Agenda packet — Montclair City Council, June 20, 2022 (part 1 of 2)

CITY OF MONTCLAIR

CITY COUNCIL

SUCCESSOR REDEVELOPMENT AGENCY,

MONTCLAIR HOUSING CORPORATION, MONTCLAIR

HOUSING AUTHORITY, AND MONTCLAIR COMMUNITY

FOUNDATION MEETINGS
AGENDA
MONDAY, JUNE 20, 2022
7:00 p.m.

Location
Council Chamber
5111 Benito Street
Montclair, CA 91763
Webinar Link
https://zoom.us/j/93717150550
Dial #
1–669–900–6833
Meeting ID
937–1715–0550
Mayor
Javier “John” Dutrey
Mayor Pro Tem
Bill Ruh,
Council Members
Tenice Johnson
Corysa Martinez
Benjamin “Ben” Lopez
City Manager
Edward C. Starr
City Attorney
Diane E. Robbins
City Clerk
Andrea M. Myrick

REGULAR JOINT MEETING OF THE

CITY COUNCIL, SUCCESSOR AGENCY, MONTCLAIR HOUSING CORPORATION,

MONTCLAIR HOUSING AUTHORITY, AND MONTCLAIR COMMUNITY FOUNDATION to be held in the Council Chambers
5111 Benito Street, Montclair, California
Monday, June 20, 2022
7:00 p.m.

Remote Participation Information:

Zoom Link: https://zoom.us/j/93717150550
Dial Number: 1 (669) 900–6833
Meeting ID: 937–1715–0550
If you want to submit a public comment or speak on an agenda item, including public hearing and closed session items, please complete a Speaker Card in the Council Chambers or online at https://www.cityofmontclair.org/public-comment/. The Mayor/Chair (or the meeting’s Presiding Officer) will call on those who submitted requests to speak at the appropriate times during the meeting. Those who did not submit a request to speak who are present at the meeting location may raise their hand during Public Comment to request to speak. Those participating remotely may request speak using the “raise hand” function in Zoom or may dial *9 if on the phone, and then *6 to un–mute when called on to speak. Written comments (200–word limit per agenda item, and 200–word limit for all non–agenda items combined) and requests to speak can also be emailed to [email protected] at least one hour before the meeting begins.

Video recordings of Council meetings are available on the City's website at https://www.cityofmontclair.org/council-meetings/ and can be accessed by the end of the business day following the meeting.

AGENDA
I. CALL TO ORDER City Council [CC], Successor Agency Board [SA], Montclair Housing Corporation Board [MHC],
Montclair Housing Authority Commission [MHA],
Montclair Community Foundation Board [MCF]
II. INVOCATION
In keeping with our long–standing tradition of opening our Council meetings with an invocation, this meeting may include a nonsectarian invocation. Such invocations are not intended to proselytize or advance any faith or belief or to disparage any faith or belief. Neither the City nor the City Council endorses any particular religious belief or form of invocation.

III. PLEDGE OF ALLEGIANCE
IV. ROLL CALL
V. PRESENTATIONS — None
VI. PUBLIC COMMENT
During Public Comment, you may comment on any subject that does not appear on this agenda. Each speaker has up to five minutes. The meeting’s presiding officer may provide more or less time to accommodate speakers with special needs or a large number of speakers waiting in line. (Government Code Section 54954.3).

If you did not submit a Speaker Card and would like to speak on an item on the Consent Calendar, please raise your hand during Public Comment to announce the agenda item you would like to provide comments on. The presiding officer will pull the item from the Consent Calendar and will then call on you to speak at the time of the item’s consideration.

Under the provisions of the Brown Act, the meeting bodies are prohibited from participating in substantial discussion of or taking action on items not listed on the agenda.

VII. PUBLIC HEARINGS — None
VIII. CONSENT CALENDAR
A. Approval of Minutes

1. Regular Joint Meeting — June 6, 2022 [CC/SA/MHC/MHA/MCF] 177

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B. Administrative Reports

1. Consider Receiving and Filing of Treasurer’s Report [CC] 6

2. Consider Approval of Warrant Registers & Payroll Documentation [CC] 7

3. Consider Receiving and Filing of Treasurer’s Report [SA] 8

4. Consider Approval of Warrant Register [SA] 9

5. Consider Receiving and Filing of Treasurer’s Report [MHC] 10

6. Consider Approval of Warrant Register [MHC] 11

7. Consider Receiving and Filing of Treasurer’s Report [MHA] 12

8. Consider Approval of Warrant Register [MHA] 13
C. Agreements

1. Consider Approval of Agreement No. 22–44 with All City Management Services, Inc. for School Crossing Guard Services Subject to Any Revisions Deemed Necessary by the City Attorney [CC] 14

2. Consider Rejecting the Bid from Innovation Painting, Inc. for Painting of Civic Center Facilities [CC]
Consider Awarding a Contract to Astro Painting Co., Inc. in the Amount of $159,000 to Paint the City Hall Building; the Youth, Senior, Community, and Recreation Center Buildings; the Library Building; the Ancillary Structure at Alma Hofman Park; and Block Walls, Fencing, and Gates Throughout the Civic Center [CC]
Consider Approval of Agreement No. 22–53 with Astro Painting Co., Inc. for Painting of Civic Center Facilities Subject to Any Revisions Deemed Necessary by the City Attorney [CC] 22

3. Consider Approval of Agreement No. 22–60 with Consolidated Fire Agencies of San Bernardino County (CONFIRE) for Continued Dispatch and Communication Services Subject to Any Revisions Deemed Necessary by the City Attorney [CC] 30

4. Consider Approval of Agreement No. 22–62, the Sixth Amendment to Agreement No. 06–77 with CASC Engineering, Inc. for Water Quality and Stormwater Compliance Services Subject to any Revisions Deemed Necessary by the City Attorney [CC] 47

5. Consider Approval of Agreement No. 22–63 with the Montclair Chamber of Commerce to Provide Services to Promote Local Economic Development Subject to Any Revisions Deemed Necessary by the City Attorney [CC] 67

6. Consider Approval of Agreement No. 22–64 with Howroyd–Wright Employment Agency, Inc. dba AppleOne Employment Services to Provide Staffing Services for the City of Montclair Subject to Any Revisions Deemed Necessary by the City Attorney [CC] 73

7. Consider Approval of Agreement No. 22–65–I–109, an Irrevocable Annexation Agreement with 11185 Roswell, LLC for 11185 Roswell Avenue, Pomona, CA 91766 (APN 1012–411–51–0000) [CC] 79 MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 2 of 186 Page No.

8. Consider Approval of Agreement No. 22–66 with LexisNexis Risk Solutions for Accurint TraX Cellular Phone Data Mapping and Analysis Software for Use in Criminal Investigations [CC]
Consider Authorizing a $6,800 Appropriation from the Prop 30/AB 109 Fund for Costs Associated with Agreement No. 22–66 [CC] Consider Authorizing Executive Director, Office of Public Safety/Police Chief Robert Avels to Sign Said Agreement [CC] 85

9. Consider Approval of Agreement No. 22–67 with TKE Engineering, Inc. for Engineering Design Services for the Ramona Avenue and Howard Street Roundabout Project [HSIPSL–5326(023)] Subject to Any Revisions Deemed Necessary by the City Attorney [CC] 94

10. Consider Approval of Agreement No. 22–68, the Seventh Amendment to Cooperative Agreement No. 91–065 with the San Bernardino County Transportation Authority Related to the Management of Jointly Owned Property at the Montclair Transcenter Subject to Any Revisions Deemed Necessary by the City Attorney [CC] 128

11. Consider Approval of Agreement No. 22–69 With McCain to Upgrade the Central Management Software for Traffic Signal Operations Subject to Any Revisions Deemed Necessary by the City Attorney [CC] 138

12. Consider Approval of Agreement No. 22–70 with Pivotal Strategies LLC for Community Education and Outreach Services Related to a Proposed Ballot Measure to Establish a Commercial Cannabis Tax Subject to Any Revisions Deemed Necessary by the City Attorney [CC] 141
D. Resolutions

1. Consider Adoption of Resolution No. 22–3357 Making Factual Findings in Compliance with AB 361 for the Continuation of Public Meeting Teleconferencing During Public Health Emergencies for the Period of June 20, 2022, through July 20, 2022 [CC] 160

2. Consider Adoption of Resolution No. 22–3358 Directing Staff to Review the Conflict of Interest Code and Submit the 2022 Biennial Notice Pursuant to the Political Reform Act [CC] 164

3. Consider Adoption of Resolution No. 22–3359 Calling and Giving Notice of the Holding of a General Municipal Election to be Held on Tuesday, November 8, 2022, for the Election of Certain Officers as Required by the Provisions of the Laws of the State of California Related to General Law Cities [CC]
Consider Adoption of Resolution No. 22–3360 Adopting the Regulations for Candidates for Elective Office Pertaining to Candidates’ Statements Submitted to the Voters at an Election to be Held on Tuesday, November 8, 2022 [CC]
Consider Adoption of Resolution No. 22–3361 Requesting the Board of Supervisors of the County of San Bernardino to Consolidate a General Municipal Election to Be Held on Tuesday, November 8, 2022, with the Statewide General Election to be Held on the Same Date Pursuant to Section 10403 of the California Elections Code [CC] 167

4. Consider Adoption of Resolution No. 22–3362 Adjusting the Equivalent Dwelling Unit Monthly Fee for Sewer Service [CC] 174
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IX. PULLED CONSENT CALENDAR ITEMS
X. COUNCIL/MHC WORKSHOPS
A. Fiscal Year 2022–23 Preliminary Budget Review [CC/MHC] (The City Council/MHC Board may consider continuing this item to an adjourned meeting on Wednesday, June 22, 2022, at 6:00 p.m. in the City Council Chambers) B. Continuation of San Antonio Creek Trail Conceptual Plan Presentation by Alta Planning + Design, Inc. [CC]
(The City Council may consider continuing this item to an adjourned meeting on Tuesday, June 28, 2022, at 6:00 p.m. in the City Council Chambers) C. Presentation of Community Survey Results Pertaining to Cannabis–Related Issues by Fairbank, Maslin, Maullin, Metz & Associates [CC] (The City Council may consider continuing this item to an adjourned meeting on Monday, July 18, 2022, at 5:45 p.m. in the City Council Chambers) XI. COMMUNICATIONS
A. Department Reports

1. Police Department — Planned Response to Fireworks
B. City Attorney

1. Request for City Council to Meet in Closed Session Pursuant to Government Code Section 54957.6 Regarding Conference with Designated Labor Negotiator Edward C. Starr [CC]
Agency: City of Montclair
Employee Management
Associations: Montclair City Confidential Employees Association Montclair General Employees Association
Montclair Fire Fighters Association
Montclair Police Officers Association

2. Request for City Council to Meet in Closed Session Pursuant to Government Code §54956.9(d)(1) Regarding Pending Litigation [CC]
Garcia v. Lopez, City of Montclair, et al.

Fuentes v. Lopez, City of Montclair, et al.

C. City Manager/Executive Director
D. Mayor/Chairperson

1. Consider Making Appointments to Four (4) Scheduled Vacancies on the Community Activities Commission for Full Four–Year Terms Ending June 30, 2026 [CC]

2. Notice of Special Meeting of the City Council and Montclair Housing Corporation Board on Tuesday, June 28, 2022, at 6:30 p.m. in the City Council Chambers to Consider Adoption of the Fiscal Year 2022–23 City and MHC Budgets [CC/MHC]

3. Notice of Cancellation of July 5, 2022 Regular Joint Meeting [CC/SA/ MHC/MHA/MCF]

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E. Council Members/Directors
F. Committee Meeting Minutes (for informational purposes only)

1. Personnel Committee Meeting — June 6, 2022 [CC] 176
XII. CLOSED SESSION
XIII. CLOSED SESSION ANNOUNCEMENTS
XIV. ADJOURNMENT
The regular joint meeting of the City Council, Successor Agency Board, Montclair Housing Corporation Board, Montclair Housing Authority Commission, and Montclair Community Foundation Board scheduled for Tuesday, July 5, 2022 has been cancelled due to a lack of quorum. The next regular joint meeting will be held on Monday, July 18, 2022, at 7:00 p.m.

Reports, backup materials, and additional materials related to any item on this Agenda distributed to the meeting bodies after publication of the Agenda packet are available for public inspection in in the Office of the City Clerk between 7:00 a.m. and 6:00 p.m., Monday through Thursday. Please call the City Clerk’s Office at (909) 625–9416 or send an e–mail to [email protected] to request documents via e–mail.

If you need special assistance to participate in this meeting, please contact the City Clerk’s Office at (909) 625–9416 or e–mail [email protected].

Notification prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. (28 CFR 35.102–35.104 ADA Title II)
I, Andrea M. Myrick, City Clerk, hereby certify that I posted, or caused to be posted, a copy of this Agenda not less than 72 hours prior to this meeting on the City’s website at https://www.cityofmontclair.org/agendas/ and on the bulletin board adjacent to the north door of Montclair City Hall at 5111 Benito Street, Montclair, CA 91763 on Thursday, June 16, 2022.

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CITY COUNCIL

AGENDA REPORT
DATE: JUNE 20, 2022
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 1
FILE I.D.: FIN520
DEPT.: FINANCE
PREPARER: J. KULBECK
SUBJECT: CONSIDER RECEIVING AND FILING OF TREASURER'S REPORT REASON FOR CONSIDERATION: The City Council is requested to consider receiving and filing the City of Montclair Treasurer's Report for the month ending May 31, 2022.

BACKGROUND: Included in the City Council’s agenda packet is a copy of the Treasurer's Report for the period ending May 31, 2022.

FISCAL IMPACT: Routine—report of City's cash and investments.

RECOMMENDATION: Staff recommends the City Council receive and file the Treasurer's Report for the month ending May 31, 2022.

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CITY COUNCIL

AGENDA REPORT
DATE: JUNE 20, 2022
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 2
FILE I.D.: FIN540
DEPT.: FINANCE
PREPARER: L. LEW/V. FLORES
SUBJECT: CONSIDER APPROVAL OF WARRANT REGISTER AND PAYROLL DOCUMENTATION REASON FOR CONSIDERATION: The City Council is requested to consider approval of the Warrant Register and Payroll Documentation.

BACKGROUND: Mayor Pro Tem Ruh has examined the Warrant Register dated June 20, 2022, and the Payroll Documentation dated May 22, 2022, and recommends their approval.

FISCAL IMPACT: The Warrant Register dated June 20, 2022, totals $958,537.71.

The Payroll Documentation dated May 22, 2022 totals $675,616.61 gross, with $467,757.97 net being the total cash disbursement.

RECOMMENDATION: Staff recommends the City Council approve the above–referenced Warrant Register and Payroll Documentation.

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CITY COUNCIL

AGENDA REPORT
DATE: JUNE 20, 2022
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 3
FILE I.D.: FIN510
DEPT.: SA
PREPARER: C. RAMIREZ
SUBJECT: CONSIDER RECEIVING AND FILING OF TREASURER'S REPORT REASON FOR CONSIDERATION: The City Council acting as Successor to the Redevelopment Agency Board of Directors (Successor Agency Board) is requested to consider receiving and filing the Successor to the Redevelopment Agency Treasurer's Report for the month ending May 31, 2022, pursuant to state law.

BACKGROUND: Included in the Successor Agency Board’s agenda packet is a copy of the Successor to the Redevelopment Agency Treasurer's Report for the period ending May 31, 2022.

FISCAL IMPACT: Routine—report of the Successor Agency's cash.

RECOMMENDATION: Staff recommends the Successor Agency Board receive and file the Successor to the Redevelopment Agency Treasurer's Report for the month ending May 31, 2022.

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CITY COUNCIL

AGENDA REPORT
DATE: JUNE 20, 2022
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 4
FILE I.D.: FIN530
DEPT.: SA
PREPARER: C. RAMIREZ
SUBJECT: CONSIDER APPROVAL OF WARRANT REGISTER
REASON FOR CONSIDERATION: The City Council acting as Successor to the Redevelopment Agency Board of Directors is requested to consider receiving and filing the Successor to the Redevelopment Agency Warrant Register for the month ending May 31, 2022, pursuant to state law.

BACKGROUND: Vice Chair Ruh has examined the Successor to the Redevelopment Agency Warrant Register dated 05.01.22–05.31.22 in the amounts of $8,459.22 for the Combined Operating Fund and $0.00 for the Redevelopment Obligation Retirement Funds, and finds it to be in order.

FISCAL IMPACT: Routine—report of Agency's obligations.

RECOMMENDATION: Vice Chair Ruh recommends the City Council as Successor to the Redevelopment Agency Board of Directors approve the Successor to the Redevelopment Agency Warrant Register for the period ending May 31, 2022.

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CITY COUNCIL

AGENDA REPORT
DATE: JUNE 20, 2022
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 5
FILE I.D.: FIN525
DEPT.: MHC
PREPARER: C. RAMIREZ
SUBJECT: CONSIDER RECEIVING AND FILING OF TREASURER'S REPORT REASON FOR CONSIDERATION: The Montclair Housing Corporation Board of Directors is requested to receive and file the Montclair Housing Corporation Treasurer's Report for the month ending May 31, 2022, pursuant to state law.

BACKGROUND: Included in the Montclair Housing Corporation Board agenda packet is a copy of the Treasurer's Report for the period ending May 31, 2022.

FISCAL IMPACT: Routine—report of the Montclair Housing Corporation's cash and investments.

RECOMMENDATION: Staff recommends the Montclair Housing Corporation Board of Directors receive and file the Treasurer's Report for the month ending May 31, 2022.

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CITY COUNCIL

AGENDA REPORT
DATE: JUNE 20, 2022
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 6
FILE I.D.: FIN545
DEPT.: MHC
PREPARER: C. RAMIREZ
SUBJECT: CONSIDER APPROVAL OF WARRANT REGISTER
REASON FOR CONSIDERATION: The Montclair Housing Corporation Board of Directors is requested to consider receiving and filing the Warrant Register for the month ending May 31, 2022, pursuant to state law.

BACKGROUND: Vice Chair Ruh has examined the Warrant Register dated 05.01.22–

05.31.22 in the amount of $84,477.97 for the Montclair Housing Corporation and finds it to be in order.

FISCAL IMPACT: Routine—report of Montclair Housing Corporation's obligations.

RECOMMENDATION: Vice Chair Ruh recommends the Montclair Housing Corporation Board of Directors approve the Warrant Register for the period ending May 31, 2022.

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CITY COUNCIL

AGENDA REPORT
DATE: JUNE 20, 2022
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 7
FILE I.D.: FIN525
DEPT.: MHA
PREPARER: C. RAMIREZ
SUBJECT: CONSIDER RECEIVING AND FILING OF TREASURER'S REPORT REASON FOR CONSIDERATION: The Montclair Housing Authority Commission is requested to receive and file the Montclair Housing Authority Treasurer's Report for the month ending May 31, 2022, pursuant to state law.

BACKGROUND: Included in the Montclair Housing Authority Commission’s agenda packet is a copy of the Treasurer's Report for the period ending May 31, 2022.

FISCAL IMPACT: Routine—report of Montclair Housing Authority's obligations.

RECOMMENDATION: Staff recommends the Montclair Housing Authority Commission receive and file the Treasurer's Report for the month ending May 31, 2022.

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CITY COUNCIL

AGENDA REPORT
DATE: JUNE 20, 2022
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 8
FILE I.D.: FIN545
DEPT.: MHA
PREPARER: C. RAMIREZ
SUBJECT: CONSIDER APPROVAL OF WARRANT REGISTER
REASON FOR CONSIDERATION: The Montclair Housing Authority Commission is requested to consider receiving and filing the Warrant Register for the month ending May 31, 2022, pursuant to state law.

BACKGROUND: Vice Chair Ruh has examined the Warrant Register dated 05.01.22–

05.31.22 in the amount of $0.00 for the Montclair Housing Authority and finds it to be in order.

FISCAL IMPACT: Routine—report of Montclair Housing Authority's obligations.

RECOMMENDATION: Vice Chair Ruh recommends the Montclair Housing Authority Commission approve the Warrant Register for the period ending May 31, 2022.

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CITY COUNCIL

AGENDA REPORT
DATE: JUNE 20, 2022
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 1
FILE I.D.: PDT205
DEPT.: POLICE
PREPARER: B. VENTURA
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 22–44 WITH ALL CITY MANAGEMENT SERVICES, INC. FOR SCHOOL CROSSING GUARD SERVICES SUBJECT TO ANY

REVISIONS DEEMED NECESSARY BY THE CITY ATTORNEY
REASON FOR CONSIDERATION: The City Council is requested to consider approval of Agreement No. 22–44 with All City Management Services, Inc. for school crossing guard services for Fiscal Year 2022–23.

Proposed Agreement No. 22–44 is attached for City Council’s review and consideration.

BACKGROUND: All City Management Services, Inc. has provided school crossing guard services for the City since November 1998 and has notified Police Department staff that its hourly rate for crossing guard services will increase for Fiscal Year 2022–23. The adjustment would increase the current hourly rate by $1.48, resulting in an hourly billing rate of $26.39. The wage increase is a direct result of Senate Bill 3, which provides for an annual $1 increase from January 1, 2021, through January 1, 2023, at which time the hourly minimum wage will have reached $15 per hour.

All City Management Services, Inc. has indicated that, in order to maintain its workforce, it must maintain a buffer between the state–mandated minimum wage and its own wage rates. The company must also provide wages that would allow it to effectively compete against other part–time employers for recruitment and retention of crossing guards.

FISCAL IMPACT: With the rate increase, All City Management Services, Inc. has calculated the estimated annual program cost to be $200,000. Included in the Police Department’s preliminary Fiscal Year 2022–23 Budget is an allocation of $200,000 to provide crossing guard services for the 2022–23 school year.

RECOMMENDATION: Staff recommends the City Council approve Agreement No. 22–44 with All City Management Services, Inc. for school crossing guard services for Fiscal Year 2022–23 subject to any revisions deemed necessary by the City Attorney.

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Agreement No. 22-44

AGREEMENT FOR CROSSING GUARD SERVICES
This AGREEMENT FOR CROSSING GUARD SERVICES (the “Agreement”) is dated June 20, 2022 and is between the CITY OF MONTCLAIR (hereinafter called the "City"), and ALL CITY MANAGEMENT SERVICES, INC., a California corporation (hereinafter called the "Contractor").

WITNESSETH
The parties hereto have mutually covenanted and agreed as follows:

1. This Agreement is for a period of time which commences on or around July 1, 2022 and ends on June 30, 2023, and for such a term thereafter as the parties may agree upon.

2. The Contractor is an independent contractor and the guards to be furnished by it shall at all times be its employees and not those of the City.

3. The City’s representative in dealing with the Contractor shall be the City Manager or such a person as the City Manager may designate.

4. If, at any time during the contract period, the City questions the meaning of any item of this Agreement, the City may contact the Contractor for interpretation of that item.

5. The City shall have the right to determine the hours and locations when and where the guards shall be furnished by the Contractor. The Contractor shall notify the City in writing of any changes which may need to occur in hours of work or locations. The City further has the power to add to, delete from or revise the work schedule/locations at any time.

6. The Contractor shall provide supervisory personnel to see that guard activities are taking place at the required places and times, and in accordance with all items of this Agreement.

7. The Contractor shall maintain adequate reserve personnel to be able to furnish alternate guards in the event than any person fails to report for work at the assigned time and location.

8. The Contractor shall provide personnel properly trained as herein specified for the performance of duties of Crossing Guards. In the performance of their duties the Contractor and employees of the Contractor shall conduct themselves in accordance with the conditions of this Agreement and laws and codes of the State of California and the City of Montclair.

9. The Contractor shall train, schedule, provide and supervise personnel in accordance with the contract and the rules and regulations of the City of Montclair. Crossing Guards shall perform their duties as trained and within the City’s rules for such guards.

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10. Persons provided by the Contractor as Crossing Guards shall be trained in the laws and codes of the State of California and the City of Montclair pertaining to general pedestrian safety and school crossing areas.

11. Crossing Guard Services shall be provided by the Contractor at the designated locations and at the designated hours on all days on which the designated schools in the City of Montclair are in session.

12. The Contractor shall provide all Crossing Guards with apparel by which they are readily visible and easily recognized as Crossing Guards. Such apparel shall be uniform for all persons performing the duties of Crossing Guards and shall be worn at all times while performing said duties. This apparel must be appropriate for weather conditions. The Contractor shall also provide all Crossing Guards with hand-held Stop signs and any other safety equipment which may be necessary. Apparel and equipment shall be pre-approved by the City Manager or the designee.

13. (a) Types of Required Coverages
Without limiting the indemnity provisions of the Contract, the Contractor shall procure and maintain in full force and effect during the term of the Contract, the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Contractor agrees to amend, supplement or endorse the policies to do so.
(1) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office “occurrence” form CG 00 001, with minimum limits of at least $1,000,000 per occurrence for bodily injury, personal injury and property damage, and $3,000,000 aggregate total bodily injury, personal injury and property damage. Commercial General Liability Insurance and endorsements shall be kept in force at all times during the performance of this Agreement.
(2) Automobile Liability Insurance: Automobile Liability Insurance with overage at least as broad as Insurance Services Office Form CA 0001 covering “Any Auto” (Symbol 1), including owned, non-owned, and hired autos, or the exact equivalent, with minimum limits of $1,000,000 for bodily injury and property damage, each accident. If Contractor owns no vehicles, auto liability coverage may be provided by means of a non-owned and hired auto endorsement to the general liability policy. Automobile liability insurance and endorsements shall be kept in force at all times during the performance of this Agreement. (3) Workers Compensation: Workers Compensation Insurance, as required by the State of California and Employers Liability Insurance with a limit of not less than $1,000,000 each accident for bodily injury and $1,000,000 each employee for bodily injury by disease. (b) Endorsements
Insurance policies shall not be in compliance if they include any limiting provisions or endorsement that has not been submitted to the City for approval.
(1) The insurance coverages required by section (a)(1) Commercial General Liability; and (a)(2) Automobile Liability Insurance shall contain the following provisions or be endorsed to provide the following:

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Additional Insured: The City, its elected officials, officers, employees, volunteers, boards, agents and representatives shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Contract. Coverage for the additional insureds shall apply to the fullest extent permitted by law.

Additional Insured Endorsements shall not:

1. Be limited to “Ongoing Operations”

2. Exclude “Contractual Liability”

3. Restrict coverage to the “Sole” liability of contractor

4. Exclude “Third-Party-Over Actions”

5. Contain any other exclusion contrary to the Contract Primary Insurance: This insurance shall be primary and any other insurance whether primary, Excess, umbrella or contingent insurance, including deductible, or self-insurance available to the insureds added by endorsement shall be in excess of and shall not contribute with this insurance.
(2) The policy or policies of insurance required by Section (a)(3) Workers’ Compensation shall shall be endorsed as follows:

Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of Subrogation against the indemnified parties.
(c) Notice of Cancellation
Required insurance policies shall not be cancelled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium.
(d) Waiver of Subrogation
Required insurance coverages shall not prohibit Contractor from waiving the right of subrogation prior to a loss. Contractor shall waive all rights of subrogation against the indemnified parties and Policies shall contain or be endorsed to contain such a provision. (e) Evidence of Insurance
The Contractor, concurrently with the execution of the contract, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates and endorsements on forms approved by the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with City. If such coverage is cancelled or reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.

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(f) Deductible or Self-Insured Retention
Any deductible or self-insured retention must be approved in writing by the City and shall Protect the indemnified parties in the same manner and to the same extent as they would have been protected had the policy not contained a deductible or self-insured retention. (g) Contractual Liability
The coverage provided shall apply to the obligations assumed by the Contractor under the indemnity provisions of this contract.
(h) Failure to Maintain Coverage
Contractor agrees to suspend and cease all operations hereunder during such a period of time as the required insurance coverage is not in effect and evidence of insurance has not been furnished to the City. The City shall have the right to withhold any payment due Contractor until Contractor has fully complied with the insurance provisions of this Contract. In addition, the City may either immediately terminate this Agreement, or if insurance is available at a reasonable cost, City may take out the necessary insurance and pay, at Contractor’s expense, the premium thereon.

In the event that the Contractor’s operations are suspended for failure to maintain required insurance coverage, the Contractor shall not be entitled to an extension of time for completion of the Work because of production lost during suspension. (i) Acceptability of Insurers
Each such policy shall be from a company or companies with a current A.M. Best’s rating of no less than A:VII and authorized to do business 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. Any other rating must be approved in writing in accordance with the City.
(j) Claims Made Policies
If coverage is written on a claims-made basis, the retroactive date on such insurance and all Subsequent insurance shall coincide or precede the effective date of the initial Contractor’s Contract with the City and continuous coverage shall be maintained or an extended reporting period shall be exercised for a period of at least there (3) years from termination or expiration of this Contract.

Upon expiration or termination of coverage of required insurance, Contractor shall procure and submit to City evidence of “tail” coverage or an extended reporting coverage period endorsement for the period of at least three (3) years from the time that wall work under this contract is completed.

MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 18 of 186

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(k) Insurance for Subcontractors
Contractor shall be responsible for causing Subcontractors to purchase the same types and limits of insurance in compliance with he terms of this Contract/Agreement, including adding the City as an Additional Insured to the Subcontractor’s policies.

14. Contractor agrees to indemnify the City, its officers, employees, and agents against, and will Hold and save each of them harmless from, nay and all actions, claims, damages to persons or Property, penalties, obligations or liabilities that may be asserted or claimed by any person, firm, entity, corporation, political subdivision or other organization arising out of the negligent acts or intentional tortious acts, errors, or omissions of Contractor, its agents, employees, subcontractors, or invitee, or otherwise arising out of or in any way attributable actually, allegedly or impliedly, in whole or in part to Contractor’s performance of this Agreement.
a) Contractor will defend any action or actions filed in connection with any said claims, damages, penalties, obligations or liabilities and will pay all costs and expenses including attorney’s fees incurred in connection herewith. The Contractor’s obligation to defend the City, its officers, employees and agents is not contingent upon there being an acknowledgment or determination of the merit of any claims, penalties, obligations, errors, omissions and/or costs.
b) Contractor will promptly pay any judgement rendered against the City, its officers, agents, or employees for any such claims, damages, penalties, obligations or liabilities to the extend to judgment arises from the negligent acts or intentional tortuous acts, errors, or omissions of Contractor, its agents, employees, subcontractors, or invitees, or otherwise from the Contractor’s performance of the Agreement.
c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against the Contractor for such damages or other claims arising out of or in connection with Contractor’s performance of this Agreement, Contractor agrees to pay City, its officers, agents or employees, any and all costs and expenses incurred by City, its officers, agents, or employees in such action or proceeding, including, but not limited to, reasonable attorney’s fees.
d) All obligations under this provision are to be paid by Contractor as they are incurred by City.
e) The provisions of this indemnity provision as contained at Paragraph 14 are intended by the parties to be interpreted and construed to provide the fullest protection possible under the law to the City provided that this Paragraph 14 will not be interpreted to require Contractor to indemnify City if and to the extent that a court determines that the negligent acts or intentional tortious acts, errors, or omissions of the City, its agents, employees or representatives caused or contributed to the underlying action or claim. Contractor acknowledges that City would not enter into this Agreement in the absence of the commitment of Contractor to indemnify and protect as set forth herein.

15. Either party shall have the right to cancel this Agreement by giving thirty (30) days written notice to the other.

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16. The Contractor shall not have the right to assign this Contract to any other person or firm except with the consent of the City.

17. The City agrees to pay Contractor the sum of Twenty-six Dollars and Thirty-nine Cents ($26.39) per hour for each hour of crossing guard services provided pursuant to this Agreement.

18. In the event that this Agreement is extended beyond June 30, 2023, the compensation for services shall be established by mutual consent of the parties. Said payment shall be made upon written statement to the City by the Contractor and approval of the appropriate City representative.

19. This Agreement shall be governed by and construed in accordance with the law of the State of California.

20. In the event any legal proceeding is instated to enforce any term of provision of this Agreement, the prevailing party in said legal proceeding shall be entitled to recover Attorney’s fees and costs from the opposing party in an amount determined by the court to be reasonable.

21. If any term or provision of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement and any application of the terms shall remain valid and enforceable under this Agreement or California law.
[SIGNATURES FOLLOW ON NEXT PAGE]
MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 20 of 186

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year written below.

CITY CONTRACTOR

City of Montclair All City Management Services, Inc.

By_____________________________ By______________________________ Javier John Dutrey, Mayor Baron Farwell, General Manager Date____________________________
Attest
_____________________________
Andrea M. Myrick, City Clerk
MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 21 of 186

CITY COUNCIL

AGENDA REPORT
DATE: JUNE 20, 2022
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 2
FILE I.D.: CVC060
DEPT.: PUBLIC WORKS
PREPARER: M. PARADIS
SUBJECT: CONSIDER REJECTING THE BID FROM INNOVATION PAINTING, INC. FOR PAINTING

OF CIVIC CENTER FACILITIES
CONSIDER AWARDING A CONTRACT TO ASTRO PAINTING CO., INC. IN THE AMOUNT OF $159,000 TO PAINT THE CITY HALL BUILDING; THE YOUTH, SENIOR, COMMUNITY, AND RECREATION CENTER BUILDINGS; THE LIBRARY BUILDING; THE ANCILLARY STRUCTURE AT ALMA HOFMAN PARK; AND BLOCK WALLS, FENCING,

AND GATES THROUGHOUT THE CIVIC CENTER
CONSIDER APPROVAL OF AGREEMENT NO. 22–53 WITH ASTRO PAINTING CO., INC.

FOR PAINTING OF CIVIC CENTER FACILITIES SUBJECT TO ANY REVISIONS DEEMED

NECESSARY BY THE CITY ATTORNEY
REASON FOR CONSIDERATION: The City Council is requested to consider awarding a contract to Astro Painting Co., Inc. in the amount of $159,000.00 for painting of all Civic Center buildings, and approval of Agreement No. 22–53 with Astro Painting Co., Inc. subject to any revisions deemed necessary by the City Attorney.

A copy of proposed Agreement No. 22–53 is attached for the City Council’s review and consideration.

BACKGROUND: On April 19, 2022, staff posted a Request for Bid Proposals (RFB) on Planet Bids for painting of all Civic Center facilities including City Hall; the Youth, Senior, Community, and Recreation Centers; the Library building; the ancillary structure at Alma Hofman Park; and block walls, fencing, and gates.

On May 19, 2022, nine bid proposals were received as follows:

Bidder Bid Amount
Innovation Painting, Inc. $139,000.00
Astro Painting, Co, Inc. $159,000.00
Harbor Coating and Restoration $179,000.00
Color New Co. $192,000.00
Genesis Builders, Inc. $266,889.00
Cramer Painting Inc. $281,400.00
U.S. National Corp. $330,160.00
CTG Construction, Inc. $375,000.00
Prime Painting Contractors, Inc. $588,000.00
Following the bid opening, the bids were reviewed for completeness and accuracy. The bid proposal from the apparent lowest bidder, Innovation Painting, Inc. does not meet the City’s requirement of having five years of experience. Therefore, staff recommends that their bid be rejected.

MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 22 of 186 The bid proposal from the apparent second lowest bidder, Astro Painting Co, Inc., provided all required documents and was deemed the lowest responsible, responsive bidder for the project. The City Engineer has reviewed and determined that their bid proposal meets the qualifications required in the RFB.

The anticipated duration of this project is 60 working days. The work is expected to begin in July 2022 and be completed in late August 2022.

FISCAL IMPACT: Funds in the amount of $235,000.00 were included in the Fiscal Year 2021-22 budget for painting the exterior of Civic Center buildings and fencing.

RECOMMENDATION: Staff recommends that the City Council take the following actions in relation to the Civic Center Painting Services:

1. Deem the bid from Innovation Painting, Inc. as non-responsive and reject their bid proposal.

2. Award a contract to Astro Painting Co., Inc., in the amount of $159,000 to paint the City Hall building; the Youth, Senior, Community, and Recreation Center Buildings; the Library building; the ancillary structure at Alma Hofman Park; and block walls, fencing, and gates throughout the Civic Center.

3. Approve Agreement No. 22–53 with Astro Painting, Inc. for painting of Civic Center facilities subject to any revisions deemed necessary by the City Attorney.

MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 23 of 186 Agreement No. 22-53

Page 1 ends

KNOW ALL MEN BY THESE PRESENTS: That the following Agreement is made and entered into as of the date executed by the City Clerk and the Mayor, by and between ASTRO PAINTING CO., INC., a CORPORATION, hereinafter referred to as "CONTRACTOR" and the CITY OF MONTCLAIR, hereinafter referred to as "CITY." A. Recitals.
(i) Pursuant to Notice Inviting Bid Proposals, bids were received, opened, and declared on the date specified in said notice.
(ii) CITY did accept the bid of CONTRACTOR.
(iii) CITY has authorized the City Clerk and Mayor to enter into a written contract with CONTRACTOR for furnishing labor, equipment, and material for the construction of:
(iv)

CIVIC CENTER PAINTING SERVICES
"PROJECT" hereinafter.

B. Resolution.

NOW, THEREFORE, in consideration of the mutual covenants herein contained, it is agreed:

1. GENERAL SCOPE OF WORK: CONTRACTOR shall furnish all necessary labor, tools, materials, appliances, and equipment for and do all work contemplated and embraced for the PROJECT. Said PROJECT to be performed in accordance with specifications and standards on file in the Office of the City Engineer and in accordance with bid prices hereinafter mentioned and in accordance with the instructions of the Engineer.

2. INCORPORATED DOCUMENTS TO BE CONSIDERED COMPLEMENTARY: The aforesaid specifications are incorporated herein by reference thereto and made a part hereof with like force and effect as if all of said documents were set forth in full herein. Said documents, the Notice Inviting Bids, the Instructions to Bidders, the Proposal and any Cityissued addenda, together with this written Agreement, shall constitute the contract between the parties. This contract is intended to require a complete and finished piece of work and anything necessary to complete the work properly and in accordance with the law and lawful governmental regulations shall be performed by the CONTRACTOR whether set out specifically in the contract or not. Should it be ascertained that any inconsistency exists between the aforesaid documents and this written Agreement, the provisions of this written Agreement shall control.

3. TERMS OF CONTRACT: The CONTRACTOR agrees to execute the contract within ten (10) calendar days from the date of notice of award of the contract and to complete his portion of PROJECT within the time specified in the Special Provisions.

CONTRACTOR agrees further to the assessment of liquidated damages in the amount specified in the Special Provisions or the Standard Specifications, whichever is higher, for each calendar day PROJECT remains incomplete beyond the expiration of the completion date. CITY may deduct the amount thereof from any moneys due or that may become due MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 24 of 186 Agreement No. 22-53

Page 2 ends

the CONTRACTOR under this contract. Progress payments made after the scheduled date of completion shall not constitute a waiver of liquidated damages.

4. GOVERNING LAW: The City and Contractor understand and agree that the laws of the State of California shall govern the rights, obligations, duties, and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. Any litigation concerning this Agreement shall take place in the municipal, superior, or federal district court with jurisdiction over the City of Montclair.

5. INSURANCE: The CONTRACTOR shall not commence work under this contract until he has obtained all insurance required hereunder in a company or companies acceptable to CITY nor shall the CONTRACTOR allow any subcontractor to commence work on his subcontract until all insurance required of the subcontractor has been obtained.

The CONTRACTOR shall take out and maintain at all times during the life of this contract the following policies of insurance:
(a) Types of Required Coverages
Without limiting the indemnity provisions of the Contract, the Contractor shall procure and maintain in full force and effect during the term of the Contract, the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Contractor agrees to amend, supplement or endorse the policies to do so.
(1) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office “occurrence” form CG 00 01, with minimum limits of at least $2,000,000 per occurrence for bodily injury, personal injury and property damage, and $4,000,000 aggregate total bodily injury, personal injury and property damage. Commercial General Liability insurance and endorsements shall be kept in force at all times during the performance of this Agreement.

Products-Completed Operations: Contractor shall procure and submit to City evidence of insurance for a period of at least three (3) years from the time that all work under this Contract is completed. (2) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 0001 covering “Any Auto” (Symbol 1), including owned, non-owned and hired autos, or the exact equivalent, with minimum limits of $1,000,000 for bodily injury and property damage, each accident. If Contractor owns no vehicles, auto liability coverage may be provided by means of a non-owned and hired auto endorsement to the general liability policy. Automobile liability insurance and endorsements shall be kept in force at all times during the performance of this Agreement.
(3) Workers’ Compensation: Workers’ Compensation Insurance, as required by the State of California and Employer’s Liability Insurance with a limit of not less than $1,000,000 each accident for bodily injury and $1,000,000 each employee for bodily injury by disease.

MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 25 of 186 Agreement No. 22-53

Page 3 ends

(b) Endorsements
Insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. (1) The insurance coverages required by Section (a)(1) Commercial General Liability; and (a)(2) Automobile Liability Insurance shall contain the following provisions or be endorsed to provide the following:

Additional Insured Endorsements shall not:

1. Be limited to “Ongoing Operations”

2. Exclude “Contractual Liability”

3. Restrict coverage to the “Sole” liability of contractor

4. Exclude “Third-Party-Over Actions”

5. Contain any other exclusion contrary to the Contract) Primary Insurance: This insurance shall be primary and any other insurance whether primary, excess, umbrella or contingent insurance, including deductible, or self-insurance available to the insureds added by endorsement shall be in excess of and shall not contribute with this insurance.
(2) The policy or policies of insurance required by Section (a)(3) Workers’ Compensation shall be endorsed, as follows:

Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against the indemnified parties. (c) Notice of Cancellation
Required insurance policies shall not be cancelled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium.
(d) Waiver of Subrogation
Required insurance coverages shall not prohibit Contractor from waiving the right of subrogation prior to a loss. Contractor shall waive all rights of subrogation against the indemnified parties and Policies shall contain or be endorsed to contain such a provision. (e) Evidence of Insurance
The Contractor, concurrently with the execution of the contract, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates and endorsements on forms approved by the City. The certificates and endorsements for each insurance policy shall be signed by a person MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 26 of 186 Agreement No. 22-53

Page 4 ends

authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.
(f) Deductible or Self-Insured Retention
Any deductible or self-insured retention must be approved in writing by the City and shall protect the indemnified parties in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.
(g) Contractual Liability
The coverage provided shall apply to the obligations assumed by the Contractor under the indemnity provisions of this contract.
(h) Failure to Maintain Coverage
Contractor agrees to suspend and cease all operations hereunder during such period of time as the required insurance coverage is not in effect and evidence of insurance has not been furnished to the City. The City shall have the right to withhold any payment due Contractor until Contractor has fully complied with the insurance provisions of this Contract. In addition, the City may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, City may take out the necessary insurance and pay, at Contractor’s expense, the premium thereon.

In the event that the Contractor’s operations are suspended for failure to maintain required insurance coverage, the Contractor shall not be entitled to an extension of time for completion of the Work because of production lost during suspension. (i) Acceptability of Insurers
Each such policy shall be from a company or companies with a current A.M. Best’s rating of no less than A:VII and authorized to do business 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. Any other rating must be approved in writing in accordance with the City.
(j) Claims Made Policies
If coverage is written on a claims-made basis, the retroactive date on such insurance and all subsequent insurance shall coincide or precede the effective date of the initial Contractor’s Contract with the City and continuous coverage shall be maintained or an extended reporting period shall be exercised for a period of at least three (3) years from termination or expiration of this Contract.

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Page 5 ends

(k) Insurance for Subcontractors
Contractor shall be responsible for causing Subcontractors to purchase the same types and limits of insurance in compliance with the terms of this Contract/Agreement, including adding the City as an Additional Insured to the Subcontractor’s policies.

6. CONTRACTOR'S LIABILITY: The City of Montclair and its respective officers, agents and employees shall not be answerable or accountable in any manner for any loss or damage that may happen to the project or any part thereof, or for any of the materials or other things used or employed in performing the project; or for injury or damage to any person or persons, either workmen, employees of the CONTRACTOR or his subcontractors or the public, whatsoever arising out of or in connection with the performance of the project. The CONTRACTOR shall be responsible for any damage or injury to any person or property resulting from defects or obstructions or from any cause whatsoever, except the sole negligence or willful misconduct of CITY, its employees, servants, or independent contractors who are directly responsible to CITY during the progress of the project or at any time before its completion and final acceptance.

The CONTRACTOR will indemnify CITY against and will hold and save CITY harmless from any and all actions, claims, damages to persons or property, penalties, obligations, or liabilities that may be asserted or claimed by any person, firm, entity, corporation, political subdivision, or other organization arising out of or in connection with the work, operation, or activities of the CONTRACTOR, his agents, employees, subcontractors, or invitees provided for herein, whether or not there is concurrent passive or active negligence on the part of CITY, but excluding such actions, claims, damages to persons or property, penalties, obligations, or liabilities arising from the sole negligence or willful misconduct of CITY, its employees, servants, or independent contractors who are directly responsible to CITY, and in connection therewith:
a. The CONTRACTOR will defend any action or actions filed in connection with any of said claims, damages, penalties, obligations, or liabilities and will pay all costs and expenses, including attorneys' fees incurred in connection therewith.
b. The CONTRACTOR will promptly pay any judgment or award rendered against the CONTRACTOR or CITY covering such claims, damages, penalties, obligations, and liabilities arising out of or in connection with such work, operations, or activities of the CONTRACTOR hereunder or reasonable settlement in lieu of judgment or award, and the CONTRACTOR agrees to save and hold the CITY harmless therefrom.
c. In the event CITY is made a party to any action or proceeding filed or prosecuted against the CONTRACTOR for damages or other claims arising out of or in connection with the project, operation, or activities of the CONTRACTOR hereunder, the CONTRACTOR agrees to pay to CITY any and all costs and expenses incurred by CITY in such action or proceeding together with reasonable attorneys' fees.

Money due to the CONTRACTOR under and by virtue of the contract, as shall be considered necessary by CITY, may be retained by CITY until disposition has been made of such actions or claims for damage as aforesaid.

MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 28 of 186 Agreement No. 22-53

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7. NONDISCRIMINATION: No discrimination shall be made in the employment of persons upon public works because of the race, color, sex, sexual preference, sexual orientation, or religion of such persons, and every contractor for public works violating this section is subject to all the penalties imposed for a violation of Division 2, Part 7, Chapter 1 of the Labor Code in accordance with the provisions of § 1735 of said Code.

8. INELIGIBLE SUBCONTRACTORS: The CONTRACTOR shall be prohibited from performing work on this project with a subcontractor who is ineligible to perform on the project pursuant to § 1777.1 and § 1777.7 of the Labor Code.

9. CONTRACT PRICE AND PAYMENT: CITY shall pay to the CONTRACTOR for furnishing the material and doing the prescribed work the unit prices set forth in accordance with CONTRACTOR's Proposal dated May 19, 2022.

10. ATTORNEYS' FEES: In the event that any action or proceeding is brought by either party to enforce any term or provision of this Agreement, the prevailing party shall recover its reasonable attorneys' fees and costs incurred with respect thereto.

IN WITNESS WHEREOF, the parties hereto have caused these presents to be duly executed with all the formalities required by law on the respective dates set forth opposite their signatures.

CONTRACTOR CITY
ASTRO PAINTING CO., INC. CITY OF MONTLAIR, CALIFORNIA
2988 s. Citrus Street 5111 Benito Street
West Covina, CA 91791 Montclair, CA 91763
By: By:

Javier “John” Dutrey
Mayor
Name, Title ATTEST:

By: By:

Andrea M. Myrick
City Clerk
Name, Title APPROVED AS TO FORM:

By:

Diane E. Robbins
City Attorney
MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 29 of 186

CITY COUNCIL

AGENDA REPORT
DATE: JUNE 20, 2022
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 3
FILE I.D.: FRD057
DEPT.: FIRE
PREPARER: D. POHL
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 22–60 WITH CONSOLIDATED FIRE

AGENCIES OF SAN BERNARDINO COUNTY (CONFIRE) FOR CONTINUED DISPATCH

AND COMMUNICATION SERVICES SUBJECT TO ANY REVISIONS DEEMED NECESSARY

BY THE CITY ATTORNEY
REASON FOR CONSIDERATION: The City Council is requested to consider approval of Agreement No. 22–60 with Consolidated Fire Agencies of San Bernardino County (CONFIRE) for continued dispatch and communication services subject to any revisions deemed necessary by the City Attorney. A copy of proposed Agreement No. 22–60 is attached for the City Council’s review and consideration.

BACKGROUND: CONFIRE currently provides dispatch and communication services for the Fire Department under Agreement No. 21–22, which will end on June 30, 2022.

Proposed Agreement No. 22–60 is for Fiscal Year 2022–23.

CONFIRE is a multiagency fire, emergency medical service, and local government dispatch center located at the southwest end of Rialto Municipal Airport adjacent to the County Emergency Operations Center. CONFIRE's primary mission is to provide direct fire/EMS dispatch service 24 hours a day, seven days a week for the CONFIRE Joint Powers Authority as well as contracting fire agencies.

CONFIRE utilizes state–of–the–art computer systems running TriTech CAD with ProQA for emergency medical dispatching, Automatic Vehicle Location (AVL) software, integrated telephone systems running VESTA, and radio systems consisting of VHF and Motorola 800 MHz trunked Smartnet Systems. One of the main advantages provided by contracting with CONFIRE is the use of AVL software, which allows dispatchers to know where fire units are located in real time via a satellite surveillance system. This system allows for the closest fire unit available to be dispatched to an emergency regardless of jurisdictional geography. Proposed Agreement No. 22–60 includes the annual maintenance fees of the WestNet First–In Fire Station Alerting System. CONFIRE has a bulk agreement with WestNet for supported agencies to receive group pricing—this cost has been included in the proposed Agreement with CONFIRE.

Contracting with CONFIRE continues to be the most prudent and cost effective option for dispatch and communication services.

FISCAL IMPACT: Approval of Agreement No. 22–60 would result in a net cost of $242,917 for Fiscal Year 2022–23, which is included in the proposed Fiscal Year 2022– 23 Budget in Program 4533 Emergency Services, Emergency Communication Services.

The cost of service for each contracting agency is based on each contracting agency’s call volume for the prior calendar year, as well as costs associated with equipment replacement, technology support, and administration.

RECOMMENDATION: Staff recommends the City Council approve Agreement No. 22–60 with CONFIRE for continued dispatch and communication services subject to any revisions deemed necessary by the City Attorney.

MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 30 of 186 lcDNFIAEI
DISPATCHING COST FOR SERVICES FOR FY 2022-23

CITY OF MONTCLAIR FIRE DEPARTMENT
The Exhibit is subject to renewal yearly during the term of the Contract.

A. Operating Costs:
8 .
c.

The operating costs for services provided will be delivered to the Contracting Agency prior during Fiscal Year 2022/23. These costs will include the Contracting Agency's share of the Ad min/Dispatch Costs (100-400), Information Services Costs (600), and Equipment Reserve (5009) as established by the Contracting Agencies share of total calls for service per the agreement between CONFIRE and the Contracting Agency.

Agency % of 2021 Call Volume (share)
Operating Costs for 2022-23
Contract Fee (5% of Operating Costs):

Per Exhibit B (Compensation) Section 8.1 of agreement.

Total Costs July 1, 2022 thru June 30, 2023
Payments shall be made in quarterly installments of

1.87%
$231,350.00
$11,567.00
$242,917 .00
$60,729.25
D. Payment shall be made within thirty (30) days of the issuance of the invoice No other costs for services are due to CON FIRE JPA pursuant to this dispatch contract except for telephone services charges under paragraph 8.3 of Exhibit B in the contract.

Mike Bell (Acting Director)
CONFIRE Representative Date
City of Montclair Representative Date
05/25/22 Page 1 of 1
Agreement No. 22-60
MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 31 of 186

CONSOLIDATED FIRE AGENCIES

CONTRACTING AGENCY AGREEMENT
(City of Montclair)
This Agreement ("Agreement") is by and between the Consolidated Fire Agencies ("CONFIRE"), a joint powers authority duly authorized and existing under Government Code,§ 6500 et seq., and the City of Montclair ("Contracting Agency"), a fire protection district duly authorized and existing under Health & Safety Code § 13800 et seq. CONFIRE and Contracting Agency may be individually referred to as a "Party" and collectively as the "Parties."

1. EXHIBITS
This Agreement has multiple Exhibits. Any Exhibit that is specified in this Agreement is by this reference made a part of it.

Exhibits include:
• Exhibit A: Scope of Services
• Exhibit B: Compensation
• Exhibit C: Effective Date and Term
• Exhibit D: General Terms and Conditions
• Exhibit E: HIP AA Business Associate Agreement
0 Appendix 1 to Exhibit E: General Terms and Conditions to HIPAA Business Associate Agreement

2. INDEPENDENT CONTRACTOR
00116421.S
a. CONFIRE, in the performance of this Agreement, is and shall act as an independent contractor.
b. Neither Contracting Agency, nor any of Contracting Agency's employees, shall be considered officers, employees, agents, partner, or joint venture of CONFIRE; nor shall such persons be entitled to benefits of any kind or nature normally provided to employees of CON FIRE.
c. Neither CONFIRE nor any of CONFIRE's employees shall be considered officers, employees, agents, partner, or joint venture of Contracting Agency; nor shall such persons be entitled to benefits of any kind or nature normally provided to employees of Contracting Agency.

Contracting Agency Agreement between CONFIRE and City of Montclair MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 32 of 186 Page I of IS

3. SCOPE OF SERVICES
CONFIRE shall furnish to the Contracting Agency the services described in Exhibit A ("Services").

4. COMPENSATION
CONFIRE shall receive payment, for Services rendered pursuant to this Agreement, as specified in Exhibit B ("Compensation").

5. EFFECTIVE DATE AND TERM
The Effective Date and Term are set forth in Exhibit C.

6. GENERAL TERMS AND CONDITIONS
The General Terms and Conditions are set forth in Exhibit D.

7. NOTICE
Any notice required by this Agreement may be given either by personal service or by deposit (postage prepaid) in the U.S. mail addressed as follows:

ToCONFIRE:

Consolidated Fire Agencies
Attn: Art Andres, Communications Director
1743 Miro Way
Rialto, CA 92376
To Contracting Agency:

City of Montclair
Attn: Robert A vets, Police Chief
5111 Benito St, Montclair, CA 91763

8. HIPPA BUSINESS ASSOCIATE AGREEMENT
00116421.5
The "Business Associate Agreement by and between Contracting Agency and CONFIRE" is set forth in Exhibit E.

Contracting Agency Agreement between CONFIRE and City of Montclair MONTCLAIR CITY COUNCIL MEETING - 06/20/2022
Pagel of15

Page 33 of 186 ends

The Pa1ties have executed this Agreement on the dates indicated below.

Consolidated Fire Agencies
Date: ~o/ uy , 2022
By:

Print
~
Name: Mike Bell =-==-"- ~-----
Its: Acting Director
00116421.5
City of Montclair
Date: ___________ , 2022
By: -------------~
Print Name: -------- ----
Its: ---------------
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EXHIBIT A
to CONTRACTING AGENCY AGREEMENT

SCOPE OF SERVICES

1. CONFIRE shall provide the following services to the Contracting Agency ("Services"):
00116421.S
a. Utilizing Contracting Agency's primary public safety answering point or other authorized reporting mechanism, answering emergency telephone calls from the public.
( 1) In connection with emergency medical calls, CON FIRE shall utilize an accredited Emergency Medical Dispatch (EMD) protocol.
b. Providing emergency fire, rescue, and ambulance dispatch services to Contracting Agency on a twenty-four (24) hours per day basis, seven (7) days a week. c. Upon receiving an emergency call, alerting Contracting Agency's appropriate station, personnel, and equipment, identifying the appropriate equipment. (1) The primary modes of alerting are: Motorola 800 MHz SIMS, voice delivered over an 800 MHz trunked radio system, 900 MHz paging, and an IP-based data stream delivered over a circuit that must be received and broadcast in stations by Contracting Agency-owned equipment. d. Recording and, for a duration equal to that for which CONFIRE generally stores such records, maintaining audio recordings of all requests for emergency service and the primary radio traffic associated with the emergency incident. ( 1) CONFIRE may record radio traffic as well and may retain such recordings for a duration equal to that for which CONFIRE generally stores such records.
e. Recording and, for a duration equal to that for which CONFIRE generally stores such records, maintaining incident records stored in CONFIRE's computer aided dispatch system, which includes information related to the incident that includes reported times, location, nature of emergency, call-back number, units responding to the incident, and any other data recorded electronically during the incident. f. As deemed appropriate by CONFIRE, providing trained and certified staff, supervision, and management personnel to support the services CONFIRE provides.
g. Providing, on an ongoing basis, Geofile maintenance services for the purpose of maintaining the accuracy of the geographic information in the computer-aided dispatch system.

Contracting Agency Agreement between CONFIRE and City of Montclair Page4of15
MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 35 of 186 (1) This may include updating the Street Network, modifying response areas and various overlays (ambulance, mutual threat areas etc), and providing other Geofile services necessary to the dispatch services described above. h. Making available to the Contracting Agency the Agency Fire Response Map. (I) This is an electronic map of the Contracting Agency's immediate area of responsibility and adjacent jurisdictions. The map references (pages) will be the only map referenced in the dispatching process.
(2) CONFIRE will make these electronic maps available to agencies through electronic means.
(3) Agencies may print maps and created hard copy map books at their own expense.

1. Providing Contracting Agency use and access to the following software programs:
( 1) Pulse Point.
(2) Firstwatch (includes FOAM and First Pass modules)
j. Providing all equipment and support reasonably necessary for CONFIRE to deliver the services described in 1.a. through 1.i. above.

2. Should Contracting Agency desire additional (optional) services from CONFIRE, and should CONFIRE agree to provide such services, the Parties must execute an amendment to this Agreement incorporating those services into the Services as "Additional Services" and setting forth the additional compensation to be paid for the added services.

3. Examples of Additional Services might include:
a. Telestaff (Kronos).
b. Tablet Command.
c. WestNet Station Alerting

4. In receiving the Services, Contracting Agency shall do the following:
00116421.S
a. To the extent that such policies and procedures are not inconsistent with the policies and procedures of Contracting Agency, Contracting Agency shall comply with the policies and procedures of CONFIRE.
( 1) The policies and procedures of CO NF IRE include, by way of illustration and not by limitation, all information technology security policies applicable to the Services.

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(2) CONFIRE shall provide Contracting Agency access to CONFIRE's existing policies and procedures upon execution of this Agreement and any updates as they are updated.
b. Comply with the latest technology directives issued by CONFIRE. (1) The directives include, by way of illustration and not by limitation, the directive mandating the installation of a CONFIRE-approved modem on all response vehicles for the provision of Automated Vehicle Location (AVL) services.
c. Acquire and maintain station alerting equipment which meets adopted CONFIRE standards and specifications.
d. Maintain all CONFIRE owned equipment according to the specifications and requirements of CONFIRE.
e. Maintain all radio and pager frequencies as required by CONFIRE.

5. The Contracting Agency is authorized to use CONFIRE's radio talkgroups and frequencies by virtue of this Agreement. Authorization for use of these frequencies and talkgroups shall terminate upon termination of this Agreement. The intent of the Parties is to keep primary dispatching and communications on existing CONFIRE JP A frequencies and talkgroups.
00116421.5
Contracting Agency Agreement between CONFIRE and City of Montclair

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MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 37 of 186

EXHIBITB
to CONTRACTING AGENCY AGREEMENT

COMPENSATION
Compensation to be paid as follows:

A. FEES FOR SERVICES:

I. In exchange for the Services set forth in Exhibit A, paragraph I, Contracting Agency shall pay CONFIRE a sum identified by CONFIRE through its annual budget process, which shall be limited to Contracting Agency's proportionate share of CONFIRE's projected operating costs. CONFIRE has provided written notice of this sum to Contracting Agency (Attachment A).
a. Contracting Agency's proportionate share of CONFIRE's projected operating costs shall be computed as follows:
(I) All incidents dispatched by CON FIRE for Contracting Agency during the preceding calendar year; divided by
(2) All incidents dispatched by CONFIRE during the preceding calendar year; results in
(3) Contracting Agency's percentage of the total number of incidents dispatched.
b. This formula does not include direct costs incurred for ISD radio billing pass-through (optional service) or other 'seat' or inventory-based items such as software licenses, voice and data circuit charges, cellular devise charges etc. These costs, including support costs, are passed through to each agency and are not subject to the cost per call formula.

2. Invoices are issued on a quarterly basis.

3. Payment is due within thirty (30) days upon receipt of the invoice.

B. ADDITIONAL FEES:
00116421.S
I. Contracting Agency shall also pay an annual premium. a. This premium shall be paid annually and shall be five percent (5%) of Contracting Agency's annual fee for services (see Paragraph A. I. above). b. Dollars paid pursuant to this provision shall:
(I) Be collected for and held in CONFIRE's Term Benefit Reserve Fund (5011).

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00116421.S
(2) Be available to the Contracting Agency for use to offset membership costs should the Contracting Agency seek such status.
(3) If not used to offset membership costs, remain in this fund for use by CONFIRE as deemed appropriate.
c. This annual premium will be assessed and paid, in the first quarter of each fiscal year. The amount will be included in the annual written notice referenced in Section A. I of Exhibit B.

2. In the event that CONFIRE agrees to provide Contracting Agency with Additional Services, Contracting Agency shall pay CONFIRE for those Additional Services at the rate agreed by the Parties.

3. Contracting Agency shall pay directly to the appropriate telephone company(ies) all costs of telephone service to the Contracting Agency, and any foreign exchange telephone service, utilized for emergency numbers to CONFIRE. The Contracting Agency has the option to use the countywide emergency number (909-822-8071 or 800-340-9110) at no additional charge as a backup to the Emergency 9-1-1 System.

4. Contracting Agency shall pay CONFIRE the equipment replacement costs assessed by CONFIRE for damage to CONFIRE issued equipment caused by Contracting Agency's use or misuse of said CONFIRE issued equipment, which shall be added to Contracting Agency's payment set forth in Section A of this Exhibit B.

5. In the event that CONFIRE incurs additional costs or expenses as a result of Contracting Agency's delay or failure in complying with the terms and conditions of this Agreement, Contracting Agency shall pay CONFIRE the amount of CONFIRE's additional costs or expenses so resulting.

6. In the event of temporary complete disruption of service by CON FIRE, Contracting Agency has the right to assume dispatch functions at its discretion. As used herein, "temporary" means a period of time not to exceed twenty-four (24) hours from the time such service disruption occurs. If disruption occurs beyond twenty-four (24) hours, Contracting Agency shall not be charged for those days during the complete disruption period of time. A complete disruption shall mean all communication services by CONFIRE, including all backup methods, systems and protocols have become unavailable.

Contracting Agency Agreement between CONFIRE and City of Montclair Page8of15
MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 39 of 186

EXHIBITC
to CONTRACTING AGENCY AGREEMENT

EFFECTIVE DATE AND TERM
I. This Agreement is effective on July 1, 2022 ("Effective Date").

2. Unless terminated or otherwise cancelled in accordance with this Agreement, the tenn of this Agreement shall be: (i) from the Effective Date through (ii) June 30, 2023 (the "Tenn").

3. At any time during the tenn of this agreement the Contracting Agency may submit to CONFIRE (in accordance with CONFIRE policies and regulations) an application to become a party to the CONFIRE Joint Powers Agreement.

4. Upon admission as a member of CONFIRE, the provisions of the CONFIRE Joint Powers Agreement and any bylaws, policies, or other instruments promulgated thereunder will govern the relationship between the parties of that CONFIRE Joint Powers Agreement and this Agreement will terminate.
00116421.5
Contracting Agency Agreement between CONFIRE and City of Montclair MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 40 of 186

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EXHIBITD
to CONTRACTING AGENCY AGREEMENT

GENERAL TERMS AND CONDITIONS
I. PROVISIONS REQUIRED BY LAW DEEMED INSERTED. Each and every provision of law and clause required by law to be inserted in this Agreement shall be deemed to be inserted and this Agreement shall be read and enforced as though it were included. If through mistake or otherwise, any provision is not inserted or is not correctly inserted, then upon application of either Party, the Agreement shall be amended to make the insertion or correction. All references to statutes and regulations shall include all amendments, replacements, and enactments in the subject which are in effect as of the date of this Agreement, and any later changes which do not materially and substantially alter the positions of the Parties.

2. ASSIGNMENT AND SUCCESSORS. Neither Party shall, without the prior written consent of the other Party, assign the benefit or in any way transfer their respective obligations under this Agreement. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and, except as otherwise provided herein, upon their executors, administrators, successors, and assigns.

3. SEVERABILITY. In the event that any provision of this Agreement shall be construed to be illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining provisions hereof, but such illegal or invalid provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal or invalid provision had never been included herein, unless to do so would frustrate the intent and purpose of this Agreement.

4. FORCE MAJEURE. No Party shall be liable to any other Party for any loss or damage of any kind or for any default or delay in the performance of its obligations under this Agreement (except for payment obligations) if and to the extent that the same is caused, directly or indirectly, by fire, flood, earthquake, elements of nature, epidemics, pandemics, quarantines, acts of God, acts of war, terrorism, civil unrest or political, religious, civil or economic strife, or any other cause beyond a Party's reasonable control.

5. VENUE/GOVERNING LAWS. This Agreement shall be governed by the laws of the State of California. The venue of any action or claim brought by any Party to this Agreement shall be the County of San Bernardino.

6. ATTORNEY'S FEES. If suit is brought by either Party to enforce any of the terms of this Agreement, each Party shall bear its own attorney's fees and costs.

7. ENTIRE AGREEMENT. This Agreement represents the entire agreement between Parties and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended or modified only by an agreement in writing, signed by both Contracting Agency and CONFIRE.

8. MODIFICATION. This Agreement may be amended at any time by the written agreement of CONFIRE and Contracting Agency.

9. WAIVER. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision under this Agreement.

I 0. AUTHORITY. The individual executing this Agreement on behalf of Contracting Agency warrants that he/she is authorized to execute the Agreement on behalf of Contracting Agency and that Contracting Agency will be bound by the terms and conditions contained herein.

11. HEADINGS AND CONSTRUCTION. Headings at the beginning of each paragraph and subparagraph are solely for the convenience of the Parties and are not a part of the Agreement. Whenever required by the context of this Agreement, the singular shall include the plural and the masculine shall include the feminine and vice versa. This Agreement shall not be construed as if it had been prepared by one of the Parties, but rather as if both Parties had prepared the same. Unless otherwise indicated, all references to paragraphs, sections, subparagraphs, and subsections are to this Agreement.
00116421.5
Contracting Agency Agreement between CONFIRE and City of Montclair

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MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 41 of 186

12. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which, together, when signed by all of the Parties hereto, shall constitute one and the same instrument. A facsimile or electronic signature shall be as valid as an original.

13. INDEMNIFICATION.

A. By CONFIRE. CONFIRE shall indemnify, defend and hold harmless Contracting Agency, and all of its employees, officials, and agents ("Contracting Agency Parties"), from and against any and all claims, demands, suits, judgments, expenses and costs of any and every kind, whether actual, alleged or threatened, including attorney's fees and costs, court costs, interest, defense costs, and expert witness fees, insofar as it may legally do so, arising from the negligent or wrongful acts or omissions of CONFIRE'S officers, agents, volunteers or employees {'•CONFIRE's Parties") arising out of, or in any way attributable to, the performance of this Agreement. CONFIRE shall not be held responsible or liable for any loss, damage, detention or delay caused by strike, lockout, fire, flood, act or civil or military authority, insurrection or riot, or by any other cause which is not foreseeably within its control. CONFIRE's obligation to defend the Contracting Agency Parties is not contingent upon there being an acknowledgement or determination of the merit of any claims, demands, actions, causes of action, suits, losses, liability, expenses, penalties, obligations, errors, omissions, and/or costs.

B. By Contracting Agency. Contracting Agency shall indemnify, defend and hold harmless CONFIRE Parties from and against any and all claims, demands, suits, judgments, expenses and costs of any and every kind, whether actual, alleged or threatened, including attorney's fees and costs, court costs, interest, defense costs, and expert witness fees, insofar as it may legally do so, arising from the negligent or wrongful acts or omissions of Contracting Agency Parties arising out of, or in any way attributable to the performance of this Agreement.

Contracting Agency shall not be held responsible or liable for any loss, damage, detention or delay caused by strike, lockout, fire, flood, act or civil or military authority, insurrection or riot, or by any other cause which not foreseeably within its control. Contracting Agency's obligation to defend CONFIRE Parties is not contingent upon there being an acknowledgement or determination of the merit of any claims, demands, actions, causes of action, suits, losses, liability, expenses, penalties, obligations, errors, omissions, and/or costs.

14. INSURANCE.

A. Each Party shall carry $1,000,000/$2,000,000 (occurrence/general and product/completed operations aggregate) of commercial general liability coverage (or participate in a public agency risk pool for such amount) and each Party agrees to give the other, its directors officers, employees, or authorized volunteers insured status under its policy using ISO "occurrence" form CG 00 0 I or equivalent and to provide a certificate of insurance and additional insured endorsement. Commercial general liability insurance and endorsements shall be kept in force at all times during the performance of this Agreement B. Each Party shall carry Workers' Compensation Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 each accident for bodily injury and $1,000,000 each employee for bodily injury by disease.

C. Each Party shall carry Automobile Liability Insurance (or participate in a public agency risk pool for such amount) with coverage at least as broad as ISO Form CA 0001 covering "Any Auto" (Symbol I), including owned, non-owned and hired autos, or the equivalent with minimum limits of $1,000,000 each accident. 00116421.5
Contracting Agency Agreement between CONFIRE and City of Montclair MONTCLAIR CITY COUNCIL MEETING - 06/20/2022

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EXHIBITE
to CONTRACTING AGENCY AGREEMENT

BUSINESS ASSOC LA TE AGREEMENT

BY AND BETWEEN

CONTRACTING AGENCY AND CONFIRE
This Business Associate Agreement ("BAA") is entered into by and between Consolidated Fire Agencies ("Business Associate"), a California joint powers authority existing pursuant to Gov.

Code, § 6500 et seq., and the City of Montclair ("Covered Entity"), a fire protection district duly authorized and existing under Health & Safety Code § 13800 et seq. Business Associate and Covered Entity may be collectively referred to as the "Parties" or individually as a "Party."

RECITALS
Covered Entity is contracting with Business Associate for the perfonnance of certain services ("Services"), as set forth in the Agreement to which this BAA is attached as Exhjbit E; Covered Entity is a covered entity as defined in 45 C.F.R. § 160.1 03; Business Associate is a business associate, as defined in 45 C.F.R. § 160. l 03, of Covered Entity; 45 C.F.R. § 164.504 requires that covered entities enter into agreements with their business associates that satisfy the requirements of 45 C.F.R. § 164.504(e)(2); and Business Associate and Covered Entity are both governmental entities for the purposes of 45 C.F.R. § 164.504 ( e)(3)(i).

AGREEMENT
I. General Terms and Conditions
The General Terms and Conditions to this BAA are set forth in Appendix 1.

The Parties have executed this Agreement on the dates indicated below. The last of the two dates shall be the "Effective Date" of this BAA.

Consolidated Fire Agencies
Date: 01- ---Z--+-- ' 2022
Print
By: ~
Name: ~~~~-------Mike Bell
Its: Acting =D..;.;i1;..::·e=c=to:.:..r ________ _
00116421.S
City of Montclair
Date: ___________ , 2022
By: -------------~
Print Name:

Its:

Contracting Agency Agreement between CON FIRE and City of Montclair

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MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 43 of 186 APPENDIX 1 TO EXHIBIT E
to CONTRACTING AGENCY AGREEMENT
General Terms and Conditions to Business Associate Agreement I. DEFINITIONS.
a. Generally. Capitalized terms used within the
BAA without definition, including within
this Appendix I , shall have the meanings
ascribed to them in the Health Insurance
Portability and Accountability Act and 45
C.F.R. Part 160 and 164 ("HIP AA and
HIP AA Regulations"), and the Health
Information Technology for Economic and
Clinical Health Act and 45 C.F.R. Part 170
("HITECH Act and Regulations"), as
applicable, unless otherwise defined herein.

HIP AA and HIP AA Regulations and
HITECH Act and Regulations are
collectively referred to herein as "Applicable
Law''.
b. Catch-all Definition. The following terms
used in this BAA shall have the same
meaning as those terms in the HIPAA and
HIP AA Regulations: Breach, Data
Aggregation, Designated Record Set,
Disclosure, Health Care Operations,
Individual, Minimum Necessary, Notice of
Privacy Practices, Protected Health
Information, Required By Law, Secretary,
Security Incident, Subcontractor, Unsecured
Protected Health Information, and Use.

II. OBLIGATIONS AND ACTIVITIES OF
BUSINESS ASSOCIATE.

Business Associate agrees to:
a. Not use or disclose Protected Health
Information other than as permitted or
required by this BAA, the Agreement, or as
required by law;
b. Use appropriate safeguards, and comply with
Subpart C of 45 CFR Part 164 with respect to
electronic Protected Health Information, to
prevent Use or Disclosure of Protected
Health Information other than as provided for
by this BAA;
c. Report to Covered Entity any Use or
Disclosure of Protected Health Information
not provided for by this BAA of which it
becomes aware, including breaches of
Unsecured Protected Health Information as
required at 45 CFR 164.410, and any Security
Incident of which it becomes aware;
d. In accordance with 45 CFR 164.502(e)(l)(ii)
and 164.308(b)(2), if applicable, ensure that
any Subcontractors that create, receive,
00116421.5
maintain, or transmit Protected Health
Information on behalf of the Business
Associate agree to the same restrictions,
conditions, and requirements that apply to
Business Associate with respect to such
information;
e. Make available Protected Health Information
in a Designated Record Set to Covered Entity
or to an individual whose Protected Health
Information is maintained by Business
Associate, or the individual's designee, and
document and retain the documentation
required by 45 CFR I 64.530(j), as necessary
to satisfy Covered Entity's obligations under
45 CFR 164.524;
f. Make any amendment(s) to Protected Health
Information in a Designated Record Set as
directed or agreed to by the Covered Entity
pursuant to 45 CFR 164.526, or take other
measures as necessary to satisfy Covered
Entity's obligations under45 CFR 164.526;
g. Maintain and make available the information
required to provide an accounting of
Disclosures to the Covered Entity as
necessary to satisfy Covered Entity's
obligations under 45 CFR 164.528;
h. To the extent the Business Associate is to
carry out one or more of Covered Entity's
obligation(s) under Subpart E of 45 CFR Part
164, comply with the requirements of
Subpart E that apply to the Covered Entity in
the performance of such obligation(s); and
i. Make its internal practices, books, and
records available to the Secretary for
purposes of determining Business
Associate's or Covered Entity's compliance
with HIP AA and HIP AA Regulations.

Ill. PERMITTED USES AND DISCLOSURES
BY BUSINESS ASSOC IA TE.
a. Business Associate may only Use or Disclose
Protected Health Information as necessary to
perform the Agreement(s).
b. Business Associate may Use or Disclose
Protected Health Information as required by
law.
c. Business Associate agrees to make Uses and
Disclosures and requests for Protected Health
Information consistent with Covered Entity's
Minimum Necessary policies and
procedures.

Contracting Agency Agreement between CON FIRE and City of Montclair

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MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 44 of 186 d. Business Associate may not Use or Disclose
Protected Health Information in a manner
that would violate Subpart E of 45 CFR Part
164 if done by Covered Entity.

IV. PERMISSIBLE REQUESTS BY COVERED
ENTITY.
a. Covered Entity shall not request Business
Associate to Use or Disclose Protected
Health Information in any manner that would
not be permissible under Subpart E of 45
CFR Part 164 if done by Covered Entity.

V. TERM AND TERMINATION.
a. Term. This BAA is effective as of the
Effective Date and will continue in force until
terminated.
b. Termination for Convenience. Either Party
may terminate this BAA at any time, for any
reason or for no reason, by giving the other
Party at least thirty (30) days' prior written
notice.
c. Obligations of Business Associate Upon
Termination. Upon termination of this BAA
for any reason, Business Associate shall
return to Covered Entity or, if agreed to by
Covered Entity, destroy all Protected Health
Information received from Covered Entity, or
created, maintained, or received by Business
Associate on behalf of Covered Entity, that
the Business Associate still maintains in any
form. Business Associate shall retain no
copies of the Protected Health Information.

Upon termination of this BAA for any
reason, Business Associate, with respect to
Protected Health Information received from
Covered Entity, or created, maintained, or
received by Business Associate on behalf of
Covered Entity, shall:
i. Retain only that Protected Health
Information which is necessary for
Business Associate to continue its proper
management and administration or to
carry out its legal responsibilities;
ii. Return to Covered Entity or, if agreed to
by Covered Entity, destroy the
remaining Protected Health Information
that the Business Associate still
maintains in any form;
iii. Continue to use appropriate safeguards
and comply with Subpart C of 45 CFR
Part 164 with respect to electronic
Protected Health Information to prevent
use or disclosure of the Protected Health
Information, other than as provided for
in this Section, for as long as Business
Associate retains the Protected Health
Information;
00116421.S
iv. Not use or disclose the Protected Health
Information retained by Business
Associate other than for the purposes for
which such Protected Health
Information was retained and subject to
the same conditions which applied prior
to termination; and
v. Return to Covered Entity or, if agreed to
by Covered Entity, destroy the Protected
Health Information retained by Business
Associate when it is no longer needed by
Business Associate for its proper
management and administration or to
carry out its legal responsibilities.
d. Survival. The obligations of Business
Associate under this Section shall survive the
termination of this BAA.

VI. MISCELLANEOUS.
a. Governmental Access to Records. Business
Associate shall make its internal practices,
books and records relating to the Use and
Disclosure of PHI available to the Secretary
for purposes of determining Covered Entity's
compliance with the Applicable Law. Except
to the extent prohibited by law, Business
Associate agrees to notify Covered Entity of
all requests served upon Business Associate
for information or documentation by or on
behalf of the Secretary. Business Associate
shall provide to Covered Entity a copy of any
PHI that Business Associate provides to the
Secretary concurrently with providing such
PHI to the Secretary.
b. Public Access and Ownership of Records.

Covered Entity is a local agency subject to
the Public Records Act, Government Code §
6250 et seq. ("PRA"). In the event that
Business Associate receives a request for
records prepared, owned, used, or retained by
Covered Entity or for records prepared,
owned, used, or retained by Business
Associate in the course and scope of
providing the services for Covered Entity
described in the Agreement as amended from
time to time ("PRA Request"), Business
Associate shall promptly forward a copy of
the PRA Request to Covered Entity for
fulfillment by the Covered Entity. Business
Associate understands and agrees that all
records produced under the Agreement as
amended from time to time are hereby the
property of Covered Entity and cannot be
used without Covered Entity's express
written permission. Covered Entity shall
have all right, title and interest in said
records, including the right to secure and
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MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 45 of 186 maintain the copyright, trademark and/or
patent of said records in the name of the
Covered Entity.
c. Minimum Necessarv. To the extent required
by the HITECH Act and Regulations,
Business Associate shall limit its Use,
Disclosure or request of PHI to the Limited
Data Set or, if needed, to the minimum
necessary to accomplish the intended Use,
Disclosure or request, respectively. Effective
on the date the Secretary issues guidance on
what constitutes "minimum necessary" for
purposes of the Applicable Law, Business
Associate shall limit its Use, Disclosure or
request of PHI to only the minimum
necessary as set forth in such guidance.
d. State Privacy Laws. Business Associate shall
comply with California laws to the extent that
such state privacy laws are not preempted by
Applicable Law.
e. No Third Partv Beneficiaries. Nothing
express or implied in this BAA is intended to
confer, nor shall anything herein confer, upon
any person other than Covered Entity,
Business Associate and their respective
successors or assigns, any rights, remedies,
obligations or liabilities whatsoever.
f. Effect on Underlying Arrangement. In the
event of any conflict between this BAA and
any underlying arrangement between
00116421.5
Covered Entity and Business Associate,
including the Agreements as amended from
time to time, the tenns of the BAA shall
control with respect to Protected Health
Infonnation.
g. Intemretation. This BAA shall be interpreted
as broadly as necessary to implement and
comply with Applicable Law. The Parties
agree that any ambiguity in the BAA shall be
resolved in favor of a meaning that complies
and is consistent with the Applicable Law.
h. Governing Law. This BAA shall be
construed in accordance with the laws of the
State of California.
i. Provisions Required by Law Deemed
Inserted. Each and every provision oflaw and
clause required by law to be inserted in this
BAA shall be deemed to be inserted herein
and this BAA shall be read and enforced as
though it were included therein.
j. Severability. In the event that any provision
of this BAA shall be construed to be illegal
or invalid for any reason, said illegality or
invalidity shall not affect the remaining
provisions hereof, but such illegal or invalid
provision shall be fully severable and this
BAA shall be construed and enforced as if
such illegal or invalid provision had never
been included herein, unless to do so would
frustrate the intent and purpose of this BAA.

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MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 46 of 186

CITY COUNCIL

AGENDA REPORT
DATE: JUNE 20, 2022
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 4
FILE I.D.: PUB115A
DEPT.: PUBLIC WORKS
PREPARER: S.STANTON
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 22–62, THE SIXTH AMENDMENT TO AGREEMENT NO. 06–77 WITH CASC ENGINEERING, INC. FOR WATER QUALITY AND

STORMWATER COMPLIANCE SERVICES SUBJECT TO ANY REVISIONS DEEMED

NECESSARY BY THE CITY ATTORNEY
REASON FOR CONSIDERATION: Agreement No. 06–77 with CASC Engineering, Inc. was approved by the City Council in 2006 to provide plan–checking services for Water Quality Management Plans (WQMPs). It has been amended and extended five times, with Agreement No. 17–15 being the most recent. Agreement No. 17–15 expires on June 30, 2022. The City Council is requested to consider approval of Agreement No. 22–62 with CASC Engineering to continue assisting the City with WQMPs and stormwater compliance services. A copy of proposed Agreement No. 22–62 with CASC Engineering, Inc. is attached for City Council review and consideration.

BACKGROUND: Since 2004, WQMPs are required for developments in San Bernardino County. The City has been reviewing and approving WQMPs since November 2004. In April 2006, the Regional Water Quality Control Board (Regional Board) notified the City of a change in the requirements for WQMPs. At that time, the Regional Board determined that WQMPs for many projects must address “Hydrologic Conditions of Concern” (HCOC).

Under the direction of the Regional Board, most developers are now required to address HCOC issues in their WQMP. The HCOC requirement, together with other concerns, means the WQMP must be prepared by or under the direction of a registered civil engineer, which is the developer’s responsibility. The City, in turn, must have a registered civil engineer review and approve the information provided. CASC Engineering employs the appropriate personnel to both prepare and review WQMPs.

CASC Engineering also provides a variety of stormwater compliance services, such as Qualified Storm Water Pollution Prevention Plan Practitioner (QSP) services for Capital Improvement Projects under the State Construction General Permit (CGP) and Qualified Industrial Stormwater Pollution Prevention Plan Developer (QISD) services per the Industrial General Permit. Stormwater requirements are ever–increasing with the adoption of every new National Pollutant Discharge Elimination System (NPDES) permit.

Therefore, CASC Engineering’s scope of work is expanded to include these services should the City ever need program assistance or management.

The City anticipates the adoption of a new General Stormwater Permit near the end of 2022 or the beginning of 2023. The new permit will be a multi–regional permit where the Counties of San Bernardino, Riverside, and Orange will be required to adopt and enforce the same permit policies. This new permit will significantly change the Inland Empire agencies, as the coastal cities have historically had more stringent stormwater requirements. Approval of Agreement No. 22–62 will allow the City to request assistance from CASC Engineering to ensure a smooth transition to the new permit.

MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 47 of 186 CASC Engineering has been reviewing WQMPs for the City since July 2006 and has performed these reviews exceptionally well. CASC is very responsive to the City with WQMP issues and reviews and has continually maintained its knowledge of state water quality requirements. CASC will continue to assist City staff with new stormwater regulations and future NPDES requirements.

FISCAL IMPACT: The City Council has established plan check fees for WQMP review. It is the developers’ responsibility to pay for the cost of reviewing their WQMPs. This review process is self–supporting with the application plan–check fees to pay for work performed by the City’s consultant. In addition, CASC Engineering, Inc. does not charge the maximum rate established for plan checks and is not requesting an increase for plan check services. If the City of Montclair needs CASC Engineering to provide additional services, the cost of their services will burden the improvement project so as not to impact the General Fund.

RECOMMENDATION: Staff recommends the City Council approve Agreement No. 22– 62, the sixth amendment to Agreement No. 06–77 with CASC Engineering, Inc. for water quality and stormwater compliance services subject to any revisions deemed necessary by the City Attorney.

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CITY OF MONTCLAIR

AGREEMENT FOR CONSULTANT SERVICES

NPDES PROGRAM ASSISTANCE
THIS AGREEMENT is made and effective as of on June 20, 2022, between the City of Montclair, a municipal corporation ("City") and CASC Engineering, Inc., a California corporation ("Consultant"). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:

1. TERM
This Agreement shall commence on July 1, 2022 and shall remain and continue in effect for a period of 60 months until tasks described herein are completed, but in no event later than January 30, 2027, unless sooner terminated pursuant to the provisions of this Agreement.

2. SERVICES
Consultant shall perform the tasks described and set forth in Exhibit A, attached hereto and incorporated herein as though set forth in full. Consultant shall complete the tasks according to the schedule of performance which is also set forth in Exhibit A.

3. PERFORMANCE
Consultant shall at all times faithfully, and competently perform all tasks described herein. Consultant shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of Consultant hereunder in meeting its obligations under this Agreement. Consultant shall have the duty to prepare any design documents free from defects.

4. CITY MANAGEMENT
City’s City Manager shall represent City in all matters pertaining to the administration of this Agreement and shall be authorized to act on City’s behalf and to execute all necessary documents which enlarge the Tasks to be Performed or change Consultant’s compensation, subject to Section 5 hereof.

5. PAYMENT
(a) The City agrees to pay Consultant monthly, in accordance with the payment rates and terms, based upon actual time spent on the above tasks. This amount shall not exceed $60,000 annually for the total term of the Agreement unless additional payment is approved as provided in this Agreement.
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herein, unless such additional services are authorized in advance and in writing by the City Manager. Consultant shall be compensated for any additional services in the amounts and in the manner as agreed to by City Manager and Consultant at the time City’s written authorization is given to Consultant for the performance of said services.

The City Manager may approve additional work not to exceed ten percent (10%) of the amount of the Agreement, but in no event shall total compensation exceed Ten Thousand Dollars ($10,000.00). Any additional work in excess of this amount shall be approved by the City Council.
(c) Consultant will submit invoices monthly for actual services performed. Said invoices shall detail all costs, rates and hours for individual tasks. Invoices shall be submitted on or about the first business day of each month, or as soon thereafter as practical, for services provided in the previous month. Payment shall be made within thirty (30) days of receipt of each invoice as to all non-disputed fees. If the City disputes any of the Consultant’s fees, it shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth on the invoice. (d) Consultant agrees that, in no event shall City be required to pay to Consultant any sum in excess of ninety-five percent (95%) of the maximum payable hereunder prior to receipt by City of all final documents, together with all supplemental technical documents, as described herein acceptable in form and content to City. Final payments shall be made no later than sixty (60) days after presentation of final documents and acceptance thereof by City.

6. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE (a) The City may at any time, for any reason, with or without cause, suspend or terminate this Agreement, or any portion hereof, by serving upon the Consultant at least ten (10) days prior written notice. Upon receipt of said notice, the Consultant shall immediately cease all work under this Agreement, unless the notice provides otherwise.

If the City suspends or terminates a portion of this Agreement, such suspension or termination shall not make void or invalidate the remainder of this Agreement. (b) In the event this Agreement is terminated pursuant to this Section, the City shall pay to Consultant on a pro-rata basis the actual value of the work performed up to the time of termination, provided that the work performed is in compliance with this Agreement. Upon termination of the Agreement pursuant to this Section, the Consultant will submit an invoice to the City pursuant to Section 5(c).

7. DEFAULT OF CONSULTANT
(a) The Consultant’s failure to comply with the provisions of this Agreement shall constitute a default. In the event that Consultant is in default for cause under the terms of this Agreement, City shall have no obligation or duty to continue compensating Consultant for any work performed after the date of default and can terminate this Agreement immediately by written notice to the Consultant. If such failure by the Consultant to make progress in the performance of work hereunder arises out of causes MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 50 of 186 Agreement No. 22-62

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beyond the Consultant’s control, and to the extent the default is without fault or negligence of the Consultant, it shall not be considered a default. (b) If the City Manager or his/her delegate determines that the Consultant is in default in the performance of any of the terms or conditions of this Agreement, he/she shall cause to be served upon the Consultant a written notice of the default. The Consultant shall have ten (10) days after service upon it of said notice in which to cure the default by rendering a satisfactory performance. In the event that the Consultant fails to cure its default within such period of time, the City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement.

8. OWNERSHIP OF DOCUMENTS
(a) Consultant shall maintain complete and accurate records with respect to billed time, sales, costs, expenses, receipts and other such information required by City that relate to the performance of services under this Agreement. Consultant shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Consultant shall provide free access to the representatives of City or its designees at reasonable times to such books and records; shall give City the right to examine and audit said books and records; shall permit City to make transcripts therefrom as necessary; and shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment. (b) Upon completion of, or in the event of termination or suspension of this Agreement, all original documents, claims, applications, computer files, notes, and other documents prepared in the course of providing the services to be performed pursuant to this Agreement shall become the sole property of the City and may be used, reused, or otherwise disposed of by the City without the permission of the Consultant. Any reuse or modification of the work product without the prior written consent of Consultant will be at the sole risk of the City. With respect to computer files, Consultant shall make available to the City, at the Consultant’s office and upon reasonable written request by the City, the necessary computer software and hardware for purposes of accessing, compiling, transferring and printing computer files.

9. INDEMNIFICATION
(a) Defense, Indemnity and Hold Harmless. Consultant shall defend, indemnify, and hold harmless the City, its present and former officers, directors, employees, agents, staff, volunteers, mayor, council, boards, committees, and representatives, as broadly interpreted (collectively, the “Indemnified Parties”), of and from all claims, suits, demands, obligations, losses, damages, sums, or any other matters threatened or presently asserted, including but not limited to all legal fees, costs of defense and litigation expenses (including legal fees, expert fees and any other costs or MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 51 of 186 Agreement No. 22-62

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fees, including those of adverse parties imposed on or sought against the Indemnified Parties), arising directly or indirectly out of any liability or claim of loss or liability for personal injury, bodily injury to persons, contractual liability, errors or omissions, breach, failure to perform, damage to or loss of property, or any other loss, damage, injury or other claim of any kind or nature arising out of the work to be performed by Consultant herein, caused by or arising out of the negligent acts or omissions, or intentional misconduct of Consultant, including its subcontractors, subconsultants, employees, agents, and other persons or entities performing work for Consultant. (b) Contractual Indemnity. To the fullest extent permitted under California law, Consultant shall contractually indemnify, defend and hold harmless the Indemnified Parties from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses, amounts for good faith settlement, or costs of any kind, whether actual, alleged or threatened, including attorney’s fees and costs, court costs, interest, defense costs, and expert witness fees and costs), arising out of or related to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to Consultant’s officers, agents, representative, employees, independent contractors, subcontractors, subconsultants, or affiliated or related entities and/or its or their employees, agents and representatives, caused by or arising out of all negligent acts or omissions, or intentional misconduct of Consultant, including its subcontractors, subconsultants, employees, agents and other persons or entities performing work for Consultant. Indemnification shall include any claim that Consultant, or Consultant’s employees or agents, are or may be considered and treated as employees of the City or are entitled to any employee benefits from City including but not limited to those available under Public Employees Retirement Law. The obligation to indemnify, defend and hold harmless the Indemnified Parties shall apply to all liability as defined above regardless of whether the Indemnified Parties were or are alleged to have been negligent, except that it shall not apply to claims arising from the sole negligence or willful intentional misconduct of the Indemnified Parties. Consultant’s obligation to defend the Indemnified Parties is not contingent upon there being an acknowledgement of or determination of the merit of any claims, liability, demands, causes of action, suits, losses, expenses, errors, omissions and/or costs. (c) Subcontractors/Subconsultants and Indemnification. Consultant agrees to and shall obtain executed indemnity agreements in favor of the Indemnified Parties with provisions identical to those set forth from each and every Subcontractor, Sub consultant, or other person or entity involved by, for, with, or on behalf of Consultant in the performance of any aspect of this Agreement. In the event Consultant fails to obtain such indemnity obligations, Consultant shall be fully responsible for each and every Subcontractor, Subconsultant or other person or entity in terms of defense, indemnity and hold harmless obligations in favor of the Indemnified Parties as set forth above. This obligation to indemnify and defend the Indemnified Parties is binding on the successors, assigns, or heirs of Consultant and shall survive the full performance or termination of this Agreement. These indemnification provisions are independent of and shall not in any way be limited or superseded by the insurance requirements and insurance-related provisions of this Agreement.

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(d) City Lost or Damaged Property – Theft. Consultant further agrees to pay or cause to be paid to the Indemnified Parties’ benefit, any and all damages, fines, penalties, and loss or theft of property of the City arising out of or related in any way to the negligent acts or omissions or intentional misconduct of Consultant or of Consultant’s officers, agents, representatives, employees, independent contractors, subcontractors or affiliated or related entities and/or its or their employees, agents and representatives, whether such actions, omissions to act, negligence or intentional conduct is or was authorized by this Agreement or not. City assumes no responsibility whatsoever for any property placed on the premises of City. Consultant further agrees to waive all rights of subrogation against the Indemnified Parties.
(e) Non-Waiver and Non-Exhaustion of City’s Further Rights and Remedies. No aspect of this provision shall in any way limit or effect the rights of the Indemnified Parties against the Consultant under the terms of this Agreement or otherwise. The indemnification provisions shall apply regardless of whether this Agreement is executed after Consultant begins the work and shall extend to claims arising after this Agreement is performed or terminated, including a dispute as to the termination of Consultant. The indemnity obligations of Consultant shall continue until it is determined by final judgment that the claim against the City and any Indemnified Parties is determined by final judgment and after exhaustion of any rights of appeal. Further, no aspect of this provision shall impact the City’s rights to contribution from Consultant, or for the City to dispute Consultant’s refusal to defend and indemnify City. (f) Limitations on Scope of Indemnity. Notwithstanding the foregoing, Consultant shall not be responsible for indemnification for claims or losses caused by the sole negligence or intentional wrongdoing of Indemnified Parties. Further, the indemnity provided shall be interpreted as broadly as permitted under California law and as to agreements between parties and shall if required be reformed to be consistent with those laws to protect and save this provision for the protection of the Indemnified Parties. (g) The obligations of Consultant under this or any other provision of this Agreement shall not be limited by the provisions of any workers’ compensation act or similar act. The Consultant expressly waives any statutory immunity under such statutes or laws as to the Indemnified Parties. The Consultant’s indemnity obligation set forth in this Section 9 shall not be limited by the limits of any policies of insurance required or provided by the Consultant pursuant to this Agreement.
(h) The Consultant’s covenant under this Section 9 shall survive the expiration or termination of this Agreement.

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10. INSURANCE
The City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
(a) Types of Required Coverages
Without limiting the indemnity provisions of the Contract, the Consultant shall procure and maintain in full force and effect during the term of the Contract, the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so. (1) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office “occurrence” form CG 00 01, including products and completed operations, property damage, bodily injury, and personal & advertising injury with limits no less than $2,000,000 per occurrence, and $4,000,000 aggregate total bodily injury, personal injury, and property damage.
(2) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 0001 covering “Any Auto” (Symbol 1), including owned, non-owned and hired autos, or the exact equivalent, with minimum limits of $2,000,000 for bodily injury and property damage, each accident. If Contractor owns no vehicles, auto liability coverage may be provided by means of a non-owned and hired auto endorsement to the general liability policy. Automobile liability insurance and endorsements shall be kept in force at all times during the performance of this Agreement. (3) Workers’ Compensation: Workers’ Compensation Insurance, as required by the State of California and Employer’s Liability Insurance with a limit of not less than $1,000,000 each accident for bodily injury and $1,000,000 each employee for bodily injury by disease. (4) Professional Liability: Professional Liability insurance with limit of not less than $3,000,000 each claim. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusion that may potentially affect the work to be performed.
(b) Endorsements
Insurance policies shall not be in compliance if they include any limiting provision or endorsement. The insurance policies shall contain, or be endorsed to contain, the following provisions:
(1) Commercial General Liability
Additional Insured: The City, its elected officials, officers, employees, volunteers, boards, agents and representatives shall be additional insureds with regard to liability and defense of suits or claims arising out of the work or operations performed by or on behalf of the Consultant including MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 54 of 186 Agreement No. 22-62

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materials, parts or equipment furnished in connection with such work or operations. Coverage for the additional insureds shall apply to the fullest extent permitted by law.

Additional Insured Endorsements shall not:

1. Be limited to “Ongoing Operations”

2. Exclude “Contractual Liability

3. Restrict coverage to the “Sole” liability of contractor

4. Exclude “Third-Party-Over Actions”

5. Contain any other exclusion contrary to the Agreement Additional Insured Endorsements shall be at least as broad as ISO Forms CG 20 10 11 85; or CG 20 and 10 and CG 2037.

Primary Insurance: This insurance shall be primary and any other insurance, whether primary, excess, umbrella or contingent insurance, including deductible, or self-insurance available to the insureds added by endorsement, shall be in excess of, and shall not contribute with, this insurance. Coverage shall be at least as broad as ISO CG 20 01 04 13. (2) Auto Liability
Additional Insured: The City, its elected officials, officers, employees, volunteers, boards, agents, and representatives shall be additional insureds with regard to liability and defense of suits or claims arising out of the work or operations performed by or on behalf of the Contractor.

Primary Insurance: This insurance shall be primary and any other insurance whether primary, excess, umbrella or contingent insurance, including deductible, or self-insurance available to the insureds added by endorsement shall be in excess of and shall not contribute with this insurance.
(3) Workers’ Compensation
Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against the indemnified parties. (c) Notice of Cancellation
Required insurance policies shall not be cancelled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (d) Waiver of Subrogation
Required insurance coverages shall not prohibit Consultant from waiving the right of subrogation prior to a loss. Consultant shall waive all rights of subrogation against the indemnified parties and policies shall contain or be endorsed to contain such MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 55 of 186 Agreement No. 22-62

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a provision. This provision applies regardless of whether the City has received a waiver of subrogation endorsement from the insurer.
(e) Evidence of Insurance
All policies, endorsements, certificates, and/or binders shall be subject to approval by the City as to form and content. These requirements are subject to amendment or waiver only if so approved in writing by the City. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.

The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.
(f) Deductible or Self-Insured Retention
Any deductible or self-insured retention must be approved in writing by the City and shall protect the indemnified parties in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention. The City may require the Consultant to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the Consultant or the City.
(g) Contractual Liability/Insurance Obligations
The coverage provided shall apply to the obligations assumed by the Consultant under the indemnity provisions of this Agreement. The insurance obligations under this Agreement shall be: (1) all the insurance coverage and/or limits carried by or available to the Consultant; or (2) the minimum insurance coverage requirements and/or limits shown in this Agreement; whichever is greater. Any insurance proceeds in excess of or broader than the minimum required coverage and/or minimum required limits, which are applicable to a given loss, shall be available to the City. No representation is made that the minimum insurance requirements of this Agreement are sufficient to cover the obligations of the Consultant under this Agreement.
(h) Failure to Maintain Coverage
Consultant agrees to suspend and cease all operations hereunder during such period of time as the required insurance coverage is not in effect and evidence of insurance has not been furnished to the City. The City shall have the right to withhold any payment due Consultant until Consultant has fully complied with the insurance provisions of this Contract. In addition, the City may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, City may take out the necessary insurance and pay, at Consultant’s expense, the premium thereon.

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In the event that the Consultant’s operations are suspended for failure to maintain required insurance coverage, the Consultant shall not be entitled to an extension of time for completion of the Work because of production lost during suspension. (i) Acceptability of Insurers
Each such policy shall be from a company or companies with a current A.M.

Best’s rating of no less than A:VII and authorized to do business 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. Any other rating must be approved in writing in accordance with the City.
(j) Claims Made Policies
If coverage is written on a claims-made basis, the retroactive date on such insurance and all subsequent insurance shall coincide or precede the effective date of the initial Consultant’s Agreement with the City and continuous coverage shall be maintained or an extended reporting period shall be exercised for a period of at least five (5) years from termination or expiration of this Agreement. (k) Insurance for Subcontractors
Consultant shall be responsible for causing Subcontractors/ Subconsultants to purchase the same types and limits of insurance in compliance with the terms of this Agreement, including adding the City as an Additional Insured, providing Primary and Non-Contributory coverage and Waiver of Subrogation to the Subcontractors’/Subconsultant’s policies. The Commercial General Liability Additional Insured Endorsement shall be on a form at least as board as CG 20 38 04 13.

11. INDEPENDENT CONTRACTOR
(a) Consultant is and shall at all times remain as to the City a wholly independent contractor. The personnel performing the services under this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control and shall not be construed to be employees of City for any purpose, including eligibility under Public Employees Retirement Law. Neither City nor any of its officers, employees, or agents shall have control over the conduct of Consultant or any of Consultant’s officers, employees, or agents, except as set forth in this Agreement.

Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the City.

Consultant shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner. Consultant shall be solely responsible and hold the City harmless for all matters relating to the payment of Consultant’s employees, including compliance with Social Security withholdings and all other regulations governing such matters.
(b) No employee benefits shall be available to Consultant in connection with the performance of this Agreement. Except for the fees paid to Consultant as provided in the Agreement City shall not pay salaries, wages, or other compensation to Consultant for performing services hereunder for City. City shall not be liable for compensation or MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 57 of 186 Agreement No. 22-62

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indemnification to Consultant for injury or sickness arising out of performing services hereunder.

12. LEGAL RESPONSIBILITIES
The Consultant shall keep itself informed of State and Federal laws and regulations which in any manner affect those employed by it or in any way affect the performance of its services pursuant to this Agreement. The Consultant shall at all times observe and comply with all such laws and regulations. The City, and its officers and employees, shall not be liable at law or in equity occasioned by failure of the Consultant to comply with this Section.

13. UNDUE INFLUENCE
Consultant declares and warrants that no undue influence or pressure is used against or in concert with any officer or employee of the City of Montclair in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of the City of Montclair will receive compensation, directly or indirectly, from Consultant, or from any officer, employee or agent of Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement.

Violation of this Section shall be a material breach of this Agreement entitling the City to any and all remedies at law or in equity.

14. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES
No member, officer, or employee of City, or their designees or agents, and no public official who exercises authority over or responsibilities with respect to the Project during his/her tenure or for one year thereafter, shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceeds thereof, for work to be performed in connection with the project performed under this Agreement.

15. RELEASE OF INFORMATION/CONFLICTS OF INTEREST
(a) All information gained by Consultant in performance of this Agreement shall be considered confidential and shall not be released by Consultant without City’s prior written authorization. Consultant, its officers, employees, agents, or subconsultants, shall not without written authorization from the City Manager or unless requested by the City Attorney, voluntarily provide declarations, letters of support, testimony at depositions, responses to interrogatories, or other information concerning the work performed under this Agreement or relating to any project or property located within the City. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant gives City notice of such court order or subpoena.
(b) Consultant shall promptly notify City should Consultant, its officers, employees, agents or subconsultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, requests for admissions, or other discovery request, court order, or subpoena from any person or party MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 58 of 186 Agreement No. 22-62

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regarding this Agreement and the work performed thereunder or with respect to any project or property located within the City. City retains the right, but has no obligation, to represent Consultant and/or be present at any deposition, hearing, or similar proceeding.

Consultant agrees to cooperate fully with City and to provide the opportunity to review any response to discovery requests provided by Consultant. However, City’s right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
(c) Consultant shall comply with all applicable federal, state and local Conflict of Interest laws, including the Political Reform Act (California Government Code, Section 81000, et. seq.) and California Government Code, Section 1090, et. seq. Consultant covenants that neither he/she nor any officer or principal of their firm have any interest in, or shall acquire any interest, directly or indirectly, which will conflict in any manner or degree with the performance of their services hereunder. Consultant further covenants that in the performance of this Agreement, no person having such interest shall be employed by them as an officer, employee, agent or subconsultant. Consultant further covenants that Consultant has not contracted with nor is performing any services, directly or indirectly, with any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) owning property in the City or the study area and further covenants and agrees that Consultant and/or its subconsultants shall provide no service or enter into any agreement or agreements with a/any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) owning property in the City or the study area prior to the completion of the work under this Agreement. Further, Consultant covenants not to give or receive any compensation, monetary or otherwise, to or from the ultimate vendor(s) of services to the City as a result of the performance of this Agreement, or the services that may be procured by the City as a result of the recommendations made by the Consultant. The Consultant’s covenant under this Section shall survive the termination of this Agreement.

16. NOTICES
Any notices which either party may desire to give to the other party under this Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by a reputable document delivery service, such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by notice:

To City:

City Engineer
City of Montclair
5111 Benito
Montclair, CA 91763
To Consultant: CASC Engineering and Consulting
1470 E. Cooley Drive
Colton, CA. 92324
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17. ASSIGNMENT AND SUBCONTRACTING
The Consultant shall not assign any of its rights or delegate any of its duties under this Agreement, either in whole or in part, nor any monies due hereunder, without prior written consent of the City. The City’s consent to an assignment of rights under this Agreement shall not release the Consultant from any of its obligations or alter any of its obligations to be performed under this Agreement. Any attempt at assignment or delegation by the Consultant in violation of this Section 17 shall be void and of no legal effect and shall constitute grounds to terminate this Agreement for cause. The Consultant shall not subcontract any performance required under this Agreement without the City’s prior written consent.

18. LICENSES
At all times during the term of this Agreement, Consultant shall have in full force and effect, all licenses required of it by law for the performance of the services described in this Agreement, including a City of Montclair business license.

19. GOVERNING LAW
The City and Consultant understand and agree that the laws of the State of California shall govern the rights, obligations, duties, and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. Any litigation concerning this Agreement shall take place in the municipal, superior, or federal district court with jurisdiction over the City of Montclair.

20. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party’s own independent investigation of any and all facts such party deems material.

21. CONFIDENTIALITY
Information and materials obtained by the Consultant from City during the performance of this Agreement shall be treated as strictly confidential and shall not be used by the Consultant for any purpose other than the performance of this Agreement.

Consultant’s covenant under this Section shall survive the expiration or termination of this Agreement.

22. DISCRIMINATION
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The Consultant agrees that no person shall be excluded from employment in the performance of this Agreement on grounds of race, creed, color, sex, age, marital status, or place of national origin. In this connection, the Consultant agrees to comply with all County, State and Federal laws relating to equal employment opportunity rights.

23. EFFECT OF PARTIAL INVALIDITY
If any term or provision of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement and any application of the terms shall remain valid and enforceable under this Agreement or California law.

24. CLAIMS AGAINST CITY
Consultant must comply with the claim procedures set forth in Government Code sections 900, et. seq., and/or Montclair Municipal Code, Chapter 1.16, as applicable, prior to filing any lawsuit against the City. Such claims and any subsequent lawsuit based upon the claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Contractor. If no such claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Contractor shall be barred from bringing and maintaining a valid lawsuit against the City.

25. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of Consultant warrants and represents that he/she has the authority to execute this Agreement on behalf of the Consultant and has the authority to bind Consultant to the performance of its obligations hereunder.

26. NO THIRD PARTY BENEFICIARIES
This Agreement is made solely for the benefit of the Parties to this Agreement and their respective successors and assigns, and no other person or entity may have or acquire a right by virtue of this Agreement.

27. COST OF LITIGATION
If any legal action is necessary to enforce any provision of this Agreement or for damages by reason of an alleged breach of any provisions of this Agreement (whether in contract, tort or both), the prevailing Party shall be entitled to receive from the losing Party all attorneys’ fees, costs and expenses in such amount as the courts may determine to be reasonable. In awarding the cost of litigation, the court shall not be bound by any court fee schedule, but shall, if it is in the interest of justice to do so, award the full amount of costs, expenses and attorneys’ fees paid or incurred in good faith.

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28. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of Consultant warrants and represents that he/she has the authority to execute this Agreement on behalf of the Consultant and has the authority to bind Consultant to the performance of its obligations hereunder.

29. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be the original, and all of which together shall constitute one and the same instrument.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written.

CITY OF MONTCLAIR CONSULTANT
By: By:

Javier John Dutrey, Mayor Name:

Title:

Attest:

By: By:

Andrea M. Myrick, City Clerk Name:

Title:

Approved as to Form:

By:

Diane E. Robbins, City Attorney
MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 62 of 186 Exhibit A 1470 E. Cooley Drive
Colton, CA 92324
Office: 909.783.0101
Fax: 909.783.0108
Water Quality Management Plan (WQMP)
Plan Check and Related Services
Scope of Services
Task 1 – WQMP Plan Checking
The Consultant shall review WQMPs submitted to the City. The purpose of the review is to determine each WQMP’s general conformance with the appropriate edition of the document, “Technical Guidance Document for Water Quality Management Plans” (TGD), with development practices acceptable to the City (City Practices), and with the generally accepted standards and practices for urban runoff quality management in California (Industry Practices).

WQMP reviews may require a review of supporting documentation, including but not limited to environmental documents, conditions of approval, grading plans, project plans, landscape plans, hydrology reports, drainage reports, and other documentation submitted by the Applicant.

Comments on WQMPs will be conveyed to the WQMP preparer in the form of “red lines” on documents and plans, and when required, via written narratives. Applicants shall be instructed to return redline comments with subsequent resubmittal of the WQMP. WQMP plan check comments shall be routed through the City of Montclair via email, mail, courier, or other method requested by the City within 10 workdays following receipt of the complete WQMP and supporting documentation.

When a WQMP is determined to conform to the TGD, City Practices, and Industry Practices, the Consultant shall transmit a written WQMP Approval Recommendation to the City: said WQMP Approval Recommendations may include conditions related to the recommendation. The WQMP Approval Recommendation shall be accompanied by a list of recommended minimum inspection milestones. When requested by the City, the Consultant shall update the MS4 Database to reflect the details associated with WQMPs recommended for approval by the City.

Consultant shall maintain a log showing: the status of WQMPs submitted for review; the date the WQMP was received; the date red line comments were returned; the City’s project tracking number; and the status of the WQMP (e.g., approved, revise/resubmit). The WQMP log shall be transmitted to the City when requested.

Task 2 – WQMP Meetings
The Consultant shall meet and confer with the City to discuss WQMPs as needed (e.g., when a WQMP proposes BMPs in the public right-of-way). The Consultant shall meet with development Applicants and WQMP preparers when requested by an Applicant/Preparer and approved by the City. The purpose of these meetings shall be to provide general guidance on WQMP preparation or to clarify WQMP red line comments. The meetings may be in-person or via teleconference: inperson meetings shall occur at the City, at the Consultant’s office in Colton, or another mutually agreeable location approved by the City.

MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 63 of 186 Exhibit A 1470 E. Cooley Drive
Colton, CA 92324
Office: 909.783.0101
Fax: 909.783.0108
Task 3 – Construction General Permit and MS4 Permit Services (Public Projects) The Consultant shall provide on-call services to assist the City meet its obligations under the Construction General Permit (CGP) and its MS4 Stormwater Permit.

The Consultant shall provide on-call Qualified SWPPP Developer (QSD) and Qualified SWPPP Practitioner (QSP) services when requested by the City.

The QSD services are for City projects and may include but are not limited to the preparation of Storm Water Pollution Prevention Plans (SWPPPs) in accordance with the Construction General Permit (CGP); acting as a Data Submitter for filing documents and information in the State’s Storm Water Multi-Application, Reporting, and Tracking System (SMARTS); preparing Notices of Termination (NOTs); and inspection of WQMP BMPs. A certified QSD shall perform QSD services.

The QSP services are for City projects and may include but are not limited to providing observation of assigned construction projects to verify the project is complying with requirements of the project SWPPP; preparing CGP-required Rain Event Action Plans (REAPs); construction site runoff pH and Turbidity testing using field meters; sampling for nonvisible pollutants in runoff and analysis of samples via a certified laboratory; taking photographs to document site conditions; preparing observation reports and inspection logs; acting as a Data Submitter to upload construction-phase information to SMARTS; and reporting back to the City regarding findings and observations. A certified QSP or QSD shall provide QSP services.

Task 4 – Construction Compliance Services (Private Projects) The Consultant shall provide on-call services to assist the City meet its obligations under its MS4 Stormwater Permit, including those related to private construction projects.

The Consultant’s services may include but are not limited to review of Storm Water Pollution Prevention Plans (SWPPPs); conducting periodic inspections of construction sites; preparing written reports; entering inspection data into the regional MS4 database; meeting with applicants and/or construction site operators to review the results of construction site inspections; inspection of WQMP BMPs as they are constructed; and advising City staff regarding the status of inspections, including the need to take enforcement actions. A certified QSP or QSD shall conduct the inspections.

Task 5 – Industrial General Permit and MS4 Permit Services (Public Projects) The Consultant shall provide on-call services to assist the City meet its obligations under the Industrial General Permit (IGP) and its MS4 Stormwater Permit.

MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 64 of 186 Exhibit A 1470 E. Cooley Drive
Colton, CA 92324
Office: 909.783.0101
Fax: 909.783.0108
Services may include but are not limited to training of City staff relative to the requirements of the IGP and the MS4 Stormwater Permit; preparing Storm Water Pollution Prevention Plans (SWPPPs); runoff sampling; acting as a Data Submitter for filing documents and information in the State’s Storm Water Multi-Application, Reporting, and Tracking Systems (SMARTS); observation of site operations to gauge a site’s level of compliance with the IGP and the City’s Municipal Code and MS4 Stormwater Permit; inspection of WQMP BMPs; and preparation of observation and inspection reports.

Task 6 – Commercial, Industrial, and Residential Compliance Services (Private Projects) The Consultant shall provide on-call services to assist the City meet its obligations under its MS4 Stormwater Permit, including those related to private commercial, industrial, and residential sites.

The Consultant’s services may include but are not limited to review of Storm Water Pollution Prevention Plans (SWPPPs); conducting periodic inspections of commercial and industrial sites; conducting fats, oils, and grease (FOG) inspections; preparing written reports; entering inspection data into the regional MS4 database; inspection of WQMP BMPs; meeting with facility owners, managers, or operators to review the results of site inspections; and advising City staff regarding the status of inspections, including the need to take enforcement actions. Services may also include response to and investigation of incidents of illicit connections and illegal discharges and dumping (IC/ID). The inspections, responses, and investigation shall be conducted by trained staff under the general supervision of a Qualified Industrial Stormwater Practitioner (QISP).

Task 7 – NPDES Program On-Call Services
Consultant shall assist the City by providing services supporting the City’s efforts to comply with its MS4 Stormwater Permit (NPDES).

NPDES on-call services shall be provided when approved by the City representative. Services may include but are not limited to coordination with the Tri-County MS4 Permit Group; attending for and/or representing the City on the San Bernardino County MS4 Permit Management Committee and any of its subcommittees or workgroups; reviewing, preparing comments, and contributing to the development of documents, programs, procedures, and policies associated with the MS4 Permit and its implementation, amendment, renewal, or interpretation at the City or areawide level; assisting the City to prepare for, participate in, and follow up to audits or inspections by the Regional Board or USEPA or other regulatory agency; serve as the MS4 Program Manager on either a short-term or long-term basis, including but not limited to day-to-day management, oversight, and implementation of the City's stormwater program; and other services deemed necessary by the City to effectively comply with its MS4 Permit and to develop and implement its NPDES program.

MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 65 of 186 Exhibit A 1470 E. Cooley Drive
Colton, CA 92324
Office: 909.783.0101
Fax: 909.783.0108
Task 8 – Project Coordination
Consultant shall coordinate with City representatives as needed to provide for the effective and efficient conduct of the work. Consultant shall invoice the City monthly for services performed, with a breakdown showing the allocation of labor and expenses by project or task assigned by the City.

Terms
Consultant shall provide services on a time and expense basis in accordance with the rates in Exhibit B.

Information and Materials to be Provided by the City
The City shall provide the Consultant with information and materials related to projects assigned to the Consultant, including but not limited to project plans, engineering plans, drainage plans, storm drain plans, and other plans and reports needed to support the conduct of on-call services. The City shall identify a City representative to be the primary point of contact between the City and the Consultant.

Service Statement
CASC Engineering and Consulting (CASC) has developed broad-based expertise in the NPDES regulatory requirements and, as such, provides consulting services to a multitude of clientele including developers/builders, industrial facility owners/operators, contractors, and public agencies.

CASC is committed to providing all of our clients with practical and cost-effective consulting services to assist them in achieving compliance with water quality regulations. CASC does not accept assignments, and will terminate our services, where the client’s objective is to evade regulatory compliance or obfuscate non-compliance.

At times CASC may be in the position of providing consulting services to multiple entities within a jurisdiction (such as document preparation for a contractor or industrial facility owner and inspection services for the local agency). In such instances, CASC will:
 Not accept assignments that pose a direct conflict of interest  Advise clients of such known specific occurrences when we have coincident compliance interests  Assign separate staff to each client when we have coincident compliance interests

MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 66 of 186

CITY COUNCIL

AGENDA REPORT
DATE: JUNE 20, 2022
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 5
FILE I.D.: COC050
DEPT.: ECONOMIC DEV.

PREPARER: T. MARTIN
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 22–63 WITH THE MONTCLAIR CHAMBER OF COMMERCE TO PROVIDE SERVICES TO PROMOTE LOCAL ECONOMIC DEVELOPMENT SUBJECT TO ANY REVISIONS DEEMED NECESSARY BY THE CITY ATTORNEY REASON FOR CONSIDERATION: The City Council is requested to consider approval of Agreement No. 22–63 with the Montclair Chamber of Commerce to provide services to strengthen and enhance local economic development activities.

A copy of proposed Agreement No. 22–63 is attached for review and consideration.

BACKGROUND: The Montclair Chamber of Commerce was organized in 1958 and has offered its services to the local business community since that time. The Montclair Chamber of Commerce promotes business growth and a business–friendly climate in the Montclair community.

Agreement No. 22–63 would provide funding to the Montclair Chamber of Commerce, a partner agency, for the following services to support economic development in the City of Montclair:
 Monitor and aid in the retention, expansion, and development of existing businesses.
 Promote Montclair as an attractive and prime location for business operations.  Provide for the support and nurturing of businesses and the development of an entrepreneurial environment through cooperation with other local, county, state, and federal economic development organizations.
 Endeavor to represent all business interests wherever located in the City of Montclair and to conduct its affairs in such a way as to benefit all businesses and areas of the City.

The term of Agreement No. 22–63 is July 1, 2022 through June 30, 2023.

FISCAL IMPACT: If approved by the City Council, the Montclair Chamber of Commerce would receive $15,000 from the City, payable in equal quarterly payments of $3,750.

This amount was included in the proposed City Budget in the Economic Development Fund for Fiscal Year 2022–23.

RECOMMENDATION: Staff recommends the City Council approve Agreement No. 22–63 with the Montclair Chamber of Commerce to provide services to promote local economic development subject to any revisions deemed necessary by the City Attorney.

MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 67 of 186 AGREEMENT NO. 22–63

CITY OF MONTCLAIR
5111 BENITO STREET
MONTCLAIR, CALIFORNIA 91763

ECONOMIC DEVELOPMENT AGREEMENT
THIS ECONOMIC DEVELOPMENT AGREEMENT ("Agreement") is made and entered into this 1st day of July, 2022, by the City of Montclair, hereinafter referred to as the "CITY," and the Montclair Chamber of Commerce, hereinafter referred to as the "CHAMBER."

1. RECITALS
a. The parties hereto agree that it is the best interest of the CITY and the CHAMBER to strengthen and enhance economic development activities within the CITY and the CHAMBER through an Agreement renewed annually by the close of each current fiscal year.
b. The parties hereto agree that all funding provided by the CITY for this venture will be expended to fulfill a public purpose, that is economic development, and that periodic auditing will be performed in order to assure that the funds provided by the CITY will be utilized only for public purposes as set forth herein.

2. AGREEMENT
a. NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties here to agree as follows:

ARTICLE 1 – RECITALS
The parties acknowledge and agree that above state recitals are true and correct and incorporated herein by reference.

ARTICLE 2 – SERVICES
The CHAMBER desires to engage in economic development efforts for the CITY area which shall include, but not limited to, the following:
a. Employ a President/CEO who is an economic development professional with the requisite knowledge, skills, expertise necessary to lead the economic development efforts.
b. Advise private business concerns located within the CITY, existing business and the business community of the available opportunities within the CITY and within its utilities service area of which they may take advantage and MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 68 of 186 AGREEMENT NO. 22–63

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counsel them regarding their suitability to participate in available county, state, and federal economic development programs and grants. c. Monitor and aid in the retention, expansion and development of existing businesses.
d. Advise and counsel private business concerns about the development of infrastructure plans for the expansion of business districts and the creation of business and industrial parks.
e. Advise and counsel private business concerns of strategies designed to foster the best possible pro–business environment within the CITY. f. Promote the CITY as a location for business operations, clean manufacturing, and research and development companies.
g. Serve as an information source for those interested in economic development and provide relevant referrals to all requests for economic development information, including up–to–date trade area demographics and inventories of available property (retail, industrial, office, etc.). h. Provide a CHAMBER web page to be linked to the CITY's web site. The web page shall be updated continuously to provide the most current information concerning economic development in the CITY and surrounding trade area for the purpose of furthering the mission of the CHAMBER. i. Provide for the support and nurturing of businesses and the development of an entrepreneurial environment through cooperation with other local, county, state, and federal economic development organizations. j. Endeavor to represent all business interests wherever located in the CITY and to conduct its affairs in such a way as to benefit all businesses and areas of the CITY.
k. Host the annual State of the City address in collaboration with the CITY's Economic Development Coordinator, CITY staff, and the CITY Council.

ARTICLE 3 – PLACE OF WORK
It is understood that the CHAMBER will administer services largely at 8880 Benson Avenue, Suite 110, Montclair, California 91763; although the CHAMBER will, on request, come to City Hall or such other places as designated by the CITY to meet with CITY's representatives.

ARTICLE 4 – PAYMENT
The CITY will pay the CHAMBER the total sum of $15,000 annually payable in equal quarterly payments of $3,750 on or before the 30th day of the beginning of each quarter.

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ARTICLE 5 – REPORTING
a. The CHAMBER will submit and present to the CITY annually a receipt and expenditure report on the use of CITY funds.

ARTICLE 6 – RELATIONSHIP OF PARTIES
a. The CHAMBER is an independent entity and not a department, agency or subdivision of the CITY. The CITY and the CHAMBER are two separate and autonomous entities.
b. CHAMBER is and shall at all times remain as to the CITY a wholly independent contractor. The personnel performing the services under this Agreement on behalf of CHAMBER shall at all times be under CHAMBER's exclusive direction and control and shall not be construed to be employees of CITY for any purpose, including eligibility under Public Employees Retirement Law. Neither CITY nor any of its officers, employees, or agents shall have control over the conduct of CHAMBER or any of CHAMBER's officers, employees, or agents, except as set forth in this Agreement.

CHAMBER shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the CITY. CHAMBER shall not incur or have the power to incur any debt, obligation, or liability whatever against CITY, or bind CITY in any manner. No employee benefits shall be available to CHAMBER in connection with the performance of this Agreement. Except for the fees paid to CHAMBER as provided in the Agreement CITY shall not pay salaries, wages, or other compensation to CHAMBER for performing services hereunder for CITY. CITY shall not be liable for compensation or indemnification to CHAMBER for injury or sickness arising out of performing services hereunder.
c. The CITY and the CHAMBER acknowledge that this Agreement is not a delegation of any public function of the CITY and that neither party will play an integral part in either party's decision–making process by reason of this Agreement.

ARTICLE 7 – DURATION
a. The initial term of this Agreement shall be for a period of one (1) year commencing July 1, 2022, and continuing through June 30, 2023; this AGREEMENT may be renewed annually.
b. Either party may terminate this Agreement upon ninety (90) days written notice to the other party.
c. Any notice required or allowed hereunder shall be in writing and sent by certified mail, return receipt requested, or in person with proof of delivery, to the address first listed above, or such other addresses as either party shall have specified by written notice to the other party delivered in accordance herewith.

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ARTICLE 8 – NONDISCRIMINATION
a. The CHAMBER shall not discriminate against any employee or person served under this Agreement on account of race, color, sex, age, religion, ancestry, national origin, handicap, or marital status or as otherwise prohibited by applicable law.

ARTICLE 9 – MISCELLANEOUS
a. The CHAMBER acknowledges that the CITY, during any fiscal year, shall not expend money, incur any liability, or enter into any agreement which, by its terms, involves the expenditure of money in excess of the amounts budgeted or the reduction of revenues for those budgeted agreements that may be available for expenditure during such fiscal year. Any agreement, verbal or written, made in violation of this subsection is null and void; and no money may be paid on such agreement. Nothing herein contained shall prevent the making of agreement for a period of exceeding one year, but any agreement so made shall be executed only for the value of the services to be rendered or agreed to be paid for in succeeding fiscal years. Accordingly, the CITY's performance and obligation to pay under this Agreement is contingent upon annual appropriation.
b. The CHAMBER shall obtain and possess throughout the term of this Agreement all licenses and permits applicable to its operations under federal, state, and local laws.
c. The CHAMBER shall at all times maintain its status as a private not–for–profit corporation, organized and created under the laws of the State of California. d. This Agreement may be modified or amended by mutual written agreement of the parties, duly executed by both parties.
e. This Agreement contains all the terms and conditions agreed upon by the parties.
f. This Agreement shall be governed and construed in accordance with the laws of the State of California. The venue of any legal action to enforce or interpret this Agreement shall be in San Bernardino County, California. g. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and assigns. h. In the event any provision of this Agreement shall be held invalid or unenforceable by a court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. i. If any party seeks to enforce or interpret this Agreement through litigation, each party shall bear its own attorney's fees and costs incurred.

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j. Each person executing this Agreement warrants that he or she has the authority to so execute this Agreement and that no further approval of any kind is necessary to bind the parties hereto.
k. The CHAMBER shall keep itself informed of State and Federal laws and regulations which in any manner affect those employed by it or in any way affect the performance of its services pursuant to this Agreement. The CHAMBER shall at all times observe and comply with all such laws and regulations. The CITY and its officers and employees, shall not be liable at law or in equity occasioned by failure of the CHAMBER to comply with this Section.
l. No member, officer, or employee of City, or their designees or agents, and no public official who exercises authority over or responsibilities with respect to the economic development activities during his/her tenure or for one year thereafter, shall have any interest, direct or indirect, in any agreement or subagreement, or the proceeds thereof, for work to be performed in connection with the activities performed under this Agreement. m. CHAMBER agrees to defend, indemnify, and hold harmless the CITY, its officers, employees, agents, and volunteers from any and all liabilities for injury to persons and damage to property arising out of any act or omission of CHAMBER, its officers, employees, agents, or volunteers in connection with CHAMBER's performance of its obligations under this Agreement.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written.
"CITY" “CHAMBER”
City of Montclair Montclair Chamber of Commerce
5111 Benito Street 8880 Benson Avenue, Suite 110
Montclair, CA 91763 Montclair, CA 91763
(909) 626–8571 (909) 985–5104
By: By:

Javier John Dutrey Steve Hammitt
Mayor President/CEO
Date: Date:

ATTEST:

Andrea M. Myrick
City Clerk
MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 72 of 186

CITY COUNCIL

AGENDA REPORT
DATE: JUNE 20, 2022
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 6
FILE I.D.: HSV030
DEPT.: HUMAN SVCS./ADMIN. SVCS.

PREPARER: A. COLUNGA
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 22–64 WITH HOWROYD–WRIGHT EMPLOYMENT AGENCY, INC. DBA APPLEONE EMPLOYMENT SERVICES TO PROVIDE

STAFFING SERVICES FOR THE CITY OF MONTCLAIR SUBJECT TO ANY REVISIONS

DEEMED NECESSARY BY THE CITY ATTORNEY
REASON FOR CONSIDERATION: The City Council is requested to consider approval of Agreement No. 22–64 with Howroyd–Wright Employment Agency, Inc. dba AppleOne Employment Services (AppleOne) to provide staffing services for the City of Montclair.

Agreement No. 22–64 is attached for City Council’s consideration.

BACKGROUND: Operating since 1964, AppleOne is the largest, privately–held women and minority–owned staffing agency in North America. AppleOne has the resources of a large company; however, they are a family–owned and customer focused company that can stay flexible to respond to each customers unique needs. AppleOne has serviced the Inland Empire since 1986 and ten offices within a twenty–five mile radius of Montclair.

The City of Montclair has worked with AppleOne Staffing recruitment since 2019 to help with Montclair After–School Program (MAP) recruitment. Recruiting staff for MAP has increased in difficulty, with recent years proving to be the most challenging. AppleOne has assisted the City with successfully recruiting eleven Learning Leaders. The City does not currently have a staff member dedicated to recruitment, utilizing AppleOne services has helped to ensure the Montclair After–School Program is staffed to meet the demands of the students who wish to participate in the program.

The attached Agreement No. 22–64 is a conditions of service agreement for the all departments of the City of Montclair to continue work with AppleOne utilizing temporary–employees or temporary–to–hire services. In the future, if the City chooses to contract with AppleOne to recruit for a specific position the City and AppleOne will agree to the cost, term, and any other conditions, for example a replacement guarantee, with an agreement letter.

FISCAL IMPACT: If approved, this agreement will not impact the General Fund. If the City decides to utilize AppleOne in the future, agreements that outline costs and term will be executed. The term of this agreement begins June 20, 2022 and remains in effect until terminated.

RECOMMENDATION: Staff recommends the City Council approve Agreement No. 22–64 with Howroyd–Wright Employment Agency, Inc. dba AppleOne Employment Services (AppleOne) to provide staffing services for the City of Montclair.

MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 73 of 186 Conditions of Service 2021 Page 1 of 5 AppleOne Confidential and Proprietary Information Legal JW 05272022

CONDITIONS OF SERVICE
This Conditions of Service (“Agreement”) is between City of Montclair (“Client”) and Howroyd-Wright Employment Agency, Inc. dba AppleOne Employment Services (“AppleOne”). In consideration of the parties’ mutual covenants, conditions, and promises contained herein, the parties agree as follows:

TEMPORARY AND TEMPORARY-TO-HIRE SERVICES

1. Employees or associates of AppleOne or any of its subcontractors temporarily assigned to Client shall be referred to in the singular as “Temporary Employee” and in the plural as “Temporary Employees.” Temporary Employees are subject at all times to Client’s direct and indirect supervision; AppleOne does not supervise such employees on their assignments. Client further agrees that while on assignment with Client, Temporary Employees shall not be permitted, without express advance written approval by an officer of AppleOne, to i) engage in travel or otherwise operate a motor vehicle or any non-office machinery or equipment on behalf of Client, ii) handle cash or valuables or negotiable instruments (Client shall also not pay Temporary Employees directly or advance any funds to them.), iii) be permitted unsupervised or uncontrolled access to confidential or proprietary information, including confidential access codes, iv) be permitted unsupervised access to or control of Client’s business premises, v) remove any property of Client from Client’s business premises, vi) purchase, consume or distribute any alcohol, or vii) consume drugs, unless advance written authorization is provided by a physician. Should any Temporary Employee be permitted to engage in any of the activities described in i) - vii) above, AppleOne shall have no responsibility arising therefrom, and Client agrees to indemnify, defend and hold harmless AppleOne for any and all liabilities, losses, claims, injuries, suits, judgments, expenses, charges, fines, interest or penalties (collectively, “Losses”) resulting from the employee’s conduct.

2. Background check services are available for an additional fee to Client and must be agreed to in writing between AppleOne and Client. Background check services may be conducted by one or more of AppleOne’s preferred, third-party vendors (e.g., A-Check Global). Client shall indemnify, defend and hold harmless AppleOne for any and all Losses arising from or related to i) the background checks or the performance thereof and ii) AppleOne’s assignment of any Temporary Employees to Client, at Client’s request, before the full completion of Client- or AppleOne-required background checks, including any legal requirements associated therewith.

3. AppleOne provides its services in compliance with its obligations as an equal opportunity and affirmative action employer. AppleOne’s recruiting procedures are free of discrimination based on race, religion, ancestry, color, national origin, age, gender identity or expression, genetic information, marital status, medical condition, physical or mental disability, protected veteran status, sex (including pregnancy), sexual orientation, or any other characteristic protected by applicable federal, state or local laws. AppleOne also consider qualified applicants regardless of criminal histories, consistent with legal requirements.

4. Client agrees to immediately contact its AppleOne representative or the AppleOne Human Resources Hotline at (800) 270-9120 upon receipt of any complaint by a Temporary Employee regarding, but not limited to, any of the following: sexual harassment, discrimination, retaliation, bullying, wage and hour issues, meal and rest breaks or any other employment-related concern. Further, Client agrees to comply with the American with Disabilities Act and any local health accommodation requirements, and upon request by AppleOne, agrees to participate in an interactive process with AppleOne and any Temporary Employee who seeks a reasonable workplace accommodation.

5. Client agrees to indemnify, defend and hold harmless AppleOne and its subsidiaries and related entities, and all of their respective officers, directors, shareholders, employees, agents and representatives (collectively, “AppleOne Parties”) for Losses arising out of any violation of laws by Client. In addition, Client agrees to comply with all laws, regulations and ordinances relating to work site health and safety, and agrees to provide Temporary Employees a safe and healthful workplace. Client agrees to indemnify, defend and hold harmless AppleOne Parties for Losses arising out of Client’s violations of the Occupational Safety and Health Act of 1970, or any similar state law with respect to workplaces owned, leased or supervised by Client, and/or to which Temporary Employees are assigned. For any serious injury, illness or death of a Temporary Employee occurring in a place of employment or in connection with an AppleOne employee’s assignment with Client, Client shall notify AppleOne immediately (Notification to AppleOne is also required in the event of any accident or medical treatment.) and is Agreement No. 22-64
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required to report immediately, by telephone or fax, to the nearest Occupational Safety and Health Administration (“OSHA”) office. Client is authorized and required by AppleOne to make the report on behalf of both AppleOne and Client. Client shall provide to OSHA all information required by applicable law, as well as AppleOne’s name, address, phone number and contact person, and the Temporary Employee’s name. Client shall notify AppleOne immediately after the report has been made.

6. Client will not reassign or relocate a Temporary Employee without prior written authorization by AppleOne.

Client agrees to assume all liability for any third party claim arising after any reassignment or relocation that occurs without such authorization.

7. Client understands that Temporary Employees are assigned to Client to render temporary services, and that absent an agreement to the contrary, are not assigned to become employed by Client. Client acknowledges the considerable expense incurred by AppleOne to advertise, recruit, evaluate, train and quality control its employees. Client will not, without prior written authorization by AppleOne, hire an AppleOne employee, interfere with the employment relationship between AppleOne and its employee, or directly or indirectly cause an AppleOne employee to transfer to another temporary help service.

8. Client understands that AppleOne may refer candidates for Client’s evaluation or assign AppleOne employees to render temporary services at Client often while such persons seek direct hire employment through AppleOne. If Client, either directly or indirectly, such as through any company within Client’s control, solicits, offers employment to and/or hires any AppleOne candidate or employee as an employee or consultant in any position, or utilizes such person’s services through another temporary or outsourcing service, or any party affiliated with Client refers such person to any other employer and said person becomes employed by that employer: i) at any time from the date such person’s identity is provided by AppleOne to Client until six (6) months thereafter, or ii) within six (6) months after termination of such person’s temporary assignment through AppleOne at Client, whichever is the later, Client agrees to pay AppleOne a direct hire fee in accordance with AppleOne’s standard fee schedule stipulated by the parties to be equal to thirty percent (30%) of such person’s first year annualized wage or salary. Unless Client presents written evidence to AppleOne of Client’s prior knowledge of an AppleOne referred candidate i) within three (3) business days of AppleOne’s referral of such candidate to Client, or ii) prior to Client’s interview of such candidate, or iii) prior to AppleOne’s assignment of such candidate at Client, whichever is earliest, Client understands and agrees that Client is liable for the payment of any direct hire fee due to AppleOne pursuant to this Agreement.

9. AppleOne offers temporary-to-hire services to Client. An AppleOne employee temporarily assigned to Client is an employee of AppleOne until released to Client. Should Client be interested in hiring an AppleOne referred candidate or employee, Client shall contact AppleOne, who will establish the terms and conditions for releasing such person to Client’s payroll, including the conversion fee to be paid by Client if such terms are not otherwise agreed to between the parties. If any Client accounts are in default according to the payment terms in Section 12, Client shall bring the accounts current prior to the hiring. If Client hires an AppleOne employee with a Client account in default, Client agrees to pay AppleOne a conversion fee equivalent to the direct hire fee as set forth in Section 8 of this Agreement.

INVOICING AND PAYMENT

10. Client understands that Temporary Employees must be paid weekly, and agrees to promptly review and approve or verify timecards or hours worked. Client agrees to pay and shall be liable for any and all charges incurred based upon Client approved or verified timecards or hours or similar information submitted by Client to AppleOne. If timecards or hours lack timely Client approval or verification, AppleOne will process payroll and invoices based upon the timecards or hours submitted by the employees.

11. Client shall reimburse AppleOne for any expenses that are incurred by AppleOne or Temporary Employees, which are reasonably related to or arise out of the services provided to Client or the discharge of duties by Temporary Employees for Client under this Agreement (“Reimbursable Expenses”). Such Reimbursable Expenses may include a reasonable amount for Temporary Employee internet service or mobile device service for remote work, Client-required equipment and tools, Client-required uniforms, pre-employment health screening (e.g., COVID-19 testing) and fit for duty doctor’s visit costs. Expenses for travel shall not be invoiced or reimbursed unless such travel expenses have been previously authorized by Client.

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12. AppleOne shall invoice Client weekly for services and any other obligations hereunder. Client agrees that payment of invoices is due upon receipt. Client agrees that an account balance that remains unpaid thirty (30) days after the invoice date will be considered in default and that AppleOne may assess a default charge of one and one-half percent (1.5%) per month on any such balance. Client agrees to pay any such default charges and any costs of collection, including attorneys’ fees.

13. Client’s payment method (Check box.): ApplePay’s eCheck. Client may sign up at www.applepay.com. ACH/Other shall be discussed between Client and the AppleOne representative.

Notwithstanding anything to the contrary in this Agreement, in the event that AppleOne is subject to any third party fees or costs related to AppleOne’s compliance with Client’s invoicing or payment policies or practices (e.g., Ariba fees, credit card fees, etc.), AppleOne will pass such fees or costs through to Client without markup.

14. Client and AppleOne acknowledge that through the Patient Protection and Affordable Care Act of 2010, as amended (“ACA”), and regulations promulgated thereby, statutory requirements have been imposed upon certain employers of certain employees working in the United States. AppleOne is committed to fulfilling its ACA obligations through offering ACA-compliant benefits to eligible contingent workers, including Temporary Employees. In demonstrating Client’s commitment to ACA compliance, Client agrees to share in ACA-related costs by paying a $0.54 surcharge for each hour of service provided by each Temporary Employee. The surcharge will be billed to Client in a separate line item on the invoice.

15. Client, or federal, state or local laws, either currently existing or enacted in the future, may mandate that Temporary Employees undergo specific training (e.g., sexual harassment prevention training), presentations and other curricula (“Trainings”), where the payment of wages is required by law. Unless otherwise agreed to by the parties in writing, the parties agree that AppleOne will invoice Client for the time spent by Temporary Employee on such Trainings, as well as for voting, as allowed by applicable law, according to the regular markup percentage or bill rate that AppleOne charges for such employee.

16. Federal, state or local laws, either currently existing or enacted in the future, may require AppleOne or Client to provide one or more Temporary Employees with certain paid sick, quarantine or COVID-19-related leave (Each such law is a “Paid Leave Law.”). AppleOne and Client agree to comply with all provisions of each Paid Leave Law with respect to Temporary Employees as such laws become effective. Unless otherwise agreed to by the parties in a writing, to address the costs for compliance with a Paid Leave Law, the parties agree that AppleOne will invoice Client for the paid leave of a Temporary Employee according to the regular markup percentage or bill rate that AppleOne charges for such employee provided that the criteria required for the payment of leave to such employee under applicable law has been met.

17. Unless otherwise agreed to by the parties elsewhere in the Agreement and/or in any of the Agreement’s mutually agreed upon ancillary exhibit(s) or document(s), to the extent that AppleOne may be required to pay the Temporary Employee overtime under any federal, state or local law, AppleOne, as applicable, will bill Client i) based upon the Temporary Employee’s legally applicable hourly pay rate for overtime work plus the markup percentage for the Temporary Employee, or ii) an overtime bill rate, which will be calculated by applying a multiplier of 1.5 or 2.0 (for double time, where applicable) to the Temporary Employee’s hourly bill rate.

18. Additional agreed upon pricing for the services to Client under this Agreement may be set forth in one (1) or more exhibit(s) to this Agreement or as mutually agreed upon by the parties in writing. The parties agree that upon thirty (30) days’ written notice to Client, pricing under this Agreement may change if AppleOne’s expenses for statutory or other fixed costs increase, or if new or additional statutory or government-imposed taxes, fees or costs are incurred by AppleOne after the Effective Date. These taxes, fees or costs may include, but are not limited to those related to: Workers’ Compensation Insurance, State Unemployment Insurance, federal, state or local taxes, regulations or ordinances (including but not limited to Wage Determinations, Health & Welfare Benefits, SCLS/SCA, vacation pay, holiday pay, Paid Leave Laws or minimum wage laws), or an increase in the ACA surcharge. The parties agree that such written notice may be in the form of an electronic communication, including email.

OTHER TERMS

19. Despite anything to the contrary in the Agreement, Client shall defend, indemnify and hold harmless AppleOne Parties from and against any and all Losses to the extent caused by Client’s failure to inform AppleOne, in writing, that Client or any job orders or services hereunder, are subject to Federal Acquisition Regulation and/or MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 76 of 186 Conditions of Service 2021 Page 4 of 5 AppleOne Confidential and Proprietary Information Legal JW 05272022
Defense Federal Acquisition Regulation Supplement, Service Contract Labor Standards, formerly known as the McNamara-O’Hara Service Contract Act of 1965 (“SCLS/SCA”), Davis-Bacon Act of 1931, Federal Paid Sick Leave (EO 13706), or any other federal law where a security clearance or any kind of government-issued credential or designation is required.

20. To the maximum extent permitted by applicable law, neither Client nor AppleOne shall have any liability for any indirect, consequential, special or incidental damages, damages for loss of profits or revenues, whether in an action in contract or tort, even if such party has been advised of the possibility of such damages, unless such party has engaged in gross negligence or willful misconduct or the damages arise from a third party claim for which a party is entitled to indemnification in this Agreement.

21. This Agreement supersedes any and all other agreements, either oral or written, between the parties or anyone acting on behalf of a party hereto, with respect to the subject matter hereof. This Agreement contains all of the covenants, conditions, warranties, representations, inducements, promises or agreements (oral, written, on a website, or otherwise) (“Promises”) between the parties with respect to the subject matter hereof. Each party hereto acknowledges that no Promises have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other Promises, which are not contained herein, shall be valid or binding. Any oral Promises or modifications concerning this Agreement shall be of no force or effect, except by a subsequent written amendment to this Agreement.

22. The confidential and/or proprietary information of the disclosing party will be held in strict confidence by the receiving party and will not be disclosed by the receiving party to any third party, or used by the receiving party for its own purposes, except to the extent that such disclosure or use is necessary in the performance by the receiving party of its obligations under this Agreement, or as otherwise required by law. The receiving party upon the request of the disclosing party will destroy or return all writings or documents that contain information subject to the protections of this section.

23. The laws of the State of California shall govern this Agreement, its interpretation and any disputes regarding the services. Any action concerning this Agreement or the services shall be instituted in the state or federal courts located in County of San Bernardino in the State of California, and AppleOne and Client agree to the exclusive personal jurisdiction of said courts and waive any rights to a change of venue. In the event that a party hereto commences any legal or equitable action or other proceeding, the prevailing party shall be entitled to recover reasonable attorneys’ fees in addition to any other relief.

24. This Agreement shall be in effect from the last date set forth below (“Effective Date”) and shall continue until terminated at any time by either party in writing. Absent a prior agreement between the parties, services provided by AppleOne to Client before the Effective Date shall be considered as having been provided subject to the provisions of this Agreement. The rights and obligations in this Agreement, which by their nature should survive, will remain in full force and effect following the termination of this Agreement.

25. In the event that any provision of this Agreement shall be unenforceable or inoperative as a matter of law, the remaining provisions shall remain in full force and effect.

26. As Client’s staffing supplier, AppleOne considers itself a critical vendor to Client, and AppleOne is committed to helping its clients through turbulent times. To ensure alignment on this issue, AppleOne requests and Client agrees that, in the unlikely event of a Client bankruptcy filing, that AppleOne will be a critical vendor of Client so that all services performed by AppleOne under this Agreement, or any other agreement between the parties, before and after any bankruptcy filing, are paid in accordance with the parties’ applicable contractual terms.

27. A waiver of a breach of any covenant, condition, or promise of this Agreement shall not be deemed a waiver of any succeeding breach of the same or any other covenant, condition, or promise of this Agreement. No waiver shall be deemed to have been given unless given in writing.

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28. The parties agree that this Agreement (and/or any of the Agreement’s mutually agreed upon ancillary exhibit(s) or document(s)) may be electronically signed and that any electronic signature appearing on this Agreement (and/or such exhibit(s) or document(s)) is the same as a handwritten signature for the purposes of validity, enforceability and admissibility. Further, the parties agree that this Agreement may be executed in counterparts, each of which together shall be deemed one and the same instrument. Moreover, the exchange of this entire executed Agreement (and/or such exhibit(s) or document(s)) that is in photostatic or portable document format (.pdf) form by electronic mail or by another electronic means shall be considered original(s) and shall constitute effective execution and delivery of the original(s).

For Client For AppleOne
Signature Signature
Javier John Dutrey
Printed Name Printed Name
Mayor
Title
June 20, 2022
Title
Date Date
5111 Benito Street 327 W Broadway
Montclair, CA 91763 Glendale, CA 91204
Address Address
AppleOne is an equal opportunity and affirmative action employer. We proudly embrace diversity in all of its manifestations. We are firmly committed to anti-racism, and as leaders of fairness in work, do not tolerate or support racism or any discriminatory practices.

MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 78 of 186

CITY COUNCIL

AGENDA REPORT
DATE: JUNE 20, 2022
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 7
FILE I.D.: SEW080
DEPT.: COMMUNITY DEV.

PREPARER: S. GUTIERREZ
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 22–65–I–109, AN IRREVOCABLE ANNEXATION AGREEMENT WITH 11185 ROSWELL, LLC FOR 11185 ROSWELL AVENUE, POMONA, CA 91766 (APN 1012–411–51–0000)
REASON FOR CONSIDERATION: Irrevocable Annexation Agreements are subject to City Council review and approval. The City Council is requested to consider approval of Agreement No. 22–65–I–109, an Irrevocable Annexation Agreement (IAA) with 11185 Roswell, LLC, to connect 11185 Roswell Avenue, Pomona to the City’s sewer system and annex the property into the City of Montclair at a future date.

BACKGROUND: On December 20, 2021, the Montclair City Council granted approval for a proposed IAA under Agreement No. 21–86–I–107, which allowed a connection to the sanitary sewer system owned and operated by the City of Montclair for a 0.88–acre industrial site located within the City’s Sphere of Influence at 11185 Roswell Avenue.

Following approval of the IAA, but prior to its recording against the property, the applicant sold the property. The change of ownership prior to Agreement No. 21–86–I– 107’s recordation rendered the IAA null and void. The new property owner, Andrew Pennor, is requesting approval of a new Irrevocable Annexation Agreement under the name 11185 Roswell, LLC, and a new agreement number, Agreement No. 22–65–I–109, was assigned.

The County’s zoning designation for the site is “Community Industrial (IC).” On May 21, 2021, the County of San Bernardino approved Minor Use Project No. PROJ–2020–00103 allowing the development of a 3,000 square foot office building and two pre–fabricated warehouse structures, totaling 7,000 square feet in area, with associated site improvements. The new development will provide office and storage space for a steel fabricating business. The project is currently under construction.

A City–owned 8–inch diameter sewer line is present and available in Roswell Avenue adjacent to the property’s frontage (Exhibit A). The proposed sewer connection request is consistent with the City’s policies and requirements. In exchange, the Agreement would require annexation of the property to the City when feasible at a future date. If approved by the City Council, staff will forward Agreement No. 22–65–I–109 to San Bernardino County’s Local Agency Formation Commission (LAFCO) for review and approval. Following City Council and LAFCO approvals, the IAA is recorded against the property and becomes binding on future owners, heirs, successors, or assigns. Staff recommends City Council approve the proposed IAA to allow the requested City sewer connection for the new commercial use.

FISCAL IMPACT: The proposed Agreement would pose no fiscal impact on the City’s General Fund at this time, but will have a positive impact when the property is connected to the sewer in the future and begins to pay for sewer service.

RECOMMENDATION: Staff recommends the City Council approve Agreement No. 22– 65–I–109, an Irrevocable Annexation Agreement with 11185 Roswell, LLC for 11185 Roswell Avenue, Pomona, CA 91766 (APN 1012–411–51–0000).

MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 79 of 186 Recording Requested by:

Silvia Gutiérrez
City of Montclair
When Recorded Mail To:

Silvia Gutiérrez
Senior Planner
City of Montclair
5111 Benito Street, P.O. Box 2308
Montclair, CA 91763
This Space for Recorder’s Use Only
FREE RECORDING PURSUANT TO GOVERNMENT CODE §27383
AGREEMENT NO. 22-65-I-109

AN IRREVOCABLE AGREEMENT TO ANNEX

TO THE CITY OF MONTCLAIR
11185 Roswell, LLC
11185 Roswell Avenue
Pomona, CA 91766
APNs: 1012-411–51–0000
MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 80 of 186

Page 1 of 4 ends

AGREEMENT NO. 21-65-I-109

AN IRREVOCABLE AGREEMENT TO ANNEX

TO THE CITY OF MONTCLAIR
11185 Roswell, a California Limited Liability Company
11185 Roswell, Pomona, CA 91766-3955 (APN 1012–411–51–0000) This agreement is entered into this ____ day of _____________, 2022, between 11185 Roswell, LLC, hereinafter referred to as "Owner," and the City of Montclair hereinafter referred to as "City."
WHEREAS, Owner is the legal property owner of the real property located at 11185 Roswell, Pomona, CA 91766-3955, the land referred to herein below as referenced by the San Bernardino County Tax Assessor Parcel Number (APN) 1011–411–51–0000, shown as Exhibit "A" attached and is further described as follows:

LOT 44 OF POMONA HOMES ACRES, AS PER MAP RECORDED IN BOOK 25 PAGE 1 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF

SAN BERNARDINO COUNTY
WHEREAS, the subject property is approximately 0.88-acres in total size, and located within unincorporated San Bernardino County and the Sphere of Influence of the City of Montclair; and
WHEREAS, the County zoning designation for the site is “Community Industrial (IC);” and
WHEREAS, on May 21, 2021, the County of San Bernardino approved Minor Use Project No. PROJ-2020-00103 allowing the development of a 3,000 square foot office building, two pre-fabricated warehouse structures, for a total development size of 7,000 square feet, and associated site improvements which are currently under construction; and WHEREAS, the Owner is required and desires to connect the property to the sanitary sewer system in the Roswell Avenue roadway, which is owned and maintained by the City of Montclair; and
WHEREAS, the City is willing to allow a connection to said sanitary sewer system if a request is made at the earliest possible time to annex to the City of Montclair; and WHEREAS, Owner desires to annex to the City of Montclair; and WHEREAS, the City intends to pursue annexation of Owner’s property, but said annexation would cause a delay in connecting to said sewer line, which would create a substantial hardship for Owner of said property; and,
WHEREAS, the agreements, conditions, and covenants contained herein are made for the direct benefit of the land subject to this Agreement and described herein and shall MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 81 of 186 Agreement No. 22-65-I-109

Page 2 of 3 ends

create an equitable servitude upon the land and operate as a covenant running with the land for the benefit of the Owner of the land and his/her heirs, successors, and assigns.

NOW, THEREFORE, the Owner does agree as follows:

1. Owner does hereby give irrevocable consent to annex to the City of Montclair at such time as the annexation may be properly approved through appropriate legal proceedings, and Owner does further agree to provide all reasonable cooperation and assistance to the City in the annexation proceedings. Said cooperation is contemplated to include signing any applications of consent prepared by the City and submitting any evidence reasonably within the control of the Owner to the various hearings required for the annexation. Said cooperation does not include, however, any obligation on behalf of the Owner to institute any litigation or judicial proceeding whatsoever to force annexation to the City.

2. The City of Montclair does hereby agree to allow a connection of said property to the sewer line owned by the City of Montclair, which is located in Roswell Avenue, at such time as all applicable permits have been obtained and associated fees have been paid.

3. Owner agrees to pay such annexation fees and costs and other municipal charges as would ordinarily be charged in the annexation of property to the City. Said fees shall be payable when the same becomes due and payable. (In some circumstances, these fees may be borne by the City).

4. Owner shall pay all fees and charges and make all deposits required by the City to connect to and use the sewer, and Owner agrees to be bound by all City ordinances, rules, and regulations with respect to the sewer system. The owner agrees to pay monthly sewer charges beginning on the date this agreement is approved by the City Council.

5. Owner shall be responsible for the maintenance and repair of the sewer lateral from the building, and/or structure to which the sewer lateral is connected to the public sewer main in the street or City easement. This responsibility includes both the portion of the sewer lateral on private property and the portion located beneath the street up to the point where the lateral connects to the public sanitary sewer main. Property owner’s responsibilities include maintenance and repair of the lateral, overflow cleanup, and damages to sewer main and/or pavement. The City may respond and take corrective action in the event of a sewage overflow from a lateral where there is an immediate threat to health or safety. However, the property owner shall be responsible for all costs incurred by the City.

6. Owner shall install any and all future improvements upon said property to the City's standards, except that the County standard(s) shall apply when more restrictive than the City standard(s).

7. Owner shall execute this agreement on behalf of himself, his heirs, successors, and assigns, and said agreement shall be irrevocable without the prior written consent of both parties hereto.

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Page 3 of 3 ends

8. The benefit and responsibilities to the subject property shall inure to the benefit and responsibilities of subsequent owners, their heirs, successors, and assigns; and the agreements, conditions, and covenants contained herein shall be binding upon them and upon the land.

9. This agreement shall be recorded with the Office of the Recorder of the County of San Bernardino.

IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first above written.

CITY: OWNER(S):

CITY OF MONTCLAIR, CALIFORNIA 11185 ROSWELL, LLC.

Javier John Dutrey, Mayor Andrew Pennor
Date: Date:

ATTEST:

Andrea M. Myrick, City Clerk
Date:

APPROVED AS TO FORM:

Diane E. Robbins, City Attorney
MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 83 of 186

EXHIBIT A
IAA 22-65-I-109 (CASE 2021-40A)
11185 ROSWELL AVENUE
8-inch Lateral City Sewer Line
MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 84 of 186

CITY COUNCIL

AGENDA REPORT
DATE: JUNE 20, 2022
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 8
FILE I.D.: PTD175
DEPT.: POLICE
PREPARER: B. KUMANSKI
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 22–66 WITH LEXISNEXIS RISK SOLUTIONS

FOR ACCURINT TRAX CELLULAR PHONE DATA MAPPING AND ANALYSIS SOFTWARE

FOR USE IN CRIMINAL INVESTIGATIONS
CONSIDER AUTHORIZING A $6,800 APPROPRIATION FROM THE PROP 30/AB 109 FUND FOR COSTS ASSOCIATED WITH AGREEMENT NO. 22–66

CONSIDER AUTHORIZING EXECUTIVE DIRECTOR, OFFICE OF PUBLIC SAFETY/POLICE

CHIEF ROBERT AVELS TO SIGN SAID AGREEMENT
REASON FOR CONSIDERATION: To help the Police Department efficiently analyze large amounts of cellular phone data collected during investigations, the City Council is requested to consider approval of Agreement No. 22–66 with LexisNexis Risk Solutions for Accurint TraX cellular phone data mapping and analysis software for use in criminal investigations, and to authorize a $6,800 appropriation from the Prop 30/AB 109 Fund for costs associated with Agreement No. 22–66. A copy of proposed Agreement No. 22– 66 with LexisNexis is attached for the City Council’s review and consideration.

BACKGROUND: Since the widespread use of cellular phones became the norm, obtaining call records and location data through search warrants and court orders has become an invaluable investigative tool for tracking suspects’ activities and locations. Previously, investigators would create spreadsheets and pin maps to plot locations and times for target phones, and often the data was incomplete or gave imprecise areas surrounding cell towers. As the technology has matured, the quantity and quality of the data has improved significantly, but has added the challenge of analyzing large amounts of data.

On a recent homicide investigation involving large quantities of phones and data, the Department reached out to the San Bernardino County Sheriff’s Department for assistance analyzing this data. The San Bernardino County Sheriff’s Department, as well as other agencies in the county, utilize LexisNexis Risk Solutions Accurint TraX software to facilitate this analysis. Using this tool, the Sheriff’s Department assisted with the identification of the primary suspect in the case by demonstrating he was present at the time of the crime and tracked his movements before and afterwards. The Department is familiar with LexisNexis products and already utilizes several of their services, including Accurint and the Desk Officer Reporting System for online reports.

With the success on this prior case, the Department obtained a free trial of the TraX software from LexisNexis and began utilizing it on open cases. Of particular note, the Department utilized the TraX trial to identify and locate the suspects from the recent homicide at the mall. In addition to these involved major cases, Detectives have used it for numerous smaller investigations to cut the amount of time needed to manually analyze the large amounts of cellular carrier data obtained though search warrants.

MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 85 of 186 In addition to the Department being an existing customer for other LexisNexis products, law enforcement agencies within the county, including the Montclair Police Department, are in the process of entering into a larger data–sharing agreement with LexisNexis for their Accurint Virtual Crime Center (AVCC). This system is planned as the replacement for Coplink, the existing data sharing system for agencies throughout the region. TraX integrates with these other LexisNexis products and enhances their function by adding data to searches and analysis. This allows for the ability to use other law enforcement data to identify and locate suspects. These unique factors eliminate any other competing products from consideration as they would not have the same functionality and compatibility with existing systems as TraX.

LexisNexis Risk Solutions provided a quote of $6,800 for a year of access to its Accurint TraX GIS cellular phone data mapping and analysis software. The term of the proposed agreement is one year with a 5 percent cost increase for each year thereafter.

FISCAL IMPACT: If authorized by the City Council, funding for Agreement No. 22–66 would result in an appropriation of $6,800 from the Prop 30/AB 109 Fund (1141).

Additional years of service, if authorized by the City Council, would result in an expenditure of $6,800 plus 5 percent for each year thereafter from the City’s General Fund.

RECOMMENDATION: Staff recommends the City Council take the following actions:

1. Approve Agreement No. 22–66 with LexisNexis Risk Solutions for Accurint TraX cellular phone data mapping and analysis software for use in criminal investigations.

2. Authorize a $6,800 appropriation from the Prop 30/AB 109 Fund to pay for the costs associated with Agreement No. 22–66.

3. Authorize Executive Director, Office of Public Safety/Police Chief Robert Avels to Sign Said Agreement.

MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 86 of 186 LNRS Non-FCRA Perm Purp Cert – Govt (Q2.19.v1)## Confidential Page 1 of 5 NON-FCRA PERMISSIBLE USE CERTIFICATION – GOVERNMENT
Customer (Agency) Name: $#GNFPC-companyName#$
DBA: $#GNFPC-DBA#$
Address: $#GNFPC-companyAdd#$
City, State, Zip: $#GNFPC-citystzip#$
Contact Name: $#GNFPC-contactname#$ Phone: $#GNFPC-contactphone#$ REQUIRED Please describe your purpose of use: $#GNFPC-purpofuse1#$ $#GNFPC-purpofuse2#$
Definitions. Gramm-Leach-Bliley Act, (15 U.S.C. § 6801, et seq.) and related state laws (collectively, the “GLBA”) Drivers Privacy Protection Act, (18 U.S.C. § 2721 et seq.) and related state laws (collectively, the “DPPA”) Law Enforcement Agencies Only: Review and, if appropriate, certify to the following: Customer represents and warrants that it will use the LN Services solely for law enforcement purposes, which comply with applicable privacy laws including, but not limited to the GLBA and the DPPA. To certify, check here: $#GNFPC-CB1#$ Proceed to SECTION 3. QUALIFIED ACCESS SECTION 1. GLBA EXCEPTION/PERMISSIBLE PURPOSE - NOT APPLICABLE TO LAW ENFORCEMENT Some LN Services use and/or display nonpublic personal information that is governed by the privacy provisions of the GLBA. Customer certifies it has the permissible purposes under the GLBA to use and/or obtain such information, as marked below, and Customer further certifies it will use such information obtained from LN Services only for such purpose(s) selected below or, if applicable, for the purpose(s) indicated by Customer electronically while using the LN Services, which purpose(s) will apply to searches performed during such electronic session:
$#GNFPC-CB2#$ No applicable GLBA exception/permissible use. Proceed to SECTION 2. DPPA PERMISSIBLE USES (At least one (1) must be checked to be permitted access to GLBA data) $#GNFPC-GLBA1#$ As necessary to effect, administer, or enforce a transaction requested or authorized by the consumer. $#GNFPC-GLBA2#$ As necessary to effect, administer, or enforce a transaction requested or authorized by the consumer by verifying the identification information contained in applications.
$#GNFPC-GLBA3#$ To protect against or prevent actual or potential fraud, unauthorized transactions, claims or other liability. $#GNFPC-GLBA4#$ In required institutional risk control programs. $#GNFPC-GLBA5#$ In resolving consumer disputes or inquiries. $#GNFPC-GLBA6#$ Use by persons, or their representatives, holding a legal or beneficial interest relating to the consumer. $#GNFPC-GLBA7#$ Use by persons acting in a fiduciary or representative capacity on behalf of the consumer. $#GNFPC-GLBA8#$ In complying with federal, state, or local laws, rules, and other applicable legal requirements. $#GNFPC-GLBA9#$
To the extent specifically permitted or required under other provisions of law and in accordance with the Right to Financial Privacy Act of 1978, to law enforcement agencies (including a Federal functional regulator, the Secretary of Treasury, a State insurance authority, or the Federal Trade Commission), self-regulatory organizations, or for an investigation on a matter related to public safety.

SECTION 2. DPPA PERMISSIBLE USES - NOT APPLICABLE TO LAW ENFORCEMENT Some LN Services use and/or display personal information, the use of which is governed by the DPPA. Customer certifies it has a permissible use under the DPPA to use and/or obtain such information and Customer further certifies it will use such information obtained from LN Services only for one (1) or more of the purposes selected below or for the purpose(s) indicated by Customer electronically while using the LN Services, which purpose(s) will apply to searches performed during such electronic session:
$#GNFPC-CB3#$ No permissible use. Proceed to SECTION 3. QUALIFIED ACCESS (At least one (1) must be checked to be permitted access to DPPA data) $#GNFPC-DPPA1#$
For use in connection with any civil, criminal, administrative, or arbitral proceeding in any federal, state, or local court or agency or before any self-regulatory body, including the service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of a federal, state, or local court.

Montclair Police Department
4870 Arrow Highway
Montclair, CA 91763
Brandon Kumanski 909-448-3605
Assist with criminal investigations
AGREEMENT NO. 22-66 LEXISNEXIS RISK SOLUTIONS
MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 87 of 186 LNRS Non-FCRA Perm Purp Cert – Govt (Q2.19.v1)## Confidential Page 2 of 5 $#GNFPC-DPPA2#$
For use in the normal course of business by a legitimate business or its agents, employees, or contractors, but only— (A) to verify the accuracy of personal information submitted by the individual to the business or its agents, employees, or contractors; and
(B) if such information as so submitted is not correct or is no longer correct, to obtain the correct information, but only for the purposes of preventing fraud by, pursuing legal remedies against, or recovering on a debt or security interest against, the individual.
$#GNFPC-DPPA3#$ Use by a government agency, but only in carrying out its functions. $#GNFPC-DPPA4#$ Use by any person acting on behalf of a government agency, but only in carrying out the agency’s functions. $#GNFPC-DPPA5#$ Use by an insurer (or its agent) in connection with claims investigation activities or antifraud activities. $#GNFPC-DPPA6#$ In connection with motor vehicle safety or theft, or driver safety (except by or for a motor vehicle manufacturer). $#GNFPC-DPPA7#$ Use by an employer or its agents or insurer to obtain or verify information relating to a holder of a commercial driver’s license that is required under Chapter 313 of Title 49 of the United States Code. $#GNFPC-DPPA8#$ For use in providing notice to the owners of towed or impounded vehicles. $#GNFPC-DPPA9#$ For use in connection with the operation of private toll transportation facilities.

With regard to the information that is subject to the DPPA, some state laws’ permissible uses may vary from the permissible uses identified above. In such cases, some state information may not be available under each permissible use listed above and/or Customer may be asked to certify to a permissible use permitted by applicable state law to obtain information from a specific state.

Customer agrees and certifies it will use the information described above only in accordance with the permissible uses selected above or those selected subsequently in connection with a specific information request.

SECTION 3. QUALIFIED ACCESS
Certain users (“Authorized Users”) may be able to obtain full social security numbers (nine (9) digits) and driver’s license numbers (collectively, “QA Data”), when appropriate, through some LN Services. Only those users that are within the Authorized User List below, and that use QA Data for an Authorized Use identified below, may qualify. To potentially qualify as an Authorized User, Customer must certify that its business is within the Authorized User List below and its use of QA Data is within the Authorized Use List below. $#GNFPC-QA1#$ Customer is NOT requesting access to QA Data. Proceed to SECTION 4. DEATH MASTER FILE $#GNFPC-QA2#$ Customer is requesting access to QA Data. Complete the sections below.

What department will be using QA Data? $#GNFPC-QAData#$

SOCIAL SECURITY NUMBERS
$#GNFPC-SSN1#$ Not an authorized user. Proceed to DRIVER’S LICENSE NUMBERS

1. AUTHORIZED USER (At least one (1) must be checked to receive Social Security Numbers) $#GNFPC-SSN2#$ Federal, state or local government agency with law enforcement responsibilities. $#GNFPC-SSN3#$ Special investigative unit, subrogation department and claims department of a private or public insurance company for the purposes of detecting, investigating or preventing fraud. $#GNFPC-SSN4#$
Financial institution for the purposes of (a) detecting, investigating or preventing fraud, (b) compliance with federal or state laws or regulations, (c) collecting debt on their own behalf, and (d) such other uses as shall be appropriate and lawful.
$#GNFPC-SSN5#$ Collection department of a creditor.
$#GNFPC-SSN6#$ Collection company acting on behalf of a creditor or on its own behalf. $#GNFPC-SSN7#$ Other public or private entity for the purpose of detecting, investigating or preventing fraud. Describe your business:
$#GNFPC-SSNDescribe1#$

2. AUTHORIZED USE (At least one (1) must be checked to receive Social Security Numbers) $#GNFPC-SSN8#$ Location of suspects or criminals.
$#GNFPC-SSN9#$ Location of non-custodial parents allegedly owing child support and ex-spouses allegedly owing spousal support. $#GNFPC-SSN10#$ Location of individuals alleged to have failed to pay taxes or other lawful debts. $#GNFPC-SSN11#$ Identity verification.
$#GNFPC-SSN12#$ Other uses similar to those described above. Describe your use:
$#GNFPC-SSNDescribe2#$
Montclair Police Department
MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 88 of 186 LNRS Non-FCRA Perm Purp Cert – Govt (Q2.19.v1)## Confidential Page 3 of 5 By selecting above, the Customer certifies that it is an Authorized User, and that it will use Social Security Numbers only for the purpose(s) it designated on the Authorized Use List and for no other purpose(s).

DRIVER’S LICENSE NUMBERS
$#GNFPC-DLN1#$ Not an authorized user. Proceed to SECTION 4. DEATH MASTER FILE

1. AUTHORIZED USER (At least one (1) must be checked to receive Driver’s License Numbers) $#GNFPC-DLN2#$ Federal, state or local government agency with law enforcement responsibilities. $#GNFPC-DLN3#$ Special investigative unit, subrogation department and claims department of a private or public insurance company for the purposes of detecting, investigating or preventing fraud. $#GNFPC-DLN4#$
Financial institution for the purposes of (a) detecting, investigating or preventing fraud, (b) compliance with federal or state laws or regulations, (c) collecting debt on their own behalf, and (d) such other uses as shall be appropriate and lawful.
$#GNFPC-DLN5#$ Collection department of a creditor.
$#GNFPC-DLN6#$ Collection company acting on behalf of a creditor or on its own behalf. $#GNFPC-DLN7#$ Other public or private entity for the purpose of detecting, investigating or preventing fraud. Describe your business:
$#GNFPC-DLNDescribe1#$

2. AUTHORIZED USE (At least one (1) must be checked to receive Driver’s License Numbers) $#GNFPC-DLN8#$ Location of suspects or criminals.
$#GNFPC-DLN9#$ Location of non-custodial parents allegedly owing child support and ex-spouses allegedly owing spousal support. $#GNFPC-DLN10#$ Location of individuals alleged to have failed to pay taxes or other lawful debts. $#GNFPC-DLN11#$ Identity verification.
$#GNFPC-DLN12#$ Other uses similar to those described above. Describe your use:
$#GNFPC-DLNDescribe2#$
By selecting above, the Customer certifies that it is an Authorized User, and that it will use Driver’s License Numbers only for the purpose(s) it designated on the Authorized Use List and for no other purpose(s).

SECTION 4. DEATH MASTER FILE
For access to Limited Access DMF Data only.
$#GNFPC-DMF1#$ No permissible purpose. Proceed to AUTHORIZATION AND ACCEPTANCE OF TERMS I. Definitions. For purposes of this Certification, these terms are defined as follows:
a. DMF Agreement: The Limited Access Death Master File Non-federal Licensee Agreement for Use and Resale executed by LexisNexis Risk Data Retrieval Services LLC, on behalf of itself, its affiliates and subsidiaries, and its and their successors, with the federal government (NTIS, as below defined). The DMF Agreement form is found at www.lexisnexis.com/risk/DMFDocuments.
b. Certification Form: The Limited Access Death Master File Subscriber Certification Form executed by LexisNexis Risk Data Retrieval Services LLC, on behalf of itself, its affiliates and subsidiaries, and its and their successors, with the federal government (NTIS, as below defined). The Certification Form is found at www.lexisnexis.com/risk/DMFDocuments. c. DMF: The federal Death Master File.
d. NTIS: National Technical Information Service, U.S. Department of Commerce e. Open Access DMF: The DMF product made available through LN, which obtains the data from NTIS, and which does not include DMF with respect to any deceased individual at any time during the three-calendar-year period beginning on the date of the individual’s death. Open Access DMF data should not be accessed pursuant to this Certification but should be accessed pursuant to a customer contract for such DMF data that is not Limited Access DMF. f. Limited Access DMF: Limited Access DMF includes DMF data with respect to any deceased individual at any time during the three-calendar-year period beginning on the date of the individual’s death. Limited Access DMF is made available through LN as a Certified Person, by NTIS. This Certification governs Customer’s access to Limited Access DMF from LN (or the applicable LN affiliate), whether full or partial Limited Access DMF records or indicators of deceased status, and via any format, including online, XML feed, or in-house file processing through LN.

MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 89 of 186 LNRS Non-FCRA Perm Purp Cert – Govt (Q2.19.v1)## Confidential Page 4 of 5 II. Certification.

Customer’s access to the Limited Access DMF requires certification of purpose, as required by 15 CFR Part 1110 and section 1001 of Title 18, United States Code. Customer hereby certifies that it has the indicated permissible purpose(s) under part (a) of this Section II (“Certification”) and that it meets the requirements of part (b) of this Section II:
(a) Such Customer has a legitimate fraud prevention interest, or has a legitimate business purpose pursuant to a law, governmental rule, regulation, or fiduciary duty, will use the Limited Access DMF only for such purpose(s), and specifies the basis for so certifying as (choose any applicable purposes that apply to Customer’s use):
$#GNFPC-Cert1#$Legitimate Fraud Prevention Interest: Customer has a legitimate fraud prevention interest to detect and prevent fraud and/or to confirm identities across its commercial business and/or government activities. $#GNFPC-Cert2#$ Legitimate Business Purpose Pursuant to a Law, Governmental Rule, Regulation, or Fiduciary Duty:

Customer has one or more of the purposes permitted under 42 USC 1306c including fraud prevention and ID verification purposes. Customer’s specific purpose(s) for obtaining Limited Access DMF data under this Certification is:
$#GNFPC-Cert3#$ Fraud Prevention and identity verification purposes $#GNFPC-Cert4#$ For uses permitted or required by law
$#GNFPC-Cert5#$ For uses permitted or required by governmental rules $#GNFPC-Cert6#$ For uses permitted or required by regulation $#GNFPC-Cert7#$ For uses necessary to fulfill or avoid violating fiduciary duties and
(b) Customer has systems, facilities, and procedures in place to safeguard Limited Access DMF, and experience in maintaining the confidentiality, security, and appropriate use of such information, pursuant to requirements similar to the requirements of section 6103(p)(4) of the Internal Revenue Code of 1986, and
(c) Customer agrees to satisfy the requirements of such section 6103(p)(4) as if such section applied to Customer.

III. Flow-down Agreement Terms and Conditions
The Parties agree that the following terms and conditions are applicable to Recipient and ordering, access to, and use of Limited Access DMF:

1. Compliance with Terms of Agreement and CFR. Recipient of Limited Access DMF must comply with the terms of the Agreement and the requirements of 15 CFR Part 1110, as though set forth as a Subscriber therein, and Recipients may not further distribute the Limited Access DMF.

2. Change in Status. Should Recipient’s status change such that it would no longer have a permissible purpose to access Limited Access DMF under this Addendum, Recipient agrees to immediately notify LN in writing in the manner and format required for notices under the Contract. Should Recipient cease to have access rights to Limited Access DMF, Recipient shall destroy all Limited Access DMF, and will certify to LN in writing that is has destroyed all such DMF.

3. Security and Audit. Recipient will at all times have security provisions in place to protect the Limited Access DMF from being visible, searchable, harvestable or in any way discoverable on the World Wide Web. Recipient understands that any successful attempt by any person to gain unauthorized access to or use of the Limited Access DMF provided by LN may result in immediate termination of Recipient’s access and this Addendum. In addition, any successful attempt by any person to gain unauthorized access may under certain circumstances result in penalties as prescribed in 15 CFR § 1110.200 levied on Recipient and the person attempting such access. Recipient will take appropriate action to ensure that all persons accessing the Limited Access DMF it obtains from LN are aware of their potential liability for misuse or attempting to gain unauthorized access. Any such access or attempted access is a breach, or attempted breach, of security and Recipient must immediately report the same to NTIS at [email protected]; and to LN by written notification to the LN Information Assurance and Data Protection Organization at 1000 Alderman Drive, Alpharetta, Georgia 30005 and by email ([email protected]) and by phone (1-888- 872-5375). Recipient agrees to be subject to audit by LN and/or NTIS to determine Recipient’s compliance with the requirements of this Addendum, the Agreement, and 15 CFR Part 1110. Recipient agrees to retain a list of all employees, contractors, and subcontractors to which it provides Limited Access DMF and to make that list available to NTIS and/or LN as part of any audits conducted hereunder. Recipient will not resell or otherwise redistribute the Limited Access DMF.

4. Penalties. Recipient acknowledges that failure to comply with the provisions of paragraph (3) of the Certification Form may subject Recipient to penalties under 15 CFR § 1110.200 of $1,000 for each disclosure or use, up to a maximum of $250,000 in penalties per calendar year, or potentially uncapped for willful disclosure.

5. Law, Dispute Resolution, and Forum. Recipient acknowledges that this Addendum is governed by the terms of federal law.

Recipient acknowledges that the terms of Section 14 of the Agreement govern disagreement handling, and, without limitation to the foregoing, that jurisdiction is federal court.

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6. Liability. The U.S. Government/NTIS and LN (a) make no warranty, express or implied, with respect to information provided under the Agreement, including but not limited to, implied warranties of merchantability and fitness for any particular use; (b) assume no liability for any direct, indirect or consequential damages flowing from any use of any part of the Limited Access DMF, including infringement of third party intellectual property rights; and (c) assume no liability for any errors or omissions in Limited Access DMF. The Limited Access DMF does have inaccuracies and NTIS and the Social Security Administration (SSA), which provides the DMF to NTIS, and LN, do not guarantee the accuracy of the Limited Access DMF. SSA does not have a death record for all deceased persons. Therefore, the absence of a particular person in the Limited Access DMF is not proof that the individual is alive. Further, in rare instances, it is possible for the records of a person who is not deceased to be included erroneously in the Limited Access DMF. Recipient specifically acknowledges the terms of Attachment B to the Agreement, which terms apply to Recipient.

7. Indemnification. To the extent not prohibited by law, Recipient shall indemnify and hold harmless LN and NTIS and the Department of Commerce from all claims, liabilities, demands, damages, expenses, and losses arising from or in connection with Recipient’s, Recipient’s employees’, contractors’, or subcontractors’ use of the Limited Access DMF. This provision will include any and all claims or liability arising from intellectual property rights.

8. Survival. Provisions hereof related to indemnification, use and protection of Limited Access DMF, audit, disclaimer of warranties, and governing law shall survive termination of this Addendum.

9. Conflict of Terms. Recipient acknowledges that the terms of this Addendum, in the event of conflict with the terms of the Contract, apply in addition to, and not in lieu of, such Contract terms, with respect to the Limited Access DMF only.

AUTHORIZATION AND ACCEPTANCE OF TERMS
I HEREBY CERTIFY that I have direct knowledge of the facts stated above and that I am authorized to execute this Certification on behalf of the Customer listed above.

CUSTOMER: $#GNFPC-customer#$
Signature $#GNFPC-signature#$
Print Name $#GNFPC-printName#$
Title $#GNFPC-title#$
Dated $#GNFPC-dated#$ (mm/dd/yy)
Montclair Police Department
MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 91 of 186 May 23, 2022

Page 1 of 2 ends

Accurint TraX
Any unauthorized revisions to this Schedule A by Customer after receipt of the final version from LN shall be considered unenforceable, and may void this Schedule A at the option of LN.

LexisNexis Risk Solutions

SCHEDULE A
Accurint TraX
Online (Subscription)
Customer Name: Montclair Police Department
Billgroup #: 6968693
LN Account Manager: Elizabeth Marshall
This Schedule A sets forth additional or amended terms and conditions for the use of the Accurint TraX services (“LN Services”), as set forth in the services agreement for the LN Services between Customer and the LexisNexis Risk Solutions entity as further defined therein (“Agreement”), to which this Schedule A is incorporated by reference. For purposes of the Agreement and this Schedule A, all LexisNexis Risk Solutions affiliates shall be individually and collectively referred to as “LN”. The LN Services herein shall be provided by LexisNexis Risk Solutions FL Inc.. Customer acknowledges that the services provided under this Schedule A are non-FCRA services and are not “consumer reports” within the meaning of the FCRA and Customer agrees not to use such reports in any manner that would cause them to be characterized as “consumer reports”.

1. SCHEDULE A TERM
The term of this Schedule A will be 12 months beginning July 1, 2022 (the "Initial Term"). Following the Initial Term, this Schedule A shall automatically renew for additional periods of twelve (12) months (each one, a "Renewal Term"), unless written notice of termination is provided to either party at least sixty (60) days prior to the expiration of the Initial Term or any Renewal Term. If an account is activated after the first day of a calendar month, charges will not be pro-rated.

2. ACCURINT TRAX FEES

2.1 Annual Subscription Fee: Beginning on the effective date hereof, Customer shall pay to LN each 12- month period (“Year”) an annual subscription fee of $6,800.00 (“Annual Subscription Fee”), to be invoiced in equal monthly Installments, in exchange for access to and use of the Accurint TraX service.

2.2 Fee Increases: At the end of each Year, the fees herein will be increased 5.00 %.

2.3 Accurint TraX Amounts Payable: Customer agrees to pay LN in accordance with any invoice for the fees set forth above.

3. EXPIRATION
Unless otherwise accepted by LN, the terms herein are valid if the Schedule A is signed by the Customer and received by LN on or before June 20, 2022.

4. CLOUD SERVICES
LN is executing a multi-year plan to move certain LexisNexis Risk Solutions products and services to Microsoft Azure Cloud services. Should you have questions regarding this plan, please document and send them via email to [email protected].

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Page 2 of 2 ends

Accurint TraX
Any unauthorized revisions to this Schedule A by Customer after receipt of the final version from LN shall be considered unenforceable, and may void this Schedule A at the option of LN.

5. CONFIDENTIAL INFORMATION
This Schedule A contains the confidential pricing information of LN. Customer acknowledges that the disclosure of such pricing information could cause competitive harm to LN, and as such, Customer agrees to maintain this Schedule A in trust and confidence and take reasonable precautions against disclosure to any third party to the extent permitted by local and state law.

AGREED TO AND ACCEPTED BY: Montclair Police Department
Signed: $#4336071-Signed#$
Name: $#4336071-CustName1#$
Title: $#4336071-Title1#$
Date: $#4336071-Date1#$
MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 93 of 186

CITY COUNCIL

AGENDA REPORT
DATE: JUNE 20, 2022
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 9
FILE I.D.: STA850
DEPT.: PUBLIC WORKS
PREPARER: M. HEREDIA
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 22–67 WITH TKE ENGINEERING, INC. FOR

ENGINEERING DESIGN SERVICES FOR THE RAMONA AVENUE AND HOWARD STREET ROUNDABOUT PROJECT [HSIPSL–5326(023)] SUBJECT TO ANY REVISIONS DEEMED

NECESSARY BY THE CITY ATTORNEY
REASON FOR CONSIDERATION: Engineering design services are required for the Ramona Avenue and Howard Street Roundabout Project. Agreements for professional services are subject to City Council approval. The City Council is requested to consider approval of Agreement No. 22–67 with TKE Engineering, Inc. for engineering design services for the Ramona Avenue and Howard Street Roundabout Project [HSIPSL– 5326(023)]. Proposed Agreement No. 22–67 with TKE Engineering, Inc. is attached for City Council review and consideration.

BACKGROUND: On March 26, 2021, the City was notified by the California Department of Transportation that the Highway Safety Improvement Program (HSIP) for Cycle 10 was successful and the City was awarded $771,000 for the Ramona Avenue and Howard Street Roundabout Project. The funding is designated for design services in the amount of $115,500 and construction in the amount of $655,500. Staff released a Request for Proposals via Planet Bids to solicit proposals for engineering design services. The City received four proposals as follows:

1. KOA Corporation

2. L.D. King, Inc.

3. Michael Baker International

4. TKE Engineering, Inc.

A panel of three staff members from the Public Works Department reviewed all proposals based on the criteria of qualifications, experience with similar projects, completeness, and clarity of proposal. The evaluating panel selected TKE Engineering, Inc. (TKE) as the successful applicant. TKE has extensive experience with HSIP, Safe Routes to School (SRTS), and Active Transportation Plan (ATP) state– and federally–funded design projects.

TKE has prepared design plans for five HSIP projects within the past five years and numerous other SRTS and ATP projects for more than ten cities throughout Southern California. Their project scope and in–depth understanding of roundabout design, knowledge of the funding source, and wide range of experience will allow TKE to hit the ground running.

FISCAL IMPACT: TKE Engineering, Inc. submitted a proposal to perform the work for $139,411. HSIP funds in the amount of $115,500 will cover the majority of the cost, and $23,911 in 2021 Lease Revenue Bond Funds will cover the remainder.

RECOMMENDATION: Staff recommends the City Council approve Agreement No. 22– 67 with TKE Engineering, Inc. for engineering design services for the Ramona Avenue and Howard Street Roundabout Project [HSIPSL–5326(023)] subject to any revisions deemed necessary by the City Attorney.

MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 94 of 186 Project Name:

Project Details:

Project No. (Assigned by Finance): 17034 441
Phase Prior Years 2019/2020 2020/2021 2021/2022 2022/2023 2023/2024 Total Fund/Program Environmental
Design 115,500.00 115,500.00 HSIP
23,911.00 23,911.00 2021 LRB
R/W Acquisition
Construction 46,200.00 46,200.00 HSIP
609,400.00 609,400.00 HSIP
Total 0.00 0.00 0.00 795,011.00 0.00 0.00 795,011.00
Approvals:

Department: By: Date:

Finance By: Date:

City Council Date:

Total Project
Cost: 795,011.00
Revision Number:

Public Works/Engineering
Fiscal Years
Preparation Date: June 14, 2022 Department: Public Works/Engineering Contact/Ext.: M. Heredia
Infrastructure Fund
Capital Project Funding Information
Ramona Avenue and Howard Street Roundabout Project
Includes design and construction of the intersection improvements. Project includes removal of the traditional four way stop and construction of a roundabout intersection.

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June 2022
Agreement No. 22-67
City of Montclair Professional Services Agreement

RAMONA AVENUE AND HOWARD STREET ROUNDABOUT PROJECT
HSIPSL-5326(023)

ARTICLE I INTRODUCTION
This AGREEMENT is between the following named, hereinafter referred to as, CONSULTANT and the following named, hereinafter referred to as, LOCAL AGENCY:

The name of the “CONSULTANT” is as follows:

TKE Engineering, Inc.,
Incorporated in the State of state of California
The Project Manager for the “CONSULTANT” will be Octavio Parada The name of the “LOCAL AGENCY” is as follows:

City of Montclair
The Contract Administrator for the City of Montclair will be Monica Heredia, P.E. Public Works Director/City Engineer
A. The work to be performed under this AGREEMENT is described in Article III Statement of Work and the approved CONSULTANT’s Cost Proposal dated 6/22/2022. The approved CONSULTANT’s Cost Proposal is attached hereto Exhibit B and incorporated by reference. If there is any conflict between the approved Cost Proposal and this AGREEMENT, this AGREEMENT shall take precedence.

B. CONSULTANT agrees to the fullest extent permitted by law, to indemnify, protect, defend, and hold harmless LOCAL AGENCY, its officers, officials, agents, employees and volunteers from and against any and all claims, damages, demands, liability, costs, losses and expenses, including without limitation, court costs and reasonable attorneys’ and expert witness fees, arising out of any failure to comply with applicable law, any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise arising out of the performance of the work described herein, to the extent caused by a negligent act or negligent failure to act, errors, omissions, recklessness or willful misconduct incident to the performance of this AGREEMENT on the part of CONSULTANT, except such loss or damage which was caused by the sole negligence, or willful misconduct of LOCAL AGENCY, as determined by a Court of competent jurisdiction. The provisions of this section shall survive termination or suspension of this AGREEMENT.

C. CONSULTANT in the performance of this AGREEMENT, shall act in an independent capacity. It is understood and agreed that CONSULTANT (including CONSULTANT's employees) is an independent contractor and that no relationship of employer-employee exists between the Parties hereto. CONSULTANT's assigned personnel shall not be entitled to any benefits payable to employees of City.

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June 2022
Agreement No. 22-67
D. LOCAL AGENCY is not required to make any deductions or withholdings from the compensation payable to CONSULTANT under the provisions of the AGREEMENT, and is not required to issue W-2 Forms for income and employment tax purposes for any of CONSULTANT's assigned personnel. CONSULTANT, in the performance of its obligation hereunder, is only subject to the control or direction of the LOCAL AGENCY as to the designation of tasks to be performed and the results to be accomplished.

E. Any third party person(s) employed by CONSULTANT shall be entirely and exclusively under the direction, supervision, and control of CONSULTANT. CONSULTANT hereby indemnifies and holds LOCAL AGENCY harmless from any and all claims that may be made against City based upon any contention by any third party that an employer-employee relationship exists by reason of this AGREEMENT.

F. Except as expressly authorized herein, CONSULTANT's obligations under this AGREEMENT are not assignable or transferable, and CONSULTANT shall not subcontract any work, without the prior written approval of the Local AGENCY. However, claims for money due or which become due to CONSULTANT from City under this AGREEMENT may be assigned to a financial institution or to a trustee in bankruptcy, without such approval. Notice of any assignment or transfer whether voluntary or involuntary shall be furnished promptly to the LOCAL AGENCY.

G. CONSULTANT shall be as fully responsible to the LOCAL AGENCY for the negligent acts and omissions of its contractors and subcontractors or subconsultants, and of persons either directly or indirectly employed by them, in the same manner as persons directly employed byCONSULTANT.

H. No alteration or variation of the terms of this AGREEMENT shall be valid, unless made in writing and signed by the parties authorized to bind the parties; and no oral understanding or agreement not incorporated herein, shall be binding on any of the parties hereto.

I. The consideration to be paid to CONSULTANT as provided herein, shall be in compensation for all of CONSULTANT’s expenses incurred in the performance hereof, including travel and per diem, unless otherwise expressly so provided.

ARTICLE II CONSULTANT’S REPORTS OR MEETINGS
(Option 1 - Use paragraphs A & B below for standard AGREEMENTs) A. CONSULTANT shall submit progress reports at least once a month. The report should be sufficiently detailed for the LOCAL AGENCY’s Contract Administrator to determine, if CONSULTANT is performing to expectations, or is on schedule; to provide communication of interim findings, and to sufficiently address any difficulties or special problems encountered, so remedies can be developed.

B. CONSULTANT’s Project Manager shall meet with LOCAL AGENCY’s Contract Administrator, as needed, to discuss progress on the AGREEMENT.

ARTICLE III STATEMENT OF WORK
Preliminary engineering, right of way engineering, environmental CEQA/NEPA technical studies, utility coordination and complete federal PS&E package to rehabilitate and widen the existing bridge spanning over UPRR tracks and roadway approaches on both ends, and independent bridge structure review (per RFP dated July 29, 2019 attachment No. 1). The services have been refined and described in the Scope of Services attached hereto as Exhibit “A.” MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 97 of 186

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ARTICLE IV PERFORMANCE PERIOD
Time of Performance is from April 4, 2020 to December 22, 2023.

A. This AGREEMENT shall go into effect on April 4, 2020, contingent upon approval by LOCAL AGENCY, and CONSULTANT shall commence work after notification to proceed by LOCAL AGENCY’S Contract Administrator. The AGREEMENT shall end on December 22, 2023, unless extended by AGREEMENT amendment.

B. CONSULTANT is advised that any recommendation for AGREEMENT award is not binding on LOCAL AGENCY until the AGREEMENT is fully executed and approved by LOCAL AGENCY.

ARTICLE V ALLOWABLE COSTS AND PAYMENTS
A. The method of payment for this AGREEMENT will be based on actual cost plus a fixed fee. LOCAL AGENCY will reimburse CONSULTANT for actual costs (including labor costs, employee benefits, travel, equipment rental costs, overhead and other direct costs) incurred by CONSULTANT in performance of the work. CONSULTANT will not be reimbursed for actual costs that exceed the estimated wage rates, employee benefits, travel, equipment rental, overhead, and other estimated costs set forth in the approved CONSULTANT’S Cost Proposal, unless additional reimbursement is provided for by AGREEMENT amendment. In no event, will CONSULTANT be reimbursed for overhead costs at a rate that exceeds LOCAL AGENCY’s approved overhead rate set forth in the Cost Proposal. In the event, that LOCAL AGENCY determines that a change to the work from that specified in the Cost Proposal and AGREEMENT is required, the AGREEMENT time or actual costs reimbursable by LOCAL AGENCY shall be adjusted by AGREEMENT amendment to accommodate the changed work. The maximum total cost as specified in Paragraph “I” of this Article shall not be exceeded, unless authorized by AGREEMENT amendment.

B. The indirect cost rate established for this AGREEMENT is extended through the duration of this specific AGREEMENT. CONSULTANT’s agreement to the extension of the 1-year applicable period shall not be a condition or qualification to be considered for the work or AGREEMENT award.

C. In addition to the allowable incurred costs, LOCAL AGENCY will pay CONSULTANT a fixed fee of $285,139.25. The fixed fee is nonadjustable for the term of the AGREEMENT, except in the event of a significant change in the scope of work and such adjustment is made by AGREEMENT amendment.

D. Reimbursement for transportation and subsistence costs shall not exceed the rates specified in the approved Cost Proposal.

E. When milestone cost estimates are included in the approved Cost Proposal, CONSULTANT shall obtain prior written approval for a revised milestone cost estimate from the Contract Administrator before exceeding such cost estimate.

F. Progress payments will be made monthly in arrears based on services provided and allowable incurred costs. A pro rata portion of CONSULTANT’s fixed fee will be included in the monthly progress payments. If CONSULTANT fails to submit the required deliverable items according to the schedule set forth in Article III Statement of Work, LOCAL AGENCY shall have the right to delay payment or terminate this AGREEMENT.

G. No payment will be made prior to approval of any work, nor for any work performed prior to approval of this AGREEMENT.

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H. CONSULTANT will be reimbursed promptly according to California Regulations upon receipt by LOCAL AGENCY’s Contract Administrator of itemized invoices in duplicate. Invoices shall be submitted no later than thirty (30) calendar days after the performance of work for which CONSULTANT is billing. Invoices shall detail the work performed on each milestone and each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this AGREEMENT number and project title. Final invoice must contain the final cost and all credits due LOCAL AGENCY including any equipment purchased under the provisions of Article XI Equipment Purchase. The final invoice should be submitted within sixty (60) calendar days after completion of CONSULTANT’s work. Invoices shall be mailed to LOCAL AGENCY’s Contract Administrator at the following address:

City of Montclair, Monica Heredia, P.E. Public Works Director / City Engineer 5111 Benito Street Montclair, CA 91763
I. The total amount payable by LOCAL AGENCY including the fixed fee shall not exceed $3,352,355.

J. For personnel subject to prevailing wage rates as described in the California Labor Code, all salary increases, which are the direct result of changes in the prevailing wage rates arereimbursable.

ARTICLE VI TERMINATION
A. This AGREEMENT may be terminated by LOCAL AGENCY, provided that LOCAL AGENCY gives not less than thirty (30) calendar days’ written notice (delivered by certified mail, return receipt requested) of intent to terminate. Upon termination, LOCAL AGENCY shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not.

B. LOCAL AGENCY may temporarily suspend this AGREEMENT, at no additional cost to LOCAL AGENCY, provided that CONSULTANT is given written notice (delivered by certified mail, return receipt requested) of temporary suspension. If LOCAL AGENCY gives such notice of temporary suspension, CONSULTANT shall immediately suspend its activities under this AGREEMENT. A temporary suspension may be issued concurrent with the notice of termination.

C. Notwithstanding any provisions of this AGREEMENT, CONSULTANT shall not be relieved of liability to LOCAL AGENCY for damages sustained by City by virtue of any breach of this AGREEMENT by CONSULTANT, and City may withhold any payments due to CONSULTANT until such time as the exact amount of damages, if any, due City from CONSULTANT is determined.

D. In the event of termination, CONSULTANT shall be compensated as provided for in this AGREEMENT. Upon termination, LOCAL AGENCY shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not.

ARTICLE VII COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS A. The CONSULTANT agrees that 48 CFR Part 31, Contract Cost Principles and Procedures, shall be used to determine the allowability of individual terms of cost.

B. The CONSULTANT also agrees to comply with Federal procedures in accordance with 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.

C. Any costs for which payment has been made to the CONSULTANT that are determined by subsequent audit to be unallowable under 48 CFR Part 31 or 2 CFR Part 200 are subject to repayment by the CONSULTANT to LOCAL AGENCY.

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D. When a CONSULTANT or Subconsultant is a Non-Profit Organization or an Institution of Higher Education, the Cost Principles for Title 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards shall apply.

ARTICLE VIII RETENTION OF RECORD/AUDITS
For the purpose of determining compliance with Gov. Code § 8546.7, the CONSULTANT, Subconsultants, and LOCAL AGENCY shall maintain all books, documents, papers, accounting records, Independent CPA Audited Indirect Cost Rate workpapers, and other evidence pertaining to the performance of the AGREEMENT including, but not limited to, the costs of administering the AGREEMENT. All parties, including the CONSULTANT’s Independent CPA, shall make such workpapers and materials available at their respective offices at all reasonable times during the AGREEMENT period and for three (3) years from the date of final payment under the AGREEMENT. LOCAL AGENCY, Caltrans Auditor, FHWA, or any duly authorized representative of the Federal government having jurisdiction under Federal laws or regulations (including the basis of Federal funding in whole or in part) shall have access to any books, records, and documents of the CONSUTANT, Subconsultants, and the CONSULTANT’s Independent CPA, that are pertinent to the AGREEMENT for audits, examinations, workpaper review, excerpts, and transactions, and copies thereof shall be furnished if requested without limitation.

ARTICLE IX AUDIT REVIEW PROCEDURES
A. Any dispute concerning a question of fact arising under an interim or post audit of this AGREEMENT that is not disposed of by AGREEMENT, shall be reviewed by LOCAL AGENCY’S Chief Financial Officer.

B. Not later than thirty (30) calendar days after issuance of the final audit report, CONSULTANT may request a review by LOCAL AGENCY’S Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing.

C. Neither the pendency of a dispute nor its consideration by LOCAL AGENCY will excuse CONSULTANT from full and timely performance, in accordance with the terms of this AGREEMENT.

D. CONSULTANT and subconsultant AGREEMENTs, including cost proposals and Indirect Cost Rates (ICR), may be subject to audits or reviews such as, but not limited to, an AGREEMENT audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the AGREEMENT, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is CONSULTANT’s responsibility to ensure federal, LOCAL AGENCY, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. The AGREEMENT, cost proposal, and ICR shall be adjusted by CONSULTANT and approved by LOCAL AGENCY Contract Administrator to conform to the audit or review recommendations. CONSULTANT agrees that individual terms of costs identified in the audit report shall be incorporated into the AGREEMENT by this reference if directed by LOCAL AGENCY at its sole discretion. Refusal by CONSULTANT to incorporate audit or review recommendations, or to ensure that the federal, LOCAL AGENCY or local governments have access to CPA work papers, will be considered a breach of AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursedcosts.

E. CONSULTANT’s Cost Proposal may be subject to a CPA ICR Audit Work Paper Review and/or audit by the Independent Office of Audits and Investigations (IOAI). IOAI, at its sole discretion, may review and/or audit and approve the CPA ICR documentation. The Cost Proposal shall beadjusted by the CONSULTANT and approved by the LOCAL AGENCY Contract Administrator to conform to the Work Paper Review recommendations included in the management letter or audit recommendMONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 100 of 186

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ations included in the audit report. Refusal by the CONSULTANT to incorporate the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report will be considered a breach of the AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.

1. During IOAI’s review of the ICR audit work papers created by the CONSULTANT’s independent CPA, IOAI will work with the CPA and/or CONSULTANT toward a resolution of issues that arise during the review. Each party agrees to use its best efforts to resolve any audit disputes in a timely manner. If IOAI identifies significant issues during the review and is unable to issue a cognizant approval letter, LOCAL AGENCY will reimburse the CONSULTANT at an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and guidelines}is received and approved by IOAI.

Accepted rates will be as follows:
a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate. b. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate. c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate.

2. If IOAI is unable to issue a cognizant letter per paragraph E.1. above, IOAI may require CONSULTANT to submit a revised independent CPA-audited ICR and audit report withinthree (3) months of the effective date of the management letter. IOAI will then have up to six (6) months to review the CONSULTANT’s and/or the independent CPA’s revisions.

3. If the CONSULTANT fails to comply with the provisions of this paragraph E, or if IOAI is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rejection of the ICR and set forth in paragraph E.1. above for all rendered services.

In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this AGREEMENT.

4. CONSULTANT may submit to LOCAL AGENCY final invoice only when all of the following items have occurred: (1) IOAI accepts or adjusts the original or revised independent CPA auditedICR; (2) all work under this AGREEMENT has been completed to the satisfaction of LOCAL AGENCY; and, (3) IOAI has issued its final ICR review letter. The CONSULTANT MUST SUBMIT ITS FINAL INVOICE TO LOCAL AGENCY no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this AGREEMENT and all other agreements executed between LOCAL AGENCY and the CONSULTANT, either as a prime or subconsultant, with the same fiscal period ICR.

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ARTICLE X SUBCONTRACTING
A. Nothing contained in this AGREEMENT or otherwise, shall create any contractual relationbetween the LOCAL AGENCY and any Subconsultants, and no subagreement shall relieve the CONSULTANT of its responsibilities and obligations hereunder. The CONSULTANT agrees to be as fully responsible to the LOCAL AGENCY for the acts and omissions of its Subconsultants and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by the CONSULTANT. The CONSULTANT's obligation to pay its Subconsultants is an independent obligation from the LOCAL AGENCY's obligation to make payments to the CONSULTANT.

B. The CONSULTANT shall perform the work contemplated with resources available within its own organization and no portion of the work shall be subcontracted without written authorization by the LOCAL AGENCY Contract Administrator, except that which is expressly identified in the CONSULTANT’s approved Cost Proposal.

C. Any subagreement entered into as a result of this AGREEMENT, shall contain all the provisions stipulated in this entire AGREEMENT to be applicable to Subconsultants unless otherwise noted.

D. CONSULTANT shall pay its Subconsultants within Fifteen (15) calendar days from receipt of each payment made to the CONSULTANT by the LOCAL AGENCY.

E. Any substitution of Subconsultants must be approved in writing by the LOCAL AGENCY Contract Administrator in advance of assigning work to a substitute Subconsultant.

ARTICLE XI EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES A. Prior authorization in writing by LOCAL AGENCY’s Contract Administrator shall be required before CONSULTANT enters into any unbudgeted purchase order, or subcontract exceeding five thousand dollars ($5,000) for supplies, equipment, or CONSULTANT services. CONSULTANT shall provide an evaluation of the necessity or desirability of incurring such costs.

B. For purchase of any item, service, or consulting work not covered in CONSULTANT’s approved Cost Proposal and exceeding five thousand dollars ($5,000), with prior authorization by LOCAL AGENCY’s Contract Administrator, three competitive quotations must be submitted with the request, or the absence of bidding must be adequately justified.

C. Any equipment purchased with funds provided under the terms of this AGREEMENT is subject to the following:

1. CONSULTANT shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of five thousand dollars ($5,000) or more. If the purchased equipment needs replacement and is sold or traded in, LOCAL AGENCY shall receive a proper refund or credit at the conclusion of the AGREEMENT, or if the AGREEMENT is terminated, CONSULTANT may either keep the equipment and credit LOCAL AGENCY in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established LOCAL AGENCY procedures; and credit LOCAL AGENCY in an amount equal to the sales price.

If CONSULTANT elects to keep the equipment, fair market value shall be determined at CONSULTANT’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by LOCAL AGENCY and CONSULTANT, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by LOCAL AGENCY.

2. Regulation 2 CFR Part 200 requires a credit to Federal funds when participating equipment with a fair market value greater than five thousand dollars ($5,000) is credited to the project.

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ARTICLE XII STATE PREVAILING WAGE RATES
A. No CONSULTANT or Subconsultant may be awarded an AGREEMENT containing public work elements unless registered with the Department of Industrial Relations (DIR) pursuant to Labor Code §1725.5. Registration with DIR must be maintained throughout the entire term of this AGREEMENT, including any subsequent amendments.

B. The CONSULTANT shall comply with all of the applicable provisions of the California Labor Code requiring the payment of prevailing wages. The General Prevailing Wage Rate Determinations applicable to work under this AGREEMENT are available and on file with the Department of Transportation's Regional/District Labor Compliance Officer (https://dot.ca.gov/programs/construction/labor-compliance). These wage rates are made a specific part of this AGREEMENT by reference pursuant to Labor Code §1773.2 and will be applicable to work performed at a construction project site. Prevailing wages will be applicable to all inspection work performed at LOCAL AGENCY construction sites, at LOCAL AGENCY facilities and at off-site locations that are set up by the construction contractor or one of its subcontractors solely and specifically to serve LOCAL AGENCY projects. Prevailing wage requirements do not apply to inspection work performed at the facilities of vendors and commercial materials suppliers that provide goods and services to the general public.

C. General Prevailing Wage Rate Determinations applicable to this project may also be obtained from the Department of Industrial Relations website at http://www.dir.ca.gov.

D. Payroll Records

1. Each CONSULTANT and Subconsultant shall keep accurate certified payroll records and supporting documents as mandated by Labor Code §1776 and as defined in 8 CCR §16000 showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by the CONSULTANT or Subconsultant in connection with the public work. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
a. The information contained in the payroll record is true and correct. b. The employer has complied with the requirements of Labor Code §1771, §1811, and §1815 for any work performed by his or her employees on the public works project.

2. The payroll records enumerated under paragraph (1) above shall be certified as correct by the CONSULTANT under penalty of perjury. The payroll records and all supporting documents shall be made available for inspection and copying by LOCAL AGENCY representatives at all reasonable hours at the principal office of the CONSULTANT. The CONSULTANT shall provide copies of certified payrolls or permit inspection of its records as follows:
a. A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or the employee's authorized representative on request. b. A certified copy of all payroll records enumerated in paragraph (1) above, shall be made available for inspection or furnished upon request to a representative of LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards of the Department of Industrial Relations. Certified payrolls submitted to LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards shall not be altered or obliterated by the CONSULTANT.
c. The public shall not be given access to certified payroll records by the CONSULTANT. The CONSULTANT is required to forward any requests for certified payrolls to the LOCAL AGENCY Contract Administrator by both email and regular mail on the business day following receipt of the request.

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3. Each CONSULTANT shall submit a certified copy of the records enumerated in paragraph (1) above, to the entity that requested the records within ten (10) calendar days after receipt of a written request.

4. Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by LOCAL AGENCY shall be marked or obliterated in such a manner as to prevent disclosure of each individual's name, address, and social security number. The name and address of the CONSULTANT or Subconsultant performing the work shall not be marked or obliterated.

5. The CONSULTANT shall inform LOCAL AGENCY of the location of the records enumerated under paragraph (1) above, including the street address, city and county, and shall, withinfive (5) working days, provide a notice of a change of location and address.

6. The CONSULTANT or Subconsultant shall have ten (10) calendar days in which to comply subsequent to receipt of written notice requesting the records enumerated in paragraph (1) above. In the event the CONSULTANT or Subconsultant fails to comply within the ten (10) day period, he or she shall, as a penalty to LOCAL AGENCY, forfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Such penalties shall be withheld by LOCAL AGENCY from payments then due. CONSULTANT is not subject to a penalty assessment pursuant to this section due to the failure of a Subconsultant to comply with this section.

E. When prevailing wage rates apply, the CONSULTANT is responsible for verifying compliance with certified payroll requirements. Invoice payment will not be made until the invoice is approved by the LOCAL AGENCY Contract Administrator.

F. Penalty

1. The CONSULTANT and any of its Subconsultants shall comply with Labor Code §1774 and §1775. Pursuant to Labor Code §1775, the CONSULTANT and any Subconsultant shall forfeit to the LOCAL AGENCY a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of DIR for the work or craft in which the worker is employed for any public work done under the AGREEMENT by the CONSULTANT or by its Subconsultant in violation of the requirements of the Labor Code and in particular, Labor Code §§1770 to 1780, inclusive.

2. The amount of this forfeiture shall be determined by the Labor Commissioner and shall be based on consideration of mistake, inadvertence, or neglect of the CONSULTANT or Subconsultant in failing to pay the correct rate of prevailing wages, or the previous record of the CONSULTANT or Subconsultant in meeting their respective prevailing wage obligations, or the willful failure by the CONSULTANT or Subconsultant to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rates of prevailing wages is not excusable if the CONSULTANT or Subconsultant had knowledge of the obligations under the Labor Code.

The CONSULTANT is responsible for paying the appropriate rate, including any escalations that take place during the term of the AGREEMENT.

3. In addition to the penalty and pursuant to Labor Code §1775, the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the CONSULTANT or Subconsultant.

4. If a worker employed by a Subconsultant on a public works project is not paid the general prevailing per diem wages by the Subconsultant, the prime CONSULTANT of the project is not liable for the penalties described above unless the prime CONSULTANT had knowledge of that failure of the Subconsultant to pay the specified prevailing rate of wages to those workers or unless the prime CONSULTANT fails to comply with all of the following requirements:

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a. The AGREEMENT executed between the CONSULTANT and the Subconsultant for the performance of work on public works projects shall include a copy of the requirements in Labor Code §§ 1771, 1775, 1776, 1777.5, 1813, and 1815. b. The CONSULTANT shall monitor the payment of the specified general prevailing rate of per diem wages by the Subconsultant to the employees by periodic review of the certifiedpayroll records of the Subconsultant.
c. Upon becoming aware of the Subconsultant’s failure to pay the specified prevailing rate of wages to the Subconsultant’s workers, the CONSULTANT shall diligently take corrective action to halt or rectify the failure, including but not limited to, retaining sufficient funds due the Subconsultant for work performed on the public works project. d. Prior to making final payment to the Subconsultant for work performed on the public works project, the CONSULTANT shall obtain an affidavit signed under penalty of perjury from the Subconsultant that the Subconsultant had paid the specified general prevailing rate of per diem wages to the Subconsultant’s employees on the public works project and any amounts due pursuant to Labor Code §1813.

5. Pursuant to Labor Code §1775, LOCAL AGENCY shall notify the CONSULTANT on a public works project within fifteen (15) calendar days of receipt of a complaint that a Subconsultant has failed to pay workers the general prevailing rate of per diem wages.

6. If LOCAL AGENCY determines that employees of a Subconsultant were not paid the general prevailing rate of per diem wages and if LOCAL AGENCY did not retain sufficient money under the AGREEMENT to pay those employees the balance of wages owed under the general prevailing rate of per diem wages, the CONSULTANT shall withhold an amount of moneys due the Subconsultant sufficient to pay those employees the general prevailing rate of per diem wages if requested by LOCAL AGENCY.

G. Hours of Labor
Eight (8) hours labor constitutes a legal day's work. The CONSULTANT shall forfeit, as a penalty to the LOCAL AGENCY, twenty-five dollars ($25) for each worker employed in the execution of the AGREEMENT by the CONSULTANT or any of its Subconsultants for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of the Labor Code, and in particular §§1810 to 1815 thereof, inclusive, except that work performed by employees in excess of eight (8) hours per day, and forty (40) hours during any one week, shall be permitted upon compensation for all hours worked in excess of eight (8) hours per day and forty (40) hours in any week, at not less than one and one-half (1.5) times the basic rate of pay, as provided in §1815.

H. Employment of Apprentices

1. Where either the prime AGREEMENT or the subagreement exceeds thirty thousand dollars ($30,000), the CONSULTANT and any subconsultants under him or her shall comply with all applicable requirements of Labor Code §§ 1777.5, 1777.6 and 1777.7 in the employment of apprentices.

2. CONSULTANTs and subconsultants are required to comply with all Labor Code requirements regarding the employment of apprentices, including mandatory ratios of journey level to apprentice workers. Prior to commencement of work, CONSULTANT and subconsultants are advised to contact the DIR Division of Apprenticeship Standards website at https://www.dir.ca.gov/das/, for additional information regarding the employment of apprentices and for the specific journey-to- apprentice ratios for the AGREEMENT work. The CONSULTANT is responsible for all subconsultants’ compliance with these requirements. Penalties are specified in Labor Code §1777.7.

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ARTICLE XIII CONFLICT OF INTEREST
A. During the term of this AGREEMENT, the CONSULTANT shall disclose any financial, business, or other relationship with LOCAL AGENCY that may have an impact upon the outcome of this AGREEMENT or any ensuing LOCAL AGENCY construction project. The CONSULTANT shall also list current clients who may have a financial interest in the outcome of this AGREEMENT or any ensuing LOCAL AGENCY construction project which will follow.

B. CONSULTANT certifies that it has disclosed to LOCAL AGENCY any actual, apparent, orpotential conflicts of interest that may exist relative to the services to be provided pursuant to this AGREEMENT. CONSULTANT agrees to advise LOCAL AGENCY of any actual, apparent or potential conflicts of interest that may develop subsequent to the date of execution of this AGREEMENT. CONSULTANT further agrees to complete any statements of economic interest if required by either LOCAL AGENCY ordinance or State law.

C. The CONSULTANT hereby certifies that it does not now have nor shall it acquire any financial or business interest that would conflict with the performance of services under thisAGREEMENT.

D. The CONSULTANT hereby certifies that the CONSULTANT or subconsultant and any firm affiliated with the CONSULTANT or subconsultant that bids on any construction contract or on any Agreement to provide construction inspection for any construction project resulting from this AGREEMENT, has established necessary controls to ensure a conflict of interest does not exist.

An affiliated firm is one, which is subject to the control of the same persons, through joint ownership or otherwise.

ARTICLE XIV REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION The CONSULTANT warrants that this AGREEMENT was not obtained or secured through rebates, kickbacks or other unlawful consideration either promised or paid to any LOCAL AGENCY employee.

For breach or violation of this warranty, LOCAL AGENCY shall have the right, in its discretion, to terminate this AGREEMENT without liability, to pay only for the value of the work actually performed, or to deduct from this AGREEMENT price or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.

ARTICLE XV PROHIBITION OF EXPENDING LOCAL AGENCY, STATE, OR FEDERAL FUNDS FOR

LOBBYING
(Include this article in all AGREEMENTs where federal funding will exceed $150,000. If less than $150,000 in federal funds will be expended on the AGREEMENT; delete this article and re-number the subsequent articles.)
A. The CONSULTANT certifies, to the best of his or her knowledge and belief, that:

1. No State, Federal, or LOCAL AGENCY appropriated funds have been paid or will be paid, by or on behalf of the CONSULTANT, to any person for influencing or attempting to influence an officer or employee of any local, State, or Federal agency, a Member of the State Legislature or United States Congress, an officer or employee of the Legislature or Congress, or any employee of a Member of the Legislature or Congress in connection with the awarding or making of this AGREEMENT, or with the extension, continuation, renewal, amendment, or modification of this AGREEMENT.

2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this AGREEMENT, the CONSULTANT shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.

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B. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. §1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than ten thousand dollars ($10,000) and not more than one hundred thousand dollars ($100,000) for each suchfailure.

C. The CONSULTANT also agrees by signing this document that he or she shall require that the language of this certification be included in all lower tier subagreements, which exceed one hundred thousand dollars ($100,000), and that all such subrecipients shall certify and disclose accordingly.

ARTICLE XVI NON-DISCRIMINATION CLAUSE AND STATEMENT OF COMPLIANCE A. The CONSULTANT’s signature affixed herein and dated shall constitute a certification under penalty of perjury under the laws of the State of California that the CONSULTANT has, unless exempt, complied with the nondiscrimination program requirements of Gov. Code §12990 and 2 CCR § 8103.

B. During the performance of this AGREEMENT, CONSULTANT and its subconsultants shall not deny the AGREEMENT’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, ormilitary and veteran status. CONSULTANT and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment.

C. CONSULTANT and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations promulgated there under (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135-11139.5, and the regulations or standards adopted by LOCAL AGENCY to implement such article. The applicable regulations of the Fair Employment and Housing Commission implementing Gov. Code §12990 (a-f), set forth 2 CCR §§8100-8504, are incorporated into this AGREEMENT by reference and made a part hereof as if set forth in full.

D. CONSULTANT shall permit access by representatives of the Department of Fair Employment and Housing and the LOCAL AGENCY upon reasonable notice at any time during the normal business hours, but in no case less than twenty-four (24) hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or LOCAL AGENCY shall require to ascertain compliance with this clause.

E. CONSULTANT and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or otherAgreement.

F. CONSULTANT shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this AGREEMENT.

G. The CONSULTANT, with regard to the work performed under this AGREEMENT, shall act in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the United States shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.

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H. The CONSULTANT shall comply with regulations relative to non-discrimination in federallyassisted programs of the U.S. Department of Transportation (49 CFR Part 21 - Effectuation of Title VI of the Civil Rights Act of 1964). Specifically, the CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by 49 CFR §21.5, including employment practices and the selection and retention of Subconsultants.

ARTICLE XVII DEBARMENT AND SUSPENSION CERTIFICATION
A. The CONSULTANT’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California, that the CONSULTANT or any person associated therewith in the capacity of owner, partner, director, officer or manager:

1. Is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency;

2. Has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years;

3. Does not have a proposed debarment pending; and

4. Has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years.

B. Any exceptions to this certification must be disclosed to LOCAL AGENCY. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining responsibility. Disclosures must indicate the party to whom the exceptions apply, the initiating agency, and the dates of agency action.

C. Exceptions to the Federal Government Excluded Parties List System maintained by the U.S.

General Services Administration are to be determined by FHWA.

ARTICLE XVIII DISADVANTAGED BUSINESS ENTERPRISES (DBE) PARTICIPATION A. This AGREEMENT is subject to 49 CFR Part 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”. CONSULTANTs who enter into a federally-funded agreement will assist the LOCAL AGENCY in a good faith effort to achieve California's statewide overall DBE goal.

B. The goal for DBE participation for this AGREEMENT is 0%. Participation by DBE CONSULTANT or subconsultants shall be in accordance with information contained in Exhibit 10- O1: Consultant Proposal DBE Commitment , or in Exhibit 10-O2: Consultant Contract DBE Commitment attached hereto and incorporated as part of the AGREEMENT (See Exhibit C). If a DBE subconsultant is unable to perform, CONSULTANT must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.

C. CONSULTANT can meet the DBE participation goal by either documenting commitments to DBEs to meet the AGREEMENT goal, or by documenting adequate good faith efforts to meet the AGREEMENT goal. An adequate good faith effort means that the CONSULTANT must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If CONSULTANT has not met the DBE goal, complete and submit Exhibit 15-H: DBE Information – Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR Part 26 for guidance regarding evaluation of good faith efforts to meet the DBE goal.

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D. DBEs and other small businesses, as defined in 49 CFR Part 26 are encouraged to participate in the performance of AGREEMENTs financed in whole or in part with federal funds. The LOCAL AGENCY, CONSULTANT or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The CONSULTANT shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT-assisted contracts. Failure by the CONSULTLANT to carry out these requirements is a material breach of this AGREEMENT, which may result in the termination of this AGREEMENT or such other remedy as the LOCAL AGENCY deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the contractor from future bidding as non-responsible E. A DBE firm may be terminated only with prior written approval from LOCAL AGENCY and only for the reasons specified in 49 CFR §26.53(f). Prior to requesting LOCAL AGENCY consent for the termination, CONSULTANT must meet the procedural requirements specified in 49 CFR §26.53(f).

If a DBE subconsultant is unable to perform, CONSULTANT must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.

F. Consultant shall not be entitled to any payment for such work or material unless it is performed or supplied by the listed DBE or by other forces (including those of Consultant) pursuant to prior written authorization of the LOCAL AGENCY’s Contract Administrator.

G. A DBE is only eligible to be counted toward the AGREEMENT goal if it performs a commercially useful function (CUF) on the AGREEMENT. CUF must be evaluated on an agreement by agreement basis. A DBE performs a Commercially Useful Function (CUF) when it is responsible for execution of the work of the AGREEMENT and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible, with respect to materials and supplies used on the AGREEMENT, for negotiating price, determining quality and quantity, ordering the material and installing (where applicable), and paying for the material itself. To determine whether a DBE is performing a CUF, evaluate the amount of work subcontracted, industry practices, whether the amount the firm is to be paid under the AGREEMENT is commensurate with the work it is actually performing, and other relevant factors.

H. A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, AGREEMENT, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.

I. If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its AGREEMENT with its own work force, or the DBE subcontracts a greater portion of the work of the AGREEMENT than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF.

J. CONSULTANT shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier.

The records shall show the date of payment and the total dollar figure paid to all firms. DBE prime CONSULTANT’s shall also show the date of work performed by their own forces along with the corresponding dollar value of the work.

K. Upon completion of the AGREEMENT, a summary of these records shall be prepared and submitted on the form entitled, Exhibit 17-F: Final Report-Utilization of Disadvantaged Business Enterprise (DBE) First-Tier Subconsultants, certified correct by CONSULTANT or CONSULTANT’s authorized representative and shall be furnished to the Contract Administrator with the final invoice.

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percent (25%) of the dollar value of the invoice being withheld from payment until the form is submitted. The amount will be returned to CONSULTANT when a satisfactory “Final ReportUtilization of Disadvantaged Business Enterprises (DBE), First-Tier Subconsultants” is submitted to the Contract Administrator.

L. If a DBE subconsultant is decertified during the life of the AGREEMENT, the decertified subconsultant shall notify CONSULTANT in writing with the date of decertification. If a subconsultant becomes a certified DBE during the life of the AGREEMENT, the subconsultant shall notify CONSULTANT in writing with the date of certification. Any changes should be reported to LOCAL AGENCY’s Contract Administrator within thirty (30) calendar days.

M. After submitting an invoice for reimbursement that includes a payment to a DBE, but no later than the 10
th of the following month, the prime contractor/consultant shall complete and email the Exhibit 9-F: Disadvantaged Business Enterprise Running Tally of Payments to:
[email protected] with a copy to the Agency.

N. Any subcontract entered into as a result of this AGREEMENT shall contain all of the provisions of this section.

ARTICLE XIX INSURANCE
A. Prior to commencement of the work described herein, CONSULTANT shall furnish LOCAL AGENCY a Certificate of Insurance stating that there is general comprehensive liability insurance presently in effect for CONSULTANT with a combined single limit (CSL) of not less than one million dollars ($1,000,000) per occurrence.

B. The Certificate of Insurance will provide:

1. That the insurer will not cancel the insured’s coverage without thirty (30) calendar days prior written notice to LOCAL AGENCY.

2. That LOCAL AGENCY, its officers, agents, employees, and servants are included as additional insureds, but only insofar as the operations under this AGREEMENT are concerned.

3. That LOCAL AGENCY will not be responsible for any premiums or assessments on thepolicy.

C. CONSULTANT agrees that the bodily injury liability insurance herein provided for, shall be in effect at all times during the term of this AGREEMENT. In the event said insurance coverage expires at any time or times during the term of this AGREEMENT, CONSULTANT agrees to provide at least thirty (30) calendar days prior notice to said expiration date; and a new Certificate of Insurance evidencing insurance coverage as provided for herein, for not less than either the remainder of the term of the AGREEMENT, or for a period of not less than one (1) year. New Certificates of Insurance are subject to the approval of LOCAL AGENCY. In the event CONSULTANT fails to keep in effect at all times insurance coverage as herein provided, LOCAL AGENCY may, in addition to any other remedies it may have, terminate this AGREEMENT upon occurrence of such event.

1. Indemnification for Professional Liability. When the law establishes a professional standard of care for Consultant’s services, to the fullest extent permitted by law, Consultant shall indemnify, protect, defend and hold harmless City and any and all of its officials, employees and agents ("Indemnified Parties") from and against any and all losses, liabilities, damages, costs and expenses, including attorney’s fees and costs to the extent same are caused in whole or in part by any negligent or wrongful act, error or omission of Consultant, its officers, agents, employees or subconsultants (or any entity or individual that consultant shall bear the legal liability thereof) in the performance of professional services under this Agreement.

2. Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, defend and hold harmless City, and any and all of its employees, officials, and agents ("Indemnified MONTCLAIR CITY COUNCIL MEETING - 06/20/2022 Page 110 of 186

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Montclair City CouncilJune 20, 2022

Montclair City Council
June 20, 2022