Agenda packet — Montclair City Council, July 17, 2023 (part 1 of 2)

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, July 17, 2023
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 provide comments on an agenda item, including public hearing and closed session items, please complete a Speaker Card located 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
A. Recognition of Outgoing Planning Commissioner Ginger Eaton B. Community Activities Commission Presentation of 2023 Home Beautification Awards
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 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

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Page No.

VIII. CONSENT CALENDAR
A. Approval of Minutes

1. Regular Joint Meeting — June 19, 2023 [CC/SA/MHC/MHA/MCF] 197 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

9. Consider Authorizing a $151,164 Appropriation from California Department of Parks and Recreation Per Capita Grant Funds and a $3,174,739 Appropriation from 2021 Lease Revenue Bond Funds for Costs Related to Construction of the Sunset Park Beautification Project [CC]
Consider Approving the Plans and Specifications and Authorizing Staff to Advertise for Bid Proposals for construction of the Sunset Park Beautification Project [CC] 14

10. Consider Authorizing the Use of 2018 and 2019 Justice Assistance Grant Funds Totaling $29,884 Toward the Cost of Transitioning to a Records Management System Compliant with the National Incident–Based Reporting System [CC] 21

11. Consider Authorizing the Receipt of $15,717 from the FY 2021 State Homeland Security Grant Program to Purchase Eleven AccuRad Personal Radiation Detectors [CC]
Consider Authorizing a $15,717 Appropriation from the Public Safety Grant Capital Outlay Machinery and Tools Account to Purchase Eleven AccuRad Personal Radiation Detectors from Mirion Technologies [CC] 23

12. Consider Authorizing the Destruction of Certain Obsolete Public Records Pursuant to the City of Montclair Records Retention Schedule [CC] 28 C. Agreements

1. Consider Approval of Agreement No. 23–42 with Liebert Cassidy Whitmore for Participation in the East Inland Empire Employment Relations Consortium and Premium Liebert Library Subscription, Subject to Any Revisions Deemed Necessary by the City Attorney [CC] 31

2. Consider Approval of Agreement No. 23–43 with Civic Publications, Inc., for Public Education and Community Outreach Services, Subject to Any Revisions Deemed Necessary by the City Attorney [CC] 38 Page No.

3. Consider Ratifying Agreement No. 23–44 with Colts Landscape, Inc. for Landscape Maintenance Services [CC]
Consider Authority City Manager Edward C. Starr to Sign Said Agreement [CC] 42

4. Consider Awarding a Contract to Hyper Electric in the Amount of $154,350 for the Electric Vehicle Charging Stations Project [CC] Consider Authorizing a $15,500 Construction Contingency for the Project [CC]
Consider Approval of Agreement No. 23–45 with Hyper Electric for Construction of the Project, Subject to Any Revisions Deemed Necessary by the City Attorney [CC] 57

5. Consider Approval of Agreement No. 23–46 with BFK Architecture + Planning for Engineering Design Services for the Montclair Branch Public Library Restrooms, Courtyard, and Fire Stations Remodel Project, Subject to Any Revisions Deemed Necessary by the City Attorney [CC] Consider Authorizing a $185,000 Appropriation from 2021 Lease Revenue Bond Proceeds for Costs Related to Agreement No. 23–46 [CC] Consider Authorizing a $16,760 Design Services Contingency for the Project [CC] 66

6. Consider Approval of Agreement No. 23–47 With Nutrition Ink to Provide Nutrition Education Services for the City’s Senior Citizen Nutrition Program, Subject to Any Revisions Deemed Necessary by the City Attorney [CC] 79

7. Consider Approval of Agreement No. 23–48 with Suzanne Yoakum to Provide Case Management Services for the Senior Center, Subject to Any Revisions Deemed Necessary by the City Attorney [CC] 86

8. Consider Approval of Agreement No. 23–49 with Misha L. Penn to Provide Grant Management and Fiscal Compliance Services for the Human Services Department, Subject to Any Revisions Deemed Necessary by the City Attorney [CC] 100

9. Consider Approval of Agreement No. 23–52 with ZPR’s House of Car Wash for Car Wash Services for City Vehicles [CC] 114

10. Consider Approval of Agreement No. 23–53 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] 118

11. Consider Approval of Agreement No. 23–55 with TOC Public Relations to Develop a Recruitment Website Exclusively for the Police Department, Including a Photo and Video Recruitment Package and a Social Media Ad Campaign for the Purpose of Attracting and Recruiting Police Officer Candidates, Subject to Any Revisions Deemed Necessary by the City Attorney [CC]
Consider Authorizing Acting Police Chief Jason Reed to Sign Said Agreement [CC]
Consider Authorizing a $40,000 Appropriation from the Federal Asset Forfeiture Fund for Costs Associated with Agreement No. 23–55 [CC] 124 Page No.

A. Resolutions

1. Consider Adoption of Resolution No. 23–3409 Authorizing Placement of Liens on Certain Properties for Delinquent Sewer and Trash Charges [CC] 130

2. Consider Adoption of Resolution No. 23–3415 Approving Agreement No. 23–54, an Affordable Housing Agreement with the Montclair Housing Authority and the Montclair Housing Corporation; Authorizing the Transfer of 10053 Central Avenue, Montclair, to the Montclair Housing Authority for use as Affordable Housing; and Declaring Such Real Property to be Exempt Surplus Land [CC]
Consider Adoption of MHC Resolution No. 23–03 Approving Agreement No. 23–54, an Affordable Housing Agreement with the City of Montclair and the Montclair Housing Authority [MHC]
Consider Adoption of MHA Resolution No. 23–02 Approving Agreement No. 23–54, an Affordable Housing Agreement with the City of Montclair and the Montclair Housing Corporation, and Accepting the Transfer of Certain Real Property from the City of Montclair [MHA] 136 IX. PULLED CONSENT CALENDAR ITEMS
X. COMMUNICATIONS
A. Department Reports

1. Police Department — National Night Out
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. Closed Session Pursuant to Government Code Section 54956.8 Regarding Real Property Negotiations [CC]
Property: APN 1009–241–43–0–000
Negotiating Parties: City of Montclair, Chen Sandy Living Trust City Negotiator: Edward C. Starr, City Manager
Under Negotiation: Recommendations Regarding Purchase Price C. City Manager/Executive Director
D. Mayor/Chairperson
E. Council Members/Directors
F. Committee Meeting Minutes (for informational purposes only)

1. Public Works Committee Meeting — May 18, 2023 [CC] 194

2. Personnel Committee Meeting — June 19, 2023 [CC] 196 Page No.

XI. CLOSED SESSION
XII. CLOSED SESSION ANNOUNCEMENTS
XIII. ADJOURNMENT
The next regular joint meeting of the City Council, Successor Agency Board, Montclair Housing Corporation Board, Montclair Housing Authority Commission, and Montclair Community Foundation Board will be held on Monday, August 7, 2023 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, July 13, 2023.

CITY COUNCIL

AGENDA REPORT
DATE: JULY 17, 2023
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 June 30, 2023.

BACKGROUND: Included in the City Council’s agenda packet is a copy of the Treasurer's Report for the period ending June 30, 2023.

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 June 30, 2023.

CITY COUNCIL

AGENDA REPORT
DATE: JULY 17, 2023
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 2
FILE I.D.: FIN540
DEPT.: FINANCE
PREPARER: A. VONG/V. FLORES
SUBJECT: CONSIDER APPROVAL OF WARRANT REGISTERS AND PAYROLL DOCUMENTATION REASON FOR CONSIDERATION: The City Council is requested to consider approval of the Warrant Registers and Payroll Documentation.

BACKGROUND: Mayor Pro Tem Johnson has examined the Warrant Registers dated July 3, 2023, and July 17, 2023; and the Payroll Documentation dated May 21, 2023, and June 4, 2023, and recommends their approval.

FISCAL IMPACT: The Warrant Register dated July 3, 2023, totals $1,490,394.85. The Warrant Register dated July 17, 2023, totals $2,880,048.38.

The Payroll Documentation dated May 21, 2023 totals $738,699.06 gross, with $525,108.86 net being the total cash disbursement. The Payroll Documentation dated June 4, 2023 totals $752,349.17 gross, with $536,146.26 net being the total cash disbursement.

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

CITY COUNCIL

AGENDA REPORT
DATE: JULY 17, 2023
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 June 30, 2023, 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 June 30, 2023.

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 June 30, 2023.

CITY COUNCIL

AGENDA REPORT
DATE: JULY 17, 2023
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 june 30, 2023, pursuant to state law.

BACKGROUND: Vice Chair Johnson has examined the Successor to the Redevelopment Agency Warrant Register dated 06.01.23-06.30.23 in the amounts of $19,636.55 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 Johnson 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 June 30, 2023.

CITY COUNCIL

AGENDA REPORT
DATE: JULY 17, 2023
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 June 30, 2023, 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 June 30, 2023.

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 June 30, 2023.

CITY COUNCIL

AGENDA REPORT
DATE: JULY 17, 2023
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 June 30, 2023, pursuant to state law.

BACKGROUND: Vice Chair Johnson has examined the Warrant Register dated 06.01.23–

06.30.23 in the amount of $139,914.91 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 Johnson recommends the Montclair Housing Corporation Board of Directors approve the Warrant Register for the period ending June 30, 2023.

CITY COUNCIL

AGENDA REPORT
DATE: JULY 17, 2023
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 June 30, 2023, 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 June 30, 2023.

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 June 30, 2023.

CITY COUNCIL

AGENDA REPORT
DATE: JULY 17, 2023
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 June 30, 2023, pursuant to state law.

BACKGROUND: Vice Chair Johnson has examined the Warrant Register dated 06.01.23–

06.30.23 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 Johnson recommends the Montclair Housing Authority Commission approve the Warrant Register for the period ending June 30, 2023.

CITY COUNCIL

AGENDA REPORT
DATE: JULY 17, 2023
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 9
FILE I.D.: GRT225/PRK650
DEPT.: PUBLIC WORKS
PREPARER: R. HOERNING
SUBJECT: CONSIDER AUTHORIZING A $151,164 APPROPRIATION FROM CALIFORNIA

DEPARTMENT OF PARKS AND RECREATION PER CAPITA GRANT FUNDS AND A $3,174,739 APPROPRIATION FROM 2021 LEASE REVENUE BOND FUNDS FOR COSTS

RELATED TO CONSTRUCTION OF THE SUNSET PARK BEAUTIFICATION PROJECT

CONSIDER APPROVING THE PLANS AND SPECIFICATIONS AND AUTHORIZING STAFF

TO ADVERTISE FOR BID PROPOSALS FOR CONSTRUCTION OF THE SUNSET PARK

BEAUTIFICATION PROJECT
REASON FOR CONSIDERATION: The City Council is requested to consider approval of non–budgeted appropriations and the plans and specifications for the Sunset Park Beautification Project, and to consider authorization for staff to advertise for bid proposals for construction of the Project.

BACKGROUND: The City obtained two separate grants associated with improvements to Sunset Park. On September 20, 2021, the City Council authorized staff to prepare an application for the California Department of Parks and Recreation, Per Capita Grant Program. Staff received notice that the application was successful and the City was awarded a total of $201,552 for design and construction of the Sunset Park playground improvements. The project is identified by the California Department of Parks and Recreation as the Revitalization of Recreation Elements at Sunset Park.

On January 31, 2022, staff prepared and submitted an application for grant funding through the Clean California Local Grant (CCLG) Program, sponsored by the California Department of Transportation (Caltrans). On March 4, 2022, the City was notified of a grant award totaling $4,174,097. The awarded funds are for the construction costs associated with the Sunset Park Beautification Project. The two Sunset Park improvement grants total $4,375,649.

The Sunset Park Improvement Project will construct a bicycle trail, walking pathways, exercise stations, playground equipment, restrooms, shade structures, picnic tables, fencing, parking lot improvements, lighting, a new landscape irrigation system, and landscape improvements.

On June 6, 2022, the City Council approved Agreement No. 22–52 with LD King, Inc. to perform engineering design services to prepare the construction documents for the Sunset Park Beautification Project Improvements.

On May 15, 2023, the City Council approved the purchase of two prefabricated Exeloo Company self–cleaning restroom units for the Sunset Park Beautification Project.

Fabrication and delivery of the restroom units are long–lead items.

The City is nearing completion of securing the United State Army Corp of Engineers (USACE) permit to construct and maintain the trail and park improvements within the USACE right–of–way. It is anticipated the permit will be issued shortly. All of the items have been provided and staff is waiting final permit signature from the USACE Commander. This is a permit between the USACE and the City for construction, operations, and maintenance of the maintenance road/trail and recreation improvements. This permit does not affect the construction specifications.

FISCAL IMPACT: The estimated construction cost for Sunset Park improvements exceeds the awarded California Department of Parks and Recreation per Capita Grant Program ($151,154 for playground equipment and support facilities) and Clean California Reimbursement Grant ($4,174,097 Sunset Park Improvements). Funds to complete the improvements would be provided from the 2021 Lease Revenue Bond funds.

RECOMMENDATION: Staff recommends that the City Council take the following actions in relation to the Sunset Park Improvement Project:

1. Authorize a $151,164 appropriation from California Department of Parks and Recreation Per Capita grant funds and a $3,174,739 appropriation from 2021 Lease Revenue Bond funds for costs related to construction of Project; and

2. Approve the plans and specifications and authorize staff to advertise for bid proposals for construction of the Project.

KINGSLEY STREET

ORCHARD STREET

LEHIGH ELEMENTARY
SCHOOL

CITY OF MONTCLAIR

SUNSET PARK BEAUTIFICATION PROJECT

SITE PLAN OVERVIEW
NORTH

CONCEPTS FOR SUNSET PARK

SUNSET PARK MONUMENT SIGN

ARTISTIC FENCING ALONG SAN ANTONIO CREEK TRAIL

CONCEPTS FOR SUNSET PARK

ARTISTIC SHADE STRUCTURE PICNIC AREA

RAIN GARDEN

CONCEPTS FOR SUNSET PARK

RIVER & CREEK THEMED PLAYGROUND

RIVER & CREEK THEMED PLAYGROUND
Project Name:

Project Details:

Public Works/Engineering Department
Project No. (Assigned by Finance): 17035/17037/21012 446 Phase Prior Years 2019/2020 2020/2021 2021/2022 2022/2023 2023/2024 Total Fund/Program Environmental
Design 50,388.00 50,388.00 Per Capita
198,602.00 590,000.00 3,174,739.00 3,963,341.00 2021 LRB

Construction 151,164.00 151,164.00 Per Capita
4,174,097.00 4,174,097.00 Clean California
Total 0.00 0.00 0.00 248,990.00 590,000.00 7,500,000.00 8,338,990.00 Approvals:

Department: By: Date:

Finance By: Date:

City Council Date:

Total Project
Cost: 8,338,990.00
Revision Number:

Infrastructure Fund
Capital Project Funding Information
Sunset Park Improvement Project
Design and Construction of Sunset Park. Improvements includes a bicycle trail, walking pathways, exorcise equipment, playground equipment, restrooms, shade structures, picnic tables, parking lot improvements, lighting, irrigation and landscape improvements.

Public Works/Engineering
Fiscal Years
Preparation Date: July 11, 2023 Department:

Contact/Ext.: R Hoerning

CITY COUNCIL

AGENDA REPORT
DATE: JULY 17, 2023
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 10
FILE I.D.: PDT362
DEPT.: POLICE
PREPARER: M. BUTLER
SUBJECT: CONSIDER AUTHORIZING THE USE OF 2018 AND 2019 JUSTICE ASSISTANCE GRANT FUNDS TOTALING $29,884 TOWARD THE COST OF TRANSITIONING TO A RECORDS MANAGEMENT SYSTEM COMPLIANT WITH THE NATIONAL INCIDENT–BASED

REPORTING SYSTEM
REASON FOR CONSIDERATION: The City Council is requested to consider authorizing the use of 2018 and 2019 Justice Assistance Grant (JAG) funds toward the cost of purchasing a new records management system that is compliant with the National Incident–Based Reporting System (NIBRS).

BACKGROUND: In June 2023, the Department received $15,175 from the 2018 Edward Byrne Memorial JAG Program and $14,709 from the 2019 JAG Program. JAG Program awards are for the exclusive use of law enforcement services and programs and are designed to provide additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice.

Due to lawsuits against the federal government over new conditions that state and local governments were required to satisfy in order to receive Byrne grants, the County of San Bernardino Board of Supervisors did not accept the JAG 2018 or JAG 2019 awards from the U.S. Department of Justice (DOJ) until June 2020. The County is the JAG Program Administrator and disburses appropriate grant allocations to eligible jurisdictions. The City entered into Agreement Nos. 20–73 and 20–74 with the County in September 2020 to provide for the receipt of grant funds. At that time, staff was informed that the County would begin transitioning to a new grants management system, which caused more delays in receiving grant funds.

In May 2023, staff was given three days to submit a budget and narrative modification request for both JAG 2018 and 2019, and was informed that the grant funds had to be spent by September 30, 2023. During the delay in receiving grant funds, the Department has reprioritized the original projects for both grants. With only three months to spend the grant funds, the County suggested using grant funds toward NIBRS compliance, since DOJ had given prior approval to any agency that would be submitting a budget modification request to use funds toward NIBRS compliance.

In June 2016, the Federal Bureau of Investigation (FBI) informed all states that it would be transitioning to a NIBRS–only data collection by January 1, 2021—the FBI’s NIBRS has become the national standard for law enforcement crime data reporting in the United States. All federal, state, local, and tribal agencies are now required to use NIBRS for data reporting; however, prior to this date, the Department’s record management system used the Uniform Crime Reporting (UCR) system. Thus, in December 2019, the City entered into Agreement No. 19–103 with the City of West Covina/West Covina Service Group (WCSG) and Mark43 for upgrades to the Department’s computer–aided dispatch and records management software and service (CAD/RMS). These upgrades were necessary because the Department’s legacy system was reaching its end of lifecycle, and the Department needed a system that was NIBRS–compliant.

In FY 2020–21, the cost for the newly upgraded records management system (Mark43), which included full NIBRS compliance, was $107,454. JAG 2017 funds ($15,005) have already been successfully applied to this cost. With the short timeframe, staff submitted budget modification requests to the County to modify its JAG 2018 and 2019 budgets by spending its allocations toward the cost of transitioning to a NIBRS–compliant records management system.

FISCAL IMPACT: If authorized by the City Council, the $15,175 from JAG 2018 and $14,709 from JAG 2019 would be used to reimburse the SB 509 Public Safety Fund 1143 toward the cost of the Department’s new NIBRS–compliant records management system.

RECOMMENDATION: Staff recommends the City Council authorize the use of 2018 and 2019 JAG funds totaling $29,884 toward the cost of transitioning to a records management system compliant with NIBRS.

CITY COUNCIL

AGENDA REPORT
DATE: JULY 10, 2023
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 11
FILE I.D.: FRD220
DEPT.: FIRE
PREPARER: D. POHL
SUBJECT: CONSIDER AUTHORIZING THE RECEIPT OF $15,717 FROM THE FY 2021 STATE

HOMELAND SECURITY GRANT PROGRAM TO PURCHASE ELEVEN ACCURAD

PERSONAL RADIATION DETECTORS
CONSIDER AUTHORIZING A $15,717 APPROPRIATION FROM THE PUBLIC SAFETY

GRANT CAPITAL OUTLAY MACHINERY AND TOOLS ACCOUNT TO PURCHASE ELEVEN

ACCURAD PERSONAL RADIATION DETECTORS FROM MIRION TECHNOLOGIES REASON FOR CONSIDERATION: The City Council is requested to consider authorizing the receipt of $15,717 from the FY 2021 State Homeland Security Grant Program (HSGP) and to authorize a $15,717 appropriation from the Public Safety Grant Capital Outlay Machinery and Tools account to purchase eleven AccuRad Personal Radiation Detectors (PRDs).

BACKGROUND: The FY 2021 HSGP is responsible for distributing non–matching grant funds to local responders to provide financial assistance for the purpose of purchasing equipment and supplies to improve emergency response capabilities. All eligible applicants are required to purchase equipment or supplies in advance and are entitled to 100 percent reimbursement through the grant program. The distribution of grant funds is coordinated by each Operational Area (OA). The coordinating agency for the City of Montclair is the San Bernardino County Fire Protection District.

Through the FY 2021 HSGP, the Fire Department has been authorized to receive $15,717 in non–matching grant funds to purchase eleven AccuRad PRD. HSGP funds are distributed to fire jurisdictions within San Bernardino County. Each jurisdiction is allocated a $10,000 base, with the remainder of the grant distributed on a per–capita basis to each eligible jurisdiction. The total grant allocation for San Bernardino County for FY 2021 is approximately $578,459; the Montclair Fire Department’s allocation is $15,717.

The Fire Department’s current supply of personal radiation detectors are over 20 years old making them obsolete. Radiological material is transported daily in a variety of settings in which the Department may respond. Procuring these devices would allow for personnel to be alerted to radiation exposure, which would in turn allow them to respond effectively and efficiently. These devices can be utilized in response to vehicle accidents, building collapse, and any other radiological incidents.

Staff received three quotes, which are listed below, for AccuRad PRDs.

Vendor Bid Amount
Mirion Technologies $15,717.00
Hazmat Resource, Inc. $18,833.62
LAURUS Systems Inc. $15,389.00
While LARUS Systems Inc. offers a lower quote up front, it does not include the cost of taxes for the devices; therefore, Mirion Technologies is the selected vendor for this purchase. This vendor offers the exact amount that has been allocated to the Montclair Fire Department and they offer the latest and most up to date technology needed for these devices.

FISCAL IMPACT: If approved by the City Council, the purchase of Mirion Technologies AccuRad PRD would result in a $15,717 appropriation from the Public Safety Grant Fund (1163) Capital Outlay Machinery and Tools Account. The City would be reimbursed the $15,717 from the FY 2021 HSGP.

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

1. Authorize the receipt of $15,717 from the FY 2021 State Homeland Security Grant Program to purchase eleven Mirion Technologies AccuRad PRDs.

2. Authorize a $15,717 appropriation from the Public Safety Grant Capital Outlay Machinery and Tools Account to purchase eleven AccuRad PRDs from Mirion Technologies.

Mirion Technologies
(Canberra), Inc.
800 Research Parkway,
Meriden CT 06450 – USA
Fax: 203–235–1347
Service: 800–255–6370
Quote Number – Q–23423
Opportunity Number – AM–US–HMW–22223272
Customer Information
Customer Montclair Fire Dept Issue Date 6/21/2023
Contact Michael Matheson Expiration Date 7/21/2023
Phone Number Est. Shipment ARO TBD
Email [email protected] Incoterm: FOB – origin Address 8901 Monte Vista Ave. Montclair, 91763 Shipping Method Freight Terms
Payment Terms
Prepay and Add
Item Product Code Product Name Description
Qty Unit Price
Total
Price
ACCURAD AccuRad PRC) AccuRad PRD, individual packaging
Equipped with belt clip and screen
protector. The box also contains 2xAA
alkaline batteries, a quick start guide, a
quick card, and a spare clip,
Note: also available in bulk packaging for

11.00 $1,302.00 $14,322.00
large orders (>50). Please inquire.
2 TAX Estimated Taxes 1.00 $1,360.59 $1 ,360.59
3 PACKING–HP & freight charges 1.00 $34.41 $34.41
Subtotal: USD 15,717.00
Total Price: USD 15,717.00
Please authorize partial shipments in your purchase order.

Contact Information
Account Manager Carol McGowan Prepared By Carol McGowan Phone Number 470 795 9046 Phone Number 470 795 9046
Email [email protected] [email protected]
If you would like to move forward with an order, please provide your purchase order/payment information to meriden–[email protected] or feel free to call us at (203) 639–2630.

Hazmat Resource, Inc.
2425 Golden Hill Rd Ste 106–143
Paso Robles. CA 93446 US
+1 8056170987 [email protected] hazmatresource.com 221222
Mike Matheson Mike Matheson
City of Montclair Fire Department City of Montclair Fire Department Montclair, CA USA Montclair, CA USA
DATE 05/24/2023
AR_PRD AccuRad PRC) SEL

43.3 11 1 ,589.00 17,479.00
SUBTOTAL 17,479.00
$18,833.62
LAURUS Systems Inc.
3460 Ellicott Center Drive
Suite 101 Ellicott City, MD 210434164
p H : 410–465–5558
FEIN: 52–2326481
DEI: R393G7785KHR
DUNS: 027861462
CAGE: IUZ18
Certified Business Designations: WOSB–WBE–DBE
Quote Number: Q23–0497REV1 Quote Date: Jun 21, 2023 Page:

To Place an order–please fax orders to 41 e–mail to
[email protected]
or
Quoted To: Ship To:

Montclair Fire Department
8901 Monte Vista Ave.

Montclair, CA 91 763
USA
Mike Matheson
8901 Monte Vista Ave.

Montclair, CA 91763
USA
Customer ID Godd Thru' Payment TermS Sales Rep
CA Montclair FD 7/21/23 Net 30 Laura Lynch
Quantity Description Unit Price "Amount

11.00 AccuRad Accurad PRC) Inc. 2 AA Batteries–Spare
Belt Clip–Quick Guide and Storage Box

PRICE INCLUDES SHIPPING

UNITS ARE IN STOCK

LAURUS SYSTEMS DOES NOT

COLLECT

OR REMIT SALES TAX IN THE STATE
OF
CA. PLEASE DO INCLUDE SALES TAX
ON
PURCHASE ORDERS. THAT IS THE

RESPONSIBILITY OF THE
PROCUREMENT AGENCY.
1 ,399.oo 15,389.00
Sales Rep Email: [email protected] Freight Terms–FOB Origin (prepay and add) For up to date product information–news–manuals and support–Vist us on the Web at www.LaurusSystems.com
Subtotal 15,389.00
Sales Tax
Freight
15,389.00

CITY COUNCIL

AGENDA REPORT
DATE: JULY 17, 2023
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 12
FILE I.D.: CCK280
DEPT.: CITY MGR./CITY CLERK
PREPARER: A. MYRICK
SUBJECT: CONSIDER AUTHORIZING THE DESTRUCTION OF CERTAIN OBSOLETE PUBLIC

RECORDS PURSUANT TO THE CITY OF MONTCLAIR RECORDS RETENTION SCHEDULE REASON FOR CONSIDERATION: The City Council is requested to authorize the destruction of certain obsolete public records pursuant to the City of Montclair Records Retention Schedule.

The subject records requested for destruction are listed on the attached City of Montclair Destruction of Public Records Form. The current list consist of on–site records from the Human Services Department.

BACKGROUND: On November 19, 2012, the City Council adopted Resolution No. 12– 2973 establishing the Montclair Records Retention Schedule as the City of Montclair’s Official Records Management Program.

The current procedure requires City Departments to submit a form to request destruction of records, which is reviewed by the City Clerk and the City Attorney for conformance with the retention schedule. The form is then submitted to the City Council for authorization to destroy the records.

FISCAL IMPACT: There would be no fiscal impact directly related to authorizing destruction of the subject records. The records are currently stored on–site, and staff time and the City’s monthly on–site shred service will be used to destroy the records once approved.

RECOMMENDATION: Staff recommends the City Council authorize the destruction of certain obsolete public records pursuant to the Montclair Records Retention Schedule.

CITY COUNCIL

AGENDA REPORT
DATE: JULY 17, 2022
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 1
FILE I.D.: PER250
DEPT.: ADMIN. SVCS.

PREPARER: M. RICHTER
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 23–42 WITH LIEBERT CASSIDY

WHITMORE FOR PARTICIPATION IN THE EAST INLAND EMPIRE EMPLOYMENT

RELATIONS CONSORTIUM AND PREMIUM LIEBERT LIBRARY SUBSCRIPTION, SUBJECT

TO ANY REVISIONS DEEMED NECESSARY BY THE CITY ATTORNEY
REASON FOR CONSIDERATION: The City’s current Agreement with Liebert Cassidy Whitmore (LCW) for participation in the East Inland Empire Employment Relations Consortium (ERC) is scheduled for renewal on July 1, 2023. The City Council is requested to consider approval of proposed Agreement No. 23–42 with LCW, a copy of which is attached for the City Council’s review and consideration.

BACKGROUND: For over 30 years, the City of Montclair has participated in LCW’s East Inland Empire ERC. The City’s participation entitles officials and employees to receive five one–day group training sessions, unlimited free telephone consultations with the law firm’s attorneys, and a monthly employment–relations newsletter. Participating agencies may also receive specialized training for an added cost. As laws related to employment relations are constantly evolving, participating in this consortium is crucial to keeping City employees abreast of such changes.

The contract’s renewal adds the Premium Liebert Library Subscription, which includes unlimited access to LCW workbooks in digital format and over 200 sample forms, model policies, and checklists that can be downloaded and used by staff as templates.

The term of the proposed Agreement is for July 1, 2023 to June 30, 2024.

FISCAL IMPACT: The annual fee for participating in the Consortium is $4,255. Funds to cover the cost are included in the Fiscal Year 2023–2024 Budget.

RECOMMENDATION: Staff recommends the City Council approve Agreement No. 23–42 with Liebert Cassidy Whitmore for participation in the East Inland Empire Employment Relations Consortium and Premium Liebert Library Subscription, subject to any revisions deemed necessary by the City Attorney.

AGREEMENT NO. 23-42 Page 1 of 6
Javier John Dutrey
Mayor
7/17/2023
ATTEST
By: ________________________________
Andrea M. Myrick, City Clerk
AGREEMENT NO. 23-42 Page 2 of 6
x
AGREEMENT NO. 23-42 Page 3 of 6
AGREEMENT NO. 23-42 Page 4 of 6
AGREEMENT NO. 23-42 Page 5 of 6
AGREEMENT NO. 23-42 Page 6 of 6

CITY COUNCIL

AGENDA REPORT
DATE: JULY 17, 2023
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 2
FILE I.D.: ADM110–05
DEPT.: CITY MGR.

PREPARER: M. FUENTES
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 23–43 WITH CIVIC PUBLICATIONS, INC.,

FOR PUBLIC EDUCATION AND COMMUNITY OUTREACH 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. 23–43 with Civic Publications, Inc., to provide public education and community outreach services. The City Council approves agreements for professional services.

A copy of proposed Agreement No. 23–43 with Civic Publications is attached for City Council review and consideration.

BACKGROUND: The City of Montclair periodically provides outreach services to the community through the publication of printed mailers that provide factual content directed at bringing public awareness to civic issues and community events.

However in recent years, progressive and routine changes in technology have produced a population increasingly sophisticated and diverse in the way it consumes and accesses information. Today, these information sources have grown beyond traditional printed media to encompass and embrace digital formats that include the internet, social media, e–mail, texting, and smartphone application–based programs.

Civic Publications, Inc. (Civic) is a multimedia company located in La Verne that specializes in media, content development, and public outreach for public agencies.

Civic Publications, Inc. works with public agencies to create, coordinate, and distribute public information to help bring awareness and understanding to complex issues on matters of civic importance. Civic Publications, Inc. prides itself in its ability to articulate city services, projects, and issues with facts, clarity, and transparency to achieve community awareness.

Civic Publications, Inc. is owned and operated by Chris Lancaster. Mr. Lancaster founded Civic Publications, Inc. to extend public affairs services to a wide range of government agencies, with expertise in transit, environmental, and public benefit messaging.

Prior to starting Civic Publications, Inc., Mr. Lancaster worked as Director of Government Relations and New Business Development for the Los Angeles Newspaper Group, comprising eight daily newspapers in the Los Angeles and San Bernardino Counties with a daily readership of more than 1.6 million.

Mr. Lancaster has more than 15 years of experience managing public affairs content and media for Southern California public agencies, including municipalities, environmental agencies, transit agencies, and public safety agencies. Mr. Lancaster has also held public office, including election to the Covina City Council, and has been a candidate for state office. His years of public service provide a unique approach toward understanding how best to communicate to the public complex issues on matters of civic importance.

Publication Format
Civic has developed public education and awareness campaigns for numerous public agencies including the Sanitation Districts of Los Angeles County; Bureau of Sanitation of the City of Los Angeles; the cities of Vernon and Industry, municipal water districts; Los Angeles Metropolitan Transportation Authority; Los Angeles County Department of Public Works; Los Angeles County Sheriff’s Department, and solid waste disposal companies. Civic Publications, Inc. has been engaged by the City in prior years to produce public educational and outreach materials.

Under proposed Agreement No. 23–43, public education and outreach may include updating the public on proposed development and public works projects, upcoming attractions and events, important advisory messages, public safety services, progress on transit development, City finances, grant applications, and any other relevant and important general government services information.

In order to fully achieve communications outreach with City residents and the business community, staff recommends utilizing services offered by Civic to include newsletter, e–mail, and digital display ad media formats and City website maintenance for related public outreach pages.

The scope of services included in proposed Agreement No. 23–43 includes the following:
production, printing, and delivery of a 16–page newsletter; distribution of the newsletter by direct mail to every household in the City; provision of English and Spanish language electronic versions of the newsletter; and distribution of electronic versions of the newsletter to businesses and community members.

FISCAL IMPACT: Approval of Agreement No. 23–43 with Civic Publications, Inc., for public education and community outreach would result in a cost to the City of $29,950.

The costs associated with Agreement No. 23–43 were incorporated in the Fiscal Year 2023–2024 Budget in the Administrative Services Department Budget.

RECOMMENDATION: Staff recommends the City Council approve Agreement No. 23– 43 with Civic Publications, Inc., for public education and community outreach services, subject to any revisions deemed necessary by the City Attorney.

Inc.

Christopher W. Lancaster
Publisher
909.524.8952 I www.civicpubs.com
3355 N. White Ave #374 I La Verne, CA 91750
CIVIC Publications,
fgdf
June 6, 2023
Edward C. Starr
City Manager
City of Montclair
5111 Benito St.

Montclair, CA 91763
Re: Agreement to produce newsletter
Dear Mr. Starr,
Pursuant to conversation with city staff, submitted for your consideration is this agreement for Civic Publications Inc. to assist the City of Montclair with the development of its annual newsletter to be distributed to the residents of Montclair.

Civic Publications, Inc. provides communications outreach solutions for public agencies, providing factual content and bringing clarity to community and civic issues without advocating for or against any position. Our goal is to inform the public without persuasion.

The task of the newsletter is to explain city services, in a clear fashion, and build awareness of projects, decisions and funding so that Montclair residents can be informed. Effective communications solutions will cut through the complexity of city hall decisions and issues in the context of planning, specific projects, benefits and cost for decades to come.

The cost to develop a 16-page newsletter and distribute to the residents of Montclair is $29,950.

See the attached agreement for a complete listing of the scope of services.

Thank you for the opportunity to submit this agreement and I look forward to developing a cost-effective newsletter that meet the needs of the City and which serve the highest standards of the public interest.

Respectfully submitted,
Christopher W. Lancaster
Agreement No. 23-43
Inc.

Christopher W. Lancaster
Publisher
909.524.8952 I www.civicpubs.com
3355 N. White Ave #374 I La Verne, CA 91750
CIVIC Publications,
fgdf

PUBLIC OUTREACH AGREEMENT
This agreement is between the City of Montclair and Civic Publications Inc.

This agreement confirms that the city of Montclair has acquired the services of Civic Publications Inc. to assist the City of Montclair with the development of a newsletter .

Scope of services include:

1. Write, design, layout, print and deliver a 16-page newsletter.

2. Newsletter to be distributed by direct mail to every household, business and P.O. Box in the City of Montclair.

3. Provide an English and Spanish electronic version for the city website.

4. Distribute English electronic version of the newsletter to 22,000 email addresses within the city of Montclair.

Total cost for services $29,950.00
Civic Publications, Inc. agrees to provide all services listed in this agreement, and the City of Montclair agrees to pay Civic Publications, Inc. a total of $29,950.00 All terms of this agreement to be fulfilled by November 30,2023.

June 6, 2023
________________________________
Civic Publications, Inc. Date
_________________________________
Attest:
_________________________________
Andrea Myrick, City Clerk Date
Javier John Dutrey, Mayor Date

CITY COUNCIL

AGENDA REPORT
DATE: JULY 17, 2023
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 3
FILE I.D.: STA500
DEPT.: PUBLIC WORKS
PREPARER: M. PARADIS
SUBJECT: CONSIDER RATIFYING AGREEMENT NO. 23–44 WITH COLTS LANDSCAPE, INC. FOR

LANDSCAPE MAINTENANCE SERVICES
CONSIDER AUTHORIZING CITY MANAGER EDWARD C. STARR TO SIGN SAID

AGREEMENT
REASON FOR CONSIDERATION: City Council approval is required for all agreements, however, this contract was entered into by the City Manager on an emergency basis on June 29, 2023, due to the cancellation of the July 3rd City Council meeting. Therefore, the City Council is requested to consider ratifying Agreement No. 23–44 with Colts Landscape, Inc. (Colts) for landscape maintenance services.

Because City Manager Edward C. Starr signed the contract on June 29, 2023, authorization is also sought to authorize him as the signing authority for this contract.

City Attorney Diane Robbins reviewed and approved Agreement No. 23–44 prior to the City Manager’s signature.

A copy of Agreement No. 23–44 is attached for the City Council’s consideration.

BACKGROUND: The term of Agreement No. 22–54 with Mariposa Landscapes, Inc. (Mariposa) concluded on June 30, 2023. Mariposa declined a one–month extension of their contract and discontinued services as of June 30, 2023. A copy of Mariposa’s letter dated June 29, 2023, is attached.

Last year, staff sent a Request for Bid Proposals for landscaping maintenance services.

The City received three proposals, including one from Colts but decided to continue landscaping services with Mariposa. Staff reached out to Colts to submit a proposal for landscape maintenances services. Based on their proposal, Colts was able to provide immediate landscape services to the City starting July 1, 2023. The area manager of Colts is familiar with the City of Montclair. He previously worked for eight years under Mariposa’s contract. He is knowledgeable of the various locations and landscaping requirements throughout the City.

FISCAL IMPACT: The cost to provide landscape services for Fiscal Year (FY) 2023–24 is estimated at $432,116.52 and is included in the FY 2023–24 Public Works budget.

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

1. Ratify Agreement No. 23–44 with Colts Landscape, Inc. for landscape maintenance services.

2. Authorize City Manager Edward C. Starr to sign said agreement.

Agreement No. 23-44

Page 1 of 14 ends

CITY OF MONTCLAIR

AGREEMENT FOR CONTRACTOR SERVICES

LANDSCAPING SERVICES
THIS AGREEMENT is made and effective as of July 1, 2023, between the CITY OF MONTCLAIR, a municipal corporation (the "City") and COLTS LANDSCAPE, INC., a California corporation (the "Contractor"). The City and the Contractor are sometimes referred to herein collectively as the “Parties” and singularly as “Party.” 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, 2023 and shall remain and continue in effect for a period of approximately three years, expiring on June 30, 2026, unless sooner terminated pursuant to the provisions of this Agreement.

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

3. PERFORMANCE
Contractor shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all tasks described herein. Contractor shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of Contractor hereunder in meeting its obligations under this Agreement. If the work performed by Contractor is not satisfactory, the City’s Public Works Superintendent or his designated representative may suspend the Agreement for any period of time or terminate the Agreement as set forth herein. No sums shall be due or payable to the Contractor for or during any time of such suspension or after termination.

4. CITY MANAGEMENT
City’s Public Works Superintendent or his/her designee shall represent City in all matters pertaining to the administration of this Agreement, and the review and approval of all work to be performed by Contractor.

5. PAYMENT
(a) City agrees to pay Contractor monthly, in accordance with the payment rates and terms and the schedule of payment as set forth in Exhibit B, for work completed.

Agreement No. 23-44

Page 2 of 14 ends

(b) Contractor shall not be compensated for any services rendered in connection with its performance of this Agreement which are in addition to those set forth herein, unless such additional services are authorized in advance and in writing by the City’s Public Works Superintendent. Contractor shall be compensated for any additional services in the amounts and in the manner as agreed to by City’s Public Works Superintendent and Contractor at the time City’s written authorization is given to Contractor for the performance of said services.
(c) Contractor 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 Contractor’s fees, it shall give written notice to Contractor within thirty (30) days of receipt of an invoice of any disputed fees set forth on the invoice. (d) Prior written approval from the City shall be required prior to any and all work performed by Contractor. If prior written approval is not obtained by the Contractor, no payment will be approved.

6. TERMINATION OF AGREEMENT
(a) The City may terminate this Agreement at any time during the term of the Agreement by giving the Contractor not less than thirty (30) calendar days’ prior written notice. The Contractor may only terminate this Agreement for cause, and by giving the City prior notice in writing with a reasonable opportunity to cure any purported default. If the Agreement is terminated by the City, and provided Contractor is not then in breach, the Contractor shall be paid for services satisfactorily rendered to the last working day the Agreement is in effect, and the Contractor shall have no other claim against the City by reason of such termination. This Agreement may be extended beyond the term only by the written agreement of both Parties prior to the expiration of the term of the Agreement. (b) Upon termination of the Agreement pursuant to this Section, Contractor shall submit an invoice to the City for all unpaid work completed.

7. DEFAULT OF CONTRACTOR
(a) The Contractor’s failure to comply with the provisions of this Agreement shall constitute a default. In the event that Contractor is in default for cause under the terms of this Agreement, City shall have no obligation or duty to continue compensating Contractor for any work performed after the date of default and can terminate this Agreement immediately by written notice to the Contractor. If such failure by the Contractor to make progress in the performance of work hereunder arises out of causes beyond the Contractor’s control, and without fault or negligence of the Contractor, it shall not be considered a default.
(b) If the City’s Public Works Superintendent or his/her designee determines that the Contractor is in default in the performance of any of the terms or conditions of Agreement No. 23-44

Page 3 of 14 ends

this Agreement, he/she shall cause to be served upon the Contractor a written notice of the default. The Contractor 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 Contractor 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) Contractor 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. Contractor 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. Contractor 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 Contractor. With respect to computer files, Contractor shall make available to the City, at the Contractor’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. Contractor 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 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 Contractor herein, caused by or arising out of the negligent acts or omissions, or intentional Agreement No. 23-44

Page 4 of 14 ends

misconduct of Contractor, including its subcontractors, employees, agents, and other persons or entities performing work for Contractor.
(b) Contractual Indemnity. To the fullest extent permitted under California law, Contractor 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 Contractor or by any individual or entity for which Contractor is legally liable, including but not limited to Contractor’s officers, agents, representative, employees, independent contractors, subcontractors 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 Contractor, including its subcontractors, employees, agents and other persons or entities performing work for Contractor. Indemnification shall include any claim that Contractor, or Contractor’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. Contractor’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 and Indemnification. Contractor 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 Contractor in the performance of any aspect of this Agreement. In the event Contractor fails to obtain such indemnity obligations, Contractor 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 Contractor 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.
(d) City Lost or Damaged Property – Theft. Contractor 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 Contractor or of Contractor’s officers, agents, representatives, employees, independent contractors, subcontractors or affiliated or related entities and/or its or their employees, agents and representatives, whether such Agreement No. 23-44

Page 5 of 14 ends

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. Contractor 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 Contractor under the terms of this Agreement or otherwise. The indemnification provisions shall apply regardless of whether this Agreement is executed after Contractor begins the work and shall extend to claims arising after this Agreement is performed or terminated, including a dispute as to the termination of Contractor. The indemnity obligations of Contractor 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 Contractor, or for the City to dispute Contractor’s refusal to defend and indemnify City. (f) Limitations on Scope of Indemnity. Notwithstanding the foregoing, Contractor shall not be responsible for indemnification for claims or losses caused by the primary 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 Contractor 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 Contractor expressly waives any statutory immunity under such statutes or laws as to the Indemnified Parties. The Contractor’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 Contractor pursuant to this Agreement.
(h) The Contractor’s covenant under this Section 9 shall survive the expiration or termination of this Agreement.

Page 6 of 14 ends

“occurrence” form CG 00 01, including products and completed operations, property damage, bodily injury, and personal & advertising injury with limits no less than $20,000,000 per occurrence, and $25,000,000 in the aggregate.
(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 $10,000,000 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 $10,000,000 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 Contractor including 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 Agreement No. 23-44

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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 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. 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.

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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 Contractor 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 Contractor or the City.
(g) Contractual Liability/Insurance Obligations
The coverage provided shall apply to the obligations assumed by the Contractor 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 Contractor; 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 Contractor under this Agreement.
(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.

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 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.

Agreement No. 23-44

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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 the terms of this Agreement, including adding the City as an Additional Insured, providing Primary and NonContributory coverage and Waiver of Subrogation to the Subcontractors’ 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) Contractor 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 Contractor shall at all times be under Contractor’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 Contractor or any of Contractor’s officers, employees, or agents, except as set forth in this Agreement. Contractor 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. Contractor shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner. Contractor shall be solely responsible and hold the City harmless for all matters relating to the payment of Contractor’s employees, including compliance with Social Security withholdings and all other regulations governing such matters. (b) No employee benefits shall be available to Contractor in connection with the performance of this Agreement. Except for the fees paid to Contractor as provided in the Agreement City shall not pay salaries, wages, or other compensation to Contractor for performing services hereunder for City. City shall not be liable for compensation or indemnification to Contractor for injury or sickness arising out of performing services hereunder.

12. LEGAL RESPONSIBILITIES
The Contractor 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 Contractor shall at all times observe and comply with all such laws and regulations, including compliance with CAL/OSHA requirements as may be applicable. The City, and its officers and employees, shall not be liable at law or in equity occasioned by failure of the Contractor to comply with this Section.

13. UNDUE INFLUENCE
Contractor 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 Agreement No. 23-44

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employee of the City of Montclair will receive compensation, directly or indirectly, from Contractor, or from any officer, employee or agent of Contractor, 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 Contractor in performance of this Agreement shall be considered confidential and shall not be released by Contractor without City’s prior written authorization. Contractor, its officers, employees, agents, or subContractors, 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 Contractor gives City notice of such court order or subpoena.
(b) Contractor shall promptly notify City should Contractor, its officers, employees, agents or subContractors 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 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 Contractor and/or be present at any deposition, hearing, or similar proceeding.

Contractor agrees to cooperate fully with City and to provide the opportunity to review any response to discovery requests provided by Contractor. 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) Contractor 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. Contractor covenants that neither he/she nor any office 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. Contractor 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 subContractor. Contractor further covenants that Contractor 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 Agreement No. 23-44

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partnership(s) owning property in the City or the study area and further covenants and agrees that Contractor and/or its subContractors 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, Contractor 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 Contractor. The Contractor’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 of Montclair
Attn: Monica Heredia
5111 Benito Street
Montclair, CA 91763
To Contractor: Colts Landscape, Inc.

Attn: Alfredo Jose Jimenez, President
11672 Brookshire Avenue
Garden Grove, CA 92840

17. ASSIGNMENT AND SUBCONTRACTING
The Contractor 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 Contractor 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 Contractor 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 Contractor 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, Contractor 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.

Agreement No. 23-44

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19. 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.

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. CONTENTS OF REQUEST FOR PROPOSALS – Not applicable.

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

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

23. DISCRIMINATION
The Contractor 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 Contractor agrees to comply with all County, State and Federal laws relating to equal employment opportunity rights.

24. 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.

25. CLAIMS AGAINST CITY
Contractor 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.

Agreement No. 23-44

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26. EXHIBITS; PRECEDENCE
All documents reference as exhibits in this Agreement are hereby incorporated into this Agreement by this reference. In the event of any inconsistency between the express provisions of this Agreement and any provision of an exhibit, the provisions of this Agreement, then the City’s request for proposals, if any, shall prevail.

27. 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.

28. 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.

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

30. 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.

Agreement No. 23-44

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

CITY
City of Montclair

CONTRACTOR
Colts Landscape, Inc.

A Municipal Corporation A California Corporation
By: By:

Edward C. Starr, City Manager Alfredo Jose Jimenez, President Date: Date:

Attest:

By: By:

Andrea M. Myrick, City Clerk
Date: Date:

Approved as to Form:

By:

Diane E. Robbins, City Attorney
Date:

CITY COUNCIL

AGENDA REPORT
DATE: JULY 17, 2023
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 4
FILE I.D.: STA816
DEPT.: PUBLIC WORKS
PREPARER: R. ORTEGA
SUBJECT: CONSIDER AWARDING A CONTRACT TO HYPER ELECTRIC IN THE AMOUNT OF $154,350 FOR CONSTRUCTION OF THE ELECTRIC VEHICLE CHARGING STATIONS

PROJECT
CONSIDER AUTHORIZING A $15,500 CONSTRUCTION CONTINGENCY FOR THE

PROJECT
CONSIDER APPROVAL OF AGREEMENT NO. 23–45 WITH HYPER ELECTRIC FOR

CONSTRUCTION OF THE PROJECT, SUBJECT TO ANY REVISIONS DEEMED NECESSARY

BY THE CITY ATTORNEY
REASON FOR CONSIDERATION: The City Council is requested to consider awarding a contract to Hyper Electric for $154,350 and approving a contingency of $15,500 for the Electric Vehicle Charging Stations Project (Project). A copy of proposed Agreement No. 23–45 is attached for the City Council’s review and consideration.

BACKGROUND: The City Council has demonstrated a commitment to the adopted 2019– 2024 Capital Improvement Program, which included the Electric Vehicle (EV) Charging Stations Project. The Project will be funded by AQMD Clean Transportation Funding grant funds and future funds authorized under AB2766. The City was awarded $80,000 for the design and installation of EV charging stations at City facilities including City Hall, the City Yard, and the Police Department.

Staff evaluated and identified three locations to install one charger with a dual purpose to serve two cars at a time. The design includes infrastructure that allows for future expansion of EV charging stations. The charging station at City Hall will be available for public use, while the charging stations at the City Yard and Police Department will only be available for City and employee vehicles.

This Project will contribute to the City’s ongoing concern for cleaner air and better health. Electric vehicles are one of the best ways to reduce planet–warming greenhouse gas emissions, the largest source of emissions in the United States, most of which come from cars and trucks. Drivers are not only less likely to use gas–powered vehicles because of the availability of electric vehicle chargers near their homes, but it can pave the way to other forms of clean transportation in the future. Promoting the use of electric vehicles by installing these chargers will also contribute to reducing greenhouse gas emissions, which have negatively impacted global warming.

The Project was advertised on Planet Bids from June 5, 2023 to June 28, 2023. On June 28, 2023, the City received and opened twelve bids as follows:

Bidder Bid Amount
Engineer’s Estimate $174,915.00
Hyper Electric $154,350.00
Amazing Electric Inc. $159,894.00
Industrial Pro Power Services Inc. $172,194.00
ISSA Electric Inc $181,994.00
PAR Western Line Contractor $198,459.00
Faith Electric $223,722.00
PUB Construction Inc. $237,413.58
Alliance Facility Services $237,948.66
MC Electric $251,400.00
Endelos Energy $253,792.00
Yunex Traffic $315,750.20
MBE Construction $355,700.00
Following the bid opening, the proposals were reviewed for completeness and accuracy.

The bid proposal from the apparent low bidder, Hyper Electric, provided all required documents and was deemed the lowest responsible, responsive bidder for the Project.

Hyper Electric has the experience necessary to complete this contract in accordance with the project specifications. The anticipated start of construction is in September 2023.

FISCAL IMPACT: The City was awarded $80,000 of AQMD Clean Transportation Funding and will use future AB2766 funds to cover the cost of construction.

RECOMMENDATION: Staff recommends that the City Council take the following actions relating to the Electric Vehicle Charging Stations Project:

1. Award a contract to Hyper Electric in the amount of $154,350 for construction of the Project.

2. Authorize a $15,500 construction contingency for the Project.

3. Approve Agreement No. 23–45 with Hyper Electric for construction of the Project, subject to any revisions deemed necessary by the City Attorney.

AGREEMENT Agreement No. 23-45
Page G-1
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 Hyper Electric, a City of Montclair, hereinafter referred to as "CONTRACTOR" and the CITY OF MONTCLAIR, hereinafter referred to as "CITY."
A. Recitals.
(i) Pursuant to Notice Inviting Sealed Bids or Proposals, bids were received, publicly 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)
Electric Vehicle Charging Stations
"PROJECT" hereinafter.

B. Agreement.

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 City-issued 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 AGREEMENT Agreement No. 23-45
Page G-2
completion date. CITY may deduct the amount thereof from any moneys due or that may become due 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 CONTRACTOR 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 its 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 $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 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 nonowned 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.

AGREEMENT Agreement No. 23-45
Page G-3
(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: The City, and their respective 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 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 AGREEMENT Agreement No. 23-45
Page G-4
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 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 selfinsured retention. (g) Contractual Liability/Insurance Obligations
The coverage provided shall apply to the obligations assumed by the Contractor under the indemnity provisions of this contract. The insurance obligations under this Agreement shall be: (1) all the insurance coverage and/or limits carried by or available to the Contractor; 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 Contractor under this Agreement.
(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.

AGREEMENT Agreement No. 23-45
Page G-5
(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.

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 all work under this contract is completed.
(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/INDEMNIFICATION:

The City of Montclair & CALTRANS, 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 workers, employees of the CONTRACTOR or its 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 &/or CALTRANS, its employees, servants, or independent contractors who are directly responsible to CITY &/or CALTRANS during the progress of the project or at any time before its completion and final acceptance.

The CONTRACTOR will indemnify CITY & CALTRANS against and will hold and save CITY & CALTRANS 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, its agents, employees, subcontractors, or invitees provided for herein, whether or not there is concurrent passive or active negligence on the part of CITY &/or CALTRANS, but excluding such actions, claims, damages to persons or property, penalties, obligations, or liabilities arising from the sole negligence or willful misconduct of CITY &/or CALTRANS, its employees, servants, or independent contractors who are directly responsible to CITY &/or CALTRANS, 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.

AGREEMENT Agreement No. 23-45
Page G-6
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 &/or CALTRANS 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 &/or CALTRANS 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 &/or CALTRANS, may be retained by CITY &/or CALTRANS until disposition has been made of such actions or claims for damage as aforesaid.

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 06/28/2023.

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. [Signatures on Following Page]
AGREEMENT Agreement No. 23-45
Page G-7
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
Hyper Electric CITY OF MONTLAIR, CALIFORNIA
9021 Terhune Ave
Sun Valley, CA. 91352
By:

Vigen Hovanesian Javier “John” Dutrey
Owner Mayor
ATTEST:

By:

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

Diane E. Robbins
City Attorney

CITY COUNCIL

AGENDA REPORT
DATE: JULY 17, 2023
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 5
FILE I.D.: CVC025/CVC050
DEPT.: PUBLIC WORKS
PREPARER: R.ORTEGA
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 23–46 WITH BFK ARCHITECTURE +

PLANNING FOR ENGINEERING DESIGN SERVICES FOR THE MONTCLAIR BRANCH

PUBLIC LIBRARY RESTROOMS, COURTYARD, AND FIRE STATIONS REMODEL

PROJECT, SUBJECT TO ANY REVISIONS DEEMED NECESSARY BY THE CITY ATTORNEY CONSIDER AUTHORIZING A $185,000 APPROPRIATION FROM 2021 LEASE REVENUE BOND PROCEEDS FOR COSTS RELATED TO AGREEMENT NO. 23–46
CONSIDER AUTHORIZING A $16,760 DESIGN SERVICES CONTINGENCY FOR THE

PROJECT
REASON FOR CONSIDERATION: Engineering design services are required for the Montclair Branch Public Library Restrooms, Courtyard and Fire Stations Remodel Project.

Agreements for professional services with the City, and appropriations of unbudgeted funds require City Council approval.

The City Council is requested to consider approval of Agreement No. 23–46 with BFK Architecture + Planning for engineering design services for the Project.

Proposed Agreement No. 23–46 with BFK Architecture + Planning is attached for City Council review and consideration.

BACKGROUND: On March 26, 2021, the City Council approved an allocation of additional Lease Revenue Bond funds for adequate construction of the Montclair Branch Public Library Restrooms, Courtyard and Fire Stations Remodel Project. Staff joined in on job walks and outlined several potential improvements.

The improvements outlined propose reconstruction of the fire stations to incorporate female locker rooms and showers, and expansion of the library building by adding additional restrooms in the courtyard alongside its newly remodeled outdoor reading area. Staff released a Request for Proposals via Planet Bids to solicit proposals for engineering design services. The City received two proposals as follows:

1. BFK Architecture + Planning

2. ONYX Architects
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 BFK Architecture + Planning as the successful applicant. BFK Architecture + Planning has extensive experience with state and federally–funded design projects, such as the Paso Robles Police Station, Lancaster Public Safety Building, Dallas South Central Police Station, and Polytechnic Heights Public Services Building.

FISCAL IMPACT: The cost associated with Agreement No. 23–46 with BFK Architecture + Planning is $168,240. Staff is requesting a $185,000 appropriation, consisting of $168,240 for engineering design services and a $16,760 contingency if additional work is required beyond the scope of work. Funds for this contract would be provided by 2021 Lease Revenue Bond Proceeds.

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

1. Approve Agreement No. 23–46 with BFK Architecture + Planning for engineering design services for the Montclair Branch Public Library Restrooms, Courtyard and Fire Stations Remodel Project, subject to any revisions deemed necessary by the City Attorney.

2. Authorize a $185,000 appropriation from 2021 Leave Revenue Bond proceeds for costs related to Agreement No. 23–46; and

3. Authorize a $16,760 design services contingency for the Project.

Agreement No. 23-46

CITY OF MONTCLAIR

AGREEMENT FOR CONSULTANT SERVICES
Montclair Branch Public Library Restrooms and Courtyard Remodel Project THIS AGREEMENT is made and effective as of July 17, 2023, between the City of Montclair, a municipal corporation ("City") and BFK Architecture + Planning, a California corporation/a partnership/a sole proprietor ("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 17, 2023 and shall remain and continue in effect for a period of 12 months until tasks described herein are completed, but in no event later than December 17, 2023, 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 and the schedule of payment as set forth in Exhibit B, attached hereto and incorporated herein by this reference as though set forth in full, based upon actual time spent on the above tasks. This amount shall not exceed $168,240 for the total term of the Agreement unless additional payment is approved as provided in this Agreement.
(b) Consultant shall not be compensated for any services rendered in connection with its performance of this Agreement which are in addition to those set forth 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.

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 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 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, Subconsultant, 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.
(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/subconsultants 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.

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 Consultant 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 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 Consultant

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.

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 Consultant.

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 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.

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/Sunconsultants
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 CONSULTANT
(a) Consultant is and shall at all times remain as to the City a wholly independent consultant.

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 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.

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 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.

To City:

City Engineer
City of Montclair
5111 Benito
Montclair, CA 91763
To Consultant: BKF Architecture + Planning
1337 Lida St
Pasadena, CA 91103

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.

21. CONTENTS OF REQUEST FOR PROPOSALS
Consultant is bound by the contents of City’s Request for Proposal, Exhibit "C" hereto and incorporated herein by this reference, and the contents of the proposal submitted by the Consultant, Exhibit "D" hereto. In the event of conflict, the requirements of City’s Request for Proposals and this Agreement shall take precedence over those contained in the Consultant’s proposals.

22. 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.

23. DISCRIMINATION
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.

25. 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 Consultant. If no such claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.

26. 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. 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.

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

CITY COUNCIL

AGENDA REPORT
DATE: JULY 17, 2023
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 6
FILE I.D.: HSV105
DEPT.: HUMAN SVCS.

PREPARER: A. COLUNGA
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 23–47 WITH NUTRITION INK TO PROVIDE NUTRITION EDUCATION SERVICES FOR THE CITY’S SENIOR CITIZEN NUTRITION

PROGRAM, SUBJECT TO ANY REVISIONS DEEMED NECESSARY BY THE CITY

ATTORNEY
REASON FOR CONSIDERATION: The City Council is requested to consider approval of Agreement No. 23–47 with Nutrition Ink to provide nutrition education services for the City's Senior Citizen Nutrition Program, subject to any revisions deemed necessary by the City Attorney.

BACKGROUND: On June 6, 2022, the City Council approved Agreement No. 22–57 with the San Bernardino County Department of Aging and Adult Services – Public Guardian (DAAS–PG) to provide a three–year Elderly Nutrition Program (ENP) for participants aged 60 and over. The ENP requires the delivery of nutrition education from a registered dietician for participants, volunteers, and staff.

If approved, Nutrition Ink will be responsible for providing nutrition education services, including: monitoring the site for safe food handling and sanitation practices of facilities; providing input, reviewing, and approving the Nutrition Education Plan for staff and participants; providing nutrition education a minimum of four (4) times per year for food service staff (paid and volunteers) and participants; and providing technical support and assistance as needed.

FISCAL IMPACT: There will be no cost to the General Fund as a result of this agreement to provide nutrition education services. The cost of nutrition education services, $3,000, will be grant–funded under Agreement No. 22–57 with DAAS. The term of Agreement No. 23–47 is July 1, 2023, to June 30, 2024.

RECOMMENDATION: Staff recommends the City Council approve Agreement No. 23– 47 with Nutrition Ink to provide nutrition education services for the City's Senior Citizen Nutrition Program, subject to any revisions deemed necessary by the City Attorney.

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AGREEMENT NO. 23-47

NUTRITION INK AGREEMENT
I. OBJECTIVE:

To provide consultation to the City of Montclair’s Senior Nutrition Program (Agency/Contractor) regarding nutrition provider requirements as outlined in Title 22, Division 1.8 of the California Department of Aging Regulations, including, but not limited to, the following:

A. Give preference to older individuals in greatest economic or social need with particular attention to low-income minority individuals.

B. Promote good health behaviors through nutrition education and nutrition screening of participants.

C. Promote or maintain coordination with other nutrition-related supportive services for older individuals.

PROGRAM DESCRIPTION:

A. Purpose – The purpose of the Elderly Nutrition Program (ENP) is to provide nutrition services as described in the Older Americans Act (OAA) of 1965, as amended, and to assist older individuals in California to live independently, by promoting better health through improved nutrition, and reduced isolation through programs coordinated with nutrition-related supportive services.

B. Definition – Nutrition services means the procurement, preparation, transport, and service of meals, nutrition education, nutrition screening, and nutrition counseling, to eligible individuals at congregate sites or in their homes.

C. Goals – to maintain or improve the physical, psychological, and social well being of older individuals, by providing or securing appropriate nutrition services.

D. Target Population – The ENP Provider (City of Montclair) shall target individuals who are sixty (60) years of age or older, minorities, low income and living in rural areas of the County of San Bernardino.

2. TERMS OF AGREEMENT:

This is to certify that the City of Montclair’s Senior Nutrition Program has engaged the services of NUTRITION INK (Sub-Contractor) for its nutrition consultation to one (1) site, Montclair Senior Center.

This service is effective July 1, 2023 through June 30, 2024.

3. RESPONSIBILITIES OF SUB-CONTRACTOR:

A. At a minimum, quarterly monitor site for safe food handling and sanitation practices of facilities.

B. Provide input, review, and approve the Nutrition Education Plan for staff and participants prior to presentation.

C. Develop, or review and approve the cycle menus unless provided and signed by RD of approved caterer.

D. Provide technical support and assistance as needed.

E. Plans, organizes and conducts Nutrition Education a minimum of four (4) times per year for food service staff (paid and volunteers) and participants in congregate meal programs. Nutrition Education for congregate sites is defined as demonstrations, presentations, lectures or small group discussions, all of which may be augmented with printed materials. Training sessions shall be evaluated by those receiving the training.

F. Nutrition Education shall be based on the particular need of congregate meal participants. An annual Needs Assessment shall be performed by the ENP Provider to make this determination.

G. Since the Staff Training/Nutrition Education Plan and annual Needs Assessment must be submitted by the City of Montclair to DAAS by mid-July 2022, Sub-Contractor shall be required to support that timeline accordingly.

H. Nutrition Education sessions must be reported monthly to DAAS using the Nutrition Education Monthly Service Unit Report.

Nutrition Education Units of Service:

Program: C-1 (Congregate Meals) Program: C-2 (Home-Delivered Meals) # of Units to be Provided: 350 # of Units to be Provided: N/A # of Sites to be Presented at: 1 # of Participants to be Presented to: N/A

Page 2 of 3 ends

4. RESPONSIBILITIES OF AGENCY/CONTRACTOR
A. Identify person designated as supervisor or designee.

B. Provide a general orientation for the dietitian to the Agency including its staff, policies, recording systems.

C. Provide suitable space, equipment and materials.

D. Make records available and if necessary send monthly menus to dietitian for review, analysis, and approval.

E. Maintain documentation of each training session including sign-in sheets, agendas, handouts, and completed evaluations.

F. An annual Needs Assessment shall be performed by the ENP Provider to determine the particular Nutrition Education need of congregate meal participants.

G. Will send Nutrition Education Service Unit Report monthly to DAAS.

H. Agrees not to hire or contract with a Nutrition Ink Dietitian for a period of one year from termination of this contract unless facility pays RD’s annual salary as buyout fee.

5. COPIES of subcontracts, licenses and insurance memoranda and/or letters of understanding shall be on file with the Contractor. Contractor shall be responsible to ensure all subcontractors meet the insurance requirements and for monitoring the insurance requirements in accordance with Article III, Section N.

6. The Sub-Contractor shall provide the following:
(1). Indemnification - The Sub-Contractor agrees to indemnify, defend and hold harmless the Contractor and County and its authorized officers, employees, agents and volunteers from any and all claims, actions, losses, damages and/or liability arising from Sub-Contractor’s acts, errors or omissions and for any costs or expenses incurred by the Contractor on account of any claim therefore, except where such indemnification is prohibited by law. (2). Insurance - Without in any way affecting the indemnity herein provided and in addition thereto, the Sub-Contractor shall secure and maintain throughout the term of the Contract the following types of insurance with minimum limits as shown:
a. Sub-Contractor will maintain Worker’s Compensation - in amount and form to meet all applicable requirements of the Labor Code of the State of California, including Employer’s Liability with $250,000 limits, covering all persons providing services on behalf of the Sub-Contractor and all risks to such persons under this Contract. b. Professional Liability - Professional liability insurance shall have limits of at least $1,000,000 per claim or occurrence.
(3). Proof of coverage – Sub-Contractor shall immediately furnish certificates of the required insurance policies to contractor evidencing the insurance coverage, above required prior to the commencement of performance of services hereunder, which certificates shall provide that such insurance shall not be terminated or expire without thirty (3) days prior written notice to Contractor, and Sub-Contractor shall maintain such insurance from the time Sub-Contractor commences performance of services hereunder until the termination of the Contract. Within sixty (60) days of the commencement of this Contract, the Sub-Contractor shall furnish copies of the policies.

7. The Sub-Contractor shall complete all reporting and expenditure documents requested by Contractor.

These reporting and expenditure documents shall be sent to the Contractor in a timely manner and at intervals as determined by Contractor.

8. Sub-Contractor shall maintain all records and books pertaining to the delivery of services under this Contract and demonstrate accountability for Contract performance. Said records shall be kept and maintained at 3164 W. Ramsey St., Banning, Ca. 92220.

9. Sub-Contractor shall notify Contractor in writing of any change in mailing address, telephone or fax numbers and/or physical location within ten (10) days of the change.

Page 3 of 3 ends

10. HIPAA Law:

The Sub-Contractor recognizes and acknowledges that, by virtue of entering into this Agreement and providing services to Institution, hereunder, Sub-Contractor will have access to certain information of Institution that is confidential and constitutes valuable, special and unique property of Institution. SubContractor agrees that they will at no time, either during or subsequent to the term of this Agreement, disclose to others, use, copy or permit to be copied, without Institution’s express written consent, except pursuant to their duties hereunder, any confidential or proprietary information of Institution, including, but not limited to, information which concerns Institution’s participants, cost, prices and treatment methods at any time used, developed or made by Institution, and which is not otherwise available to the public. Sub-Contractor shall not disclose to any third party, except where permitted or required by law or where such disclosure is expressly approved by Institution in writing, any participant or medical record information regarding Institution’s participants, and Sub-Contractor shall comply will all federal and state laws and regulations, and all rules, regulations, and policies of Institution, regarding the confidentiality of such information. In addition, if necessary, Sub-Contractor agrees to assist in judicial proceedings any effort to obtain access to such records or information except such access as is expressly permitted by the aforementioned federal regulations.

11. Elderly Abuse. In accordance with the State of California – Health and Human Services Agency requirements, Sub-Contractor and its employees shall comply with and return completed copies of Attachment A, Statement Acknowledging Requirement to Report Suspected Abuse of Dependent Adults and Elders (SOC 341A).

Costs:

Nutrition Education and materials plus yearly plan ………….. $1000 Site Monitoring quarterly…………………………………………. $1000
Staff Training quarterly………………………………………… $1000
Total……………………………………………………………… $3000
(951) 849-5150 (951) 849-4799 Fax Federal Tax I.D. Number 20-4651795 SUB-CONTRACTOR: CONTRACTOR:

NUTRITION INK CITY OF MONTCLAIR
Leslie Roos, RDN Javier John Dutrey, Mayor
[email protected]
Manager of Operations
Date: Date:

ATTEST:

Andrea Myrick, City Clerk
Date:

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ATTACHMENT A

Page 5 of 3 ends

ATTACHMENT A

Page 6 of 3 ends

ATTACHMENT A

CITY COUNCIL

AGENDA REPORT
DATE: JULY 17, 2023
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 7
FILE I.D.: HSV043
DEPT.: HUMAN SVCS.

PREPARER: A. COLUNGA
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 23–48 WITH SUZANNE YOAKUM TO

PROVIDE CASE MANAGEMENT SERVICES FOR THE SENIOR CENTER, SUBJECT TO ANY

REVISIONS DEEMED NECESSARY BY THE CITY ATTORNEY
REASON FOR CONSIDERATION: The City Council is requested to consider approval of Agreement No. 23–48 with Suzanne Yoakum to provide case management services for the Senior Center.

BACKGROUND: Case Management is a component of the Healthy Montclair initiative.

Healthy Montclair is part of a countywide effort to improve the health and well–being of all county residents by creating healthy environments and promoting healthy life choices. The purpose of the Healthy Montclair Initiative is to achieve an excellence in quality of life for those who live, work, learn, play, eat, and shop in Montclair. Healthy Montclair defines health as a state of complete physical, mental, and social flourishing and not merely the absence of disease or infirmity.

The Human Services Department provides senior case management services at the Montclair Senior Center. Suzanne Yoakum has performed these case management services at the Senior Center for many years. Ms. Yoakum has extensive experience working in the social services field as well as being an educator in gerontology and a board member of local senior–serving non–profits. Under this proposed contract services agreement, in her role as case manager for the Senior Center, she will assist in guiding individuals and families to attain financial stability, including basic needs, sustaining safe housing, and moving toward more self–sufficient circumstances.

FISCAL IMPACT: Should the City Council approve Agreement No. 23–48, the City’s contractual obligation for senior case management will be $3,000. The funding for proposed Agreement No. 23–48 was allocated and approved within the Fiscal Year 2023–24 Human Services Department budget. The term of proposed Agreement No. 23–48 is July 1, 2023, through June 30, 2024.

RECOMMENDATION: Staff recommends the City Council approve Agreement No. 23–48 with Suzanne Yoakum to provide case management services for the Senior Center, subject to any revisions deemed necessary by the City Attorney.

Agreement No. 23-48
1 CITY OF MONTCLAIR

AGREEMENT FOR CONSULTANT SERVICES

HUMAN SERVICES - PROGRAM FISCAL AND CONTRACT COMPLIANCE THIS AGREEMENT is made and effective as of July 1, 2023 between the City of Montclair, a municipal corporation (“City”) and Suzanne Yoakum, a California sole proprietor (“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, 2023 and shall remain and continue in effect for a period of 12 months until tasks described herein are completed, but in no event later than June 30, 2024 unless sooner terminated pursuant to the provisions of this Agreement.

3. PERFORMANCE
Consultant shall at all times faithfully, competently and to the best of his/her ability, experience and talent, 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.

4. CITY MANAGEMENT
City’s Human Services Director shall represent City in all matters pertaining to the administration of this Agreement, review and approval of all products submitted by Consultant, but not including the authority to enlarge the Tasks to be Performed or change the compensation due to Consultant. City’s Human Services Director 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.

This amount is subject to receipt of grant funding and shall not exceed $3,000 for the Agreement No. 23-48
2 total term of the Agreement unless additional payment is approved as provided in this Agreement.
(b) Consultant shall not be compensated for any services rendered in connection with its performance of this Agreement which are in addition to those set forth 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. Any additional work in excess of this amount shall be approved by the City Council.
(c) 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 of value to the City.

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 beyond the Consultant’s control, and 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 Agreement No. 23-48
3 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. 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 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 Agreement No. 23-48
4 misconduct of Consultant, including its subcontractors, 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 Consultants, subconsultants/subcontractors 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 subconsultants/subcontractors, 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) Subconsultants/subcontractors 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 Subconsultant, Subcontractor, 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 Subconsultant, Subcontractor 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.
(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, subconsultants or affiliated or related entities and/or its or their employees, agents and representatives, whether such Agreement No. 23-48
5 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.

10. INSURANCE
(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) 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, nonowned and hired autos, or the exact equivalent, with minimum limits of $100,000 for bodily injury and property damage, each accident.

If Consultant owns no vehicles, auto liability coverage may be Agreement No. 23-48
6 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.
(2) Workers’ Compensation: If applicable, 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.
(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) Automobile Liability Insurance shall contain the following provisions or be endorsed to provide the following:

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 consultant

4. Exclude “Third-Party-Over Actions”

5. Contain any other exclusion contrary to the Contract) (2) The policy or policies of insurance required by Section (a)(2) Workers’ Compensation shall be endorsed, as follows:

Agreement No. 23-48
7 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.
(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 or benefits to Consultant for performing services hereunder for City. City shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing services hereunder.
(c) In regard to the professional services provided by Consultant and defined in Exhibit “A,” City and Consultant specifically agree as follows:
(1) While Consultant may perform certain services at the premises of City, Consultant is not required to do so and may perform services at her separate business location.
(2) With the exception of agreed upon project completion dates and the agreement the Consultant will be available at reasonable business hours, the Consultant shall have the ability to set his/her own hours of operation.
(3) Consultant represents that the services he/she performs under this Agreement are the same services Consultant is customarily engaged in his/her business. City acknowledges that Consultant does not perform services exclusively for City and that Consultant performs or is available to perform these same services to other clients. (4) Consultant will use his/her own discretion and independent judgment in the performance of the services rendered for City under the terms of this Agreement.

Agreement No. 23-48
8 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.

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.

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 covenants that neither he/she nor any office 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.

To City: Marcia Richter
Human Services Director
City of Montclair
5111 Benito Street
Montclair, CA 91763
To Consultant: Sue Yoakum
1400 W. Francis Avenue
Ontario, CA 91762

17. ASSIGNMENT
The Consultant shall not assign the performance of this Agreement, nor any part thereof, nor any monies due hereunder, without prior written consent of the City.

Because of the personal nature of the services to be rendered pursuant to this Agreement, only Misha L. Penn, shall perform the services described in this Agreement.

Consultant’s responsible employee may use assistants, under his direct supervision, to perform some of the services under this Agreement. Consultant shall Agreement No. 23-48
10 provide City fourteen (14) days’ notice prior to the departure of the responsible employee from Consultant’s employ. Should he leave Consultant’s employ, the City shall have the option to immediately terminate this Agreement, within three (3) days of the close of said notice period. Upon termination of this Agreement, Consultant’s sole compensation shall be payment for actual services performed up to, and including, the date of termination or as may be otherwise agreed to in writing between the City Council and the Consultant.

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.

22. DISCRIMINATION
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.

Agreement No. 23-48
11 23. 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.

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 Suzanne Yoakum, Consultant
Attest:

By:

Andrea Myrick, City Clerk
Approved as to Form:

By:

City Attorney
Agreement No. 23-48
12 EXHIBIT A
During the term of this Agreement and in accordance with Section 2, CONSULTANT shall provide the services described below:
a) Share technical expertise and provide guidance to the Human Services staff on senior needs.
b) Provide case management to assist seniors and individuals and families in attaining financial stability including basic needs, sustaining safe housing, and moving toward more self-sufficient circumstances. In addition, provide case management to those with more complex needs referred by Human Services Department Staff.
c) Service at least 50 case management clients
d) Collect and maintain required paperwork, as determined by Human Services Department Staff.
e) Assist with compiling information and reporting case management information as required.
f) Provide monthly invoices by the 5th of the following month to Alyssa Colunga, Assistant Director of Human Services [email protected] along with a written accounting and confirmation of tasks performed each month.

Agreement No. 23-48
13 EXHIBIT B
Payment Schedule
Month Amount
July $250.00
August $250.00
September $250.00
October $250.00
November $250.00
December $250.00
January $250.00
February $250.00
March $250.00
April $250.00
May $250.00
June $250.00
Total $3,000.00

CITY COUNCIL

AGENDA REPORT
DATE: JULY 17, 2023
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 8
FILE I.D.: HSV020
DEPT.: HUMAN SVCS.

PREPARER: A. COLUNGA
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 23–49 WITH MISHA L. PENN TO PROVIDE

GRANT MANAGEMENT AND FISCAL COMPLIANCE SERVICES FOR THE HUMAN

SERVICES DEPARTMENT, SUBJECT TO ANY REVISIONS DEEMED NECESSARY BY THE

CITY ATTORNEY
REASON FOR CONSIDERATION: The City Council is requested to consider approval of Agreement No. 23–49 with Misha L. Penn to provide grant management and fiscal compliance services for the Human Services Department.

BACKGROUND: Healthy Montclair is part of a countywide effort to improve the health and well–being of all county residents by creating healthy environments and promoting healthy life choices. The purpose of the Healthy Montclair Initiative is to achieve an excellence in quality of life for those who live, work, learn, play, eat, and shop in Montclair. Healthy Montclair defines health as a state of complete physical, mental, and social flourishing and not merely the absence of disease or infirmity.

As part of the Healthy Montclair Initiative, the Human Services Department applies for and receives grant funding for various programs from private foundations, San Bernardino County, and the State of California—some of which include Federal Funding.

For the past ten years, Misha L. Penn has supported the Human Services Department in grant management and fiscal compliance. Ms. Penn has a bachelor’s degree in Business Administration and a combined thirty–four years of experience in contract management, grant compliance, program finance, and project implementation covering public, private, and non–profit sectors. Under this proposed contract services agreement, Misha L. Penn will continue to support the Human Services Department as an independent contractor.

FISCAL IMPACT: This contractual obligation of $30,000 will be funded with existing Human Services Department grant budget funds allocated and approved within the Fiscal Year 2023–24 Human Services Department budget. Should the City Council approve Agreement No. 23–49, there wwould be no adverse impact to the City’s General Fund.

The term of proposed Agreement No. 23–49 is July 1, 2023, through June 30, 2024.

RECOMMENDATION: Staff recommends the City Council approve Agreement No. 23–49 with Misha L. Penn to provide grant management and fiscal compliance for the Human Services Department, subject to any revisions deemed necessary by the City Attorney.

Agreement No. 23–49
1 CITY OF MONTCLAIR

AGREEMENT FOR CONSULTANT SERVICES

HUMAN SERVICES - PROGRAM FISCAL AND CONTRACT COMPLIANCE THIS AGREEMENT is made and effective as of July 1, 2023 between the City of Montclair, a municipal corporation (“City”) and Misha L. Penn, a California sole proprietor (“Consultant”). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:

This amount is subject to receipt of grant funding and shall not exceed $30,000 for the Agreement No. 23–49
2 total term of the Agreement unless additional payment is approved as provided in this Agreement.
(b) Consultant shall not be compensated for any services rendered in connection with its performance of this Agreement which are in addition to those set forth 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.

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 beyond the Consultant’s control, and 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 Agreement No. 23–49
3 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. 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 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 Agreement No. 23–49
4 misconduct of Consultant, including its subcontractors, 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 Consultants, subconsultants/subcontractors 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 subconsultants/subcontractors, 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) Subconsultants/subcontractors 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 Subconsultant, Subcontractor, 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 Subconsultant, Subcontractor 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.
(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, subconsultants or affiliated or related entities and/or its or their employees, agents and representatives, whether such Agreement No. 23–49
5 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.

If Consultant owns no vehicles, auto liability coverage may be Agreement No. 23–49
6 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.
(2) Workers’ Compensation: If applicable, 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.
(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) 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 consultant

4. Exclude “Third-Party-Over Actions”

5. Contain any other exclusion contrary to the Contract) (2) The policy or policies of insurance required by Section (a)(2) Workers’ Compensation shall be endorsed, as follows:

Agreement No. 23–49
7 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.

Agreement No. 23–49
8 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.

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.

To City: Marcia Richter
Human Services Director
City of Montclair
5111 Benito Street
Montclair, CA 91763
To Consultant: Misha L. Penn
808 Cloverview Drive
Glendora, CA 91741

17. ASSIGNMENT
The Consultant shall not assign the performance of this Agreement, nor any part thereof, nor any monies due hereunder, without prior written consent of the City.

Because of the personal nature of the services to be rendered pursuant to this Agreement, only Misha L. Penn, shall perform the services described in this Agreement.

Consultant’s responsible employee may use assistants, under his direct supervision, to perform some of the services under this Agreement. Consultant shall Agreement No. 23–49
10 provide City fourteen (14) days’ notice prior to the departure of the responsible employee from Consultant’s employ. Should he leave Consultant’s employ, the City shall have the option to immediately terminate this Agreement, within three (3) days of the close of said notice period. Upon termination of this Agreement, Consultant’s sole compensation shall be payment for actual services performed up to, and including, the date of termination or as may be otherwise agreed to in writing between the City Council and the Consultant.

Agreement No. 23–49
11 23. 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.

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 Misha L. Penn, Consultant
Attest:

By:

Andrea Myrick, City Clerk
Approved as to Form:

By:

City Attorney
Agreement No. 23–49
12 EXHIBIT A
During the term of this Agreement and in accordance with Section 2, CONSULTANT shall provide the services described below:
a) Share technical expertise and provide guidance to the Human Services staff on the basics of public and private contracting, contract administration, project management, cost control, and project scheduling.
b) Support and advise Human Services staff on action planning including prioritization and identification of best practices to consider for department activities, projects, and grant–funded programs.
c) Provide guidance and technical assistance for grant contract and subcontract compliance including requirements unique to state and federally-funded fixed price and cost reimbursement contract types, which may include but are not limited to the County of San Bernardino’s Department of Aging and Adult Services, the California Office of Traffic Safety, the Southern California Association of Governments, as well as other private foundations. d) Provide guidance and technical assistance in drafting agreements/subcontracts and proper flowdown of contract requirements. e) Provide guidance and technical assistance for grant proposals/applications and grant fiscal reporting.
f) Support preparation for grant contract administrative and fiscal compliance monitoring.
g) Support and advise on short–term capacity building priorities for Human Services’ staff.
h) Support and advise on mid–term capacity building priorities for marketing, communications, training, adaptability to change, and basic infrastructure issues.

Agreement No. 23–49
13 EXHIBIT B
Payment Schedule
Month Amount
July $2,500.00
August $2,500.00
September $2,500.00
October $2,500.00
November $2,500.00
December $2,500.00
January $2,500.00
February $2,500.00
March $2,500.00
April $2,500.00
May $2,500.00
June $2,500.00
Total $30,000.00

CITY COUNCIL

AGENDA REPORT
DATE: JULY 17, 2023
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 9
FILE I.D.: VEH350
DEPT.: PUBLIC WORKS
PREPARER: M. PARADIS
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 23–52 WITH ZPR’S HOUSE OF CAR WASH

FOR CAR WASH SERVICES FOR CITY VEHICLES
REASON FOR CONSIDERATION: The City currently contracts with Tommy’s Express Car Wash for self–service car wash services for City vehicles. The City would like to contract with an additional vendor, ZPR’s House of Car Wash (House of Car Wash), for full–service hand car wash services. Agreements with the City require City Council approval.

A copy of proposed Agreement No. 23–52 with House of Car Wash is attached for City Council review. City Attorney Robbins has reviewed the contract.

BACKGROUND: Regular vehicle cleaning services are necessary as preventative maintenance for all City vehicles. House of Car Wash on Holt Boulevard was used by the City for hand car washes since at least 2010 up until 2020, when the service closed.

Staff currently take vehicles to Tommy’s Express Wash or Metro Express for vehicle cleaning, which are drive–through, self–service car washes. These businesses do not offer hand washing or detailing services, and all interior cleaning is done by City staff using the provided vacuums. When more detailed car washing services are needed, a mobile detailing service is used.

House of Car Wash has recently reopened under new management, and still offers hand washing and detailing services. The basic wash service from House of Car Wash includes a hand wash, vacuuming, cleaning the interior and exterior windows, tire dressing, air freshener, dashboard and cup holder cleaning, and dusting.

The cost for car wash services from House of Car Wash are listed below. Because these washes are not self–service, tips are included for the car wash employees who perform the services.

Service Price Tip Total
Basic Wash $20.00 $5.00 $25.00
VIP Service $40.00 $10.00 $50.00
The City will begin to use House of Car Wash periodically when needed, and will continue to use Tommy’s Express Wash and Metro Express for routine vehicle cleaning services.

FISCAL IMPACT: Adding House of Car Wash as an approved car wash vendor will cause no additional fiscal impact to the City. The same amount of car wash services will still be utilized annually, but the cost will be split between House of Car Wash and Tommy’s Express Wash.

RECOMMENDATION: Staff recommends that the City Council approve Agreement No. 23–52 with ZPR’s House of Car Wash for car wash services.

Page 1 of 3 ends

AGREEMENT NO. 23–52

BY AND BETWEEN

THE CITY OF MONTCLAIR
AND ZPR’S HOUSE OF CAR WASH
THIS AGREEMENT is made and entered into this 17th day of July, 2023, by and between the CITY OF MONTCLAIR, a Municipal Corporation, County of San Bernardino, State of California, hereinafter referred to as "CITY," and ZPR’S HOUSE OF CAR WASH, Corporation hereinafter referred to as "VENDOR."
WITNESSETH:

SECTION I
The VENDOR, in consideration of the promises of the CITY hereinafter set forth, hereby agrees to furnish all tools, equipment, materials, labor, and transportation necessary to perform and complete the terms of this Agreement and to faithfully perform and maintain in a good and workmanlike manner the maintenance services on the areas as set forth and listed in this Agreement.

SECTION II
This Agreement is for a period of one (1) year from the date hereinabove set forth and can be renewed annually up to five (5) years with the consent of the CITY and the VENDOR, subject to the right of either party to cancel without cause by giving a minimum of thirty (30) days' written notice to the other of such cancellation.

SECTION III
All of the work and services to be performed pursuant to this Agreement shall be performed in a good and workmanlike manner. VENDOR shall pay prevailing wages in accordance with the laws of the State of California. Payment for work completed will be based on the following schedule:

Service Price Tip Total
Basic Wash $20.00 $5.00 $25.00
VIP Service $40.00 $10.00 $50.00
Payment will be made no later than on the 30th day of each and every calendar month during the term of this Agreement, which will be paid to the VENDOR for all work and services to be performed pursuant to the Agreement. Payment of additional services requested, in writing, by CITY and not included in the Scope of Services as set forth in this Agreement, shall be negotiated on an item– by–item basis. Any additional service cost will include labor, equipment, overhead, and profit. Charges for additional services shall be invoiced on a monthly basis and shall be paid by the CITY within a reasonable time after said invoices are received by the CITY.

AGREEMENT NO. 23–52

Page 2 of 3 ends

SECTION IV
The VENDOR shall defend, indemnify, and save harmless the CITY, its elected and appointed officials, officers, agents, and employees from all liability from loss, damage, or injury to persons or property, including the payment by the VENDOR of any and all legal costs and attorneys' fees, in any manner arising out of any negligent or intentional or willful acts or omissions of the VENDOR or any of its agents, servants, employees, or licensees in the performance of this Agreement including, but not be limited to, all consequential damages to the maximum extent permitted by law.

SECTION V
The Public Works Operations Assistant Manager, or his designated representative, shall be the judge of all work performed by the VENDOR. If the work is not satisfactory, the Public Works Operations Assistant Manager, or his designated representative may suspend the Agreement for any period of time or terminate the Agreement as set forth herein. No sums shall be due or payable to the VENDOR for or during any time of such suspension or after termination.

SECTION VI : SPECIFIC
A. Scope of Work
The work shall consist of furnishing all materials, labor, equipment, and incidentals necessary for cleaning of the exterior of each vehicle.

1. WORKING HOURS: All work shall be performed between the hours of 8:00 a.m. and 6:00 p.m., weekdays and weekends.

2. INSPECTION BY THE CITY: The CITY shall inspect all work performed under this contract for compliance to the specifications and report any deficiencies to the VENDOR.

4. DAMAGE TO PROPERTY: The VENDOR shall not damage any CITY property as a result of the work specified. Any damage resulting from the VENDOR's work shall be repaired, restored or replaced in kind within a timely manner at the expense of VENDOR.

5. WORKMANSHIP: All work shall be completed in a timely and workmanlike manner. The VENDOR shall provide qualified workers trained according to ZPR’s House of Car Wash standards.

6. MEASUREMENT AND PAYMENT: The unit prices called for in the Agreement shall be full compensation for all labor, materials, and equipment necessary to complete the work as specified. A Standard Carwash shall mean any vehicle able to go through Carwash tunnel.

No further compensation shall be made unless authorized by the Public Works Operations Assistant Manager or his designated representative.

AGREEMENT NO. 23–52

Page 3 of 3 ends

SECTION VII : MISCELLANEOUS PROVISIONS
A. Assignment. No assignment of this Agreement or of any part or obligation of performance hereunder shall be made, either in whole or in part, by the VENDOR without the written consent of the CITY.

B. Discrimination. The VENDOR 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 VENDOR agrees to comply with all County, State, and Federal laws relating to equal employment opportunity rights.

C. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California.

D. Attorneys' Fees. In the event that any legal proceeding is instituted to enforce any term or provision of this Agreement, the prevailing party in said legal proceeding shall be entitled to recover attorneys' fees and costs from the opposing party in an amount to be determined by the Court to be reasonable.

E. Entire Agreement. This Agreement supersedes any and all other agreements either oral or in writing, between the parties with respect to the subject matter herein. Each party to this Agreement acknowledges that no representation by any other party that is not embodied herein nor any other agreement, statement, or promise not contained in this Agreement shall be valid and binding. Any modification of this Agreement shall be effective only if it is in writing, signed by all parties.

IN WITNESS WHEREOF, the parties hereto execute this Agreement as of the day and year first set forth hereinabove.

VENDOR: CITY:

ZPR’S HOUSE OF CAR WASH City of Montclair
5064 Holt Blvd., Montclair, CA 91763 5111 Benito Street, Montclair, CA 91763 William Zendejas, Managing Partner Javier John Dutrey, Mayor ATTEST:

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

Diane E. Robbins, City Attorney

CITY COUNCIL

AGENDA REPORT
DATE: JULY 17, 2023
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 10
FILE I.D.: COC050
DEPT.: ECONOMIC DEV.

PREPARER: T. MARTIN
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 23–53 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. 23–53 with the Montclair Chamber of Commerce to provide services to strengthen and enhance local economic development activities.

A copy of proposed Agreement No. 23–53 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. 23–53 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. 23–53 is July 1, 2023 through June 30, 2024.

FISCAL IMPACT: If approved by the City Council, the Montclair Chamber of Commerce would receive $20,000 for the 2023–24 Fiscal Year, payable in equal quarterly payments of $5,000. This amount was approved in the Fiscal Year 2023–24 Budget in the Economic Development Fund.

RECOMMENDATION: Staff recommends the City Council approve Agreement No. 23– 53 with the Montclair Chamber of Commerce to provide services to promote local economic development, subject to any revisions deemed necessary by the City Attorney.

AGREEMENT NO. 23-53

ECONOMIC DEVELOPMENT AGREEMENT

BETWEEN THE CITY OF MONTCLAIR

AND THE MONTCLAIR CHAMBER OF COMMERCE
THIS ECONOMIC DEVELOPMENT AGREEMENT ("Agreement") is made and entered into this 1st day of July, 2023, 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 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.

AGREEMENT NO. 23–53

Page 2 of 5 ends

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 an annual basis administer services largely at 8880 Benson Avenue, Suite 110, Montclair, California 91763 and/or at a designated CITY facility ; 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 $20,000 annually payable in equal quarterly payments of $5,000 on or before the 30th day of the beginning of each quarter.

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.

AGREEMENT NO. 23–53

Page 3 of 5 ends

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, 2023, and continuing through June 30, 2024; 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.

AGREEMENT NO. 23–53

Page 4 of 5 ends

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.

AGREEMENT NO. 23–53

Page 5 of 5 ends

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

CITY COUNCIL

AGENDA REPORT
DATE: JULY 17, 2023
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 11
FILE I.D.: PDT360
DEPT.: POLICE
PREPARER: J. REED
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 23–55 WITH TOC PUBLIC RELATIONS TO

DEVELOP A RECRUITMENT WEBSITE EXCLUSIVELY FOR THE POLICE DEPARTMENT,

INCLUDING A PHOTO AND VIDEO RECRUITMENT PACKAGE AND A SOCIAL MEDIA

AD CAMPAIGN FOR THE PURPOSE OF ATTRACTING AND RECRUITING POLICE

OFFICER CANDIDATES, SUBJECT TO ANY REVISIONS DEEMED NECESSARY BY THE

CITY ATTORNEY

CONSIDER AUTHORIZING ACTING POLICE CHIEF JASON REED TO SIGN SAID

AGREEMENT
CONSIDER AUTHORIZING A $40,000 APPROPRIATION FROM THE FEDERAL ASSET FORFEITURE FUND FOR COSTS ASSOCIATED WITH AGREEMENT NO. 23–55 REASON FOR CONSIDERATION: The City Council is requested to consider approving Agreement No. 23–55 with TOC Public Relations for the development of a recruitment website, including a photo and video recruitment package and a targeted social media ad campaign, for the purpose of attracting and recruiting police officer candidates to fill multiple vacancies in the Police Department. The City Council is also requested to authorize a $40,000 appropriation from the Federal Asset Forfeiture Fund for costs related to the contract.

A copy of proposed Agreement No. 23–55 is attached for City Council review and consideration.

BACKGROUND: In the ever–competitive job market for the position of a full–time police officer, the Police Department is exploring several different avenues to recruit and retain qualified candidates for the position of full–time, sworn police officer. Command and recruitment staff at the Police Department are constantly and vigorously recruiting for police officers, and have identified a successful and modern tool utilized by other agencies throughout the State as it pertains to stand–alone recruitment websites, recruitment videos, and targeted social media ad campaigns.

The Police Department, including members of its Social Media Team, has discovered successful outside agencies’ recruitment websites and other digital media, and has conducted research into companies that create the content for these websites. TOC Public Relations out of Chino Hills has been identified as a creator of such websites that specializes in digital marketing, including professional recruitment videos and photography. TOC Public Relations also assists with paid advertisement placement on social media platforms, which reach out to a high volume of interested candidates.

The websites created by TOC Public Relations are highly polished, organized, interactive, and professionally constructed to work on all platforms including smartphones and desktop computers. They include a homepage, which is simple yet information–packed with the goal of drawing visitors into the recruitment website even further. They also contain highlighted points of their respective police department and call–to–actions to get prospective candidates to engage with the site. The websites highlight department leaders, mission statements, and general information about the police department as well as list available job opportunities with benefits, resources, and requirements to obtain the positions. Also included are links to the department’s social media platforms and an easy–to–use contact form for visitors to easily contact the department’s recruiters.

Along with the development of a recruitment website, TOC Public Relations would also provide a photo and video recruitment package, included in the purchase price, which would be conducted at the Montclair Police Department and in the community to produce over 75 edited photos and up to three recruitment videos. These photos and videos would not only highlight the job and duties of a police officer, but would also display the personal side of the officers—what drove them to become an officer and what drives them to continue serving with the Montclair Police Department.

TOC Public Relations would also publish and manage a recruitment social media ad campaign, which would utilize the Department’s current Facebook and Instagram media platforms. This campaign would reach out to members of the community and abroad to attract new and lateral police officers to the website and ultimately provide a convenient conduit for them to contact recruiters at the Montclair Police Department.

Included in the cost is an annual accessibility and translation software plug–in subscription and installation fee and an annual website maintenance package fee, which provides software updates, security scans, hosting, backups, and multiple content edits per year on an as–needed basis.

TOC Public Relations has been utilized by multiple other law enforcement agencies of multiple different sizes including; Azusa, Carlsbad, Bakersfield, Santa Maria, and Coronado Police Departments; and large sheriff’s departments such as Kern County and San Joaquin County. Staff reached out to some of these agencies, all of which spoke highly of the experience with TOC Public Relations and to the success of the websites along with the associated media content. They mentioned analytics are provided by TOC Public Relations that highlight website traffic and measure the success, clicks, and views of the stand–alone recruitment websites. In addition, many of the listed agencies utilize QR–coded bumper stickers, signage, business cards, and other media, which have measured a high success rate as a quick portal into their recruitment websites. Of the contacted listed agencies, all praised the response time, adaptability, flexibility, and ease of working with TOC Public Relations, and complimented its broad capabilities and areas of expertise as compared to other similar companies providing similar services.

FISCAL IMPACT: If authorized by the City Council, funding for Agreement No. 23–55 with TOC Public Relations would result in an appropriation from the Federal Asset Forfeiture Fund 1144 in the amount of $40,000. A 50 percent deposit would be due prior to starting the website build or booking the photo/video shoot. The balance would be due upon initial delivery of the completed projects. The social media campaign must be pre–paid in full.

Additional years of service, if authorized by the City Council, would result in an expenditure of $6,500 for each year thereafter from the City’s General Fund for an annual accessibility and translation software plug–in subscription fee and an annual website maintenance fee.

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

1. Approve of Agreement No. 23–55 with TOC Public relations to develop a recruitment website exclusively for the police department, including a photo and video recruitment package and a social media ad campaign for the purpose of attracting and recruiting police officer candidates, subject to any revisions deemed necessary by the City Attorney;

2. Authorize Acting Police Chief Jason Reed to sign said Agreement; and

3. Authorize a $40,000 appropriation from the Federal Asset Forfeiture Fund for costs associated with Agreement No. 23–55.

TOC Public Relations
9092919199
4195 Chino Hills Parkway #561
Chino Hills, CA 91709
Prepared For
Jason Reed
Montclair Police Department
Proposal Number
0000214
Overview
TOC Public Relations is a PR firm that specializes in digital marketing, strategic communications, and all aspects of public relations, with a specialty in public safety agencies, associations, and organizations. Find out more about who we are and what we do at tocpublicrelations.com.

Recruitment Website
We will design a highly polished, interactive, and professional website that properly works on all platforms, regardless of on a smartphone or a desktop computer. Having developed several law enforcement agencies, associations, non-profits, and related websites, we know what you need and what you don't need to accomplish your recruiting goals.

The website will include the following pages and content:

Homepage: A simple yet information-packed page with the goal of drawing visitors into your website even further. It will have the highlighted points of your department and call-to-actions to get prospective candidates to engage with the site.

About: This page will highlight your department leaders, mission statement, and general information about the department.

Join: Available job opportunities will be listed along with the benefits, resources, and requirements to obtain the positions.

Social Media Integration: Along with links to your social media platforms, we will embed your most popular social media feed into your website to improve your social media engagement.

Contact Form: We will provide a way for website visitors to contact your recruiters.

Accessibility and Translation: Your website will be in compliance with current accessibility laws and will also have a translation module to meet the needs of any website visitor.

Photo and Video Package
A photo and video shoot will be conducted over two days to produce a minimum of 75 edited photos and three videos (60-90 seconds in length).

Proposal Date
06/15/2023
AGREEMENT NO. 23-55
Each video will be formatted for use on various platforms.

Samples of Work
Photos and Video:
https://tocpublicrelations.com/content-creation
https://www.instagram.com/tocpublicrelations/
https://www.youtube.com/@tocpublicrelations/videos
Websites:
https://kcsojobs.org/
https://joinsantamariapd.com/
https://joinbpd.us/
https://sjsheriff.org/
https://covinapd.org/
Client References
Tracy PD: Chief Millington | 209.814. 5373 or [email protected] | Scope of work: website and videography
Kern County Sheriff: Lori Meza | 661.391.7566 or [email protected] Santa Maria PD: Gina Avalos | 805.928.3781 ext.1620 or [email protected] | Scope of work: website and photography
San Joaquin County Sheriff: Lt Seto | 209.468.5507 or [email protected] | Scope of work: website, communications consulting, graphic design, social media ads, photography, and videography Coronado PD: Lea Corbin | 619.522.7370 or [email protected] | Scope of work: photography and videography
Azusa Police Department: Jennifer Wu | 626.812.3262 or [email protected] | Scope of work:
videography
Carlsbad PD: Sgt Zavala | 442.339.5683 or [email protected] | Scope of work:
photography and videography
Social Media Ad Campaign
Three social media ads (Facebook and IG) using media created by TOC Public Relations. Includes publishing, ad management, and monitoring.

Pricing
Description Rate Qty Line Total
Recruitment Website Development
Design and development of website.
$16,000.00 1 $16,000.00
Annual Website Maintenance
Website maintenance package for software updates, security scans, hosting, back-ups, and content edits (up to 15 hours per year). $5,000.00 1 $5,000.00
Annual Accessibility and Translation Software Plug-in
Software subscription and installation.
$1,500.00 1 $1,500.00
Photography and Videography Package
75 photos and three videos (two day shoot).
$15,000.00 1 $15,000.00
Social Media Ad Campaign
Three social media ads.
$2,500.00 1 $2,500.00
Terms
A 50% deposit is due prior to starting the website build or booking the photo/video shoot; the balance is due upon initial delivery of the completed projects. Social media campaign must be pre-paid in full. Once the website and videos are delivered, there will be two rounds of revisions. You will incur additional charges in the event there are significant changes to the website build and/or after revisions have been made and approved by you.

Annual fees in the amount of $6,500.00 will be due one year from the initial website delivery date.

Jason Reed, Montclair Police Department
Subtotal
Tax
40,000.00

0.00 Proposal Total (USD) $40,000.00

CITY COUNCIL

AGENDA REPORT
DATE: JULY 17, 2023
SECTION: CONSENT - RESOLUTIONS
ITEM NO.: 1
FILE I.D.: STB300–17
DEPT.: CITY MGR.

PREPARER: C. GRAVES
SUBJECT: CONSIDER ADOPTION OF RESOLUTION NO. 23–3409 AUTHORIZING PLACEMENT

OF LIENS ON CERTAIN PROPERTIES FOR DELINQUENT SEWER AND TRASH CHARGES REASON FOR CONSIDERATION: Staff has identified 165 sewer and trash accounts in the odd–numbered–month billing cycle that are more than three billing periods delinquent. Pursuant to Montclair Municipal Code Chapter 1.12, these properties are subject to lien.

BACKGROUND: Ordinance No. 02–815 authorizes the placement of liens on properties on which delinquent civil debts have accrued and makes property owners responsible for delinquent sewer and trash charges accrued after the effective date of the Ordinance (March 1, 2002) for accounts in tenants' names. Prior to the City Council's adoption of Ordinance No. 02–815, property owners were responsible for only those accounts in their own names.

FISCAL IMPACT: Recoverable amount is $54,625.27, plus $3,300.00 for release of lien fees, plus $8,250.00 in lien fees, for a total of $66,175.27.

RECOMMENDATION: Staff recommends the City Council adopt Resolution No. 23–3409 authorizing placement of liens on certain properties for delinquent sewer and trash charges as listed on Exhibit A of said Resolution.

Resolution No. 23–3409 Page 1 of 1
RESOLUTION NO. 23–3409

A RESOLUTION OF THE CITY COUNCIL OF

THE CITY OF MONTCLAIR AUTHORIZING

PLACEMENT OF LIENS ON CERTAIN

PROPERTIES FOR DELINQUENT SEWER

AND TRASH ACCOUNTS
WHEREAS, Chapter 1.12 of the Montclair Municipal Code authorizes the City to place liens on properties on which delinquent civil debts have accrued; and WHEREAS, all owners of property in the City of Montclair were notified about the adoption of Ordinance No. 02–815 authorizing placement of liens on properties on which delinquent civil debts have accrued; and
WHEREAS, it has been determined that there are 165 sewer and/or trash accounts on which there are delinquencies in excess of 90 days; and WHEREAS, the owners of these properties have received regular billing statements and late notices since the onset of such delinquencies; and WHEREAS, the owners of these properties were notified on June 8, 2023, that their delinquent accounts are subject to causing a lien to be placed on their properties for settlement of such delinquencies; and that such liens would be considered for approval by the Montclair City Council on Monday, July 17, 2023.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Montclair approves the placement of liens on the properties and in the amounts specified in Exhibit A, entitled Report of Delinquent Civil Debts – July 2023, attached hereto.

BE IT FURTHER RESOLVED that the City Clerk is authorized to provide the San Bernardino County Auditor/Controller–Recorder with the documents required to cause such liens to be placed.

APPROVED AND ADOPTED this XX day of XX, 2023.

Mayor
ATTEST:

City Clerk
I, Andrea M. Myrick, City Clerk of the City of Montclair, DO HEREBY CERTIFY that Resolution No. 23–3409 was duly adopted by the City Council of said city and was approved by the Mayor of said city at a regular meeting of said City Council held on the XX day of XX, 2023, and that it was adopted by the following vote, to–wit:

AYES: XX
NOES: XX
ABSTAIN: XX
ABSENT: XX
Andrea M. Myrick
City Clerk
Exhibit A to Resolution No. 23–3409
Report of Delinquent Civil Debts – July 2023

Page 1 of 4 ends

Street No. Street Account Type Delinquency Release of
Lien Fee Lien Fee Total Lien
Amount
5356 Alamitos Street Residential 308.78 20.00 50.00 378.78 9757 Amherst Avenue Residential 308.78 20.00 50.00 378.78 9910 Amherst Avenue Residential 308.78 20.00 50.00 378.78 9960 Amherst Avenue Residential 314.37 20.00 50.00 384.37 10085 Amherst Avenue Residential 289.98 20.00 50.00 359.98 5460 Armsley Street Residential 238.53 20.00 50.00 308.53 5102 Aspen Drive Residential 394.52 20.00 50.00 464.52
5105 Aspen Drive Residential 321.81 20.00 50.00 391.81
9824 Bel Air Avenue Residential 289.25 20.00 50.00 359.25 9909 Bel Air Avenue Residential 310.21 20.00 50.00 380.21 9910 Bel Air Avenue Residential 249.12 20.00 50.00 319.12 10024 Bel Air Avenue Residential 302.92 20.00 50.00 372.92 10045 Bel Air Avenue Residential 317.23 20.00 50.00 387.23 10087 Bel Air Avenue Residential 254.02 20.00 50.00 324.02 4435 Benito Street Residential 306.21 20.00 50.00 376.21 4460 Benito Street Residential 308.78 20.00 50.00 378.78 4814 Benito Street Senior 384.04 20.00 50.00 454.04
5233 Benito Street Senior 276.40 20.00 50.00 346.40
5429 Benito Street Residential 308.78 20.00 50.00 378.78 5598 Benito Street Residential 338.81 20.00 50.00 408.81 4843 Berkeley Street Residential 308.79 20.00 50.00 378.79 5392 Berkeley Street Residential 498.18 20.00 50.00 568.18 9598 Bolton Avenue Residential 308.78 20.00 50.00 378.78 9768 Bolton Avenue Residential 428.53 20.00 50.00 498.53 9778 Bolton Avenue Residential 276.12 20.00 50.00 346.12 4541 Bonnie Brae Street Residential 308.78 20.00 50.00 378.78 4599 Bonnie Brae Street Residential 320.41 20.00 50.00 390.41 5051 Brooks Street Residential 289.05 20.00 50.00 359.05 11322 Butterfield Avenue Residential 258.98 20.00 50.00 328.98 9851 Camarena Avenue Residential 308.78 20.00 50.00 378.78 4443 Cambridge Street Residential 309.05 20.00 50.00 379.05 4853 Cambridge Street Residential 308.79 20.00 50.00 378.79 5470 Cambridge Street Residential 308.79 20.00 50.00 378.79 5471 Cambridge Street Residential 308.78 20.00 50.00 378.78 5490 Cambridge Street Residential 443.78 20.00 50.00 513.78 5561 Cambridge Street Residential 514.01 20.00 50.00 584.01 5570 Cambridge Street Residential 252.62 20.00 50.00 322.62 9242 Camulos Avenue Residential 310.32 20.00 50.00 380.32 9243 Camulos Avenue Residential 308.78 20.00 50.00 378.78 9426 Camulos Avenue Residential 338.77 20.00 50.00 408.77 9511 Camulos Avenue Residential 338.81 20.00 50.00 408.81 9540 Camulos Avenue Residential 340.40 20.00 50.00 410.40 9558 Camulos Avenue Residential 276.12 20.00 50.00 346.12 9737 Camulos Avenue Residential 305.21 20.00 50.00 375.21 9877 Camulos Avenue Residential 338.81 20.00 50.00 408.81 Exhibit A to Resolution No. 23–3409
Report of Delinquent Civil Debts – July 2023

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Street No. Street Account Type Delinquency Release of
Lien Fee Lien Fee Total Lien
Amount
10060 Camulos Avenue Residential 276.12 20.00 50.00 346.12 5666 Caroline Street Residential 308.79 20.00 50.00 378.79 9921 Central Avenue Senior 247.04 20.00 50.00 317.04
9795 Coalinga Avenue Residential 308.78 20.00 50.00 378.78 9824 Coalinga Avenue Senior 284.16 20.00 50.00 354.16
9477 Del Mar Avenue Residential 340.13 20.00 50.00 410.13 4405 Denver Street Residential 338.81 20.00 50.00 408.81 4455 Denver Street Residential 310.21 20.00 50.00 380.21 4976 Denver Street Senior 247.04 20.00 50.00 317.04
4986 Denver Street Residential 331.29 20.00 50.00 401.29 5381 Denver Street Residential 276.12 20.00 50.00 346.12 5579 Denver Street Residential 211.22 20.00 50.00 281.22 5616 Denver Street Residential 308.78 20.00 50.00 378.78 5626 Denver Street Residential 338.81 20.00 50.00 408.81 5562 Deodar Street Residential 237.56 20.00 50.00 307.56 5168 El Morado Street Residential 345.62 20.00 50.00 415.62 5357 El Morado Street Senior 325.30 20.00 50.00 395.30
5429 El Morado Street Residential 308.78 20.00 50.00 378.78 9463 Exeter Avenue Residential 325.47 20.00 50.00 395.47 9367 Felipe Avenue Residential 321.81 20.00 50.00 391.81 9793 Felipe Avenue Senior 276.39 20.00 50.00 346.39
9020 Fremont Avenue Senior 306.43 20.00 50.00 376.43
9823 Fremont Avenue Residential 308.78 20.00 50.00 378.78 10037 Fremont Avenue Residential 705.55 20.00 50.00 775.55 9023 Geneva Avenue Residential 215.21 20.00 50.00 285.21 9985 Geneva Avenue Residential 308.78 20.00 50.00 378.78 4328 Granada Street Residential 308.78 20.00 50.00 378.78 5391 Granada Street Residential 257.19 20.00 50.00 327.19 5635 Granada Street Residential 321.18 20.00 50.00 391.18 9772 Greenwood Avenue Residential 246.09 20.00 50.00 316.09 4376 Harvard Street Residential 308.78 20.00 50.00 378.78 4418 Harvard Street Residential 308.78 20.00 50.00 378.78 4430 Harvard Street Residential 393.53 20.00 50.00 463.53 4825 Harvard Street Residential 428.53 20.00 50.00 498.53 5505 Harvard Street Residential 212.53 20.00 50.00 282.53 5141-43 Harvard Street Multifamily 617.55 20.00 50.00 687.55 9607 Helena Avenue Residential 284.25 20.00 50.00 354.25 9761 Helena Avenue Residential 319.10 20.00 50.00 389.10 5190 Howard Street A & B Multifamily 684.41 20.00 50.00 754.41 4585 James Street Residential 338.81 20.00 50.00 408.81 9860 Kimberly Avenue Residential 276.12 20.00 50.00 346.12 9877 Kimberly Avenue Residential 344.80 20.00 50.00 414.80 5400 La Deney Street Senior 274.04 20.00 50.00 344.04
5430 La Deney Street Residential 428.53 20.00 50.00 498.53 9744 Lehigh Avenue Residential 308.38 20.00 50.00 378.38 Exhibit A to Resolution No. 23–3409
Report of Delinquent Civil Debts – July 2023

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Street No. Street Account Type Delinquency Release of
Lien Fee Lien Fee Total Lien
Amount
10007 Lindero Avenue Senior 247.44 20.00 50.00 317.44
10042 Lindero Avenue Residential 210.21 20.00 50.00 280.21 9527 Marion Avenue Residential 308.78 20.00 50.00 378.78 9547 Marion Avenue Residential 308.78 20.00 50.00 378.78 9595 Mills Avenue Residential 338.81 20.00 50.00 408.81 9985 Mills Avenue Residential 464.12 20.00 50.00 534.12 9795 Monte Vista Avenue Residential 428.53 20.00 50.00 498.53 9858 Monte Vista Avenue Residential 245.68 20.00 50.00 315.68 10082 Monte Vista Avenue Residential 268.53 20.00 50.00 338.53 4620 Moreno Street Residential 428.53 20.00 50.00 498.53 4644 Olive Street Residential 358.07 20.00 50.00 428.07 4771 Orchard Street Residential 334.41 20.00 50.00 404.41 5032 Orchard Street Residential 338.91 20.00 50.00 408.91 5690 Orchard Street Residential 308.78 20.00 50.00 378.78 5557 Palo Verde Street Residential 240.43 20.00 50.00 310.43 9633 Poulsen Avenue Residential 323.52 20.00 50.00 393.52 9925 Poulsen Avenue Residential 308.78 20.00 50.00 378.78 9935 Poulsen Avenue Residential 334.89 20.00 50.00 404.89 9375 Pradera Avenue Multifamily 1,338.58 20.00 50.00 1,408.58 9648 Pradera Avenue Residential 208.91 20.00 50.00 278.91 10074 Pradera Avenue Residential 451.06 20.00 50.00 521.06 4426 Princeton Street Residential 308.95 20.00 50.00 378.95 4467 Princeton Street Residential 308.79 20.00 50.00 378.79 9060 Ramona Avenue Residential 308.76 20.00 50.00 378.76 9109 Ramona Avenue Residential 272.40 20.00 50.00 342.40 9136 Ramona Avenue Residential 428.53 20.00 50.00 498.53 9587 Ramona Avenue Residential 308.79 20.00 50.00 378.79 9706 Ramona Avenue Residential 355.37 20.00 50.00 425.37 9801 Ramona Avenue Senior 293.60 20.00 50.00 363.60
9413 Rose Avenue Residential 368.84 20.00 50.00 438.84
9434 Rose Avenue Residential 308.78 20.00 50.00 378.78
9441 Rose Avenue Residential 488.96 20.00 50.00 558.96
9482 Rose Avenue Residential 276.12 20.00 50.00 346.12
9866 Rose Avenue Senior 276.40 20.00 50.00 346.40
4669 Rosewood Street Residential 275.39 20.00 50.00 345.39 4683 Rosewood Street Residential 308.79 20.00 50.00 378.79 5361 Rosewood Street Residential 308.78 20.00 50.00 378.78 4164 Rudisill Street Residential 308.78 20.00 50.00 378.78 4245 Rudisill Street Residential 308.78 20.00 50.00 378.78 4246 Rudisill Street Residential 411.70 20.00 50.00 481.70 4300 Rudisill Street Residential 261.59 20.00 50.00 331.59 5432 Rudisill Street Residential 467.65 20.00 50.00 537.65 5442 Rudisill Street Residential 276.12 20.00 50.00 346.12 4438 San Bernardino Street Residential 460.37 20.00 50.00 530.37 4448 San Bernardino Street Residential 277.74 20.00 50.00 347.74 Exhibit A to Resolution No. 23–3409
Report of Delinquent Civil Debts – July 2023

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Street No. Street Account Type Delinquency Release of
Lien Fee Lien Fee Total Lien
Amount
4686 San Bernardino Street Residential 316.88 20.00 50.00 386.88 4711 San Bernardino Street Residential 308.78 20.00 50.00 378.78 4749 San Bernardino Street Residential 453.32 20.00 50.00 523.32 4844 San Bernardino Street Residential 338.81 20.00 50.00 408.81 5216 San Bernardino Street Residential 308.78 20.00 50.00 378.78 5418 San Bernardino Street Residential 276.12 20.00 50.00 346.12 5489 San Bernardino Street Residential 336.79 20.00 50.00 406.79 5528 San Bernardino Street Residential 313.10 20.00 50.00 383.10 4463 San Jose Street Multifamily 581.92 20.00 50.00 651.92 5412 San Jose Street Residential 311.29 20.00 50.00 381.29 5422 San Jose Street Residential 338.81 20.00 50.00 408.81 5636 San Jose Street Residential 228.53 20.00 50.00 298.53 4424 San Jose Street #05 Residential 308.78 20.00 50.00 378.78 4424 San Jose Street #18 Residential 321.18 20.00 50.00 391.18 4424 San Jose Street #24 Residential 321.81 20.00 50.00 391.81 4424 San Jose Street #27 Residential 308.78 20.00 50.00 378.78 4630 San Jose Street M Residential 206.15 20.00 50.00 276.15 4622 San Jose Street U Residential 206.15 20.00 50.00 276.15 4593 State Street Residential 222.38 20.00 50.00 292.38 4781 State Street Residential 324.94 20.00 50.00 394.94 9817 Sun Valley Drive Residential 357.66 20.00 50.00 427.66 5130 Sundance Drive Residential 428.53 20.00 50.00 498.53 5134 Sundance Drive Residential 325.15 20.00 50.00 395.15 9617 Surrey Avenue Residential 308.78 20.00 50.00 378.78 9793 Surrey Avenue Residential 306.72 20.00 50.00 376.72 9531 Tudor Avenue Residential 226.69 20.00 50.00 296.69 9829 Vail Drive Residential 429.25 20.00 50.00 499.25
10008 Vernon Avenue Residential 299.18 20.00 50.00 369.18 4878 Yale Street Residential 320.19 20.00 50.00 390.19
5405 Yale Street Residential 308.97 20.00 50.00 378.97
Totals: $54,625.27 $3,300.00 $8,250.00 $66,175.27

CITY COUNCIL

AGENDA REPORT
DATE: JULY 17, 2023
SECTION: CONSENT - RESOLUTIONS
ITEM NO.: 2
FILE I.D.: EDD100/MHA100
DEPT.: ECONOMIC DEV./MHA/MHC
PREPARER: M. FUENTES
SUBJECT: CONSIDER ADOPTION OF RESOLUTION NO. 23–3415 APPROVING AGREEMENT NO. 23–54, AN AFFORDABLE HOUSING AGREEMENT WITH THE MONTCLAIR HOUSING AUTHORITY AND THE MONTCLAIR HOUSING CORPORATION; AUTHORIZING THE TRANSFER OF 10053 CENTRAL AVENUE, MONTCLAIR, TO THE MONTCLAIR HOUSING AUTHORITY FOR USE AS AFFORDABLE HOUSING; AND DECLARING SUCH

REAL PROPERTY TO BE EXEMPT SURPLUS LAND
CONSIDER ADOPTION OF MHC RESOLUTION NO. 23–03 APPROVING AGREEMENT NO. 23–54, AN AFFORDABLE HOUSING AGREEMENT WITH THE CITY OF MONTCLAIR

AND THE MONTCLAIR HOUSING AUTHORITY
CONSIDER ADOPTION OF MHA RESOLUTION NO. 23–02 APPROVING AGREEMENT NO. 23–54, AN AFFORDABLE HOUSING AGREEMENT WITH THE CITY OF MONTCLAIR

AND THE MONTCLAIR HOUSING CORPORATION, AND ACCEPTING THE TRANSFER

OF CERTAIN REAL PROPERTY FROM THE CITY OF MONTCLAIR
REASON FOR CONSIDERATION: Proposed Agreement No. 23–54 is an Affordable Housing Agreement between the City of Montclair (City), the Montclair Housing Authority (MHA), and the Montclair Housing Corporation (MHC) for the conveyance of real property located at 10053 Central Avenue in Montclair, and the subsequent leasing and operations of said property as affordable housing.

Proposed City Council Resolution No. 23–3415 would approve entering into Agreement No. 23–54, and would authorize the transfer of Property from the City to the MHA.

Proposed MHC Resolution No. 23–03 would approve entering into Agreement No. 23–

54. Proposed MHA Resolution No. 23–02 would approve entering into Agreement No. 23–54, and accept the transfer of Property from the City to the MHA.

A copy of the proposed agreement and resolutions are attached for review and consideration by the City Council, the MHA Commissioners, and the MHC Board.

BACKGROUND: In June 1987, the former Redevelopment Agency (RDA) Board of Directors adopted the Central Avenue Single–family Acquisition Policy (Policy) authorizing staff to make purchase offers on single–family residences along the Central Avenue corridor, subject to the former Redevelopment Agency Board of Directors’ approval.

The Policy was later expanded to include areas along Central Avenue or in locations of high visibility. Pursuant to the Policy, a total of 17 single–family homes were purchased by the former RDA before its dissolution.

With the dissolution of redevelopment agencies in 2011 (AB 1X 26) and the California Supreme Court's decision in California Redevelopment Association v. Matosantos, the City Council elected to continue the former RDA’s policy of acquiring single–family residences along the Central Avenue corridor or in locations of high visibility and further expanded the Policy to included residences along all of the City's major corridors.

The properties formerly owned by the RDA were transferred to the Montclair Housing Authority (MHA), the successor housing entity, and are currently rented to low– to– moderate–income families and are managed by the Montclair Housing Corporation (MHC), a nonprofit public–benefit corporation organized for the purpose of increasing, improving, and preserving affordable housing in the City of Montclair.

The rents and other income from the MHC belong to the MHA; however, they are granted to the MHC for use in covering expenses of operating the various housing units. The amount of rents collected from the renters is established by the State Department of Housing and Community Development and varies based upon income levels.

Agreement No. 23–54 Affordable Housing Agreement
In order to meet the City's Regional Housing Needs Assessment (RHNA), a representation of future housing needs for all income levels in a region, staff recommends the property be operated as a rental unit made available to low– to moderate–income persons. As such, staff has prepared Agreement No. 23–54, an affordable housing agreement by and between the City, MHA, and MHC.

Proposed Agreement No. 23–54 contains language related to the conveyance of the property, compliance with applicable laws, use of the properties, remedies, and general provisions. The more salient points of proposed Agreement No. 23–54 relate to the conveyance of fee title of the property from the City to the MHA and leasing of the property from the MHA to the MHC for the day–to–day operation of the property, as well as the rehabilitation and rental of the property to low– to moderate–income persons. 10053 Central Avenue
The subject property is located on a highly visible and desirable portion of Central Avenue, thereby meeting the criteria established in the City Council's Policy to acquire properties along the City's major corridors and areas of high visibility.

The property was built in 1956, and the lot sizes is 7,400 square feet. The dwelling unit is 1,185 square feet, with three bedrooms and two bathrooms. The property was recently renovated prior to its purchase. As such, staff will not be requesting an appropriation of funds from the Housing Trust Fund to fund the repairs to the property.

FISCAL IMPACT: Approval of Agreement No. 23–54 would produce no fiscal impact to the City’s General Fund.

RECOMMENDATION: Staff recommends that the City Council adopt Resolution No. 23– 3415 approving Agreement No. 23–54, an Affordable Housing Agreement with the Montclair Housing Authority and the Montclair Housing Corporation; authorizing the transfer of 10053 Central Avenue, Montclair, to the Montclair Housing Authority for use affordable housing; and declaring such real property to be exempt surplus land.

Staff recommends that the Montclair Housing Corporation Board of Directors adopt MHC Resolution No. 23–03 approving Agreement No. 23–54, an Affordable Housing Agreement with the City of Montclair and the Montclair Housing Authority.

Staff recommends that the Montclair Housing Authority Commissioners adopt MHA Resolution No. 23–02 approving Agreement No. 23–54, an Affordable Housing Agreement with the City of Montclair and the Montclair Housing Corporation, and accepting the transfer of certain real property from the City of Montclair.

Agreement No. 23-54

AFFORDABLE HOUSING AGREEMENT
by and among the

CITY OF MONTCLAIR
and the

MONTCLAIR HOUSING AUTHORITY
and the

MONTCLAIR HOUSING CORPORATION
Agreement No. 23-54
i

TABLE OF CONTENTS

1. DEFINITIONS .......................................................................................................................... 1

2. CONVEYANCE OF THE PROPERTY ................................. Error! Bookmark not defined.

2.1 Conveyance of Fee Title ............................................................................................... 2

2.2 Lease Terms.................................................................................................................. 3

2.3 Conditions Precedent to Commencement of Lease ...................................................... 3

3. COMPLIANCE WITH LAWS ................................................................................................. 3

4. USE OF THE PROPERTY ....................................................................................................... 3

4.1 Use In Conformance with Agreement .......................................................................... 3

4.2 Affordable Rental Housing ........................................................................................... 4

4.3 Occupancy Standards.................................................................................................... 5

4.4 Management and Maintenance .....................................................................................5

4.5 Rights of Access ........................................................................................................... 6

4.6 Nondiscrimination......................................................................................................... 7

4.7 Effect of Violation of the Terms and Provisions of this Agreement After Completion of Construction.......................................................................................... 8

5. REMEDIES............................................................................................................................... 8

5.1 Events of Default .......................................................................................................... 8

5.2 Remedies....................................................................................................................... 8

5.3 Force Majeure ............................................................................................................... 8

5.4 Attorneys’ Fees............................................................................................................. 9

5.5 Remedies Cumulative ................................................................................................... 9

5.6 Waiver of Terms and Conditions.................................................................................. 9

5.7 Non-Liability of Authority Officials and Employees ................................................... 9

6. GENERAL PROVISIONS........................................................................................................ 9

6.1 Time .............................................................................................................................. 9

6.2 Notices .......................................................................................................................... 9

6.3 Representations and Warranties of Operator .............................................................. 10

6.4 Limitation Upon Change in Ownership, Management and Control of Operator........ 10

6.5 No Third Parties Benefited ......................................................................................... 11

6.6 Partial Invalidity.......................................................................................................... 11

6.7 Governing Law ........................................................................................................... 11

6.8 Amendment................................................................................................................. 11

6.9 Approvals....................................................................................................................11 ATTACHMENT NO. 1 – LEGAL DESCRIPTION
ATTACHMENT NO. 2 – LEASE
ATTACHMENT NO. 3 – CITY DEED
Agreement No. 23-54

AFFORDABLE HOUSING AGREEMENT
THIS AFFORDABLE HOUSING AGREEMENT (the “Agreement”) is hereby entered into as of July 17, 2023 (the “Date of Agreement”), by and among the CITY OF MONTCLAIR, a California municipal corporation (the “City”), the MONTCLAIR HOUSING AUTHORITY, a public body, corporate and politic (the “Authority”), the and MONTCLAIR HOUSING CORPORATION, a California nonprofit public benefit corporation (the “Operator”).

RECITALS
A. Authority is a housing authority duly established and operating as a local housing authority pursuant to the California Housing Authority Law, Chapter 1 of Part 2 of Division 24 of the California Health and Safety Code (“Housing Authority Law” or “HAL”).

B. City is the owner of that certain property located within the corporate limits of the City of Montclair, located at 10053 Central Avenue, Montclair, California (the “Property” or “House”).

The Property is further described in the Legal Description which is attached hereto as Attachment No.

1. C. City desires to convey to Authority the Property and Authority desires to acquire the Property from the City as provided herein.

D. Upon acquiring the Property, Authority intends to lease the Property to the Operator for the operation of the Property as an affordable rental housing resources for households of “Low Income” as defined below.

E. The transaction contemplated by this Agreement is in the vital and best interest of the City and the health, safety and welfare of its residents, and in accord with the public purposes and provisions of applicable state and local laws and requirements.

NOW, THEREFORE, the parties hereto agree as follows:

1. DEFINITIONS. The following terms shall have the following definitions for the purpose of this Agreement:
“Additional Rent” is defined in Section 2.2 hereof.
“Affordable Rent” is defined in Section 4.2(f) hereof.
“Authority” means the Montclair Housing Authority, a public body, corporate and politic, exercising governmental functions and powers and organized and existing under the Housing Authority Law of the State of California, and any assignee of or successor to its rights, powers and responsibilities.
“Agreement” means this Affordable Housing Agreement among Authority, City, and Operator.
“Authority Executive Director” means the Executive Director of the Authority or his or her designee.
2 “City” means the City of Montclair, California, a California municipal corporation. “City Code” means and refers to the City of Montclair Municipal Code as revised from time to time.
“City Deed” means a grant deed substantially in the form of Attachment No. 3. “Date of Agreement” is defined in the first paragraph of this Agreement. “Event of Default” means the failure of a party to perform any action or covenant required by this Agreement within the time periods provided herein following notice and opportunity to cure, as set forth in Section 5.1 hereof.
“House” means the single family home which islocated on and constitutes part of the Property. “Housing Authority Law” or “HAL” has the meaning set forth therefor in Recital A. “Low Income Household” shall mean a household earning not greater than eighty percent (80%) of San Bernardino County median income as determined pursuant to Health and Safety Code Section 50079.5.
“Net Profits” shall mean all gross income from the Property, including without limitation rents and interest on security deposits, less the sum of the Operating Expenses. “Operating Expenses” shall mean actual, reasonable and customary costs, fees and expenses directly incurred and attributable to the operation, maintenance, and management of the Property. The Operating Expenses shall not include non-cash expenses, including without limitation, depreciation. “Operator” means the Montclair Housing Corporation, a California nonprofit public benefit corporation.
“Parties” means, collectively, City, Authority, and Operator. “Property” means the single family house in the City of Montclair located at 10053 Central Avenue, Montclair, California, and described in the Legal Descriptions. “Property Value” means the amount of Six Hundred and Sixty Thousand Dollars ($660,000).

The Property’s Value is mutually believed to be by each of the Parties to represent the fair market value of the Property as of the Date of Agreement.

2. CONVEYANCE OF THE PROPERTY.

2.1 Conveyance of Fee Title. City agrees to convey to Authority the Property by City Deed. The purchase price payable by Authority to City in consideration of the conveyance of the Property shall be One Dollar ($1.00) (the “Authority Purchase Price”); provided that City may waive receipt of Authority Purchase Price. Upon request therefor by Authority, City will, in connection with the conveyance of the Property, provide to Authority an owner’s standard ALTA policy of title insurance as to the Property by a title insurer mutually acceptable to City and Authority, with the policy to be based upon the Property Value (the “Authority Title Policy”). Any and all documentary transfer 3 taxes, recording fees, escrow charges, premiums for title insurance, and any costs associated with the conveyance of the Property to Authority shall be borne by City.

2.2 Lease Terms. Subject to the satisfaction of all of the conditions precedent to commencement of the Lease set forth in Section 2.3 hereof, the Authority shall lease the Property to the Operator for a fifteen (15) year term at a base rental amount of One Dollar ($1.00) per year together with the “Additional Rent” as set forth below. The terms and conditions of such lease shall be set forth in a “Lease” to be executed by the Authority and the Operator in the form of Attachment No. 2 which is attached hereto and incorporated herein.

At the end of each operating year, the Operator shall calculate total gross operating revenue for that year, and shall thereupon pay to the Authority as “Additional Rent” an amount equal to Net Profits, which equals total gross operating revenue less the Operating Expenses for that year. If total gross revenue from the Property for that year is less than the Operating Expenses, no Additional Rent shall be payable and the Operator shall be responsible for such additional costs from its own funds, and shall not be entitled to additional compensation from the Authority or be entitled to reduce the required level of services. The Authority and its authorized representatives shall, at all times, have access for the purpose of audit or inspection to any and all books, documents, papers, records, property, and premises of the Operator which in any manner relate to the expenses and revenues of the Property under this Agreement and the Operator’s obligations hereunder. The Operator’s staff shall cooperate fully with authorized auditors when they conduct audits and examinations of Authority funded programs. Within thirty (30) days of the submittal of such audit report, the Operator shall provide a written response to all conditions or findings reported in such audit report. The response must discuss each condition or finding and set forth a proposed resolution, including a schedule for correcting any deficiency. All conditions or correction actions shall take place within six (6) months after receipt of the audit report unless the Authority Executive Director or designee authorizes an extension of time to submit such corrections.

2.3 Conditions Precedent to Commencement of Lease. Prior to and as conditions to the Authority’s execution of and the commencement of the Lease: (i) City shall have conveyed the titles of the Property to Authority; (ii) if requested by Authority, City shall have caused to be delivered to Authority the Authority Title Policy; (iii) Operator shall have executed the Lease; and (iv) Operator shall have provided proof of insurance (certificates) conforming to Section 3.7 of this Agreement.

3. COMPLIANCE WITH LAWS. Operator shall carry out the operation of the Property in conformity with all applicable laws, including all applicable state labor standards, City zoning and development standards, building, plumbing, mechanical and electrical codes, and all other provisions of the City Code, and all applicable disabled and handicapped access requirements, including without limitation the Americans With Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq.

4. USE OF THE PROPERTY.

4.1 Use in Conformance with Agreement. The Operator covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof that, during the term of this Agreement, the Operator, such successors and such assignees, shall use, 4 operate and maintain the Property in conformity with this Agreement and shall devote the Property to the uses specified in this Agreement for the periods of time specified therein.

4.2 Affordable Rental Housing.
(a) Number of Units. Upon the commencement of the Lease, the Operator agrees to make available, restrict occupancy to, and rent the House to Low Income Households, at an Affordable Rent.
(b) Lease Requirements. Prior to rental of the House within the Property, the Operator shall submit a standard lease form to the Authority for the Authority’s approval. The Authority Executive Director, or designee, shall reasonably approve such lease form upon finding that such lease form is consistent with this Agreement. The Operator shall enter into a lease, in the form approved by the Authority, with each tenant of the House. (c) Duration of Affordability Requirements. The House shall be subject to the requirements of this Section 4.2 for a period coextensive with the term of the Lease. The duration of this requirement shall be known as the “Affordability Period.” All tenants residing in the House during the last two (2) years of the Affordability Period shall be given notice at least once every six (6) months of the expiration date of this requirement, and that the rent payable on the House may be raised to a market rate rent at the end of the Affordability Period. (d) Selection of Tenants. The House shall be leased to tenants selected by the Operator who meet all of the requirements provided herein. The Authority may, from time to time, assist in the leasing of the House by providing to the Operator names of persons who have expressed interest in renting the House. The Operator shall adopt a tenant selection system, which shall be approved by the Authority Executive Director, or designee. The tenant selection system shall include, without limitation, a method for investigation of the credit history of proposed tenants through obtaining a credit report on the proposed tenant. Highest priority in the selection of tenants shall be given to those applicants who have been displaced by Authority projects, if any. (e) Income of Tenants. Prior to the rental or lease of the House to tenants, and annually thereafter, the Operator shall obtain an income certification from each tenant of the Property. The Operator shall verify the income certification of the tenant in one or more of the following methods:
(1) obtain two (2) paycheck stubs from the tenant’s two (2) most recent pay periods, if any.
(2) obtain a true copy of an income tax return from the tenant for the most recent tax year in which a return was filed.
(3) obtain an income verification certification from the employer of the tenant.
(4) obtain an income verification certification from the Social Security Administration and/or the California Department of Social Services if the tenant receives assistance from such agencies.
5 (5) obtain a credit report from a commercial credit reporting agency. (6) obtain an alternate form of income verification reasonably requested by the Operator, if none of the above forms of verification is available to the Operator.

A person or family who at the time of income certification qualified as a Low Income Household shall continue to be deemed so qualified until such time as the person or family’s income is redetermined and the person or family is determined by the Operator to no longer be so qualified, even if such person or family’s income has subsequently increased to an amount above the applicable income level. Upon the Operator’s determination that the tenant is no longer qualified as a Low Income Household, such tenant shall no longer be eligible to rent such House and shall be given a written notice which requires such tenant to vacate the House within sixty (60) days, and the Operator shall provide assistance to such tenants in finding another appropriate rental unit in the vicinity. The tenant lease shall contain the above provisions. In addition, the Operator shall annually submit to the Authority a certification that the House are actually occupied by a Low Income Household in the form which is provided by the Authority.
(f) Determination of Affordable Rent for the Property. The House shall be rented at an “Affordable Rent” to be established by the Authority as provided herein. The maximum monthly rental amount for the House shall be established at not greater than the lesser of (a) fair market rent, as reasonably determined by the Operator, or (b) thirty percent (30%) of sixty percent (60%) of San Bernardino County median income for a household size appropriate for the House or, if greater, the amount determined pursuant to Health and Safety Code section 50053(b)(3). For purposes of this Section 4.2, “rent” means the total of monthly payments for (a) use and occupancy of the House and land and facilities associated therewith, (b) any separately charged fees or service charges assessed by the Operator which are required of all tenants, other than security deposits, (c) a reasonable allowance for an adequate level of service of utilities not included in (a) or (b) above, including garbage collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuels, but not including telephone service, and (d) possessory interest, taxes or other fees or charges assessed for use of the land and facilities associated therewith by a public or private entity other than Operator. The Authority may in its discretion base the utilities allowance on a utilities allowance adopted in connection with the Section 8 program administered by the United States Department of Housing and Urban Development. Household size appropriate to the unit shall mean two persons for a one bedroom House, three persons for a two bedroom House, four persons for a three bedroom House, and five persons for a four bedroom House. Upon the approval of the Authority or the Authority Executive Director, rents may be established at amounts which are lower than the maximum monthly rental amounts set forth above.

4.3 Occupancy Standards. Occupancy of the House shall be limited to five (5) persons.

4.4 Management and Maintenance. The Operator shall manage and maintain the Property in conformity with the City Code. The following standards shall be complied with by Operator and its maintenance staff, contractors or subcontractors:
(a) Operator shall maintain the Property in a safe and sanitary fashion and in first class condition for single family houses of their age and type. 6 (b) Landscape maintenance shall include, but not be limited to:
watering/irrigation; fertilization; mowing, edging, and trimming of grass; tree and shrub pruning; trimming and shaping of trees and shrubs to maintain a healthy, natural appearance and safe road conditions and visibility, and optimum irrigation coverage; replacement, as needed, of all plant materials; control of weeds in all planters, shrubs, lawns, ground covers, or other planted areas; and staking for support of trees.
(c) Clean-up maintenance shall include, but not be limited to: maintenance of all private paths, parking areas, driveways and other paved areas in clean and weed-free condition; maintenance of all such areas clear of dirt, mud, trash, debris or other matter which is unsafe or unsightly; removal of all trash, litter and other debris from improvements and landscaping prior to mowing; clearance and cleaning of all areas maintained prior to the end of the day on which the maintenance operations are performed to ensure that all cuttings, weeds, leaves and other debris are properly disposed of by maintenance workers.
(d) All maintenance work shall conform to all applicable federal and state Occupation Safety and Health Act standards and regulations for the performance of maintenance. (e) Any and all chemicals, unhealthful substances, and pesticides used in and during maintenance shall be applied only by persons possessing valid California applicators licenses, and in strict accordance with all governing regulations. Precautionary measures shall be employed recognizing that all areas are open to public access. (f) Operator shall make such capital repairs to the Property as are necessary, including the following: carpet and drape replacement; appliance replacement; exterior painting, hot water heater replacement; plumbing fixtures replacement, including tubs and showers, toilets, lavatories, sinks, faucets; air conditioning and heating replacement; asphalt repair and replacement, and seal coating; roofing repair and replacement; landscape tree replacement and irrigation pipe and controls replacement; gas line pipe replacement; and lighting fixture replacement.

Management and maintenance shall be overseen by the Authority or its designee and, if the above standards are breached, after notice and opportunity to cure within the time set forth in this paragraph, the Authority or its designee may in its reasonable discretion direct the Operator to and the Operator shall hire a management company acceptable to the Authority to manage the Properties.

If, at any time, the Operator or the management company fails to adequately maintain such areas, and such condition is not corrected immediately upon notice of an imminent threat to health and safety or after expiration of thirty (30) days from the date of written notice from the Authority for all other violations, the Authority may (but shall not be obligated to) perform the necessary maintenance and Operator shall pay such costs as are reasonably incurred for such maintenance.

4.5 Rights of Access. The Authority, for itself and for the City and other public agencies, at their sole risk and expense, shall have the right to inspect the Properties. Any such inspection shall be made only after reasonable notice to Operator. Upon receipt of such notice, the Operator agrees to cooperate with the Authority in making the Property available for inspection by the Authority and/or City. Operator acknowledges and agrees that in the event that if for any reason the Operator fails to consent to such entry or inspection, the Authority may obtain an administrative inspection warrant or take such other legal actions as may be necessary to gain entry to and inspect the Properties. Authority shall indemnify and hold Operator harmless from any costs, claims, damages or liabilities pertaining to any entry.
7 4.6 Nondiscrimination. The Operator covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Properties, nor shall Operator itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Site or any portion thereof. The foregoing covenants shall run with the land.

The Operator shall refrain from restricting the rental, sale or lease of the Property on the basis of race, color, creed, religion, sex, marital status, disability, familial status, national origin or ancestry of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses:
(a) In deeds: “The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.”
(b) In leases: “The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions:
“That there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased.”
(c) In contracts: “There shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises subject to this agreement nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises.”
8 The covenants established in this Agreement and the Lease for the Property shall, without regard to technical classification and designation, be binding for the benefit and in favor of the Authority, its successors and assigns, the City and any successor in interest to the Properties. The covenants against discrimination shall remain in effect in perpetuity. However, nothing in this Section 4.6 shall give the Operator any additional rights to convey a fee or leasehold interest in the Property except as otherwise authorized by this Agreement.

4.7 Effect of Violation of the Terms and Provisions of this Agreement After Completion of Construction. The covenants established in this Agreement shall, without regard to technical classification and designation, be binding upon and for the benefit and in favor of the Operator and the Authority, their respective successors and assigns, as to those covenants which are for their benefit. The covenants contained in this Agreement shall remain in effect until the expiration of the Affordability Period. The covenants against discrimination shall remain in perpetuity. The Authority is deemed the beneficiary of the terms and provisions of this Agreement and of the covenants running with the land, for and in its own rights and for the purposes of protecting the interests of the community and other parties, public or private, in whose favor and for whose benefit this Agreement and the covenants running with the land have been provided. The Agreement and the covenants shall run in favor of the Authority, without regard to whether the Authority has been, remains or is an owner of any land or interest therein in the Properties. The Authority shall have the right, if the Agreement or covenants are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which it or any other beneficiaries of this Agreement and covenants may be entitled.

5. REMEDIES.

5.1 Events of Default. An “Event of Default” shall occur under this Agreement when there shall be a material breach of any condition, covenant, warranty, promise or representation contained in this Agreement and such breach shall continue for a period of thirty (30) days after written notice thereof to the defaulting party without the defaulting party curing such breach, or if such breach cannot reasonably be cured within such thirty (30) day period, commencing the cure of such breach within such thirty (30) day period and thereafter diligently proceeding to cure such breach; provided, however, that if a different period or notice requirement is specified for any particular breach under any other paragraph of this Agreement, the specific provision shall control.

5.2 Remedies. The occurrence of any Event of Default shall give the nondefaulting party the right to proceed with any and all remedies set forth in this Agreement, including an action for damages, an action or proceeding at law or in equity to require the defaulting party to perform its obligations and covenants under this Agreement or to enjoin acts or things which may be unlawful or in violation of the provisions of this Agreement, and the right to terminate this Agreement.

5.3 Force Majeure. Subject to the party’s compliance with the notice requirements as set forth below, performance by either party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended, where delays or defaults are due to war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, assaults, acts of God, acts of the public enemy, epidemics, pandemics, quarantine restrictions, freight embargoes, lack of transportation, governmental restrictions or priority, litigation, unusually severe weather, inability to secure necessary labor, materials or tools, acts or omissions of the other party, acts or failures to act of any public or governmental entity (except that the Authority’s acts or failure to act shall not excuse performance of the Authority hereunder), or any other causes beyond the control and 9 without the fault of the party claiming an extension of time to perform. An extension of the time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within thirty (30) days of the commencement of the cause.

In addition to the foregoing, following the acquisition of the Property by Authority, the Authority Executive Director shall have the authority to extend times for performance by up to one hundred eighty (180) days in the aggregate without necessity of further action by the governing board of the Authority.

5.4 Attorneys’ Fees. In addition to any other remedies provided hereunder or available pursuant to law, if either party brings an action or proceeding to enforce, protect or establish any right or remedy hereunder, the prevailing party shall be entitled to recover from the other party its costs of suit, including without limitation expert witness fees, and reasonable attorneys’ fees.

5.5 Remedies Cumulative. No right, power, or remedy given to the Authority by the terms of this Agreement is intended to be exclusive of any other right, power, or remedy; and each and every such right, power, or remedy shall be cumulative and in addition to every other right, power, or remedy given to the Authority by the terms of any such instrument, or by any statute or otherwise against Operator and any other person.

5.6 Waiver of Terms and Conditions. The Authority may, in its sole discretion, waive in writing any of the terms and conditions of this Agreement. Waivers of any covenant, term, or condition contained herein shall not be construed as a waiver of any subsequent breach of the same covenant, term, or condition.

5.7 Non-Liability of Authority Officials and Employees. No member, official, employee or agent of the City or Authority shall be personally liable to Operator, or any successor in interest, in the event of any default or breach by the Authority or for any amount which may become due to Operator or its successors, or on any obligations under the terms of this Agreement.

6. GENERAL PROVISIONS.

6.1 Time. Time is of the essence in this Agreement.

6.2 Notices. Any notice requirement set forth herein shall be deemed to be satisfied three (3) days after mailing of the notice first-class United States certified mail, postage prepaid, or by personal delivery, addressed to the appropriate party at the following addresses:

Authority: Montclair Housing Authority
5111 Benito Street
Montclair, California 91763
Attention: Executive Director
Lessee: Montclair Housing Corporation
5111 Benito Street
Montclair, California 91763
Attention: Executive Director
10 City: City of Montclair
5111 Benito Street
Montclair, California 91763
Attention: City Manager

6.3 Representations and Warranties of Operator. Operator hereby represents and warrants to the Authority as follows:
(a) Organization. Operator is a duly organized, validly existing nonprofit corporation in good standing under the laws of the State of California and has the power and authority to own its property and carry on its business as now being conducted. (b) Authority of Operator. Operator has full power and authority to execute and deliver this Agreement and to make and accept the borrowings contemplated hereunder, to execute and deliver the documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement, and to perform and observe the terms and provisions of all of the above.
(c) Valid Binding Agreement. This Agreement and all other documents or instruments which have been executed and delivered pursuant to or in connection with this Agreement constitute or, if not yet executed or delivered, will when so executed and delivered constitute, legal, valid and binding obligations of Operator enforceable against it in accordance with their respective terms.
(d) Pending Proceedings. Operator is not in default under any law or regulation or under any order of any court, board, commission or agency whatsoever, and there are no claims, actions, suits or proceedings pending or, to the knowledge of Operator, threatened against or affecting Operator, at law or in equity, before or by any court, board, commission or agency whatsoever which might, if determined adversely to Operator, materially affect Operator’s ability to perform its obligations hereunder.

6.4 Limitation Upon Change in Ownership, Management and Control of Operator.
(a) Prohibition. The identity and qualifications of Operator are of particular concern to the Authority. It is because of this identity and these qualifications that the Authority has entered into this Agreement with Operator. No voluntary or involuntary successor in interest of Operator shall acquire any rights or powers under this Agreement by assignment or otherwise, nor shall Operator make any total or partial sale, transfer, conveyance, encumbrance to secure financing, assignment or lease of the whole or any part of the Property without the prior written approval of the Authority, which approval may be granted, conditionally granted, or denied at the sole and absolute discretion of the Authority Executive Director; provided that the rental of the Property by Operator to a Low Income household at Affordable Rent in conformity with the Lease shall not require the specific approval by the Authority Executive Director. (b) Successors and Assigns. This Agreement shall run with the land, and all of the terms, covenants and conditions of this Agreement shall be binding upon Operator and the permitted successors and assigns of Operator. Whenever the term “Operator” is used in this Agreement, such term shall include any other permitted successors and assigns as herein provided. 11 6.5 No Third Parties Benefited. This Agreement is made and entered into for the sole protection and benefit of the Authority, its successors and assigns, City, successors and assigns, and Operator, its permitted successors and assigns, and no other person or persons shall have any right of action hereon.

6.6 Partial Invalidity. If any provision of this Agreement shall be declared invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions hereof shall not in any way be affected or impaired.

6.7 Governing Law. This Agreement and other instruments given pursuant hereto shall be construed in accordance with and be governed by the laws of the State of California. Any references herein to particular statutes or regulations shall be deemed to refer to successor statutes or regulations, or amendments thereto.

6.8 Amendment. This Agreement may not be changed orally, but only by agreement in writing signed by Operator and the Authority.

6.9 Approvals. Where an approval or submission is required under this Agreement, such approval or submission shall be valid for purposes of this Agreement only if made in writing. Where this Agreement requires an approval or consent of the Authority, such approval may be given on behalf of the Authority by the Authority Executive Director or his or her designee. The Authority Executive Director or his or her designee is hereby authorized to take such actions as may be necessary or appropriate to implement this Agreement, including without limitation the execution of such documents or agreements as may be contemplated by this Agreement. The Authority Executive Director is authorized to execute amendments of this Agreement so long as such amendments do not materially increase the costs to be incurred by the Authority hereunder or materially decrease the revenues to be received by the Authority hereunder.

Agreement No. 23-54
S-1
IN WITNESS WHEREOF, the Authority, City, and the Operator have executed this Agreement as of the date set forth above.

MONTCLAIR HOUSING AUTHORITY,
a public body corporate and politic
By:

Authority Executive Director

CITY OF MONTCLAIR,
a municipal corporation
By:

City Manager

MONTCLAIR HOUSING CORPORATION,
a California nonprofit public benefit corporation
By:

Its:

Agreement No. 23-54
Attachment No. 1

Page 1 of 1 ends

Montclair City CouncilJuly 17, 2023

Montclair City Council
July 17, 2023