment al Protection Agency (EPA) at 40 C.F.R. part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of t he quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement. (ii) In the performance of this Agreement, t he Consultant shall make maximum use of products containing recovered materials that are EPA -designated items unless the product cannot be acquired: Competitively within a timeframe providing for compliance with the contract performance schedule; Meeting c ontract performance requirements; or At a reasonable price.
(iii) Information about this requirement, along with the list of EPA -designate items, is available at EPA’s Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program. (iv) The Consultant also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.” (k) Appendix II to Part 200 (K) – §200.216 Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment:
(i) Consultant shall not contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses cove red telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system funded under this Agreement. As described in Public Law 115 –232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).
(1) For the purpose of public safety, security of government facilities, physical secur ity surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications 336
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8 Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities).
(2) Telecommunications or video surveillance services provided by such entities or using such equipment.
(3) Telecommunications or video surveillance equipment or services produced or provided by an entity that t he Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.
(ii) See Public Law 115-232, section 889 for additional information. (l) Appendix II to Part 200 (L) – §200.322 Domestic Preferences for Procurement:
(i) Consultant shall, to the greatest extent practicable, purchase, acquire, or use goods, products , or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all subcontracts
(ii) For purposes of this section:
(1) “Produced in the United States’’ means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States. (2) ‘‘Manufactured products’’ means items and construction materials compo sed in whole or in part of nonferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.

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

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

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

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

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

Consultant agrees to comply with statutes and regulations prohibiting discri mination applicable to the CSLFRF program including, without limitation, the following:
(i) Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d et seq.) and Treasury’s implementing regulations at 31 C.F.R. Part 22, which prohibit discrimination on the basis of race, color, or national origin under programs or activities receiving federal financial assistance.
(ii) The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (42 U.S.C. §§ 3601 et seq.), which prohibits discrimination in housing on the basis of race, color, religion, national origin, sex, familial status, or disability.
338
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10 (iii) Section 504 of the Rehabili tation Act of 1973, as amended (29 U.S.C. § 794), which prohibits discrimination on the basis of disability under any program or activity receiving federal financial assistance.
(iv) The Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101 et seq.), an d Treasury’s implementing regulations at 31 C.F.R. Part 23, which prohibit discrimination on the basis of age in programs or activities receiving federal financial assistance. (v) Title II of the Americans with Disabilities Act of 1990, as amended (42 U.S.C. § § 12101 et seq.), which prohibits discrimination on the basis of disability under programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto.
(d) False Statements. Consultant understan ds that making false statements or claims in connection with the C SLFRF program is a violation of federal law and may result in criminal, civil, or administrative sanctions, including fines, imprisonment, civil damages and penalties, debarment from partici pating in federal awards or contracts, and/or any other remedy available by law.
(e) Hatch Act . If Consultant is a public agency, Consultant agrees to comply, as applicable, with the requirements of the Hatch Act (5 U.S.C. section 1501 -1508 and 7324-7328), which limit certain political activities of State or local government employees whose principal employment is in connection with an activity financed in whole or in part by this federal assistance.
(f) Protections for Whistleblowers.
(i) In accordance with 41 U.S. C. § 4712, Consultant may not discharge, demote, or otherwise discriminate against an employee in reprisal for disclosing to any of the list of persons or entities provided below, information that the employee reasonably believes is evidence of gross mismanagement of a federal contract or grant, a gross waste of federal funds, an abuse of authority relating to a federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a fe deral contract (including the competition for or negotiation of a contract) or grant. (ii) The list of persons and entities referenced in the paragraph above includes the following:
(1) A member of Congress or a representative of a committee of Congress;
(2) An Inspector General;
(3) The Government Accountability Office;
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11 (4) A Treasury employee responsible for contract or grant oversight or management;
(5) An authorized official of the Department of Justice or other law enforcement agency;
(6) A court or grand jury; or
(7) A management off icial or other employee of Consultant, or a subcontractor who has the responsibility to investigate, discover, or address misconduct. (g) Increasing Seat Belt Use in the United States. Pursuant to Executive Order 13043, 62 FR 19217 (Apr. 18, 1997), Consultant is encouraged to adopt and enforce on -the-job seat belt policies and programs for their employees when operating company-owned, rented or personally owned vehicles, and encourage its subcontractors to do the same (h) Reducing Text Messaging While Driving. Pursuant to Executive Order 13513, 74 FR 51225 (Oct. 6, 2009), Consultant should encourage its employees and subcontractors to adopt and enforce policies that ban text messaging while driving, and Consultant should establish workplace safety policies to decrease accidents caused by distracted drivers. (i) Assurances of Compliance with Civil Rights Requirements. The Civil Rights Restoration Act of 1987 provides that the provisions of this assurance apply to the Contract, including, but not limited to, the following:
(i) Consultant ensures its current and future compliance with Title VI of the Civil Rights Act of 1964, as amended, which prohibits exclusion from participation, denial of the benefits of, or subjection to discrimination under programs and activities receiving federal funds, of any person in the United States on the ground of race, color, or national origin (42 U.S.C. § 2000d et seq.), as implemented by the Department of the Treasury Title VI regulations at 31 CFR Part 22 and other pertinent executive orders su ch as Executive Order 13166; directives; circulars; policies; memoranda and/or guidance documents. (ii) Consultant acknowledges that Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency (LEP),” seeks to improve acces s to federally assisted programs and activities for individuals who, because of national origin, are limited in their English proficiency. Consultant understands that the denial of access to persons to its programs, services and activities because of their limited proficiency in English is a form of national origin discrimination prohibited under Title VI of the Civil Rights Act of 1964.

Accordingly, Consultant shall initiate reasonable steps, or comply with Treasury’s directives, to ensure meaningful acces s to its programs, services and activities to LEP persons. Consultant understands and agrees that meaningful access may entail providing language assistance services, including oral interpretation and written translation where necessary to ensure effective communication in the Project.
340
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12 (iii) Consultant agrees to consider the need for language services for LEP persons during development of applicable budgets and when conducting programs, services and activities. As a resource, the Department of the Treasury has p ublished its LEP guidance at 70 FR 6067. For more information on LEP, please visit http://www.lep.gov. (iv) Consultant acknowledges and agrees that compliance with this assurance constitutes a condition of continued receipt of federal financial assistance and is binding upon Consultant and Consultant’s successors, transferees and assignees for the period in which such assistance is provided.
(v) Consultant agrees to incorporate the following language in every contract or agreement subject to Title VI and its regulations between the Consultant and the Consultant’s subcontractors, successors, transferees and assignees:

The subcontractor, successor, transferee and assignee shall comply with Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal financial assistance from excluding from a program or activity, denying benefits of, or otherwise discriminating against a person on the basis of race, color, or national origin (42 U.S.C. § 2000d et seq.), as implemented by Department of the Treasury Title VI regulations, 31 CFR Part 22, which are herein incorporated by reference and made a part of this contract (or agreement). Title VI also extends protection to persons with “Limited English proficiency” in any program or activity receiving federal financial assistance, 42 U.S.C. § 2000d et seq., as implemented by Department of the Treasury Title VI regulations, 31 CFR Part 22, which are herein incorporated by reference and made a part of this contract (or agreement).
(vi) Consultant understands and agrees that if any real property or structure is provided or improved with the aid of federal financial assistan ce by the Department of the Treasury, this assurance obligates the Consultant, or in the case of a subsequent transfer, the transferee, for the period during which the real property or structure is used for a purpose for which the federal financial assista nce is extended or for another purpose involving the provision of similar services or benefits. If any personal property is provided, this assurance obligates the Consultant for the period during which it retains ownership or possession of the property.
(vii) Consultant shall cooperate in any enforcement or compliance review activities by the Department of the Treasury of the aforementioned obligations. Enforcement may include investigation, arbitration, mediation, litigation, and monitoring of any settlement agreements that may result from these actions. Consultant shall comply with information requests, on-site compliance reviews, and reporting requirements. (viii) Consultant shall maintain a complaint log and inform the Department of the Treasury of any accusations of discrimination on the grounds of race, color, or national origin, and limited English proficiency covered by Title VI of the Civil Rights Act of 1964 and 341
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13 implementing regulations and provide, upon request, a list of all such reviews or proceedings based on the complaint, pending or completed, including outcome. Consultant must also inform the Department of the Treasury if Consultant has received no complaints under Title VI. (ix) Consultant must provide documentation of an administrative agency’s or court’s findings of non -compliance of Title VI and efforts to address the non -compliance, including any voluntary compliance or other agreements between the Consultant and the administrative agency that made the finding. If the Consultant settles a case or matt er alleging such discrimination, Consultant must provide documentation of the settlement. If Consultant has not been the subject of any court or administrative agency finding of discrimination, please so state.
(x) If Consultant makes sub -awards to other age ncies or other entities, Consultant is responsible for assuring that sub -recipients also comply with Title VI and all of the applicable authorities covered in this assurance.

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

Consultant shall submit evidence of compliance with the foregoing affirmative steps when requested by the City.
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City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-3477 Agenda Date: 12/10/2024
Agenda #: Q. Category: Consent Calendar
FROM:

Finance
SUBJECT:

Adopt Resolutions for the Administration and Examination of Records of the Local Transactions and Use Tax (Measure T)
RECOMMENDATION:

1. Adopt Resolution No. 2024-131, authorizing the City Manager to execute agreements with the California Department of Tax and Fee Administration to implement a local transactions and use tax.

2. Adopt Resolution No. 2024-132, rescinding Resolution No. 2024-102 and authorizing examination of sales or transactions and use tax by city officials and an independent contractor.

COUNCIL GOALS:
· To practice sound fiscal management by producing timely and accurate financial information. · To practice sound fiscal management by emphasizing capital formation. · To practice sound fiscal management by living within our means while investing in the future. · To practice sound fiscal management by fully funding liabilities and reserves. · To practice sound fiscal management by developing long-term funding and debt management plans.
· To concentrate on inter-government relations by pursuing financial participation from county, state, and federal governments.

DISCUSSION:

On Tuesday, November 5, 2024, the voters of the City of Fontana approved a local sales tax increase (Measure T). This 1% sales tax measure is a general-purpose tax taking effect on April 1, 2025, and will generate approximately an average of $46 million in annual revenues for the City's General Fund, with dollars that legally cannot be taken by the State or other regional agencies. With the passage of Measure T, the City’soverall sales tax rate will increase to 8.75% on April 1, 2025, and will apply to general consumer goods and merchandise. Unprocessed foods (such as groceries from a grocery store or farmer's market), prescription medications, real estate transactions, and services are exempt from the tax. This additional local revenue could be used to fund, or help fund, many general City services including maintaining 911 response, fire/police protection; recruiting/retaining well-trained police officers; helping prevent property crimes/thefts/burglaries; keeping public areas/parks City of Fontana Printed on 12/5/2024Page 1 of 2
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File #: 21-3477 Agenda Date: 12/10/2024
Agenda #: Q. Category: Consent Calendar
police officers; helping prevent property crimes/thefts/burglaries; keeping public areas/parks safe/clean; addressing homelessness; protecting local drinking water sources; repairing streets/potholes.

Pursuant to Revenue and Taxation Code Section 7265, the new tax is scheduled to become operative on April 1, 2025, and will be administered by the California Department of Tax and Fee Administration (CDTFA). The CDTFA requires that the City Council certify the results of the election by December 12, 2024, in order for CDTFA to implement the tax on April 1, 2025. If the certification date falls after December 12, 2024, the next implementation date would be July 1, 2025.

Additionally, CDTFA requires that the City Council approve a resolution authorizing the City Manager to execute an agreement with the CDTFA for implementation of the local transactions and use tax.

The CDTFA is requesting that the City, in addition to the resolutions, also complete and return all required documents as soon as possible, but not later than December 27, 2024.

To ensure the continued confidentiality to sales, transactions and use tax records, as mandated by the California Revenue and Taxation Code Section 7056, the City will restrict access to collections and receipts to those positions requested in Resolution No. 2024-132. It is also recommended to include Hinderliter de Llamas & Associates dba HdL Companies, as this firm is contracted by the City to provide sales, transactions and use tax consulting services for economic analysis, web-based data, auditing, and staff training when it pertains to local sales taxes.

FISCAL IMPACT:

The annual fiscal impact associated with the approval of this item is an increase in General Fund revenue of approximately $46 million with the implementation of the one percent (1%) local sales tax, effective April 1, 2025. The estimated revenue to be collected from this additional local sales tax for Fiscal Year 2024-25 is estimated to be $11.5 million for the period of April through June 2025.

Additionally, there are estimated costs from the California Department of Tax and Fee Administration for preparatory expenses in the amount of $175,000 that will be included in the next quarterly budget update.

MOTION:

Approve staff recommendation.

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RESOLUTION NO. 2024-131

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

CALIFORNIA AUTHORIZING CITY MANAGER TO EXECUTE

AGREEMENTS WITH THE CALIFORNIA DEPARTMENT OF TAX AND

FEE ADMINISTRATION FOR IMPLEMENTATION OF A LOCAL
TRANSACTIONS AND USE TAX.

WHEREAS, on July 9 , 2024 , the City Council approved Ordinance No. 1962 amending the City Municipal Code and providing for a local transactions and use tax; and

WHEREAS, the California Department of Tax and Fee Administration (Department) administers and collects the transactions and use taxes for all applicable jurisdictions within the state; and

WHEREAS, the Department will be responsible to administer and collect the transactions and use tax for the City; and

WHEREAS, the Department requires th at the City ent er into a “Preparatory Agreement” and an “Administration Agreement” prior to implementation of said taxes, and

WHEREAS, the Department requires that the City Council authorize the agreements;

NOW, THEREFORE BE IT RESOLV ED by the City Coun cil of the City of Fontana, California, that the “Preparatory Agreement” attached as Exhibit A and the “Administrative Agreement” attached as Exhibit B are hereby approved and the City Manager is hereby authorized to execute each agreement.

* * * * * *

APPROVED AND ADOPTED 10th day of December, 2024.

READ AND APPROVED AS TO LEGAL FORM:

_____________________________________
City Attorney

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I, Germaine K ey, City Clerk of the City of Fontana, and Ex -Officio Clerk of the City Council do hereby certif y that the foregoing resolution is the actual resolution duly and regularly adopted by the City Council at a regular meeting held on the 10th day of December, 2024 by the following vote to-wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

_____________________________________
City Clerk of the City of Fontana

_____________________________________
Mayor of the City of Fontana

ATTEST:

_____________________________________
City Clerk

346
(Rev. 07/24) 1

AGREEMENT FOR PREPARATION TO ADMINISTER AND OPERATE

CITY'S TRANSACTIONS AND USE TAX ORDINANCE

In order to prepare to administer a transactions and use tax ordinance adopted in accordance with the provision of Part 1.6 (commencing with Section 7251) of Division 2 of the Revenue and Taxation Code, the City of Fontana, hereinafter called City, and the CALIFORNIA DEPARTMENT OF TAX AND FEE ADMINISTRATION, hereinafter called Department, do agree as follows:

1. The Department agrees to enter into work to pre pare to administer and operate a transactions and use tax in conformity with Part 1.6 of Division 2 of the Revenue and Taxation Code which has been approved by a majority of the electors of the City and whose ordinance has been adopted by the City.

2. City agrees to pay to the Department at the times and in the amounts hereinafter specified all of the Department's costs for preparatory work necessary to administer the City's transactions and use tax ordinance. The Department's cost s for preparatory work include costs of developing procedures, programming for data processing, developing and adopting appropriate regulations, designing and printing forms, developing instructions for the Department's staff and for taxpayers, and other appropriate and necessar y preparatory costs to administer a transactions and use tax ordinance.

These costs shall include both direct and indirect costs as specified in Section 11256 of the Government Code.

3. Preparatory costs may be accounted for in a manner which conforms t o the internal accounting and personnel records currently maintained by the Department. The billings for costs may be presented in summary form. Detailed records of preparatory costs will be retained for audit and verification by the City.

4. Any dispu te as to the amount of preparatory costs incurred by the Department shall be referred to the State Director of Finance for resolution, and the Director's decision shall be final.

5. Preparatory costs incurred by the Department shall be billed by the Department periodically, with the final billing within a reasonable time after the operative date of the ordinance. City shall pay to the Department the amount of such costs on or before the last day of the next succeeding month following the month when the billing is received.

6. The amount to be paid by City for the Department's preparatory costs shall not exceed one hundred seventy-five thousand dollars ($175,000) (Revenue and Taxation Code Section 7272.) 347
(Rev. 07/24) 2

7. Communications and notices may be sent by fir st class United States mail or through email at [email protected]. If and when communications and notices may incl ude confid ential information, c ommunications and notices must be sent through encrypted email at [email protected] or by mail. Communications and notices to be sent to the Department shall be addressed to:

California Department of Tax and Fee Administration
P.O. Box 942879 MIC: 27
Sacramento, California 94279-0027

Attention: Administrator
Local Revenue Branch

Communications and notices to be sent to City shall be addressed to:

__________City of Fontana__________________________

__________8053 Sierra Avenue______________________

__________Fontana, CA 92335______________________

8. The date of this agreement is the date on which it is approved by the Department of General Services. This agreement shall continue in effect until the preparatory work necessary to administer City's transactions and use tax ordinance has been completed a nd the Department has received all payments due from City under the terms of this agreement.

CITY OF FONTANA CALIFORNIA DEPARTMENT OF TAX

AND FEE ADMINISTRATION

By By
(Signature) Administrator
Local Revenue Branch
Matthew C, Ballantyne
(Typed Name) Date: _______________________________

City Manager
(Title)

Date: _______________________________
348

AGREEMENT FOR STATE ADMINISTRATION

OF CITY TRANSACTIONS AND USE TAXES

The City Council of the City of Fontana has adopted, and the voters of the City of Fontana (hereafter called “City” or “District”) have approved by the required majority vote, the Ci ty of Fontana Transactions and Use Tax Ordinance (hereafter called “Ordinance”), a copy of which is attached hereto. To carry out the provisions of Part 1.6 of Division 2 of the Revenue and Taxation Code and the Ordinance, the California State Department of Tax and F ee Administration , (hereinafter called the “Department”) and the City do agree as follows:

ARTICLE I

DEFINITIONS

Unless the context requires otherwise, wherever the following terms appear in the Agreement, they shall be interpreted to mean the following:

1. "District taxes" shall mean the transactions and use taxes, penalties, and interest imposed under an ordinance specifically authorized by Revenue and Taxation code Section 7285.9, and in compliance with Part 1.6, Division 2 of the Revenue and Taxation Code.

2. "City Ordinance" shall mean the City's Transactions and Use Tax Ordinance referred to above and attached hereto, Ordinance N o 1962 , as amended from time to time, or as deemed to be amended from time to time pursuant to Revenue and Taxation Code Section 7262.2.

ARTICLE II

ADMINISTRATION AND COLLECTION

OF CITY TAXES

A. Administration. The Department and City agree that the Department shall perform exclusively all functions incident to the administration and operation of the City Ordinance. 349
(Rev. 7/24) 2

B. Other Applicable Laws. City agrees that all provisions of law applicable to the administration and operation of the Department Sales and Use Tax Law which are not inconsistent with Part 1.6 of Division 2 of the Revenue and Taxation Code sh all be applicable to the administration and operation of the City Ordinance. City agrees that money collected pursuant to the City Ordinance may be deposited into the State Treasury to the credit of the Retail Sales Tax Fund and may be drawn from that Fun d for any aut horized purpose, including making refunds, compensating and reimbursing the Department pursuant to Article IV of this Agreement, and transmitting to City the amount to which City is entitled.

C. Transmittal of money.

1. For the period during which the tax is in effect, and except as otherwise provided herein, all district taxes collected under the provisions of the City Ordinance shall be transmitted to City periodically as promptly as feasible, but not less often than twice in each calendar quarter.

2. For periods subsequent to the expiration date of the tax whether by City’s self -imposed limits or by final judgment of any court of the State of California holding that City’s ordinance is invalid or void, all district taxes collected u nder the prov isions of the City Ordinance shall be transmitted to City not less than once in each calendar quarter.

3. Transmittals may be made by mail or electronic funds transfer to an account of the City designated and authorized by the City. A sta tement shall be furnished at least quarterly indicating the amounts withheld pursuant to Article IV of this Agreement.

D. Rules. The Department shall prescribe and adopt such rules and regulations as in its judgment are necessary or desirable for the ad ministration and operation of the City Ordinance and the distribution of the district taxes collected thereunder.

E. Preference. Unless the payor instructs otherwise, and except as otherwise provided in this Agreement, the Department shall give no preference in applying money received for state sales and use taxes, state-administered local sales and use taxes, and district transactions and use taxes owed by a taxpayer, but shall apply moneys collected to the satisfaction of the claims of the State, citie s, counties, cities and counties, redevelopment agencies, other districts, and City as their interests appear. 350
(Rev. 7/24) 3

F. Security. The Department agrees that any security which it hereafter requires to be furnished by taxpayers under the State Sales and Use Ta x Law will be upon such terms that it also will be available for the payment of the claims of City for district taxes owing to it as its interest appears.

The Department shall not be required to change the terms of any security now held by it, and City shall not participate in any security now held by the Department.

G. Records of the Department.

When requested by resolution of the legislative body of the City under section 7056 of the Revenue and Taxation Code, the Department agrees to permit authorized personnel of the City to examine the records of the Department, including the name, address, and account number of each seller holding a seller’s permit with a registered business location in the City, pertaining to the ascertainment of transactions and use taxes collected for the City. Information obtained by the City from examination of the Department's records shall be used by the City only for purposes related to the collection of transactions and use taxes by the Department pursuant to this Agreement.

H. Annexation. City agrees that the Department shall not be required to give effect to an annexation, for the purpose of collecting, allocating, and distributing District transactions and use taxes, earlier than the first day of the calendar quarter which commences not less than two months after notice to the Department. The notice shall include the name of the county or counties annexed to the extended City boundary. In the event the City shall annex an area, the boundaries of which are not coterminous with a co unty or counties, the notice shall include a description of the area annexed and two maps of the City showing the area annexed and the location address of the property nearest to the extended City boundary on each side of every street or road crossing the boundary.

ARTICLE III

ALLOCATION OF TAX

A. Allocation. In the administration of the Department's contracts with all districts that impose transactions and use taxes imposed under ordinances, which comply with Part 1.6 of Division 2 of the Revenue and Taxation Code:

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(Rev. 7/24) 4

1. Any payment not identified as being in payment of liability owing to a designated district or districts may be apportioned among the districts as their interest appear, or, in the discretion of the Department, to all distri cts with whic h the Department has contracted using ratios reflected by the distribution of district taxes collected from all taxpayers.

2. All district taxes collected as a result of determinations or billings made by the Department, and all amounts ref unded or cred ited may be distributed or charged to the respective districts in the same ratio as the taxpayer's self -declared district taxes for the period for which the determination, billing, refund or credit applies.

B. Vehicles, Vessels, and Aircraft . For the pu rpose of allocating use tax with respect to vehicles, vessels, or aircraft, the address of the registered owner appearing on the application for registration or on the certificate of ownership may be used by the Department in determining the place of use.

ARTICLE IV

COMPENSATION

The City agrees to pay to the Department as the State's cost of administering the City Ordinance such amount as is provided for by law. Such amounts shall be deducted from the taxes collected by the Department for the City.

ARTICLE V

MISCELLANEOUS PROVISIONS

A. Communications. Communications and notices may be sent by first class United States mail to the addresses listed below, or to such other addresses as the parties may from time to time designate or through email at jser [email protected]. If and when communications and notices may include confidential information, communications and notices must be sent through encrypted email at [email protected] or by mail.
352
(Rev. 7/24) 5

Communications and notices to be sent to the Department shall be addressed to:

California State Department of Tax and Fee Administration P.O. Box 942879
Sacramento, California 94279-0027

Attention: Administrator
Local Revenue Branch

Communications and notices to be sent to the City shall be addressed to:

____________City of Fontana_____________________________

____________8353 Sierra Avenue__________________________

____________Fontana, CA 92335__________________________

Unless otherwise directed, transmittals of payment of Distri ct transactions and use taxes will be sent to the address above.

B. Term. The date of this Agreement is the date on which it is approved by the Department of General Services. The Agreement shall take effect on April 1, 2025. This Agreement shall continue until December 31 next following the expiration date of the City Ordinance, and shall thereafter be renewed automatically from year to year until the Department completes all work necessary to the administration of the City Ordinanc e and has receive d and disbursed all payments due under that Ordinance.

C. Notice of Repeal of Ordinance. City shall give the Department written notice of the repeal of the City Ordinance not less than 110 days prior to the operative date of the repeal. 353
(Rev. 7/24) 6

ARTICLE VI

ADMINISTRATION OF TAXES IF THE

ORDINANCE IS CHALLENGED AS BEING INVALID

A. Impoundment of funds.

1. When a legal action is begun challenging the validity of the imp osition of the tax, the City shall deposit in an interest-bearing escrow account, any proceeds transmitted to it under Article II. C., until a court of competent jurisdiction renders a final and non -appealable judgment that the tax is valid.

2. If the tax is determined to be unconstitutional or otherwise invalid, the City shall transmit to the Department the moneys retained in escrow, including any accumulated interest, within ten days of the judgment of the trial court in the litigation awarding costs and fees becoming final and non-appealable.

B. Costs of administration . Should a final judgment be entered in any court of the State of California, holding that City's Ordinance is invalid or void, and requiring a rebate or refund to taxpayers of any taxes collected under the terms of this Agreement, the parties mutually agree that:

1. Department may retain all payments made by City to Department to prepare to administer the City Ordinance.

2. City will pay to Department and allow Department to ret ain Department's cost of administering the City Ordinance in the amounts set forth in Article IV of this Agreement.

3. City will pay to Department or to the State of California the amount of any taxes plus interest and penalties, if any, that Department or the State of California may be required to rebate or refund to taxpayers.

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(Rev. 7/24) 7

4. City will pay to Department its costs for rebating or refunding such taxes, interest, or penalties. Department's costs shall include its additional cost for developing pro cedures for processing the rebates or refunds, its costs of actually mak ing these refunds , designing and printing forms, and developing instructions for Department's staff for use in making these rebates or refunds and any other costs incurred by Department which are reasonably appropriate or necessary to make those rebates or refunds. These costs shall include Department's direct and indirect costs as specified by Section 11256 of the Government Code.

5. Costs may be accounted for in a manner, which conforms to the internal accounting, and personnel records currently maint ained by the Department. The billings for such costs may be presented in summary form. Detailed records will be retained for audit and verification by City.

6. Any dispute as to t he amount of costs incurred by Department in refunding taxes shall be referred to the State Director of Finance for resolution and the Director's decision shall be final.

7. Costs incurred by Department in connection with such refunds shall be billed by Department on or before the 25th day of the second month following the month in which the judgment of a court of the State of California holding City's Ordinance invalid or void becomes final. Thereafter Department shall bill City on or before the 25th o f each month for all costs incurred by Department for the preceding calendar month. City shall pay to Department the amount of such costs on or before the last day of the succeeding month and shall pay to Department the total amount of taxes, interest, an d penalties refunded or paid to taxpayers, together with Department costs incurred in mak ing those refunds.

CITY OF ____________________________ CALIFORNIA STATE DEPARTMENT OF

TAX AND FEE ADMINISTRATION

By By
(Signature) Administrator
Local Revenue Branch
Matthew C. Ballantyne
(Typed Name) Date: _______________________________

City Manager
(Title)
355
(Rev. 7/24) 8

(Date)
356
RESOLUTION NO. 2024-132

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

CALIFORNIA AUTHORIZING EXAMINATION OF SALES AND

TRANSACTIONS AND USE TAX RECORDS

WHEREAS, pursuant to Ordinance Number 78, Revenue and Taxation Code section 7270, the City entered into a contract with the California Department of Tax and Fee Administration (Department) to perform all functions incident to the administration and collection of transactions and use taxes; and

WHEREAS, pursuant to Ordinance Number 1962, Revenue and Taxatio n Code section 7270, the City entered into a contract with the California Department of Tax and Fee Administration (Department) to perform all functions incident to the administration and collection of transactions and use taxes; and

WHEREAS, the City Cou ncil of the City of Fontana deems it desir able and necessary for authorized officers, employees and representatives of the City to examine confidential sales or transactions and use tax records of t he Department pertaining to sales or transactions and use taxes collected by the Department for the City pursuant to that contract; and

WHEREAS, Section 7056 of the California Revenue and T axation Code sets forth certain requirements and conditions for the disclosure of D epartment records, and Section 70 56.5 of the Cal ifornia R evenue a nd Taxation Code establishes criminal penalties for the unlawful disclosure of information contained in, or de rived from, the sales or transactions and use tax records of the Department;

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

Section 1 . That the Chief Financial Office r, Deputy Chief Financial Officer, Revenue Operations Manager or other officer or employee of the City designated in writing by the Chief Financial Officer to the California Department of Tax and Fee Administration is hereby appointed to represent the City with authority to examine sales or transactions and use t ax records of the Department pertaining to sales or transactions and use t ax collected for the City by the Department pursuant to the contract between the City and the Department.

Section 2. The information obtained by examination of Department records shall be used only for purposes related to the collection of City sales or transactions and use taxes by the Departm ent pursuant to that contract and for purposes related to the following governmental functions of the City:

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a) Collection of sales or transactions and use taxes by the Department b) Budget Planning
c) Economic Development

Section 3. That Hinderliter de Llamas & Associates dba HDL Companies is hereby designated to exami ne the sales or transactions and use tax records of the Department pertaining to transactions and use taxes collected for the City by the Department. The person or entity designated by this section m eets all of the following conditions, which are also incl uded in the contract between the City and Hinderliter de Llamas & Associates dba HDL Companies:

a) has an existing contract with the City to examine those sales or transactions and use tax records;

b) is required by that contract to disclose information contained in, or derived from, those transactions and use tax records only to an officer of the City who is authorized (under Section 7056 of t he California Revenue and Taxation Code) to examine the information.

c) is prohibited by that contract from performing consulting services for a retailer during the term of that contract;

d) is prohibited by that contract from retaining the information contained in, or derived from those transactions and use tax records, after that contract has expired.

BE I T F URTHER RESOLVED that t he inform ation obtained by examination of Department records shall be used only for pur poses relate d to the col lection of City sales or transactions a nd use taxes by th e Department pursuant to the contract between the City and the Department and for those purposes relating to the governmental functions of the City listed in section 2 of this resolution.

Section 4. That t his re solution supercedes all prior resoluti ons of the City Council of th e Cit y of Fontana adopted pursu ant to subd ivision (b) of Revenue and Taxation Code section 7056.

APPROVED AND ADOPTED this 10th day of December 2024.

READ AND APPROVED AS TO LEGAL FORM:

City Attorney
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I, Germaine 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 regu lar meeting on the 10 th day of December, 2024, by the following vote to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

City Clerk of the City of Fontana

Mayor of the City of Fontana

ATTEST:

City Clerk

359
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-3479 Agenda Date: 12/10/2024
Agenda #: R. Category: Consent Calendar
FROM:

Police Department
SUBJECT:

Automatic License Plate Recognition (ALPR) from Flock Group Inc. for equipment and 60-month contract
RECOMMENDATION:

1. Authorize to procure Automatic License Plate Recognition (ALPR) utilizing the Purchasing Policy and Procedure Manual 3.1.5 Non-Competitive Proposal - Single Source/Sole Source method.

2. Approve the purchase of the Flock Group Inc. (Flock Safety) ALPR equipment and software in the amount of $642,750.00.

3. Approve and authorize the City Manager or his assigned designee to approve the purchase and agreement for the Flock Group Inc. (Flock Safety).

COUNCIL GOALS:
· Concentrate on Inter-governmental relations by working cooperatively with neighboring jurisdictions.
· Concentrate on Inter-governmental relations by establishing partnerships and positive working relationships with other public agencies providing services to residents and local businesses.

DISCUSSION:

Currently the City of Fontana has two types of ALPR camera systems within the city limits (Vigilant and Flock Group Inc). In 2017 Vigilant was awarded a contract to install 10 ALPR cameras at the Sierra and Valley intersection as part of phase one of a three phase project. Vigilant cameras are hard wired and required the city to contract with a third party to install additional cabling at each intersection. Over the course of the past 7 years when maintenance/service is required on Vigilant cameras the department has had to either make the repairs themselves or contact a third-party vendor.

The department understands that the ALPR system is an asset and wanted to continue to obtain ALPR information while still being fiscally responsible. Although Vigilant cameras are still in various locations throughout the city, the department plans to maintain them until they are no longer operable. At this point Vigilant cameras are no longer under warranty and there would be an additional cost to fix them. Due to the difficulties in with Vigilant cameras Cradlepoint routers and delays with the company, the department needed to find alternatives to still have access to ALPR City of Fontana Printed on 12/5/2024Page 1 of 2
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File #: 21-3479 Agenda Date: 12/10/2024
Agenda #: R. Category: Consent Calendar
information.

In 2023, the department began to research additional companies that provided ALPR services. Since the first cameras were installed technology, services, and equipment has improved. During the research, the Flock Group Inc. company was identified a potential vendor. The Flock Group Inc. is a sole manufacturer and distributor of the Flock Safety ALPR camera and serves over 2,000 cities nationwide. Flock Safety is also the sole provider of the comprehensive monitoring, process, and machine vision services that integrate with the Flock Safety ALPR software, software updates, unlimited users, 30 days unlimited data storage, LTE connectivity, solar panels, and mounting equipment. The system works on both a National and local level. This system can provide alerts from several external LPR databases including California SVS (Stolen Vehicle System), NCIC (National Crime Information Center), FBI (Federal Bureau of Investigation), and local agencies. Flock Safety also provides all supplies and equipment under standard operating procedures and complies with all government regulations and workplace safety guidelines. In April 2024, the Council approved the purchase of 15 Flock Group Inc. cameras.

At that time, Council approval was requested as the technology and equipment are more updated.

Any equipment installation, adjustments, relocation, or removal of cameras can be requested, and work will be completed by a Flock Group Inc. technician. Once council approved the purchase the cameras were purchased and installed. The ease of working with the Flock Group Inc. and service they provide has allowed for the system to be installed and information to be obtained seamlessly.

The Police Department would like to piggyback the City of Santa Monica RFP that was conducted in January 2024 for the purchase of an ALPR camera system. The City of Santa Monica ultimately awarded the contract to Flock Group Inc. (Flock Safety). The Fontana Police Department will be utilizing the same equipment and purchasing a 60 month contract.

Staff request that Council approve the recommendation to purchase additional Flock Group Inc.

ALPR cameras as needed as long as it is in the best interest of the city. Approval will allow for cameras to be purchased and installed as the city continues to expand and where law enforcement may determine for safety. The experience and information that can be obtained by the ALPR cameras have assisted law enforcement agencies across the nation to locate stolen vehicles as well as solve other crimes where automobiles have been used.

FISCAL IMPACT:

Federal Assets Seizure Funds (223) have been requested during the 2024/2025 first quarter adjustments. The total amount of the five-year project is $642,750.00.

MOTION:

Approve staff recommendation.

City of Fontana Printed on 12/5/2024Page 2 of 2
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City Council
Report

City Council Meeting: April 23, 2024
Agenda Item: 5.H

1 of 8
To: Mayor and City Council
From: Ramon Batista, Police Chief, Police Department
Subject: Award Bid and Enter into Agreement with Flock Safety for Automatic License Plate Recognition (ALPR) cameras and Award Bid and Enter into Agreement with Constant Technologies for SMART Center Room Build-Out Services

Recommended Action
Staff recommends that the City Council:

1. Adopt a finding of no possibility of significant effect pursuant to Section 15061(b)(3) (Common Sense Exemption) of the California Environmental Quality Act (CEQA) Guidelines;

2. Award RFP #394 to Flock Safety for the installation, leasing, maintenance, and support for 54 ALPR cameras for the Police Department;

3. Award RFP #393 to Constant Technologies for the design, installation, and integration of video displays and workspace consoles for the Santa Monica Analytical Real Time Center (SMART Center) for the Police Department;

4. Authorize the City Manager to negotiate and execute an agreement with Flock Safety, for the leasing of 54 ALPR cameras in an amount not to exceed $494,100. This sum includes installation, maintenance, and support through December 31, 2026, with future year funding contingent on Council Budget approval; and

5. Authorize the City Manager to negotiate and execute an agreement with Constant Technologies, in an amount not to exceed $649,401 (including a $59,000 contingency) for a term of three years, with future year funding contingent on Council Budget approval.

Summary
In 2023, the Santa Monica Police Department (SMPD) was awarded a grant of $6.125 million under the Board of State and Community Correction’s (BSCC’s) Organized Retail Theft grant. The City’s acceptance of this grant on behalf of SMPD requires that a Real Time Crime Center (RTCC) be established and is used as an 362

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approach to reduce, detect, and deter Organized Retail Theft (ORT), vehicle theft, and catalytic converter theft. This RTCC will be located in the Santa Monica Public Safety Facility and will be referred to as the “SMART” Center (Santa Monica Analytical Real Time Center). The SMART Center aims to be the central hub for the various technologies relied upon by all Santa Monica City departments, including the Police Department. SMART Center personnel will utilize these technologies to support safe, efficient, and comprehensive police responses and investigations.

Council’s approval of staff’s recommendations will allow the Police Department to contract with Constant Technologies to design and build the SMART Center. This project will include multimedia components such as video displays, video distribution devices, and operator consoles, and it will be developed in coordination with the City’s selected construction and architectural contractors. Council’s approval will also allow SMPD to contract with Flock Safety to add 54 Automated License Plate Reader (ALPR) cameras to SMPD’s existing ALPR camera network.

This service will be covered for the life of the grant period until December 31st, 2026, with future year funding contingent on other funding sources and Council budget approval.

Staff recommends proceeding with awarding contracts to Flock and Constant Technologies as the next significant step towards the fruition of the SMART Center project for the Santa Monica Police Department. Finalizing this project aligns with the Department’s goal of embracing emergent technologies and being a benchmark for excellence, as well as advancing the Clean & Safe Santa Monica council priority.

Discussion
The Santa Monica Police Department began taking advantage of the numerous benefits of ALPR technology in 2018 with cameras installed on patrol vehicles. The devices aided in locating stolen vehicles, apprehending violent suspects, and proved vital to the development and successful resolution of many criminal cases.

This practical experience also allowed the Department to identify and embrace best practices, which led to Santa Monica Police Policy 429, which governs use of 363

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ALPR technology. The ALPR program was expanded following successful grant awards in 2020 and 2022 through the deployment of 25 fixed ALPR cameras in the City, where emphasis was given to the Santa Monica Pier and Downtown area s.

These cameras have been instrumental in producing investigatory leads and solving numerous robbery, murder, burglary, and other property crimes cases, which otherwise would not have had successful outcomes. However, the cameras were purchased without a maintenance support program . As a result t he City’s network has never been fully operational due to numerous hardware problems.

In 2017, SMPD staff began its research into the Real Time Crime Center concept and the integration of technologies such as ALPRs. SMPD staff, in partnership with Information Services Department (ISD) staff, attended technology and security trade shows and visited over 30 law enforcement and critical infrastructure security centers in order to assess various RTCC designs, missions, workflows, and technology platforms , including the ALPR cameras. Staff’s research led to the expectations and requirements written into the ALPR Request For Proposals (RFP) #394 and the SMART Center Build Request For Proposals (RFP) #393. The RFPs were publicly released on January 31 , 2024, and February 2, 2024 , respectively.

Eight proposals were received for the ALPR RFP and six were received for the SMART Center build RFP.

When SMPD was awarded the BSCC grant, a full -service ALPR solution with professional installers and maintenance support was the desired model to ensure a reliable ALPR network. In addition, t he Department’s RFP requires the ALPR devices to function as stand-alone units that rely on solar power and without the need to tap into City power supplies. SMPD staff developed a map of 54 additional camera locations in the City where ALPR cameras w ill be used to provide a comprehensive network to support not only SMPD investigative efforts, but real- time applications for other City departments as well. Despite the City’s relatively small existing ALPR network, the system frequently detects stolen vehicles within Santa Monica. However, SMPD currently lacks the ability to vet and act on these detections in real -time and as a result the Department’s efforts to locate and recover these vehicles has been frustrated. The BSCC grant ’s goal of impacting 364

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motor vehicle theft, coupled with the safety and security benefits of quickly contacting stolen vehicles within the City, make ALPRs and the SMART Center’s real-time alert monitoring capabilities an impactful combination.

SMPD and ISD rated Flock Safety as the winning bidder due to its full-service ALPR deployments , proven reliability, integrated data sharing capabilities, and intuitive user interface and alert system . Because the 54 ALPR cameras are leased, at the conclusion of the grant period, Flock Safety will remove the cameras at no additional cost to the City. If the City decides to continue this service, the estimated annual subscription cost for 54 ALPR cameras is $189,000.

Flock ALPR Camera Photo

SMPD and ISD staff raters also independently reviewed six proposals from vendors bidding for the contract to design, furnish, and integrate audio -video capabilities into the SMART Center site. Staff raters reviewed each proposal, contacted vendor references for prior projects, and arrange d live remote presentations from each vendor . The individual presentations allowed staff to get a sense of each vendor’s concept, philosophy, and technical capabilities 365

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pertaining to the build out of a 24/7 command center and RTCC. This process resulted in staff’s selection of Constant Technologies as the highest rated and winning bidder. See the image below for their conceptual rendering of the SMART Center based on an SMPD’s provided layout.

SMART Center Conceptual Design (Constant Technologies)

Staff recommends awarding contracts to Flock Safety and Constant Technologies to further the development of the City’s SMART Center project and to affirm the Santa Monica Police Department’s goal of embracing emergent technologies and being a benchmark for excellence.

Bidder Recommendation
Best Qualified Person/Firm Flock Safety
Evaluation Criteria

Training/credentials/experience, competence/skill, capacity/ability to perform services promptly, sufficiency of financial/other resources, character/reputation, ability to provide future services as needed and price.

Municipal Code SMMC 2.24.190

RFPs Received
Flock Safety A3 Communications
DBA Blue Violet
Network
Convergint
Technologies
EYEP Solutions
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High Tech Security Paladin Technologies SOV Security Utility Associates

RFP Data
Posted On Posted On
Advertised In
(City Charter & SMMC)
Vendors
Downloaded
Date Publicly
Opened
1/11/2024 City's Online
Bidding Site Santa Monica Daily Press 44 1/31/2024

Justification to Award
Based on the evaluation criteria and criteria in SMMC 2.24.190 staff recommends Flock Safety, Inc as the best qualified firm. Flock Safety has a long history of providing ALPR technology as a service and the company’s capabilities in the Real Time Crime Center environment are expanding with the release of their integration platform FlockOS. Flock provides a unique, full-service approach to their ALPR technology including hardware manufacture, installation, configuration, active monitoring of system health, and repair or replacement of problematic or underperforming cameras. Flock also provides a user friendly, intuitive, browser-based interface compatible with all Santa Monica City hardware. Flock’s system has an excellent and fast hotlist notification interface, uniquely delivered directly through the browser interface. Flock’s proprietary network of other law enforcement agencies ALPRs including Beverly Hills PD and Culver City PD, provides access to a data-sharing network in real time, allowing rapid development of criminal investigations and leads.

Bidder Recommendation
Best Qualified Person/Firm Constant Technologies
Evaluation Criteria

Training/credentials/experience, competence/skill, capacity/ability to perform services promptly, sufficiency of financial/other resources, character/reputation, ability to provide future services as needed and price.

Municipal Code SMMC 2.24.190

RFPs Received
Constant Technologies AVI-SPL EIDIM Group, Inc Vector Resources, Inc DBA Vector USA
One Diversified, LLC IREX

RFP Data
Posted On Posted On
Advertised In
(City Charter & SMMC)
Vendors
Downloaded
Date Publicly
Opened
1/11/2024 City's Online
Bidding Site Santa Monica Daily Press 53 2/7/2024

Justification to Award
Based on the evaluation criteria and criteria in SMMC 2.24.190 staff recommends Constant Technologies as the best qualified firm. Constant Technologies proposal was the most comprehensive, thoughtful, and demonstrative of their experience building and configuring Real Time Crime Centers designed to operate in a 24/7 environment. Constant’s thoroughness in their visual design, layout, and component proposal for the SMART Center demonstrated their understanding of modern law enforcement RTCC demands and applications. Constant Technologies’ customer reviews were encouraging not only regarding 367

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their design and building of other RTCCs but also regarding their in-house made consoles and continuing support their customers have received.

Environmental Review
The proposed contracts are exempt from CEQA pursuant to Section 15061(b)(3) of the CEQA Guidelines. The awarded agreements are covered by the common-sense exemption which states that CEQA does not apply, “where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.” The contracts will provide the SMPD with new technologies including cameras. Therefore, it is reasonably certain that the awarded contracts will not result in adverse physical impacts on the environment, and as such, are exempt from CEQA.

Past Council Actions

Meeting Date Description
10/24/23 (attachment A) Authorization to Accept Grant from the BSCC for the Organized Retail Theft Prevention Grant Program

Financial Impacts and Budget Actions
Staff seeks authority to approve available funding from the Miscellaneous Grants Fund to award an agreement with Flock Safety for the installation, leasing, maintenance, and support for 54 ALPR cameras. Future year funding is contingent on Council budget approval.

Contract Request- Flock Safety
FY 2023-24
Budget Request Amount

Department/CIP Account # Total Contract
Amount
$494,100 20180001.556631 $494,100

Staff also seeks authority to approve available funding from the Miscellaneous Grants Fund to award an agreement with Constant Technologies for the furnishing and installation of visual displays, video distribution, and workspace consoles for the SMART Center. Future year funding is contingent on Council budget approval. 368

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Contract Request- Constant Technologies
FY 2023-24
Budget Request Amount

Department/CIP Account # Total Contract
Amount
$649,401 20180001.556631 $649,401

Prepared By: Jose Arroyo, Senior Administrative Analyst Approved

Forwarded to Council

Attachments:

A. October 24, 2023 Staff Report (Web Link)
B. SMART Center Info Item
C. Oaks Initiative - Flock Safety
D. Oaks Initiative - Constant Tech
E. Levine Act Disclosure Form_CONSTANT TECH
F. Levine Act Disclosure Form_FLOCK
G. Written Comments
369

Flock Safety + CA - Fontana PD
______________

Flock Group Inc.
1170 Howell Mill Rd, Suite 210
Atlanta, GA 30318
______________

MAIN CONTACT:

Jake Sherman
[email protected]
8187467444

370

ORDER FORM

This order form (“Order Form”) hereby incorporates and includes the terms of the previously executed agreement (the “Terms”) which describe and set forth the general legal terms governing the relationship (collectively, the "Agreement" ). The Terms contain, among other things, warranty disclaimers, liability limitations and use limitations.

This additional services Agreement will be effective when this Order Form is executed by both Parties (the “Effective Date”)

Customer: CA - Fontana PD Initial Term: 60 Months
Legal Entity Name: CA - Fontana PD Renewal Term: 60 Months Accounts Payable Email: Payment Terms: Net 30
Address: 17005 Upland Ave Fontana, California
92335
Billing Frequency: Total Contract Billed at Signing
Retention Period: 30 Days

Hardware and Software Products
Annual recurring amounts over subscription term

Item Cost Quantity Total
Flock Safety Platform $125,000.00
Flock Safety LPR Products
Flock Safety Falcon ® Included 25 Included
Flock Safety Falcon ® LR Included 10 Included

Professional Services and One Time Purchases

Item Cost Quantity Total
One Time Fees
Flock Safety Professional Services
Professional Services - Standard Implementation Fee $650.00 8 $5,200.00 Professional Services - Existing Infrastructure
Implementation Fee $150.00 17 $2,550.00
Professional Services - Advanced Implementation
Fee (Falcon LR) $1,000.00 10 $10,000.00

Estimated Tax: $0.00
Contract Total: $642,750.00

Taxes shown above are provided as an estimate. Actual taxes are the responsibility of the Customer. This Agreement will automatically renew for successive renewal terms of the greater of one year or the length set forth on the Order Form (each, a “Renewal Term”) unless either Party gives the other Party notice of non-renewal at least thirty (30) days prior to the end of the then-current term.

371

372
Billing Schedule

Billing Schedule Amount (USD)
Total Contract Due at Signing $642,750.00
*Tax not included

373
Product and Services Description
Flock Safety Platform Items Product Description
Flock Safety Falcon ®
Law enforcement grade infrastructure-free (solar power + LTE) license plate recognition camera with Vehicle Fingerprint ™ technology (proprietary machine learning software) and real-time alerts for unlimited users.

Flock Safety Falcon ® LR
Law enforcement grade, long range and high vehicle speed license plate recognition camera with Vehicle Fingerprint ™ technology (proprietary machine learning software) and real-time alerts for unlimited users, with LTE. AC Power Only.

Professional Services - Standard
Implementation Fee
One-time Professional Services engagement. Includes site and safety assessment, camera setup and testing, and shipping and handling in accordance with the Flock Safety Standard Implementation Service Brief.

Professional Services - Existing
Infrastructure Implementation Fee
One-time Professional Services engagement. Includes site and safety assessment of existing vertical infrastructure location, camera setup and testing, and shipping and handling in accordance with the Flock Safety Standard Implementation Service Brief.

Professional Services - Advanced
Implementation Fee (Falcon LR)
One-time Professional Services engagement. Includes site & safety assessment, camera setup & testing, and shipping & handling in accordance with the Flock Safety Advanced Implementation Service Brief.

FlockOS Features & Description
FlockOS Features Description

374

By executing this Order Form, Customer represents and warrants that it has read and agrees to all of the terms and conditions contained in the previously executed agreement.

The Parties have executed this Agreement as of the dates set forth below.

FLOCK GROUP, INC. Customer: CA - Fontana PD

By:
\FSSignature2\
By:
\FSSignature1\
Name:
\FSFullname2\
Name:
\FSFullname1\
Title:
\FSTitle2\
Title:
\FSTitle1\
Date:
\FSDateSigned2\
Date:
\FSDateSigned1\

PO Number:

375

CITY OF SANTA MONICA

ALPR (AUTOMATED LICENSE PLATE RECOGNITION)
SYSTEM CAMERAS_202312

REQUEST FOR PROPOSALS

Police Department

RELEASE DATE: January 11, 2024
DEADLINE FOR QUESTIONS: January 18, 2024
RESPONSE DEADLINE: January 31, 2024, 3:00 pm

APPROVED FOR ADVERTISEMENT

CITY CONTACT:

Derek Leone

376

City of Santa Monica

Request for Proposals
ALPR (Automated License Plate Recognition) System Cameras_202312

Table of Contents

1. Introduction

2. Term

3. Scope of Work

4. Questions and Answers

5. Vendor Questionnaire

6. Evaluation Criteria

7. Award Process

8. Terms & Conditions

Attachments:

A - Proposer Checklist
B - City_of_Santa_Monica_VISA_Questionnaire
C - Enterprise_Core_Technologies
D - CSA_Template
E - CSA_with_Tech_Requirements

377

City of Santa Monica
Police Department
Request for Proposals
ALPR (Automated License Plate Recognition) System Cameras_202312 1 Introduction

1.1 Summary
The City of Santa Monica seeks a qualified firm to provide expanded ALPR (Automated License Plate Recognition) system capabilities in the form of 54 additional cameras.

1.2 Background
The Santa Monica Police Department is in the process of building the Santa Monica Analytica Real Time Center or "SMART Center". This Real Time Crime Center (RTCC) will use existing city owned ALPR (Automated License Plate Recognition) system cameras, and the additional cameras sought under this RFP, to enhance the situational awareness of law enforcement first responders and investigative units with the detection, prevention, and apprehension of organized retail theft (ORT) offenders and groups, catalytic converter theft, and vehicle theft. Any contract(s) that may result from this Request for Proposal will be funded by a State of California grant.

1.3 Contact Information
Any inquiries or requests regarding this procurement should be submitted via OpenGov. Other City officers, agents, employees or representatives do not have authority to respond on behalf of the City. Contact with unauthorized City personnel during the selection process may result in disqualification.

Derek Leone
Sergeant
333 Olympic Dr
Santa Monica, CA 90401
Email: [email protected]
Phone: (310) 458-8478
Department:

Police Department
Department Head:

Ramon Batista
Chief of Police

1.4 Timeline
Proposal Calendar
The following is a list of key dates:
378

City of Santa Monica
Police Department
Request for Proposals
ALPR (Automated License Plate Recognition) System Cameras_202312 Release Project Date January 11, 2024
Question Submission Deadline January 18, 2024, 3:00pm
Question Response Deadline January 24, 2024, 3:00pm
Proposal Submission Deadline January 31, 2024, 3:00pm

2 Term
The City of Santa Monica, (referred to hereafter as “the City”) is inviting proposals from qualified persons or firms for an initial term of Three (3) years, with 0 for renewal of 0 each, to be exercised at the City’s sole discretion.
3 Scope of Work
Insert detailed statement/scope of work and deliverables including reporting requirements. List the criteria that must be met and that will be used to score and evaluate the proposals.

3.1 Specification
FURNISH AND DELIVER:

1. 54 battery-powered, solar-charging ALPR cameras leased for a period beginning at the awarding of this contract and ending on DECEMBER 31st, 2026.

2. ALPR vendor shall provide an all-inclusive ALPR solution including installation, maintenance, and support of equipment. No subcontractors, third-party installers or maintenance providers are acceptable.

3. Hardware, installation of all equipment, software, cellular connection, data cloud storage and a contract-lifetime warranty covering maintenance and all support.

4. Any City permitting and inspection fees pertaining to the project must be included in the cost.

5. Unlimited number of users accounts able to be logged into the user database simultaneously at any given time.

3.2 Scope of Work
SECTION 1 - ALPR SYSTEM REQUIREMENTS:
379

City of Santa Monica
Police Department
Request for Proposals
ALPR (Automated License Plate Recognition) System Cameras_202312

1. All cameras must not require tapping into wired networks or power infrastructure.

2. The Vendor must provide for installation, setup, and maintenance of the ALPR cameras through the period covering the awarding of this contract and DECEMBER 31, 2026

3. Contactor shall provide training on ALPR system features, usage, maintenance, and system auditing

4. ALPR vendor’s alerts must be securely available to users via PC, iOS, and Android mobile device apps. ALPR vendor’s mobile apps must be able to capture license plate images via device camera and upload them into the vendor’s ALPR database for analysis.

5. Vendor's interface must provide for remote configuration, searching, and receiving alert notifications from the ALPR system.

6. ALPR vendor’s solution shall not charge per number of users and be capable of allowing an unlimited number of users to be logged into the user database simultaneously.

7. ALPR vendor’s system must incorporate a dedicated mapping service utility that will allow each ALPR user a geographic overlay of all ALPR hit data on a user- defined map.

8. ALPR vendor's system must allow users to manually enter any number of license plates they wish to be alerted of when a capture on that plate enters the database.

9. ALPR vendor’s system shall have the ability to alert a user or group via e-mail, text message, or other means when a captured plate from their hotlist/alert enters the database.

10. ALPR vendor’s system shall allow users to view, add to, or remove from their existing list of alerts ("hotlists")

11. ALPR vendor’s system shall have the ability to set expiration dates for alert notifications. After the expiration date, the user must manually re-enter the plate if they still wish to be notified if it reappears. The system should be able to notify the user that a license plate they previously entered into a hotlist for alert notification is preparing to expire.

12. ALPR vendor’s system should have the capability to notify users of duplicate entries and alerts.

13. ALPR vendor’s software must provide capability to manually search for and enter alerts based on a vehicle’s physical description with or without including license plate information.

14. ALPR vendor's system must include the following database search capabilities:

1. Full or partial License Plate (with wildcard support) 380

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2. Start Date and End Date, including time of day down to one minute level of precision

3. Device Name (this is a list of all vehicles and fixed cameras that have contributed reads to the database, chosen from a drop down or other multi- select interface)

4. Location and proximity range. This could be a geocoded address field, lat/long coordinates, map-drawn shape, or other functionality for allowing the user to specify a location and search radius.

15. ALPR vendor’s system software must have the ability to determine and indicate malfunctions, failures, or any other operational issues which may adversely affect system performance.

16. ALPR vendor’s system software shall provide permissions granted by the Agency Administrator to each user that will allow or disallow data access to ALPR hits/alerts and hit/alert notifications.

17. Vendor’s ALPR cameras must capture at least two lanes of traffic simultaneously from a single camera.

18. Vendor shall provide a clear delineation between initial or one-time costs, along with any anticipated re-occurring costs for the project term as indicated in the attached bid table.

19. Vendor shall include an estimated time frame for the completion of the project parameters outlined in the vendor's bid.

SECTION 2 - AUDITING/REPORTING:

1. ALPR vendor must have granular auditing capability to identify and track any user at any time.

2. ALPR vendor system must provide permission/security level functionality in order to define user rights and access.

3. Administrator accounts must be able to view queried records and hotlists/alerts for all employees and individual officers. These should include date and time, last records, query by plate, query by requestor, IP address and browsing of records and hotlists/alerts.

4. The correction of any plate will be included in an audit trail and the corrected plate will be sent to the database for matching

5. ALPR vendor system must provide predesignated reports that can be generated from the data collected.

6. ALPR vendor system should include a Dashboard utility that allows users to view system and server productivity as measured by hotlist/alert volumes, detections and hit volumes, and accuracy ratios. These measurements should be in the form of bar graphs, pie charts or raw data and allow filters by agency, user, or ALPR system.
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7. ALPR Administrator accounts should be able to export all audit data in PDF and Excel formats.

SECTION 3 - POLICY:

1. ALPR vendor’s system must be Criminal Justice Information Services (CJIS) compliant.

2. All ALPR data collected by the City of Santa Monica shall be owned by City of Santa Monica.

3. ALPR vendor’s storage database must provide a minimum of 30 days retention policy with option to increase retention period

3.3 Vendor Requirements
A. Provide statement of years of experience.

B. Provide a list of any known/allowed integrations of proposer's ALPR system into Real-Time Crime Center platforms or police CAD systems such as, but not limited to, Peregrine, Flock OS, FUSUS, Command Central Aware, Geo Shield, Axon, Citigraf, or Versaterm (CAD).

C. Provide at least three current customer references, preferably comprised of law enforcement entities with ALPR networks similar in size to SMPD's planned project (54 cameras).

D. Presentation/demonstration may be required upon invitation. 4 Questions and Answers
Vendor Queries Due
Questions must be submitted online in the “Q&A” tab. The City will only accept or respond to questions submitted through the online vendor portal. 5 Vendor Questionnaire

5.1 Proposal

5.1.1 Letter of Transmittal*
Please upload your letter of Transmittal as a PDF here. Make sure to include the following items.

A. Identify the submitting organization;
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ALPR (Automated License Plate Recognition) System Cameras_202312 B. Identify the name, title, telephone and fax numbers, and e-mail address of the person authorized by the organization to contractually obligate the organization; C. Identify the name, title, telephone and fax numbers, and e-mail address of the person authorized to negotiate the contract on behalf of the organization; D. Identify the names, titles, telephone and fax numbers, and e-mail addresses of persons to be contacted for clarification;
E. Be signed by the person authorized to contractually obligate the organization; F. Acknowledge receipt of any and all amendments to this RFP. *Response required

5.1.2 Qualifications*
Provide a brief summary of your company’s history, its capabilities, and its recent relevant experience (last five years). Also, describe your demonstrated experience with similar projects and qualification including professional licenses and certifications. *Response required

5.1.3 Key Personnel*
Describe the project team composition and include resumes of key personnel. Proposed members should be available for ninety (90) days from the proposal due date. The City must be promptly notified of any changes in key personnel prior to award. *Response required

5.1.4 References*
List a minimum of three (3) references for whom comparable services were provided to in the last five (5) years. Include the name of the firm, name of the contact, telephone number of the contact, email address of contact (if available), brief description of the services provided and your firm’s role, and the start and completion date. *Response required

5.1.5 Project Work Plan*
Describe your understanding of the project and approach. Include deliverables, milestones, assumptions, and identify potential risks that could delay the project. List any resources you expect the City to provide.
*Response required

5.1.6 Cost Proposal*
Provide a proposed total fee outlining the proposal and identify the hourly fee schedule for all personnel to be involved in the project. The hourly rates should include fringe benefits, indirect costs and profit. The Consultant should also indicate what percentage of the scope of work is expected to be completed by each individual or pay classification included in fee proposal. Additionally, if applicable, a schedule of reimbursable expenses should be included.
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5.2 Other Required Responses

5.2.1 Business License Requirements
WHO NEEDS A BUSINESS LICENSE?

1. Is this vendor physically located in the City of Santa Monica? Yes (Vendor must have a City of Santa Monica business license - contact the Business License unit for the appropriate forms. Skip question 2 & continue to “ADDITIONAL REQUIREMENTS” section below)
No (Continue to the next question)

2. Does this vendor physically come into the City of Santa Monica to conduct business and/or make deliveries?
Yes(Vendor must have a City of Santa Monica Out-of City Business License. contact the Business License unit for the appropriate forms. Continue to “ADDITIONAL REQUIREMENTS” section below)
No(STOP, no license needed)

ADDITIONAL REQUIREMENTS:

If this vendor is located in or comes into the City of Santa Monica to conduct business, in addition to having a CITY OF SANTA MONICA BUSINESS LICENSE, they will be required to have insurance (see agreement for descriptions).

The business license documentation is only required from the successful Proposer.

5.2.2 Notice Regarding Disclosure of Contents of Documents* All responses to this Request for Proposal (RFP) accepted by the City of Santa Monica (City) shall become the exclusive property of the City. All proposals accepted by the City shall become a matter of public record and shall be regarded as public, with the exception of those elements of each proposal which are defined by the contractor as business or trade secrets and plainly marked as "Trade Secret", "Confidential" or "Proprietary". Each element of a proposal which a contractor desires not to be considered a public record must be clearly marked as set forth above, and any blanket statement (i.e. regarding entire pages, documents or other non-specific designations) shall not be sufficient and shall not bind the City in any way whatsoever. If disclosure is required or permitted under the California Public Records Act, or otherwise by law, the City shall not in any way be liable or responsible for the disclosure of any such records or part thereof.
☐ Please confirm
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5.2.3 Oaks Initiative*

CITY OF SANTA MONICA OAKS INITIATIVE NOTICE

NOTICE TO APPLICANTS, BIDDERS, PROPOSERS AND OTHERS SEEKING

DISCRETIONARY PERMITS, CONTRACTS, OR OTHER BENEFITS FROM THE CITY

OF SANTA MONICA
Santa Monica’s voters adopted a City Charter amendment commonly known as the Oaks Initiative. The Oaks Initiative requires the City to provide this notice and information about the Initiative’s requirements. You may obtain a full copy of the Initiative’s text from the City Clerk.

This information is required by City Charter Article XXII—Taxpayer Protection. It prohibits a public official from receiving, and a person or entity from conferring, specified personal benefits or campaign advantages from a person or entity after the official votes, or otherwise takes official action, to award a “public benefit” to that person or entity. The prohibition applies within and outside of the geographical boundaries of Santa Monica.

All persons or entities applying or receiving public benefits from the City of Santa Monica shall provide the names of trustees, directors, partners, and officers, and names of persons with more than a 10% equity, participation or revenue interest. An exception exists for persons serving in those capacities as volunteers, without compensation, for organizations exempt from income taxes under Section 501(c)(3), (4), or (6), of the Internal Revenue Code. However, this exception does not apply if the organization is a political committee or controls political committees. Examples of a “public benefit” include public contracts to provide goods or services worth more than $25,000 or a land use approval worth more than $25,000 over a 12-month period.

In order to facilitate compliance with the requirements of the Oaks Initiative, the City compiles and maintains certain information. That information includes the name of any person or persons who is seeking a “public benefit.” If the “public benefit” is sought by an entity, rather than an individual person, the information includes the name of every person who is: (a) trustee, (b) director, (c) partner, (d) officer, or has (e) more than a ten percent interest in the entity. Therefore, if you are seeking a “public benefit” covered by the Oaks Initiative, you must supply that information on the Oaks Initiative Disclosure Form. This information must be updated and supplied every 12 months. • OAKS_INITIATIVE_FORM.pdf
• OAKS_INITIATIVE_FORM_-_Exam...
*Response required

5.2.4 Living Wage Ordinance Certification*

CITY OF SANTA MONICA LIVING WAGE ORDINANCE
Certification for Providers of Services to the City of Santa Monica (Fiscal Year 23/24 – July 1, 2023 through June 30, 2024) 385

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TO BE COMPLETED BY ALL CONTRACTORS PROVIDING SERVICES TO THE CITY OF SANTA MONICA IN EXCESS OF $54,200
The City of Santa Monica Municipal Code Chapter 4.65, Living Wage Ordinance (LWO), establishes a Minimum Wage of $19.73 per hour for certain employees of contractors providing services to the City where services exceed $54,200 or more and requires that contractors also provide the same health care and other benefits to employees’ same sex spouses and domestic partners as are provided to other employees’ spouses.

An employee covered by the LWO is any person who does not actually work as a manager, supervisor, or confidential employee, and who is not required to possess an occupational license.

The Living Wage Ordinance applies the services sought pursuant to this bid and bidders are required to prepare and return the Living Wage Certification Form. If the bidder is selected, the bidder must maintain payroll records that include, at minimum, the full name of each employee providing services under the contract, job classification and rate of pay. Bids that fail to include Certification Forms may be considered non- responsive and excluded from further consideration.

Please prepare the following certification if you are a contractor engaging in a contract for services with the City of Santa Monica in excess of $54,200.

Your signature on this certification grants the City permission to review any and all payroll books and records and any company documents pertaining to the benefits offered to employees to assure your compliance with the LWO during the term of the contract.

Please direct any questions to:

City of Santa Monica Finance Department
Attention: Living Wage Compliance Section
1685 Main Street, Mail Stop 09
Santa Monica, CA 90401
You can also contact staff regarding living wage ordinance questions by e-mail at [email protected] or by phone 310-458-8281.
• FY23-24_Living_Wage_Certifi...
*Response required

5.2.5 Certificate of Compliance*
Please upload your completed Certificate of Compliance document here. • Certification_of_Compliance...
*Response required

5.2.6 Non-Discrimination Policy, Debarment Certification & Non- Collusion Declaration*
Please download the below documents, complete, and upload. 386

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ALPR (Automated License Plate Recognition) System Cameras_202312 • Proposal_Forms_(10).pdf
*Response required

5.2.7 Prevailing Wage Job Acknowledgement Form*
Please download the below documents, complete, and upload. • Prevailing_Wage_Job_Acknowl...
• Prevailing_Wage_Information...
*Response required

5.2.8 Please provide a copy of your current DIR registration* *Response required
6 Evaluation Criteria
No. Evaluation Criteria Scoring Method Weight (Points)

1. Presentation/Demonstration
Up to 20 points will be awarded based on
in-person or virtual
presentations/demonstrations of the
proposer's ALPR Devices, software
interface, and ALPR device features and
their effectiveness at addressing the
technical and functional specifications
listed in the Scope of Work Sections 1-3.

The reliability, responsiveness, and ease of
use for real-time and historic license plate
recognition will be considered.

Points Based 20
(20% of Total)

2. Cost
Up to 20 points will be awarded based on a
“Ratio Method.” The proposer’s cost must
include the delivery of the proposed
solutions, as well as any recurring costs (if
any) as identified in the proposal. With this
method, the proposal with the lowest cost
receives the maximum points allowed. All
other proposals receive a percentage of
the points available based on their cost
relationship to the lowest price. This is
determined by applying the following
formula: (Lowest Price / Evaluated Price) X
maximum points available = Awarded
Points
Example: The cost for the lowest proposal
is $100,000. The next lowest proposal has
a cost of $125,000. The total points
available for cost = 20 points.
($100,000 / $125,000) X 20 = 16 Points
Points Based 20
(20% of Total)
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3. References/Experience
Up to 20 points will be awarded based on
evaluation of proposer’s work for previous
clients list, preferably comprised of similarly
sized project integrations involving
government or law enforcement agencies
This evaluation will include and consider
testimonials from proposer's existing
customers.

Points Based 20
(20% of Total)

4. Functional Capabilities
Up to 40 points will be awarded based on
the design and functionality of the ALPR
devices, ALPR system, application
software, and supporting systems as
determined by the evaluation team. Points
will be assigned based on the vendor’s
response to the technical and functional
specifications located in the Scope of Work
Sections 1-3.

Points Based 40
(40% of Total)

7 Award Process

7.1 Selection
The City of Santa Monica, through either the City Council or the City Manager (or his designee) has the sole authority to select the consulting firm and reserves the right to reject any and all proposals. The City reserves the right to approve or reject all sub- consultants and engineers proposed to be retained by the prime consultant. Upon signing of the agreement, no change in proposed personnel or sub-consultants can be made without the City’s review and written authorization.

By submitting a response to this RFP, prospective consultants waive the right to protest after award or seek any legal remedies whatsoever regarding any aspect of this RFP.

The City reserves the right to select any number of finalists. In addition, the City reserves the right to issue written notice to all prospective consultants of any changes in the RFP terms or proposal submission schedule, should the City determine in its sole and absolute discretion that such changes are necessary.

The City reserves the right to request additional information from any proposing consultant and to reject any and all proposals. All original work products, including computer files, shall remain the property of the City.

The City reserves the right to retain an expert to evaluate the proposing consultant’s work or qualifications at all stages in the selection process. Additionally, any contract entered into will be subject to termination at any stage if in the judgment of the City, such termination is in the best interest of the City. In the event such decision is made, 388

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ALPR (Automated License Plate Recognition) System Cameras_202312 appropriate written notice would be given before any termination and the consultant would be compensated on a pro-rata basis for work performed.

The responsible proposer whose proposal is the most advantageous to the City, taking to consideration all the evaluation factors will be recommended for the contract award.

Notwithstanding the Evaluation Team’s selection, the City reserves the right to award this RFP and the resultant Contract in any manner it deems to be in the best interest of the City and make the selection based on its sole discretion. The City is the sole and exclusive judge of quality and compliance with proposal specifications in any of the matters pertaining to this RFP.

7.2 Contract Award and Execution
Selection of a proposer with whom the City enters into contract negotiations with, or a recommendation of an award by the Evaluation Committee or any other party, does not constitute an award of Contract. Once the City formally awards the contract, the successful consultant will be notified to enter into an agreement. If the selected consultant does not enter into the agreement, the City will begin negotiations with the second highest ranking proposing consultant.

Please review all contract forms prior to submitting a proposal. The City of Santa Monica intends to use these forms as the baseline agreements with the successful consultant. The City will not entertain proposals to make material changes to the contract form once the project has been awarded. If you wish to request changes to the contracting forms, you must do so during the proposal process. In addition, the City requires compliance with several other policies and ordinances, proposing consultants will need to complete these Exhibits and submit with their Proposal.

The RFP document and the successful proposal response, as amended by agreement between the City of Santa Monica and the successful consultant, will become part of the contract documents. Additionally, the City of Santa Monica may verify the successful consultant’s representations that appear in the proposal. Failure of the successful consultant to perform as represented may result in elimination of the successful consultant from further negotiation or in contract cancellation or termination.

No oral explanation or instruction of any kind or nature whatsoever given before the award of a contract to a consultant shall be binding. The City of Santa Monica shall not be bound, or in any way obligated, until the City has awarded the contract and all documents have been executed. The proposing consultant may not incur any chargeable costs prior to final contract execution.
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ALPR (Automated License Plate Recognition) System Cameras_202312 8 Terms & Conditions

8.1 Best Qualified Person Or Firm
The award, if any, will be made to the best qualified person or firm(s). In evaluating whether a proposer(s) is (are) the best qualified person or firm(s) pursuant to the Santa Monica Municipal Code, City staff may utilize some or all of the following criteria:

A. The training, credentials and experience of the person or firm; B. The demonstrated competence, ability, capacity and skill of the person or firm to perform the contract or provide the services;
C. The capacity of the person or firm to perform the contract or provide the service promptly, within the time specified, and without delay; D. The sufficiency of the person’s or firm’s financial and other resources; E. The character, integrity, reputation and judgment of the person or firm; F. The ability of the person or firm to provide such future service as may be needed; G. The price which the person or firm proposes to charge, including whether the price is fair, reasonable and competitive; and
H. Any other factor which will further the intent set forth in Section 608 of the City Charter.

The City shall have absolute discretion in determining the applicability and weight or relative weight of some or all of the criteria listed above and is not required to select the lowest monetary proposer.

8.2 Receiving Time / Late Proposals
It is the responsibility of proposer to see that their proposal is submitted with sufficient time to be received by the City prior to the proposal closing time. The receiving time in the City Office will be the governing time for acceptability of proposals.

Late proposals are not accepted.

8.3 Acceptance of Conditions Governing this RFP
Submission of a proposal constitutes acceptance of the Evaluation Factors contained in this RFP.

8.4 Incurring Cost
Any cost incurred by the proposer in preparation, transmittal, presentation of any proposal or material submitted in response to this RFP shall be borne solely by the proposer.
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8.5 Prime Consultant Responsibility
Any agreement that may result from the RFP shall specify that the prime consultant is solely responsible for fulfillment of the agreement with the City. The City will make agreement payments only to the prime consultant.

8.6 Sub-consultants
Use of sub-consultants must be clearly explained in the proposal, and major sub- consultants must be identified by name. Prime consultants shall be wholly responsible for the entire performance whether or not sub-consultants are used.

8.7 Amended Proposals
A proposer may submit an amended proposal before the deadline for receipt of proposals. Such amended proposals must be complete replacements for a previously submitted proposal and must be clearly identified as such in the transmittal letter. City personnel will not merge, collate, or assemble proposal materials.

8.8 Proposer’s Rights to Withdraw Proposal
Proposers will be allowed to withdraw their proposals at any time prior to the deadline for receipt of proposals. The proposer must submit a written withdrawal request signed by the proposer’s duly authorized representative addressed to the City Contact.

8.9 Proposal Offer Firm
Responses to this RFP, including proposal prices, will be considered firm for ninety (90) days after the due date for receipt of proposals or sixty (60) days after receipt of a best and final offer, if one is requested.

8.10 Best and Final Offer
The City reserves the right to request Best and Final Offers from any or all proposers.

This will be the only opportunity to amend or modify proposals based on feedback from the City. Information from competing proposals will not be disclosed to other proposers prior to submission of a Best and Final Offer.

8.11 Living Wage Requirement
Any agreement issued as a result of this Request for Proposal may be subject to the City’s Living Wage Ordinance, Santa Monica Municipal Code Chapter 4.65 (LWO), and its implementing regulations.
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8.12 Disclosure of Proposal Contents
All proposals are subject to the provisions of the California Public Records Act, California Government Code section 6250 et seq., and any information submitted with a response is a public record subject to disclosure, unless a specific exemption applies.

8.13 Notice Regarding Disclosure of Contents of Documents All responses to this Request for Proposal (RFP) accepted by the City of Santa Monica (City) shall become the exclusive property of the City. All proposals accepted by the City shall become a matter of public record and shall be regarded as public, with the exception of those elements of each proposal which are defined by the contractor as business or trade secrets and plainly marked as "Trade Secret", "Confidential" or "Proprietary". Each element of a proposal which a contractor desires not to be considered a public record must be clearly marked as set forth above, and any blanket statement (i.e. regarding entire pages, documents or other non-specific designations) shall not be sufficient and shall not bind the City in any way whatsoever. If disclosure is required or permitted under the California Public Records Act, or otherwise by law, the City shall not in any way be liable or responsible for the disclosure of any such records or part thereof.

8.14 No Obligation
This RFP in no manner obligates the City to the eventual rental, lease, purchase, etc., of any goods or services offered until a valid written agreement is executed by the City and the selected proposer.

8.15 Termination
This RFP may be canceled at any time and any and all proposals may be rejected in whole or in part when the City determines such action to be in the best interest of the City of Santa Monica.

8.16 Sufficient Appropriation
Any agreement awarded for multiple years as a result of this RFP may be terminated if sufficient appropriations or authorizations do not exist. Such termination will be effected by sending written notice to the selected proposer. The City’s decision as to whether sufficient appropriations and authorizations are available will be accepted by the selected proposer as final.

8.17 Errors and Restrictive Specifications
If a proposer discovers any ambiguity, conflict, discrepancy, omission, or other error in the RFP, the proposer should immediately notify the City Contact designated in Section 392

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ALPR (Automated License Plate Recognition) System Cameras_202312 I, B. Without disclosing the source of the request, the City may issue a written addendum to clarify the ambiguity, or to correct the problem, omission, or other error.

If prior to the submission date, a proposer knows of or should have known of an error in the RFP but fails to notify the City Contact of the error, the proposer shall submit their proposal at his, her or its own risk, and, if awarded an agreement, shall not be entitled to additional compensation or time by reason of error or its later correction.

8.18 Legal Review
The City requires that all proposers agree to be bound by the General Requirements contained in this RFP.

8.19 Governing Law
This RFP, and any agreement entered into pursuant to this RFP, are governed by the laws of the State of California.

8.20 Oral Changes and Basis for Proposal
Proposers may not rely upon oral explanations. All changes and addenda will be issued in writing. Only information supplied by the City in writing through the City’s Contact, or in this RFP should be used as the basis for the preparation of proposals.

8.21 Agreement Terms and Conditions
The agreement between the City and the selected proposer(s) will follow the format specified by the City and contain the terms and conditions set forth in Exhibit A, Professional Services Agreement. However, the City reserves the right to negotiate with a successful proposer the final provisions or provisions in addition to those contained in this RFP. The contents of this RFP, as revised and/or supplemented, and the successful proposal will be incorporated into and become part of the agreement.

Should a proposer object to any of the City’s terms and conditions, as contained in this Section or in Exhibit A, that proposer must propose specific alternative language in his, her, or its proposal. Proposer must provide a brief discussion of the purpose and impact, if any, of each proposed changed followed by the specific proposed alternate wording. The City may or may not accept the alternative language. General references to the proposer’s terms and conditions or attempts at complete substitutions are not acceptable to the City and may result in disqualification of the proposer.

8.22 Proposer’s Terms and Conditions
Proposers must submit with the proposal a complete set of any additional terms and conditions that they expect to have included in an agreement negotiated with the City. 393

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8.23 Proposer Qualifications
The City may make such investigations as necessary to determine the ability of the proposer to adhere to the requirements specified within this RFP.

8.24 Right to Waive Minor Irregularities
The City reserves the right to waive minor irregularities and the right to waive mandatory requirements, provided that all of the otherwise responsive proposals fail to meet the same mandatory requirements and/or doing so does not otherwise materially affect the procurement. This right is at the sole discretion of the City.

8.25 Change in Agreement or Representatives
The City reserves the right to require a change in the selected proposer or representatives if the assigned representatives are not, in the opinion of the City, meeting its needs adequately.

8.26 City Rights
The City reserves the right to award the proposal to separate proposers on any of the services as set forth in the proposer’s proposal. It is further understood that if the proposer to whom any recommended award is made fails to enter into an agreement with the City, award may be made to the next best qualified person or firm, who shall be bound to perform as if she, he or it received the award in the first instance.

8.27 Right to Publish
Throughout the duration of this procurement process and agreement term, potential proposers, and proposers, must secure from the City written approval prior to the release of any information that pertains to the potential work or activities covered by this procurement or the subsequent agreement. Failure to adhere to this requirement may result in disqualification of the proposer or termination of the agreement.

8.28 Ownership of Proposals
All documents submitted in response to the RFP shall be become the property of the City of Santa Monica and are subject to the provisions of the California Public Records Act, as described in Section II. A. 11. herein.

8.29 Agreement Award
Proposal will be evaluated by a committee comprised of City staff and may include outside consultants (the “Evaluation Committee”). The Evaluation Committee will make an award recommendation to City staff. City Council may give approval of the agreement and/or direct staff to negotiate the final terms and execute the agreement. 394

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ALPR (Automated License Plate Recognition) System Cameras_202312 This agreement shall be awarded to the proposer or proposers whose proposal is best qualified, taking into consideration the evaluation factors set forth in the RFP. The most qualified proposal may or may not have received the most points or be the lowest cost proposal. Proposers will be notified when the award is being made or an award recommendation goes to the City Council for approval.

8.30 Protest Deadline
All parties wishing to file a protest shall comply with the procedures set forth in Santa Monica Municipal Code section 2.24.260 found here. Proposer may file a written protest with the Director of Finance no more than seven calendar days following the posting of award recommendation on the City’s online vendor portal website.

Protests received after the deadline will not be accepted.

8.31 Records and Audits
The Consultant shall maintain such detailed records as may be necessary to demonstrate its performance of the duties required by this Agreement, including the date, time and nature of services rendered. These records shall be maintained for a period of three years from the date of the final payment under this Agreement and shall be subject to inspection by City. The City shall have the right to audit any billings or examine any records maintained pursuant to this Agreement both before and after payment. Payment under this Agreement shall not foreclose the right of City to recover excessive and/or illegal payments.

8.32 Enforcement of Agreement/Waiver
A party's failure to require strict performance of any provision of this Agreement shall not waive or diminish that party's right thereafter to demand strict compliance with that or any other provision. No waiver by a party of any of its rights under this Agreement shall be effective unless expressed in writing and signed by the party alleged to have granted the waiver. A waiver by a party of any of its rights shall not be effective to waive any other rights.
395
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-3480 Agenda Date: 12/10/2024
Agenda #: S. Category: Consent Calendar
FROM:

Police Department
SUBJECT:

Purchase of First Responder Drones (DFR) for Public Safety RECOMMENDATION:

1. Authorize to procure First Responder Paladin Drones utilizing the Purchasing Policy and Procedure and Procedure Manual 3.1.5 Non-Competitive Proposal - Single Source/Sole Source.

2. Authorize the City Manager or his assigned designee to sign the agreement between the Paladin Drones Inc. and the Fontana Police Department for the total amount of $354,600.00.

3. Authorize the Chief of Police or his assigned designee to continue to renew the annual maintenance agreements as long as it remains in the best interest of the City of Fontana.

COUNCIL GOALS:
· Operate in a businesslike manner by creating a memorable customer experience with every interaction.
· Operate in a businesslike manner by improving services through the effective use of technology.
· Concentrate on Inter-governmental relations by working cooperatively with neighboring jurisdictions.

DISCUSSION:

In today’srapidly evolving landscape, it is crucial for the city to adopt technologies that not only enhance our capabilities but also ensure reliability and transparency. Drones have proven to be valuable assets in enhancing police operations and bolstering public safety. Their ability to offer real- time surveillance, collect vital evidence, and access inaccessible areas makes them invaluable tools in combating crime.

Drone as First Responder (DFA) boast numerous advantages, including decreased response time and heightened safety for both law enforcement officers and communities. When a 911 call is received, a trained police officer can deploy a drone to the emergency site while patrol cars are enroute, ensuring swift and efficient response even before officers arrive on the scene.

After extensive research and consideration, Paladin emerged as the clear choice for the police department. Staff researched several other companies such as Drone Sense and Brinc. Paladin was the only company who provided all the resources in a single company, single cost solution. Brinc and Drones Sense do have a comprehensive DFR program, but they use radio technology and require additional personal to visually observe the drones in flight. Having additional personal just to City of Fontana Printed on 12/5/2024Page 1 of 3
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require additional personal to visually observe the drones in flight. Having additional personal just to observe the drones in flight would significantly increase the cost of the program.

Paladin's pioneering work with LTE-connected drones was a major factor in our decision. Their EXT module allows our drones to connect via 4G/5G LTE cellular service, significantly improving range and enabling remote and autonomous operations. This capability is crucial for enhancing our response times and operational efficiency.

Support and training are vital components of successful technology integration. Paladin excels here by offering unlimited implementation and support at no additional cost. Their team includes former public safety professionals who understand our unique challenges, providing us with relevant and effective training.

Protecting our investment is also a top priority, and Paladin's comprehensive warranty and maintenance agreement ensures that any issues are resolved quickly and without hidden costs. This financial predictability allows us to focus on our primary mission of keeping our community safe.

Paladin’ssystem is designed to integrate seamlessly with our entire fleet of drones. This flexibility means we can incorporate all of our existing equipment into one cohesive system, maximizing efficiency and effectiveness.

Additionally, Paladin offers an all-in-one integrated solution, bundling hardware, software, support, training, and FAA approvals into a single package. This streamlines our operations, reducing the complexity of managing multiple vendors and systems.

Paladin’s exclusive focus on local government first responders ensures that their technology is tailored specifically to our needs. This specialization means that every feature and tool they develop is directly relevant to the challenges we face daily.

Furthermore, Paladin’scommitment to advancing DFR-Drones as First Responders-capabilities is particularly exciting. The ability to deploy drones autonomously within 90 seconds to any location in our jurisdiction could revolutionize our response efforts, where every second counts.

Moreover, in the decision-making process, staff had the opportunity to speak with current public agencies. Their feedback was overwhelmingly positive, with many praising Paladin's exceptional customer service. Public agencies highlighted the company’s responsiveness and dedication to resolving issues swiftly. This level of support reinforces our confidence in Paladin as a partner who not only provides cutting-edge technology but also stands by us every step of the way.

Lastly, Paladin’sexpertise in handling FAA COA authorization and BVLOS waivers ensures that we remain compliant and operationally efficient. Their strong relationship with the FAA facilitates smooth and timely approvals, even in complex airspaces.

In conclusion, Paladin Drones, Inc. is currently the only source of the suite of items, services, and licenses that can connect drones to a cellular network. No other company can provide this service today, as all other drones operate on radio frequency (RF) controllers.

Fontana Police Department chose Paladin because their innovative, reliable, and comprehensive solutions align perfectly with our mission to enhance public safety. With Paladin as our partner, we City of Fontana Printed on 12/5/2024Page 2 of 3
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solutions align perfectly with our mission to enhance public safety. With Paladin as our partner, we are confident in our ability to respond more effectively and efficiently to the needs of our community.

FISCAL IMPACT:

Federal Assets Seizure Funds (223) have been requested during the 2024/2025 first quarter adjustments. The total amount of the five-year project is $ 354,600.00. Future funds will be requested during the preparation of the two- year budget or during a quarterly adjustment as needed.

MOTION:

Approve staff recommendation.

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RESOLUTION NO. ___________

A RESOLUTION TO AUTHORIZE THE POLICE DEPARTMENT TO
UTILIZE AND PROCURE DRONES; RELATED AUTHORIZATION OF
PURCHASE ORDER AND CONTRACT WITH PALADIN DRONES, INC.

AS A SOLE SOURCE VENDOR.

WHEREAS, the City of Forest Park (“City”) is a municipal corporation duly organized and existing under the laws of the State of Georgia and is charged with being fiscally responsible concerning the use and expenditure of all public funds; and

WHEREAS, the City’s Police Department desires to utilize public safety drones to enhance the capabilities of its emergency response teams , serve as an effective communication relay in areas with poor or disrupted communication infrastruct ure, and to protec t the health, safety, and welfare of the citizens of Forest Park; and

WHEREAS, pursuant to Sec. 3-1-9(2) of the City’s Code of Ordinances, competitive bids are not required for sole source vendors; and

WHEREAS, Palad in Drones, Inc. qualifies as a sole source vendor. See Sole Source Justification letter attached hereto as Exhibit A and incorporated by reference herein.

THEREFORE, THE CITY COUNCIL OF THE CITY OF FOREST PARK HEREBY RESOLVES:

SECTION 1. Approval of Vendor. The purchase order and contract with Paladin Drones, Inc. as presented to the Council on February 5, 2024, is hereby approved subject to its acceptance of the City Attorney’s revisions.

SECTION 2. Public Record. This document shall be maintained as a public record by the City Clerk and shall be accessible to the public during all normal business hours of the City of Forest Park.

SECTION 3. Authorization of Execution . The Mayor is hereby authorized to sign all documents necessary to effectuate this Resolution.

SECTION 4. Attestation. The City Clerk is authorized to execute, attest to, and seal any documents which may be necessary to effectuate this ordinance, subject to approval as to form by the City Attorney.

SECTION 5. Effective Date . This resolution shall become effective immediately upon its adoption by the Mayor and City Council of the City of Forest Park as provided in the City Charter.

[SIGNATURES APPEAR ON FOLLOWING PAGE]

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SO RESOLVED this 5th day of February, 2024.

_____________________________
Angelyne Butler, Mayor
ATTEST:

_________________________ (SEAL)
City Clerk

APPROVED AS TO FORM:

_____________________________________
City Attorney

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EXHIBIT A

SOLE SOURCE JUSTIFICATION

(attached)
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Divyaditya Shrivastava
Paladin Drones Inc.
11241 Richmond Ave, STE E102
Houston, TX 77082
PH. (770) 900-7643
This letter serves the purpose to establishing that Paladin Drones Inc. is currently the “Sole Source” of the following suite of items and services in the drone industry:

DESCRIPTION OF ITEMS AND SERVICES
To the best of our knowledge, Paladin Drones Inc. is currently the only source of the following suite of items and services listed below, and no other company or firm sources and sells / licenses such a suite of items and services at any other price level, the quoted price being Paladin’s universal sales price (USP).
- EXT LTE Module: Paladin is the only company in the United States that is able to connect drones to a cellular network. No other company can provide this service today. All other drones operate on a radio frequency (RF) via controller. - Paladin Watchtower: Our integrated software allows the user to use their laptop device to:
o LTE Cellular Remote Operational Controls
o Streaming over LTE Cellular
o Dock Integration
o Autonomous flight
While there are other drone distributors and providers, Paladin provides a unique offering that differentiates it from having a “competitive edge” over its competitors, but rather as a Sole Source provider.

If there are any additional questions or materials that can be provided, please do not hesitate to let us
know.

Sincerely,
Divy
aditya Shrivastava, CEO
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City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-3485 Agenda Date: 12/10/2024
Agenda #: T. Category: Consent Calendar
FROM:

Finance
SUBJECT:

Annual Report on Development Impact Fees
RECOMMENDATION:

Adopt Resolution No. 2024-133, of the City Council of the City of Fontana, approving the Annual Report on Development Impact Fees and making findings as to unexpended funds.

COUNCIL GOALS:
· Practice sound fiscal management by living within our means while investing in the future. · Practice sound fiscal management by developing long-term funding and debt management plans.
· Practice sound fiscal management by emphasizing capital formation. · Practice sound fiscal management by producing transparent information in a timely matter. · Practice sound fiscal management by producing timely and accurate financial information.

DISCUSSION:

California Government Code Sections 66000-66006 impose requirements for the collection and expenditure of development impact fees. The City has twelve different development impact fee funds with combined collected revenues from the last fiscal year of approximately $23.3 million.

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

This report satisfies those statutory requirements for accounting for development impact fees.

A copy of this report was made available to the public on November 26, 2024, at least 15 days prior to this meeting as required by law.

FISCAL IMPACT:

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

MOTION:

Approve staff recommendation.

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