Montclair City Council
December 18, 2023

EXHIBIT A

LEGAL DESCRIPTION OF PROPERTY
The following described real property, together with all improvements thereon:

TRACT 4212 LOT 1
APN: 1010-302-12-0000
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EXHIBIT B

LEASE SPACE DESCRIPTION
Lease Space - A 144 square foot room, located at 9916 Central Avenue, Montclair, California, 91763, and depicted on the schematic immediately following this page.

The Leased Space shall be deemed to include one parking space as designated by Landlord; the particular parking space available may be changed from time to time by Landlord with Landlord giving notice of any such changes to Tenant.

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9916 Central Avenue
Property Layout
MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 139 of 188

CITY COUNCIL

AGENDA REPORT
DATE: DECEMBER 18, 2023
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 5
FILE I.D.: CCK080
DEPT.: ADMIN. SVCS.

PREPARER: A. MYRICK
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 23–95 WITH NEXTREQUEST FOR THE USE

OF ITS ONLINE PUBLIC RECORDS REQUEST MANAGEMENT SYSTEM, SUBJECT TO ANY

REVISIONS DEEMED NECESSARY BY THE CITY ATTORNEY
REASON FOR CONSIDERATION: The City Council is requested to consider approval of Agreement No. 23–95 with NextRequest for the use of its online public records request management system.

BACKGROUND: The City Clerk’s Office daily receives and responds to requests for public records. Since 2020, the City has experienced a 70 percent increase in the number of annual public records requests received, with an average in the past three years of over 200 requests per year. The current process for receiving, routing, tracking, and responding to requests for public records is partially decentralized and consists of the following steps:

1. The City Clerk’s Office receives requests in the following ways: Public Records Request Form submitted via web form, email, mail, or at the counter; written request via email or letter; and verbally over the phone or at the counter.

2. The City Clerk’s Office assigns each request a number and manually logs them into an Excel spreadsheet for tracking, in which the date of receipt, initial response deadline, requester’s contact information, and notes are recorded.

3. If the request seeks records that are kept with one department, the City Clerk’s Office routes the requests via email to the appropriate department to respond directly.

If multiple departments are involved in a single request, the City Clerk’s Office collects all records and coordinates the response.

4. The City Attorney may review responsive records for redactions and exemptions.

5. The City Clerk’s Office follows up with staff periodically via e–mail, phone, or in person, until receiving confirmation that each request has been fulfilled.

The number of requests the City receives annually has consistently increased over the past decade and requests are becoming more complex. Since 2020 alone, the City has experienced a 70 percent increase in the number of annual public records requests.

In recent years, the current decentralized process for tracking, routing, and responding to requests using a variety of different tools and software has proven to be inadequate for ensuring timely responses, especially with more frequent occurrences of staff being out of the office for unanticipated or long periods, and of those who manage their department’s records retiring or leaving for other agencies. Due to these reasons, the City Clerk’s Office has been exploring various public records request management solutions to facilitate better staff coordination and faster responses. Many cities have adopted the use of these platforms and state it has proven to increase the efficiency, reliability, and security of their response process.

MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 140 of 188 Having such a system in place would facilitate continuity when experiencing staff turnover and unanticipated time off, both within the City Clerk’s Office and among staff who manage each department’s records. These systems provide a public–facing portal that’s easy for the public to use; identify similar or common requests to prevent the redundancy of searching for the same records already provided through the system; and provide workflow tools to track and manage responses.

The City Clerk's Office researched companies that provide public records management solutions. Staff viewed demonstrations and received quotes for a one–year contract from three of the top public records management solution companies used by California cities: GovQA (by Granicus), NextRequest (by Civic Plus), and JustFOIA.

After reviewing cost proposals as well as feedback from other cities that use the platforms, staff determined that NextRequest was the most cost–effective, user–friendly option. The City already uses other services provided by Civic Plus like ArchiveSocial and Municode, so staff is familiar with the quality of service and support provided for its other platforms. Other nearby cities that use NextRequest are Chino and Chino Hills.

NextRequest has many features that will improve the process and save time, not only for staff but also for the public. Requests submitted through NextRequest are automatically routed to the correct department, and the form uses a live keyword search as the requester types their request that would direct them to the sought records that already exist on the City’s website or were provided for a previous request. The Information Technology Department is also working on creating a public portal for certain documents through Laserfiche, which integrates with the NextRequest system and can reduce the number of requests for commonly requested documents like building permits.

FISCAL IMPACT: The cost of a one–year contract with NextRequest for a license to use its standard public records request management solution is $10,788, plus a one–time setup fee of $1,500, for a total cost of $12,288. However, NextRequest is currently running a special for new customers through the end of the year. If approved before December 31, 2023, a 50 percent discount will be applied to the annual cost for a savings of $6,144, and a total cost of $6,144. The term of the contract would be from January 1, 2024, to December 31, 2024. If satisfied with the system after using it for a year, staff may seek a multi–year contract with the vendor to reduce the cost of annual increases.

Therefore, the City Council’s approval of Agreement No. 23–95 would result in an expenditure of $9,216 from the Special Contract Services Fund of the City Clerk’s Office budget (Account No. 1001–4314–52450–400–00000). The account contains excess funds not anticipated to be fully utilized by the end of the fiscal year, which were budgeted for the records management system and retention schedule update, due to delays with the project.

RECOMMENDATION: Staff recommends that the City Council approve Agreement No. 23– 95 with NextRequest for the use of its online public records request management system, subject to any revisions deemed necessary by the City Attorney.

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NextRequest
Master Service Agreement
This Master Service Agreement (“MSA”), together with the order form (“Order Form”) executed between NextRequest and Customer, which is incorporated herein by reference, constitute a legally binding contract between NextRequest and Customer. The Order Form, together with this MSA is referred to as the “Agreement” or “Service Agreement”.
“NextRequest” means NextRequest, LLC., a Delaware Corporation with principal offices at 212 W. Main St., Suite #500, Durham, NC 27701 and “Customer” means the entity or person identified as such in the Order Form. Each of NextRequest and Customer may each be referred to as a “Party” and together as the “Parties”.

1. Defined Terms

1.1. “Business Day” or “Business Hours” means 9:00 a.m. – 6:00 p.m. Monday through Friday, U.S.

Pacific time, excluding public holidays in the United States.

1.2. "Confidential Information" means all information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including information that is marked or otherwise conspicuously designated as confidential, and for NextRequest only, scripts and other tools used in the Service. Information that is (i) independently developed by either Party, without reference to the other's Confidential Information, (ii) is or becomes publicly available (through no improper action or inaction by the Receiving Party or any affiliate, agent, consultant or employee of the Receiving Party), (iii) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (iv) becomes available to either Party without restriction other than through breach of the Agreement or applicable law, will not be "Confidential Information" of the other Party. The Receiving Party may make disclosures required by law or court order provided the Receiving Party uses diligent reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and allows the Disclosing Party to participate in the proceeding to the extent permitted by law.

1.3. “Customer Content” means any content (including without limitation data, text, audio, video, or images) that Customer provides or transfers to NextRequest for processing, storage or transmission in connection with Customer’s use of the Service, including without limitation, public records requests Customer receives directly from Requesters and submits to the Service, as well as any public records results (including redacted versions of documents) that Customer provides, uploads, publishes, displays, transfers or otherwise makes available to NextRequest through its use of the Services. Customer Content does not include Usage Data collected from Customer or Requesters.

1.4. “Customer User” means a person authorized by Customer, such as a Customer employee, to use the Service on Customer’s behalf. Customer User does not include Requesters.

1.5. “Hourly Services” means hourly support or training services to be provided by NextRequest under an applicable Order Form.

1.6. “Intellectual Property” or “IP” means all rights in, to, or arising out of: (i) any U.S., international or foreign patent or any application therefor and any and all reissues, divisions, continuations, renewals, extensions, continuations-in-part, utility models and supplementary protection certificates thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information or materials, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask work registrations, and applications therefor in the U.S. or any foreign country, and all other rights corresponding thereto throughout the world; (iv) trademarks, service marks, trade names, domain names, logos, trade dress, and all goodwill associated therewith; and (v) any other proprietary rights or a similar nature anywhere in the world.

1.7. “Prohibited Content” means content (i) that violates any third party's rights, including privacy or Intellectual Property rights; (ii) that is libelous, harassing, abusive, fraudulent, defamatory, excessively profane, obscene, abusive, hate related, violent, harmful to minors; (iii) that advocates racial or ethnic intolerance; (iv) intended to advocate or advance computer hacking or cracking; Agreement No. 23-95
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(v) gambling; (vi) other illegal activity; (vii) drug paraphernalia; (viii) phishing; (ix) malicious content; and (x) other material, products or services that violate or encourage conduct that would violate any laws or third-party rights.

1.8. “Requester” means a person that uses the Service to make a public records request or to access or download publicly-available records.

1.9. “Requester Content” means information provided directly to NextRequest by a Requester.

Requester Content does not include Usage Data collected from Requesters.

1.10. “Sensitive Information” means Confidential Information such as financial data, personal data, individually identifiable information about children, individually identifiable health information, geolocation information about specific people, Social Security numbers, driver's license numbers, other confidential ID numbers, financial account numbers, credit or debit card numbers, personal identification numbers (PINs) or passwords, street addresses, phone numbers or other personal information.

1.11. "Service" means NextRequest’s integrated web-based service, which assists customers in responding to public records requests. The Service consists of a core web-based application and any optional modules which may be purchased by Customer. The details of the Service subject to this Agreement are set forth in the Order Form.

1.12.“Service Level Agreement” or “SLA” means the NextRequest Service Level Agreement attached as Exhibit A to this Agreement and incorporated by reference.

1.13.“Service Providers” means third-party providers of services that are part of the Service.

1.14. “Usage Data” means information other than Customer Content or Requester Content that is collected, directly or indirectly, from Customer or Requesters by or through the Service that specifically tracks the usage or performance of the Service, including information that incorporates or is derived from the processing, storage or transmission of information, data or content by or through the Service as well as any information, data or other content derived from NextRequest’s or its Service Providers’ monitoring of Customer’s access to or use of the Service such as information reflecting the access or use of the Service by or on behalf of Customer or any Requester. All right, title, and interest in and to the Usage Data shall remain exclusively with NextRequest. Usage Data shall be considered the Confidential Information of NextRequest.

NextRequest will employ commercially reasonable measures to ensure that access to Usage Data is not provided to any third party unless such entity has a need to know in order for NextRequest to perform its obligations under this Agreement. Notwithstanding anything else, Customer acknowledges and agrees that NextRequest may: (a) use Usage Data as necessary to provide Services under this Agreement, including for purposes of billing and providing reports to Customer; and (b) use and disclose Usage Data provided that it is aggregated in a manner that does not identify Customer, Customer’s Users, or Requesters, and cannot be used to determine which portion of the aggregated data is related or attributable to Customer.

2. Services

2.1. NextRequest Service. During the term of this agreement, NextRequest will use commercially reasonable efforts to deploy, host, and maintain for Customer the Service further described in the Order Form.

2.2. Service Level Agreement. NextRequest will provide support for the Service according to the terms of the Service Level Agreement attached hereto as Exhibit A and incorporated by reference.

2.3. Other Services. If provided in the Order Form, NextRequest will provide Additional Services consistent with industry standards and according to the terms in the Order Form. Services such as setup or customer support will be provided during Business Hours, online, or by telephone, unless otherwise agreed to by the Parties.

2.4. Excluded Services. Unless expressly provided in the Order Form, NextRequest is not responsible for registering or maintaining domain names or DNS; hardware or software not provided as part of the Service; integration between the Service and any other software or system (except for issues originating with the Service or its interfaces); or providing direct support to Requesters.

2.5. Security. The Service is hosted by third-party Service Providers pursuant to agreements between NextRequest and such Service Providers. NextRequest maintains the level of security outlined in NextRequest’s Security Policy (“Security Policy”), which is available at https://www.nextrequest.com/compliance/security-policy.

3. Intellectual Property and Licenses.

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3.1. Service. The Service is protected by copyright, trademark, trade secret, and other intellectual property laws of both the United States and foreign countries. Except for the express licenses granted in this Section 3.1, NextRequest reserves all rights in the Service. As between Customer and NextRequest, NextRequest retains all and exclusive rights, title, and interest in and to the Service, including all Intellectual Property rights or moral rights in the Service related thereto or created, used, or provided by NextRequest for the purposes of this Agreement, and any products, works, software used to provide the Service to Customer. During the Term and conditioned upon Customer’s compliance with all provisions of this Agreement, NextRequest hereby authorizes Customer to access and use the Service for purpose of accepting, responding to and managing public records requests and publishing responsive documents (“Purpose”), and grants to Customer a personal, limited, royalty-free, non-exclusive, non-assignable, non-sublicensable and non-transferable right and license to use the Service only for the Purpose. Customer shall not (and shall not permit any third party to) directly or indirectly (a) copy, modify, translate or create derivative works or improvements of the Service; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Service or any part or derivative thereof to any person; (c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code, underlying ideas, algorithms, structure or organization of the Service, in whole or in part; or (d) defeat, bypass, breach, deactivate, or otherwise circumvent any security device or protection used by the Service or access or use the Service other than through the use of its own then valid access credentials.

3.2. Customer Content. As between Customer and NextRequest, Customer retains ownership of all Intellectual Property in Customer Content. Customer grants to NextRequest, its Service Providers and each of NextRequest’s respective subsidiaries, affiliates, and successors a worldwide, nonexclusive, royalty-free, fully-paid-up, transferable, irrevocable, perpetual, unlimited, and sublicensable right and license to use, host, store, cache, reproduce, publish, publicly display, perform, distribute, transmit, translate, publicly perform, adapt, modify, and otherwise fully use and exploit Customer Content, in all media now known or later developed, for the purpose of providing the Services.

3.3. Requester Content. Requester Content submitted directly by a Requester to NextRequest is governed by the NextRequest Terms of Service. As set forth in the Terms of Service, Requester grants to Customer a worldwide, non-exclusive, royalty-free, fully-paid-up, non-assignable, nontransferrable, irrevocable, perpetual, and non-sublicensable right to use Requester Content solely for the Purpose.

3.4. Feedback and improvements. Any suggestions provided by Customer in any form or medium to NextRequest with respect to NextRequest’s products or services shall be collectively deemed “Feedback.” NextRequest will be free to use Feedback without any obligation to Customer and Customer hereby assigns to NextRequest all rights, title, and interest in and to any Feedback.

NextRequest will be considered the sole author of all modifications or improvements to the Service.

NextRequest may use Customer Content to improve the Service and shall be the sole owner of any such improvements, so long as such use protects the confidentiality of Customer Content.

4. Customer Obligations and Restrictions

4.1. Security. Customer will protect the accounts, passwords, and other authentication information Customer uses to access the Service and any NextRequest system, and is responsible for the use of the Service by any Customer User, employee of Customer, any person Customer authorizes to use the Service, any person to whom Customer has given access to the Service, and any person who gains access to Customer Content or the Service as a result of Customer’s failure to use reasonable security precautions, even if such use was not authorized by Customer. Customer’s user names, passwords, other login information or personal information may be stored by NextRequest or its Service Providers in the course of providing Service and may be available to the Service and Service Providers.

4.2. Compliance with Laws. Customer is solely responsible for Customer Content and will comply with all laws applicable to Customer’s use of the Service, including without limitation, all local, state, and federal public records law and privacy and security laws. NextRequest shall not be liable for any damages that arise due to Customer’s use of the Services or publication, processing, storage or transmission of any information in violation of any law. Customer represents and warrants that it has reviewed the Security Policy carefully and has made its own, independent determination whether the levels of privacy and security set forth in the Security Policy are sufficient for Customer’s use of the Service. Customer acknowledges and agrees that the Service, MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 144 of 188 GDSVF&H\5385013.2
including without limitation the degree of privacy and security provided by the Service, may not comply with special privacy and security requirements relating to the processing, storage or transmission of Sensitive Information. Customer will not use the Service to process any information subject to the Health Insurance Portability and Accountability Act (“HIPAA”) without signing a Business Associations Agreement with NextRequest. Customer agrees that if Customer uses the Service to process Sensitive Information, any such use is at Customer’s own risk and NextRequest will have no liability to Customer or any third party arising out of or relating to such use. Customer will indemnify NextRequest and its Service Providers against any and all damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to such use.

Customer will not disclose to NextRequest or the Service any information that Customer is prohibited by any law or regulation from disclosing.

4.3. Acceptable Use Policy. Customer shall not use the Service (i) to send or facilitate the sending of unsolicited bulk commercial email (spam) or inundating a target with communications requests so the target cannot effectively respond to legitimate traffic; (ii) to send, upload, distribute, or transmit or store Prohibited Content (iii) to distribute malware, including viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature; (iv) to alter, disable, interfere with, disrupt, circumvent or exploit vulnerabilities in any aspect of the Service or NextRequest’s or third parties’ other services or systems; (vi) monitor data or traffic on the Service without permission; (vii) forge TCP-IP packet headers, e-mail headers, or any part of a message describing its origin or route; (viii) to infringe or misappropriate the Intellectual Property or privacy rights of any person; (vii) to otherwise violate, or promote the violation of, any law or the legal rights of any person; (viii) to impersonate another person; (ix) for any high risk use where failure of the Service could lead to death or serious bodily injury or any person or to physical or environmental damages, such as applications controlling transportation, medical systems or weaponry systems; or (x) to otherwise access or use the Service beyond the scope of the authorization granted under Section 2.1. If Customer becomes aware of any actual or threatened activity prohibited under this section, Customer shall immediately take all reasonable measures to stop the activity, to mitigate its effects, and to notify NextRequest. Customer is responsible for any act or omission of any Customer User. NextRequest and its Service Providers may report any activity, including disclosing appropriate information, if they suspect such activity violates any law or regulation.

4.4. Service Policies and Privacy. Customer acknowledges that NextRequest is required by law to provide a Privacy Policy for all users of the Service and visitors to NextRequest.com. Customer acknowledges that all users of the Service are subject to the NextRequest Privacy Policy available at https://www.nextrequest.com/privacypolicy, which applies to information and data collected with respect to Requesters and Customers, including Requester Content, Usage Data and email correspondence handled by the Service. The NextRequest privacy policy applies to Usage Data relating to Customer Content, but does not apply to Customer Content itself. Customer acknowledges that, in order to use the Service, all users of the Service are subject to the NextRequest Terms of Service available at https://www.nextrequest.com/termsofservice which may be updated from time to time.

4.5. Deletion of Customer Content. The Service enables Customer to delete Customer Content for purposes of adhering to Customer’s document retention or other policies, or any applicable law.

When Customer deletes Customer Content (“Deleted Content”), such Customer Content is removed from databases accessible to Customer, Requester and/or the general public so that Customer no longer has access to Deleted Content. However, copies and backups of Deleted Content may continue to be stored on NextRequest’s or its Service Providers’ servers. Customer acknowledges and agrees that after deletion, under no circumstances will NextRequest provide Customer with copies of Deleted Content. NextRequest may provide Deleted Content to third parties as required by law or a court order, and will notify Customer to the extent allowed by applicable law.

4.6. Removal of Customer Content, Suspension of Service

4.6.1.NextRequest reserves the right to remove or prohibit any Customer Content or Requester Content that NextRequest determines in its sole discretion violates applicable law or the Acceptable Use Policy.

4.6.2.NextRequest may suspend or terminate Customer’s use of the Services if NextRequest reasonably believes in its sole discretion that: (a) it is required to do so by law or a regulatory or government body, or doing so is necessary to protect the rights of NextRequest, its Service MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 145 of 188 GDSVF&H\5385013.2
Providers, a Requester, or its other Customers; (b) Customer has failed to comply with any material term of this Agreement, including the Acceptable Use Policy; (c) Customer’s use violates applicable law or third-party rights; or (d) this Agreement expires or is terminated. In the event of that Customer’s use of the Services is suspended or terminated pursuant to this Section 4.6.2, Customer shall be entitled as its sole remedy (and NextRequest’s sole obligation) to a proportionate refund of any prepaid unused Fees from the date of suspension or termination.

4.6.3.Notwithstanding the foregoing and for the avoidance of doubt, NextRequest shall have no obligation to monitor, filter, or disable access to any Customer Content or Requester Content.

4.6.4.If NextRequest or a Service Provider elects to remove Customer Content or suspend the Services, to the extent possible and permitted by applicable law, NextRequest will give Customer advance notice of at least one (1) Business Day and will use commercially reasonable efforts to provide removed Customer Content to Customer to maintain Customer’s business process continuity.

4.6.5.If Customer Content is removed as part of the notice-and-takedown procedure provided by the Digital Millennium Copyright Act (“DMCA”), and Customer believes such Customer Content was wrongly removed as a result of a copyright infringement notice, Customer may notify NextRequest as provided in section 6.3 of the Terms of Service.

5. Customer Representations and Warranties. Customer represents, warrants, and covenants that:

5.1. It is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation;

5.2. It has the legal right and authority to enter into and perform its obligations under this Agreement;

5.3. The execution and performance of this Agreement will not conflict with or violate any provision of any applicable federal, state, or municipal law, regulation, or ordinance;

5.4. This Agreement, when executed and delivered, will constitute a valid and binding obligation will be enforceable against Customer in accordance with its terms;

5.5. It has all necessary rights in the Customer Content to permit Customer’s use of the Service and to grant the licenses contained in this Agreement without infringing the Intellectual Property or other rights of any third parties, violating any applicable laws, or violating the terms of any license or agreement to which it is bound;

5.6. Customer has the legal right and authority to provide Customer Content to NextRequest, and to make such Customer Content and Requester Content publicly available through the Service.

5.7. Customer’s disclosure to the Services of any Customer Content or Requester Content will not violate any third-party Intellectual Property Rights or privacy rights.

6. Fees and Invoicing.

6.1. Fees, Invoicing. Customer will pay all fees stated in the Order Form within 30 days of receiving an invoice from NextRequest.

6.2. Payments Processing. This section applies to Customers who use NextRequest’s online payment tools and integrations (the “Payments Module”). The Payments Module and related integrations is made available through agreement(s) with Stripe, Inc., the terms of which are available at https://stripe.com/us/legal. By electing to use the Payments Module, Customer agrees to abide by the relevant terms of NextRequest’s agreements with Stripe, Inc., including without limitation terms relating to compliance with applicable laws, data privacy, and permitted and prohibited uses. Transactions processed using the Payments Module are handled directly between Requesters, Customer and Customer’s Payment processor (for example, Stripe).

NextRequest does not receive sensitive financial information (such as credit card or bank numbers) relating to the transactions. The only data made available to NextRequest is a record of the transaction including invoice information and the amount of the transaction.

6.3. Expenses. If Customer purchases Hourly Services, Customer will reimburse NextRequest for all ordinary and necessary expenses incurred in connection with the performance of the Hourly Services, including travel-related expenses. All travel will be pre-approved by Customer.

6.4. Taxes. Customer is responsible for any taxes that may be due as a result of this Agreement, except for taxes on NextRequest’s net income. Taxes payable by Customer will be billed as separate items on NextRequest’s invoices and will not be included in NextRequest’s fees. If Customer claims a tax exemption, Customer must provide documentation of the exemption to NextRequest at the time of Customer order.

7. Confidential Information
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7.1. Duty to Protect Confidential Information. Each Party will exercise the same degree of care and protection with respect to the Confidential Information of the other Party that it exercises with respect to its own Confidential Information, at least a reasonable degree of care. A Party will not use the Confidential Information of the other Party except as permitted by this Agreement.

Notwithstanding the foregoing either Party may disclose the other’s Confidential Information to its employees and agents who have a need to know for the Purpose, provided that any agent to which Confidential Information is disclosed is bound by non-disclosure terms at least as protective as those in this Agreement.

7.2. Return of Confidential Information. Unless otherwise authorized, upon the earlier of termination of this Agreement or request by the other Party, each Party will promptly return or, subject to Section 4.5 and any applicable law, destroy all Confidential Information disclosed to it by the other Party and provide certification that all such Confidential Information has been returned or destroyed.

7.3. Notification Obligation. If a Party becomes aware of any unauthorized use or disclosure of the Confidential Information of the other Party, it will make commercially reasonable efforts to notify the other Party of the unauthorized use or disclosure and assist in seeking a protective order or other appropriate remedy.

8. Publicity. In the event that customer has indicated a Publicity Contact on the Order Form, NextRequest will request Customer’s consent to use Customer’s name and logo in NextRequest promotional or marketing materials by contacting the Customer Publicity Contact. If Customer does not respond to NextRequest’s request within fourteen (14) days, or declines to identify a Publicity Contact, Customer agrees that NextRequest may publicly disclose Customer’s use of the Service and may use Customer’s name and logo to identify Customer as its customer in promotional or marketing materials, including press releases.

9. Term and Termination

9.1. Term. The term of this agreement begins on the earlier of (1) acceptance of this Agreement by Customer or (2) the first date on which NextRequest begins providing Services to Customer and ends on the later of (a) the last day of the Initial Term as set forth in the Order Form, (b) the last date of any renewal term, or (c) the last date on which NextRequest provides Services to Customer. Unless NextRequest receives notice of termination from Customer 60 days or more before the expiration of the initial term (or any renewal term), the Agreement will renew automatically on the terms set forth herein for an additional term of one year at NextRequest’s then-current rates.

9.2. Termination for Convenience. Customer may terminate for convenience at any time upon 30 days' written notice to NextRequest but will not be entitled to any refund of fees for any unused portion of the Service or unused Hourly Services.

9.3. Termination for Breach. Either Party may terminate the Agreement for breach if the other Party materially fails to meet any obligation stated in the Agreement and does not remedy that failure within thirty (30) days of written notice from the nonbreaching Party describing the failure.

9.4. Effect of Termination. Upon expiration or termination of this Agreement for any reason, all licenses and rights to use the Service granted to Customer shall terminate immediately, and Customer shall immediately cease all use of the Service. If Customer has paid in advance for Service, and this Agreement terminates due to material breach of this Agreement by NextRequest, NextRequest shall refund Customer a prorated amount of any amount already paid. Upon termination by Customer for convenience or due to material breach by Customer, in addition to any remedy provided in this Agreement or provided in law or equity, NextRequest shall be entitled to retain any amounts already paid. The following terms will survive expiration or termination of the Agreement: Sections 3, 4, 6, 7, 8, 11, 12, and 13 as well as all other provisions of the Agreement that by their nature are intended to survive expiration or termination of the Agreement.

10. Changes to Services. In order to improve the Service, NextRequest may change, upgrade, patch, enhance, or fix any or all of the Service (“Updates”) from time to time in order to provide the Service, and such Updates will become part of the Service and subject to this Agreement; provided that Next Request shall have no obligation under this Agreement or otherwise to provide any such Updates.

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at any time; provided that NextRequest will make commercially reasonable efforts to give Customer prior notice of any major changes to the Service.

11. Intellectual Property Infringement and Indemnification

11.1. NextRequest’s Obligations for IP Infringement. If any action is instituted by a third party against Customer based upon a claim that any part of the Service (an “Infringing Item”), infringes any Intellectual Property right, NextRequest’s sole obligation will be at its option and expense to (a) procure for Customer the right to continue using the Infringing Item, (b) replace or modify the Infringing Item so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Customer’s access to the Service, in which case NextRequest shall refund a prorated amount of any amounts paid for which Service have not yet been received.

NextRequest shall have no liability to Customer for any infringement action to the extent such action arises out of a breach of the terms and conditions of this Agreement by Customer or of the use of the Service (or any component part thereof) after it has been modified by Customer without NextRequest’s prior written consent. This Section 11.1states NextRequest’s sole liability to Customer, and Customer’s exclusive remedy against NextRequest for infringement claims.

11.2. Customer's Indemnification of NextRequest. Unless prohibited under applicable law given Customer’s status as a public entity, Customer agrees to defend, indemnify and hold harmless NextRequest and its affiliates and their respective directors, officers, employees, and agents from and any and all damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) incurred as a result of any claim, judgment, or proceeding relating to or arising out of: (a) Customer’s breach of this Agreement, including without limitation of any of Customer’s warranties or representations or NextRequest’s Acceptable Use Policy or (b) any claim alleging that NextRequest has infringed or secondarily infringed on the intellectual property or proprietary right of a third party as a result of Customer Content or Customer's use of the Service, whether or not Customer was aware of the allegedly infringing conduct and whether or not the conduct is actually infringing.

12. Disclaimers and Limitations on NextRequest's Liability

12.1. NextRequest is not responsible to Customer or any third party for unauthorized access to Customer Content or the unauthorized use of the Service unless the unauthorized access or use results from NextRequest’s failure to meet its security obligations under this Agreement.

12.2. Disclaimer of Warranty. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND NEXTREQUEST MAKES NO

WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,

INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A

PARTICULAR USE AND NONINFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE

GENERALITY OF THE FOREGOING, NEXTREQUEST MAKES NO REPRESENTATION OR WARRANTY (A) USE OF THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, (B)

THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR (C) REGARDING THE ACCURACY OR RELIABILITY OF ANY CONTENT.

12.3. Limitation of Liability. EXCEPT AS OTHERWISE PROVIDED IN SECTION 12.4, IN NO

EVENT WILL NEXTREQUEST OR ANY OF ITS SUCCESSORS, LICENSORS, OR SERVICE

PROVIDERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS

SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF

CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE FOR (a) LOSS OF GOODWILL OR REPUTATION; (b) EXCEPT AS EXPRESSLY PROVIDED IN THE

SERVICE LEVEL AGREEMENT, USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF THE SERVICE; (c) COST OF REPLACEMENT GOODS OR SERVICES; OR (d)

LOST REVENUES OR PROFITS OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL,

EXEMPLARY, ENHANCED OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF

WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR

DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND

NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF

NEXTREQUEST AND ITS SUCCESSORS, LICENSORS, OR SERVICE PROVIDERS ARISING

OUT OF OR RELATED TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER ARISING

UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE),

STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY EXCEED THE TOTAL MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 148 of 188 GDSVF&H\5385013.2
AMOUNT ACTUALLY PAID BY CUSTOMER TO NEXTREQUEST UNDER THIS AGREEMENT.

THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. TO THE EXTENT APPLICABLE LAW PROHIBITS THE FOREGOING LIMITATION OF LIABILITY, NEXTREQUEST’S LIABILITY IS LIMITED TO THE GREATEST EXTENT ALLOWED BY APPLICABLE LAW.

12.4. Nothing in this Agreement limits or excludes either Party’s liability for its gross negligence or willful misconduct.

13. General

13.1. State Agency Piggybacking. NextRequest agrees to allow Customer and other public agencies in the State of California to purchase additional items, at the same terms and conditions as this Agreement, excluding pricing and term length, and services to be provided, which will be separately agreed upon by NextRequest in a mutually executed Order Form.

13.2. Governing Law. Unless otherwise mutually agreed by the Parties in an Order Form, this Agreement will in all respects be governed by and construed and enforced in accordance with the laws of the State of California, without respect to conflict-of-laws principles.

13.3. Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, will be settled by binding arbitration by a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association in San Francisco, California.

Upon receipt of notice of any dispute to be settled by binding arbitration, the American Arbitration Association will use its best efforts to appoint a single arbitrator within 30 days after receipt of such notice.

13.4. Arbitration Award. The arbitrator will not have the authority to award exemplary or punitive damages to any injured party. A decision by the arbitrator will be final and binding. Judgment may be entered on the arbitrator's award in any court having jurisdiction, and such award will not be appealable.

13.5. Notice. Written notice by either Party to the other may be given: (i) in person, and such notice will be deemed valid on the date of delivery in person; or (ii) by email to the Party contact identified in the Order Form, and such notice will be deemed valid as of the proof of mailing date.

13.6. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety, without consent of the other Party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns. NextRequest may use Service Providers to perform all or any part of the Service, but NextRequest remains responsible to Customer under this Agreement for Service performed by its Service Providers to the same extent as if NextRequest performed the Service itself.

13.7. Force Majeure. Neither Party will be in breach of the Agreement if the failure to perform the obligation is due to an event beyond either Party’s control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.

13.8. Modifications. Unless otherwise expressly permitted in this Agreement, the Agreement may be amended only by a formal written agreement signed by both Parties. An Order Form may be amended to modify, add, or remove services by mutual written agreement of the Parties, agreement by email being sufficient. Any terms on Customer’s purchase order or other business forms by which Customer orders or pays for Service will not become part of this Agreement.

13.9. Entire Agreement. The Agreement, together with the Order Form, Terms of Use and Privacy Policy, constitutes the complete and exclusive agreement between the Parties regarding the Service and supersedes and replaces any prior understanding or communication, written or oral.

Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of NextRequest which is not set out in the Agreement.

13.10. Precedence. If there is a conflict between the Order Form and this Agreement, then this Agreement will control.

13.11. Unenforceable Provisions. If any part of the Agreement is found unenforceable by a court, the rest of the Agreement will nonetheless continue in effect, and the unenforceable part will MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 149 of 188 GDSVF&H\5385013.2
be reformed to the extent possible to make it enforceable but still consistent with the business and financial objectives of the Parties underlying the Agreement.

13.12. No Waiver. Each Party may enforce its respective rights under the Agreement even if it has waived the right or failed to enforce the same or other rights in the past.

13.13. No Partnership. The relationship between the Parties is that of independent contractors and not business partners. Neither Party is the agent for the other, and neither Party has the right to bind the other to any agreement with a third party.

13.14. No Third-party Beneficiaries. There are no third-party beneficiaries to this Agreement.

13.15. Counterparts. This Agreement may be executed in two or more counterparts, each of which will be considered a legal original for all purposes.

CITY OF MONTCLAIR
BY:_______________________________________________
Tenice Johnson, Mayor Pro Tem
DATE: _____________________________
ATTEST:
________________________________________________
Andrea Myrick, CIty Clerk
APPROVED AS TO FORM:
_________________________________________________
Diane E. Robbins, City Attorney
MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 150 of 188 GDSVF&H\5385013.2
NextRequest
Service Level Agreement
This Service Level Agreement (“SLA”) defines the support obligations of NextRequest, LLC, a Delaware corporation (“NextRequest”) to Customer, a purchaser of NextRequest’s service. The terms of this SLA are incorporated into and subject to the terms of the NextRequest Master Service Agreement. Capitalized terms not defined in this SLA shall have the meanings given to them in the NextRequest Master Service Agreement.

1. Service Guarantees

1.1 Availability. NextRequest provides hosting for the NextRequest service through a Service Provider (“Hosting Provider”), which does not make guarantees about uptime. Based on past performance, NextRequest anticipates 99.9% uptime of the application, with the exception of planned outages for maintenance and upgrades for which NextRequest notifies the Customer 24 hours in advance ("Uptime").

If NextRequest fails to meet the Uptime, the Customer will be eligible for credits as described in section 3.2.

1.2 Security. NextRequest takes the security of the Customer's data seriously and protects it according to the rigorous security practices described in our System Security Plan. The Hosting Provider utilizes certified data centers managed by Amazon, which implements industry-leading physical, technical, and operational security measures and has received ISO 27001 certification and Federal Information Security Management Act (FISMA) Moderate Authorization and Accreditation from the U.S. General Services Administration. If NextRequest becomes aware of any unauthorized access to its systems that poses any threat to the Service or the Customer's data, NextRequest will notify the Customer in writing of the issue no later than the close of the next Business Day after NextRequest learns of it.

1.3 Data Integrity. The Hosting Provider makes daily backups of Customers' systems and data. Seven (7) daily backups and five (5) weekly backups are retained.

1.4 Location of Service. Service and Customer’s data is hosted in the United States.

2. Service Request Process

2.1 Service Request Definition. A Service Request is any email, phone call, or in-app chat ticket sent to NextRequest by the Customer indicating support action is necessary or desired. This includes Bug reporting and Customer Support.

2.2 Severity Levels and Response Times. Each Service Request will be assigned a Severity Level by the party initiating the request. If NextRequest reasonably determines that the Customer has assigned an incorrect Severity Level to a ticket, NextRequest may assign a different Severity Level. The Severity Levels are defined below, along with the corresponding Initial Response Time within which NextRequest (or, in the case of Critical requests, our Hosting Partner) will respond to the Customer’s request and begin work on the issue:

Severity Level
(Priority)
Definition Initial Response
Time
and Channel
Critical Service is
inoperative
Service is inoperative, Customer’s business operations or productivity are severely impacted with no available workaround, or a critical security issue exists.
2 hours during
Business Days
(phone or email)
Standard (High) Service is operating but issue is causing significant disruption of Customer’s business operations; workaround is unavailable or inadequate.
1 Business Day
(phone or email)
MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 151 of 188 GDSVF&H\5385013.2
Standard
(Medium)
Service is operating and issue’s impact on the Customer’s business operations is moderate to low; a workaround or alternative is available.
1 Business Day
(email)
Standard (Low) Issue is a minor inconvenience and does not impact business operations in any significant way; little or no time sensitivity. 1 Business Day
(email)

2.3 Standard Service Requests

2.3.1 Initiating Standard Service Requests. The Customer may initiate a Standard Service Request by opening a ticket via the NextRequest in-app chat system. NextRequest support team members or systems may also create tickets on the Customer’s behalf in response to issues identified by monitoring systems.

2.3.2 Response and Resolution. Once NextRequest has responded to a Service Request, NextRequest will work during Business Hours with the Customer’s representatives and, as needed, our Hosting Partner to resolve the problem or provide a workaround. NextRequest makes no guarantee regarding the time to resolve a Service Request, only that NextRequest will use the reasonable efforts described above.

2.4 Critical Service Requests

2.4.1 Initiating Critical Service Requests. The Customer may initiate a Critical Service Request by calling NextRequest directly at 833-698-7778 or emailing [email protected]. The Customer will be directed to leave contact information and a detailed description of the issue.

2.4.2 NextRequest’s Response. NextRequest’s support staff will contact the Customer within 2 hours during a Business Day of receiving the Customer’s report of a Critical Service Request and will work continuously until the issue is resolved or a workaround is available. NextRequest will provide the Customer with regular updates until the issue is resolved and will coordinate with the Customer during Business Hours.

2.5 Customer Responsibilities. The Customer agrees to assist NextRequest as necessary to resolve Service Requests and to provide any information NextRequest reasonably requests, including information necessary to duplicate the issue. The Customer agrees to make available personnel capable of understanding and accurately communicating technical details necessary to enable NextRequest to review issues, and to assist NextRequest in diagnosing issues.

2.6 Bugs and Bug Reporting

2.6.1 Bug Definition. A Bug is defined as any issue where the NextRequest application does not function as intended. It is at the sole discretion of NextRequest staff to determine if an issue is classified as a Bug.

None of the Customer’s Customer Support hours will be deducted for reporting Bugs. The Customer may submit a Service Request in order to report a Bug.

2.7 Customer Support

2.7.1 Customer Support Definition. Staff time spent by NextRequest assisting the Customer or Customer’s representatives after the Service Agreement has been signed is defined as Customer Support. This may include helping users with account creation, account log in, configuration, or understanding features.

Customer Support hours exclude: bug reporting and related discussions and fixes; regularly scheduled check-ins with NextRequest staff as specified in the Order Form; and training sessions specified in the Order Form. The Customer may submit a Service Request in order to receive Customer Support.

3. Service Credits

3.1 Issuance. If NextRequest fails to meet the response time stated above, the Customer will be entitled to a credit of 2 Service hours for each hour during which the response time guarantee is not met, up to a total MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 152 of 188 GDSVF&H\5385013.2
of 8 hours per incident. The Customer must request a credit in writing via a support ticket no later than 14 days following the occurrence of the event giving rise to the credit. Credits will be applied to invoices issued in the future.

3.2 Sole Remedy. The credits stated in this Agreement are the Customer's sole remedy in the event NextRequest fails to meet a guarantee for which credits are provided. If NextRequest fails to perform any obligation for which a credit is not provided, the Customer's sole remedy is to have NextRequest perform or re-perform the obligation, as applicable. The maximum total credit for failure to meet any guarantee during any calendar month shall not exceed one twelfth of the annual recurring fee for the Service.

3.3 Credits for Downtime. During the term of the contract, the Service will be operational and available at least 99.9% of the time in any calendar month, with the exception of planned outages for maintenance and upgrades for which NextRequest notifies the Customer 24 hours in advance. If NextRequest does not satisfy 99.9% uptime, the Customer will be eligible to receive the service credits described below. In order to receive service credits, the Customer must request the credit in writing via a support ticket within 30 days from the time the Customer becomes eligible to receive a service credit.

Monthly Uptime
Percentage
Days of Service added to the end of the service term at no charge to Customer

99.9% to 99.0% 3

89.9.0% to

95.0%
7 < 94.9% 15

3.4 Extraordinary Events. The Customer is not entitled to a credit for downtime or outages resulting from denial-of-service attacks, hacking attempts, or any other circumstances that are not within our control.

3.5 No Credit in Breach. The Customer is not entitled to a credit if: (i) the Customer is in breach of the Agreement (including the Customer's payment obligations to NextRequest) at the time of the occurrence of the event giving rise to the credit, (ii) the event giving rise to the credit results from the Customer's prior breach of the Agreement, or (iii) to the extent our failure to meet an Initial Response Time guarantee results from the Customer's delay or failure to meet the requirements of Section 2.5 (“Customer Responsibilities”) of this SLA.

MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 153 of 188 nextrequest.com | 302 South 4th Street, Suite 500, Manhattan, KS 66502 | [email protected] | (833) 698-7778 Created Date: 12 / 13 / 2023
NextRequest for City of Montclair, CA
What do I get with
NextRequest?
An all-in-one platform for managing records requests across your entire agency. It’s an annual subscription and includes:
• Workflow Tools, Document Hosting & Management, Dashboards, Custom Reporting, Request Diversion, andRegular Product Improvements and Feature Updates Security? We protect your information using:
• SOC 2 Security Audit, Encryption, and Threat/Uptime Monitoring. See a full overview at: nextrequest.com/security
Technical
Requirements?
NextRequest is entirely web based and software-as-a-service • Everything in the cloud - no downloads or installations and works on all modern web browsers
Customer City of Montclair, CA Start Date 1/1/2023
Account URL(s)* cityofmontclairca.nextrequest.com
*Account URL cannot be altered once created
Invoice Date 1/1/2023
Primary Contact Name Andrea Myrick Renewal Date 1/1/2024 Email and Phone [email protected] (909) 625-9416 Address 5111 Benito Street, Montclair, CA, 91763
Service Agreement : Welcome to NextRequest! Thanks for using our platform. This Service Agreement (“Agreement”) is entered between NextRequest, LLC, with a place of business at 302 South 4th Street, Suite 500, Manhattan, KS 66502 (“NextRequest”), and the Customer listed above (“Customer”), as of the Effective Date.

This Agreement includes the above subscription and support (the “Services”) and incorporates the above Order Form as well as the Terms and Conditions and Service Level Agreement available at https://www.nextrequest.com/terms-conditions and which contains, among other things, warranty disclaimers, liability limitations and use limitations. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.

Renewals : Pricing may be subject to a standard 5% annual increase to account for application improvements, new features and inflation.

MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 154 of 188 nextrequest.com | 302 South 4th Street, Suite 500, Manhattan, KS 66502 | [email protected] | (833) 698-7778 Name Subtotal
NextRequest Standard License (annually)
Unlimited Staff Users, Up to 10 Admin-Publisher Users, and Up to 2 TB of Storage Core Features:

Public Portal
• Customizable request intake page, request and document publishing, Real-Time Keyword Trigger Alerts Workflow Automations
• Due Date calculation, automated reminders, holiday calendar • Messaging (internal and external) with unlimited templates • Task assignment, task tracking, automated reminders
• Time tracking and cost calculation
• Staff assignment
• Request timeline / audit trail
Request Repository
• Filtering and reporting, automated status updates
Reporting and Statistics
• General Report, Time Tracking, Invoicing and Payments, Admin Dashboard Document Dashboard
Premier Security Package
Email Monitoring Suite
Email Notifications
Payments: Invoicing templates, invoice tracking, and Online Payments (*Approved payment processors) Review and Redaction Features:

Standard Redaction with unlimited users
• Manual redactions, keyword redactions, redaction patterns • Custom redaction reasons, automated redaction logs
• Custom redaction patterns
RapidReview with unlimited users
• True Batch Redaction
• Draft redaction, redaction commenting, live collaboration • PST extractor and ZIP extractor
• Record staging
• OCR
IT & Compliance Features: Retention, Single Sign-On, Agency Specific Portal URL, SOC 2 Type II Audit, CJIS Attestation Available, and HIPAA Compliance Available with BAA $10,788.00
Standard Set Up & Onboarding (one-time)
Dedicated Onboarding Team, 1 Kickoff Call, 1 Dedicated Admin Training (60 minutes), Go-Live Success Plans, Weekly Group Training Webinars, In-app Training, Video Tutorials, Knowledge Base Articles, and Service Level Agreement
$1,500.00
Subtotal $12,288.00
Current Customer Incentive: 50% Discount Year 1 (one-time) Incentive expires 12/31/2023
-$6,144.00
MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 155 of 188 nextrequest.com | 302 South 4th Street, Suite 500, Manhattan, KS 66502 | [email protected] | (833) 698-7778 Total
*Pricing is valid until 12/31/2023
$6,144.00
City of Montclair, CA NextRequest, LLC
Signature: Signature:

Name & Title: Name & Title:

Date: Date:

Accounts Payable Info
Name: Phone:

Email: Will issue PO? Yes: No:

Download our W-9 at: https://www.civicplus.com/verify (password: foiasoftware) MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 156 of 188

CITY COUNCIL

AGENDA REPORT
DATE: DECEMBER 18, 2023
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 6
FILE I.D.: STA820
DEPT.: PUBLIC WORKS
PREPARER: M. HEREDIA
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 23–96 WITH BIGGS CARDOSA ASSOCIATES, INC., FOR DESIGN SERVICES ASSOCIATED WITH THE HOLT BOULEVARD

AND PACIFIC ELECTRIC TRAIL BRIDGE PROJECT
REASON FOR CONSIDERATION: The City Council is requested to consider approving Agreement No. 23–96 with Bigs Cardosa Associates, Inc. (BCA) for design services associated with the Holt Boulevard and Pacific Electric (PE) Trail Bridge Project.

A copy of proposed Agreement 23–96 is attached for City Council review and consideration.

BACKGROUND: The Holt Boulevard and Pacific Electric Trail bridges over the San Antonio Creek Channel have become safety issues due to the homeless encampments beneath the bridges. BCA designed the replacement of the Pacific Electric Trail Bridge after a fire burned the prior structure and forced the closure of the Pacific Electric Trail.

The situation under the Holt Boulevard Bridge has worsened recently, and Code Enforcement Officers have a challenging time accessing people in need of services.

The City desires a solution to enclose these areas under those bridges in an effort to improve safety and protect public welfare. BCA has prepared preliminary exhibits for a lightweight cellular concrete fill and a precast panel wall option. Areas between the San Antonio Creek flood control channel walls, the bridge substructures, and the underside of the bridge decks will be enclosed by precast panels.

FISCAL IMPACT: The cost to design the precast panel walls is $49,854. 2021 Lease Revenue Bond Funds will be used to cover this cost.

RECOMMENDATION: Staff recommends that the City Council approve Agreement No. 23–96 with Biggs Cardosa Associates, Inc., for design services associated with the Holt Boulevard and Pacific Electric Trail Bridge Project.

MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 157 of 188 Agreement 23-96

CITY OF MONTCLAIR

AGREEMENT FOR CONSULTANT SERVICES
THIS AGREEMENT is made and effective as of December 18, 2023, between the City of Montclair, a municipal corporation ("City") and Biggs Cardosa Associates, Inc., a California corporation ("Consultant"). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:

1. TERM
This Agreement shall commence on December 18, 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 18, 2024, 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, 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 City Manager 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 City Manager 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 6 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 A, 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 $49,854 for the total term of the Agreement unless additional payment is approved as provided in this Agreement.

MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 158 of 188 Agreement 23-96

(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 five thousand one hundred forty six ($5,146.00). Any additional work in excess of this amount shall be approved by the City Council.
(c) Consultant will submit invoices monthly for actual services performed.

Said invoices shall detail all costs, rates and hours for individual tasks. Invoices shall be submitted on or about the first business day of each month, or as soon thereafter as practical, for services provided in the previous month. Payment shall be made within thirty (30) days of receipt of each invoice as to all non-disputed fees. If the City disputes any of the Consultant’s fees, it shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth on the invoice. (d) Consultant agrees that, in no event shall City be required to pay to Consultant any sum in excess of ninety-five percent (95%) of the maximum payable hereunder prior to receipt by City of all final documents, together with all supplemental technical documents, as described herein acceptable in form and content to City. Final payments shall be made no later than sixty (60) days after presentation of final documents and acceptance thereof by City.

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

If the City suspends or terminates a portion of this Agreement, such suspension or termination shall not make void or invalidate the remainder of this Agreement. (b) In the event this Agreement is terminated pursuant to this Section, the City shall pay to Consultant on a pro-rata basis the actual value of the work performed up to the time of termination, provided that the work performed is of value to the City. 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 MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 159 of 188 Agreement 23-96

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 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 MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 160 of 188 Agreement 23-96

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 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 Consultants, 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 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) 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 SubConsultant, Sub consultant, or other person or entity involved by, for, with, or on behalf of Consultant in the performance of any aspect of this Agreement. In the event Consultant fails to obtain such indemnity obligations, Consultant shall be fully responsible for each and every SubConsultant, Subconsultant or other person or entity in terms of defense, indemnity and hold harmless obligations in favor of the Indemnified Parties as set forth above.

This obligation to indemnify and defend the Indemnified Parties is binding on the successors, assigns, or heirs of Consultant and shall survive the full performance or termination of this Agreement. These indemnification provisions are independent of and shall not in any way be limited or superseded by the insurance requirements and insurance-related provisions of this Agreement.

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(d) City Lost or Damaged Property – Theft. Consultant further agrees to pay or cause to be paid to the Indemnified Parties’ benefit, any and all damages, fines, penalties, and loss or theft of property of the City arising out of or related in any way to the negligent acts or omissions or intentional misconduct of Consultant or of Consultant’s officers, agents, representatives, employees, independent Consultants, 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.

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(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 $3,000,000 per occurrence, and $5,000,000 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 $5,000,000 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.

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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.

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 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.

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(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.

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(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 SubConsultants
Consultant shall be responsible for causing 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 NonContributory coverage and Waiver of Subrogation to the SubConsultants’ 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.

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

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

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

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

15. RELEASE OF INFORMATION/CONFLICTS OF INTEREST
(a) All information gained by Consultant in performance of this Agreement shall be considered confidential and shall not be released by Consultant without City’s prior written authorization. Consultant, its officers, employees, agents, or subconsultants, shall not without written authorization from the City Manager or unless requested by the City Attorney, voluntarily provide declarations, letters of support, testimony at depositions, responses to interrogatories, or other information concerning the work performed under this Agreement or relating to any project or property located within the City. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant gives City notice of such court order or subpoena. (b) Consultant shall promptly notify City should Consultant, its officers, employees, agents or subconsultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, requests for admissions, or other discovery request, court order, or subpoena from any person or party 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 MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 167 of 188 Agreement 23-96

similar proceeding. Consultant agrees to cooperate fully with City and to provide the opportunity to review any response to discovery requests provided by Consultant.

However, City’s right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
(c) Consultant shall comply with all applicable federal, state and local Conflict of Interest laws, including the Political Reform Act (California Government Code, Section 81000, et. seq.) and California Government Code, Section 1090, et. seq.

Consultant covenants that neither he/she nor any officer or principal of their firm have any interest in, or shall acquire any interest, directly or indirectly, which will conflict in any manner or degree with the performance of their services hereunder. Consultant further covenants that in the performance of this Agreement, no person having such interest shall be employed by them as an officer, employee, agent or subconsultant.

Consultant further covenants that Consultant has not contracted with nor is performing any services, directly or indirectly, with any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) owning property in the City or the study area and further covenants and agrees that Consultant and/or its subconsultants shall provide no service or enter into any agreement or agreements with a/any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) owning property in the City or the study area prior to the completion of the work under this Agreement. Further, Consultant covenants not to give or receive any compensation, monetary or otherwise, to or from the ultimate vendor(s) of services to the City as a result of the performance of this Agreement, or the services that may be procured by the City as a result of the recommendations made by the Consultant. The Consultant’s covenant under this Section shall survive the termination of this Agreement.

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

To City: City Engineer
City of Montclair
5111 Benito
Montclair, CA 91763
To Consultant: Eric Pheifer, P.E.
500 S. Main Street, Ste. 1200
Orange, CA 92868-4507
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17. ASSIGNMENT AND SUBCONTRACTING
The Consultant shall not assign any of its rights or delegate any of its duties under this Agreement, either in whole or in part, nor any monies due hereunder, without prior written consent of the City. The City’s consent to an assignment of rights under this Agreement shall not release the Consultant from any of its obligations or alter any of its obligations to be performed under this Agreement. Any attempt at assignment or delegation by the Consultant in violation of this Section 17 shall be void and of no legal effect and shall constitute grounds to terminate this Agreement for cause. The Consultant shall not subcontract any performance required under this Agreement without the City’s prior written consent.

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

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

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

21. CONTENTS OF PROPOSAL
Consultant is bound by the contents of the proposal submitted by the Consultant, Exhibit "A" hereto. In the event of conflict, the requirements of 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.

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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.

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
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.

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 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.

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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.

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

CITY
City of Montclair

CONSULTANT
Biggs Cardosa Associates, Inc.

By: By:

Tenice Johnson, Mayor Pro Tem Name/Title:

Attest:

By: By:

Andrea M. Myrick, City Clerk Name/Title:

Approved as to Form:

By:

Diane Robbins, City Attorney
MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 171 of 188 December 11, 2023
City of Montclair | Public Works Department
5111 Benito Street
Montclair, CA 91763
Attention: Monica Heredia, P.E.

Public Works Director / City Engineer
Subject: Homeless Encampment Emergency Safety Mitigation Project Proposal to Provide Professional Engineering Services
Dear Ms. Heredia:

Biggs Cardosa Associates, Inc. is pleased to submit our proposal to provide engineering services for the subject project.

Project Understanding
The Holt Boulevard and Pacific Electric Trail Bridges over the San Antonio Creek Channel have become safety issues due to the homeless encampments beneath the bridges. Biggs Cardosa recently designed the replacement of the Pacific Electric Trail Bridge after a fire burned the prior structure and forced the closure of the Pacific Electric Trail. We understand that the situation under the Holt Boulevard Bridge has worsened recently, and Code Enforcement Officers have a challenging time accessing people in need of emergency services.

The City desires a solution to enclose these areas under those bridges in an effort to improve safety and protect public welfare. Biggs Cardosa (while not under contract) prepared preliminary exhibits for a lightweight cellular concrete fill and a precast panel wall option. In subsequent discussions with the City, Biggs Cardosa understands that the precast panel wall option is preferred. Areas between the flood control channel walls, the bridge substructures, and the underside of the bridge decks will be enclosed by precast panels at the Holt Boulevard and Pacific Electric Trail Bridges.

General Assumptions/Limitations
Environmental/Permitting: The City intends to file a Notice of Exemption (NOE) under the California Environmental Quality Act (CEQA). Biggs Cardosa has therefore not included environmental or permitting services as part of this proposal. This scope assumes that the City will file the NOE, apply for, obtain, and pay fees for any permits required, and will coordinate with regulatory agencies, as necessary. Biggs Cardosa’s scope with respect to the environmental/permitting component of the project is limited to providing technical information and exhibits related to the precast concrete panel locations and details of the safety measures.

Exhibit A
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Additional Services: Any service not expressly noted within this proposal is not included. If, for example, the City ultimately decides to add lighting, security cameras, landscaping, or other elements as part of this project, Biggs Cardosa can add subconsultants and prepare an Extra Work Request, at the City’s option. We assume that survey information needed to layout the precast panel walls will be provided to Biggs Cardosa by the City’s on-call surveyor.

Professional Services Agreement: Considering this is an atypical project, Biggs Cardosa requests careful consideration of suggested modifications to the City’s standard Professional Services Agreement. Suggested modifications will be negotiated separately with the City, but may include:
▪ Modifications to indemnification provisions specifically related to the CEQA component of the project. We would request that the contract exclude the requirement that Biggs Cardosa defend the City against potential challenges to the CEQA NOE. ▪ A limitation of liability is desired should the precast panel walls be breached or undermined.

We will work closely with the City to develop the best possible solution to prevent access to the areas being enclosed by walls, but guaranteeing that the walls will keep people out will be impossible. If, for example, a person(s) wishing to gain illegal access under the bridge were to acquire tools capable of penetrating high-strength concrete and steel, designing for that will not be possible.

Scope of Work
To expedite the preparation of bid documents, Biggs Cardosa proposes Draft and Issued for Bid milestones in lieu of a typical 30%, 60%, 90%, 100%, Issued for Bid milestone submittal process.

Task 1 – Project Management & Meetings
Biggs Cardosa will submit monthly invoices and perform other general administrative project tasks.

Biggs Cardosa will conduct a kick-off meeting with the City to understand requirements and concerns in developing the design. Biggs Cardosa will attend up to three (3) additional coordination meetings, either with the City to review design development and/or meet with San Bernardino County Flood Control (SBCFCD) or other stakeholders.

Biggs Cardosa will assist the City with technical information related to permit applications, if required (e.g. SBCFCD). A number of hours has been assumed in our attached fee proposal to support with these efforts.

Assumptions:
▪ Up to four (4) meetings are included in this scope.
▪ It is assumed that any permit application fees will be paid by the City. ▪ The City will prepare and file the CEQA Notice of Exemption.

Deliverables:
▪ Monthly Invoices
▪ Meetings:
o Kick-Off Meeting
o Coordination Meetings (Up to 3)
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▪ Technical Information/Exhibits for Permit Applications (if required) Task 2 – Plans, Specifications & Estimates (PS&E)
Biggs Cardosa will prepare plans, technical specifications, structural and quantity calculations, and a construction cost estimate. Plans are anticipated to include a General Plan (showing the existing bridge structures) and detail sheets showing how the homeless mitigation components will be constructed. A Draft Submittal will be prepared for City review, then an Issued for Bid Submittal will be prepared to advertise the construction contract.

Assumptions:
▪ Plans will be drafted in AutoCAD format. References will be made to City Standard Plans, Caltrans Standard Plans, and SPPWC, where applicable.
▪ Technical Specifications will be developed based on 2023 Caltrans Standard Specifications and Standard Special Provisions for structural items, and 2018 Greenbook for civil items. ▪ The City will prepare the Notice Inviting Bids and General Conditions, with input from Biggs Cardosa on technical items, as required.
▪ Preparation of water pollution control items (e.g. a WPCP or SWPPP) are anticipated to be prepared by the contractor.
▪ Cost estimates will be prepared in Excel format, and will use unit prices from similar projects and Caltrans Contract Cost Data.
▪ Structural calculations will be prepared in conformance with the 8 th Edition of AASHTO LRFD
Bridge Design Specifications.
▪ No modifications to the bridges (besides drilling holes to drill and bond reinforcement) or the San Antonio Creek Channel are anticipated.
▪ Access for maintenance and bridge inspection is assumed to be provided through manholes in the deck, and access hatches within the precast panel walls are therefore not anticipated.

Deliverables:
▪ Draft Plans
▪ Draft Technical Specifications
▪ Draft Cost Estimate
▪ Structural Calculations
▪ Quantity Calculations
▪ Issued for Bid Plans
▪ Issued for Bid Technical Specifications
Task 3 – Engineering Support During Construction
Biggs Cardosa will provide assistance during bidding and construction. Our scope includes responding to Requests for Information (RFIs), reviewing shop drawings, visiting the site as needed during construction, and preparing record drawings based on the Contractor’s red-lined changes.

Assumptions:
▪ Attending a pre-construction meeting is included in this scope. ▪ Up to two (2) site visits are included in this scope. ▪ Responding to up to ten (10) RFIs for each bridge location are included in this scope.

MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 174 of 188 Homeless Encampment Emergency Safety Mitigation Project Proposal to Provide Professional Engineering Services
P a g e | 4
▪ Reviewing up to three (3) shop drawings for each bridge location are included in this scope.

Deliverables:
▪ RFI Responses
▪ Shop Drawing Reviews
▪ Site Visits
▪ Record Drawings
Fee
We propose to provide the services outlined in this proposal on a time and materials basis for a not to exceed amount of $49,854. A breakdown of our fee proposal is attached.

We look forward to working with you on this project. Should you have any questions, please do not hesitate to contact me.

Sincerely,

BIGGS CARDOSA
ASSOCIATES, INC.

Eric Pheifer, PE
Principal
Attachments:
▪ Biggs Cardosa Fee Proposal
MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 175 of 188 Homeless Encampment Emergency Safety Mitigation Project Fee Proposal | Biggs Cardosa Associates
Principal Associate
Engineering
Manager
Senior
Engineer
Project
Engineer Staff Engineer
Assistant
Engineer
Junior
Engineer
Senior
Computer
Drafter
Project
Administrator
$280.00 $257.00 $225.00 $205.00 $190.00 $175.00 $160.00 $145.00 $165.00 $190.00 Task 1 - Project Management & Meetings $8,502
Administration / Monthly Invoices 2 4 6 $1,320
Kick-Off Meeting 1 1 3 5 $1,152
Coordination Meetings 2 3 9 14 $3,176
Permit Support (Technical Info & Exhibits) 1 2 2 2 4 4 15 $2,854 Task 2 - Plans, Specifications & Estimates (PS&E) $25,726 Plans 1 4 8 8 16 40 77 $13,668
Technical Specifications 1 2 4 8 15 $3,134
Structural & Quantity Calculations 1 2 4 4 8 16 35 $6,334 Construction Cost Estimate 1 2 4 8 15 $2,590
Task 3 - Engineering Support During Construction $15,512 Request for Information (RFIs) 2 4 8 14 $2,494
Shop Drawing Review 2 4 40 46 $7,614
Site Visits 4 4 8 $1,520
Record Drawings 1 2 2 4 12 21 $3,884
Labor Subtotal $49,740
Mileage / Reproduction $114
Expense / Subconsultant Subtotal $114
Total Not to Exceed Amount $49,854
S.O.W. Phase / Task Total
Hours
Labor
Subtotal
Expenses / Subconsultants
1 MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 176 of 188

CITY COUNCIL

AGENDA REPORT
DATE: DECEMBER 18, 2023
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 7
FILE I.D.: STA805C
DEPT.: PUBLIC WORKS
PREPARER: M. HEREDIA
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 23–97 AMENDING AGREEMENT NO. 20– 23 WITH BIGGS CARDOSA ASSOCIATES, INC., FOR DESIGN SERVICES ASSOCIATED

WITH THE CENTRAL AVENUE BRIDGE PROJECT, SUBJECT TO ANY REVISIONS DEEMED

NECESSARY BY THE CITY ATTORNEY
REASON FOR CONSIDERATION: On April 6, 2020, the City Council approved Agreement No. 20–23 with Biggs Cardosa Associates, Inc. (BCA) for the design of the Central Avenue Bridge Project (Project). BCA’s current contract expires December 22, 2023. The City Council is requested to consider approval of Agreement No. 23–97 with BCA to continue design services for the Central Avenue Bridge Project, subject to any revisions deemed necessary by the City Attorney.

BACKGROUND: The Central Avenue Bridge (Bridge No. 54C0112) is a four–lane overcrossing constructed in 1967. It is located approximately 1.75 miles south of the Interstate 10 (I–10) freeway in the City of Montclair (City). The bridge carries Central Avenue over the Union Pacific Railroad (UPRR) corridor, which includes Amtrak and Metrolink service. Along with spanning seven railroad tracks, the bridge also crosses over State Street and a flood control channel on the south side, and a horseshoe access road that wraps underneath the bridge on the north side.

Central Avenue is one of the principal arterials within the City, connecting to State Route 60 (SR–60) to the south and to I–10 to the north. At the location where Central Avenue crosses UPRR, Central Avenue is a four–lane arterial roadway carrying roughly 39,900 average daily traffic (ADT). This ADT already exceeds the San Bernardino County General Plan threshold of 31,100 ADT for a four–lane roadway. Segments connecting to Central Avenue to the north and south of the bridge are six lanes. Staff proposes to widen the bridge from four to six lanes to accommodate current and future traffic, match the capacity of the adjacent roadway segments, and to eliminate the bottleneck located at the current bridge.

Staff applied and was successful in obtaining a Highway Bridge Program grant to repair the overpass. Central Avenue is the gateway to the City and its repair is vital to the overall plan for the City’s future. The overpass will pave the way for redevelopment of the south end of the City.

BCA has completed the environmental portion of the Project. The City is waiting for environmental clearance from Caltrans to proceed with right–of–way and ultimately construction. BCA has submitted 60 percent design plans to the City for review. BCA’s current contract, which was approved in 2020, expires December 22, 2023. The contract amount with BCA is for $3,352,355, not including extra services totaling $65,158.

Approximately two million in environmental and engineering costs have been incurred to–date.

MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 177 of 188 Additionally, BCA has completed extra services as follows:

1. Preliminary Title Reports for 18 parcels ($9,000)

2. State Historic Preservation Officers (SHPO) required a Finding of Effect (FOE) report for a potentially historic property relating to the Union Pacific Railroad right of way ($8,274)

3. A Benefit Cost Analysis was required to support the Bridge Investment Program (BIP) competitive grant funding application ($27,900)

4. Caltrans Environmental requested that the Biggs Cardosa Team prepare the Environmental Commitments Record (ECR), which has traditionally been prepared by Caltrans based on their review of the Technical Studies. BCA prepared the ECR to close out the environmental process ($12,828)

5. Additional services were needed to assist with the preparation of the Multimodal Project Discretionary Grant (MPDG). MPDG grant funding application and an updated Benefit–Cost Analysis ($19,984)
The estimated total project cost for bridge replacement is $30.2 million. This includes final design, right–of–way acquisition, construction engineering, construction, and contingencies. The cost for right–of–way acquisition is estimated at $1,483,000 and includes appraisals and acquisitions of temporary construction easements and small permanent easements (no full acquisitions or relocations are anticipated). The cost of environmental and engineering fees is $3,892,000, including preliminary engineering and final design. The overall construction cost for this project is $24,820,600, which includes $19,437,000 for construction services, $1,917,000 for demolition and removal of the existing bridge, $2,659,000 for other engineering fees during construction (i.e. construction management services), and a contingency of $807,600.

The final design plans will be completed by the end of 2024. Staff applied for two grant applications for the construction shortfall. Unfortunately, the City did not received BIP funding last year. Staff is waiting for positive results for the MPDG grant in the amount of $17 million. Once construction funding is secured, construction could start in Fiscal Year 2025–26. Construction duration is expected to be a little over two years. The new bridge could then be operational by the end of 2026.

FISCAL IMPACT: The City Council’s approval of Agreement No. 23–97 would authorize BCA to continue design services until final design is completed. The new contract amount with BCA is for $3,417,513. Approximately two million in environmental and engineering costs have been incurred to–date under previous Agreement No. 20–23.

Highway Bridge Program funds are available for the design costs of the Central Avenue Bridge Project.

RECOMMENDATION: Staff recommends that the City Council approve Agreement No. 23–97 amending Agreement No. 20–23 with Biggs Cardosa Associates, Inc., for design services associated with the Central Avenue Bridge Project, subject to any revisions deemed necessary by the City Attorney.

MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 178 of 188

December 2023
Agreement No. 23-97
City of Montclair Professional Services Agreement
Federal Project No. 5326(018)
AMENDMENT NO. 1 TO AGREEMENT NO. 20-23
Central Avenue Bridge
WHEREAS, the City of Montclair (LOCAL AGENCY) and Bigs Cardosa Associates, Inc. (CONSULTANT) previously entered into Contract No. 20-23 (hereinafter referred to as “the AGREEMENT”), for design services associated with the Central Avenue Bridge Project (“PROJECT”); and, WHEREAS, BCA has completed the environmental phase of the PROJECT; and, WHEREAS, PROJECT design is now at 60 percent and BCA has completed additional work related to the PROJECT; and,
WHEREAS, the AGREEMENT expires on December 22, 2023 and a contract term extension is necessary to finalize the design of the PROJECT.

NOW, THEREFORE, in consideration of the mutual covenants and conditions provided herein, LOCAL AGENCY and CONSULTANT hereto agree to Amend Agreement No. 20-23 as follows:

1. Article I INTRODUCTION - replace Contract Administrator for the City of Montclair from Noel Castillo to Monica Heredia.

2. Article IV PERFORMANCE PERIOD – replace December 22, 2023 to December 22, 2026.

3. Article V ALLOWABLE COSTS AND PAYMENTS, Section H – replace Noel Castillo with Monica Heredia

4. Article V ALLOWABLE COSTS AND PAYMENTS, Section I – replace $3,352,355 to $3,417,513

5. Article XXIII DISPUTES, Section A – replace Noel Castillo with Monica Heredia

6. Article XXXII NOTIFICATION – replace Noel Castillo with Monica Heredia Except as amended by this Amendment No. 1, all other terms and conditions of Contract No. 20-23 shall remain the same.

This Amendment No. 1 to the AGREEMENT, Contract No. 20-23, is effective on the date it is approved and signed by LOCAL AGENCY and CONSULTANT.

MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 179 of 188

December 2023
Agreement No. 23-97
City of Montclair Biggs Cardosa & Associates
By:
_____________________________
Tenice Johnson, Mayor Pro Tem
By:
_______________________________
Eric Pheifer, Principal
Attest:

By: _____________________________
Andrea M. Myrick, City Clerk
Approved as to Form:

By: _______________________________
Diane Robbins, City Attorney
MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 180 of 188 Personnel Committee Minutes – November 20, 2023 Page 1 of 1

MINUTES OF THE MEETING OF THE MONTCLAIR

PERSONNEL COMMITTEE HELD ON MONDAY,
NOVEMBER 20, 2023, AT 6:00 P.M. IN THE CITY
ADMINISTRATIVE OFFICES, 5111 BENITO STREET,

MONTCLAIR, CALIFORNIA
I. CALL TO ORDER
Mayor Pro Tem Johnson called the meeting to order at 6:00 p.m.

II. ROLL CALL

Present: Mayor Pro Tem Johnson, Council Member Ruh, and City Manager Starr
III. APPROVAL OF MINUTES
A. Minutes of the Regular Personnel Committee Meeting of November 6, 2023.

Moved by Council Member Ruh, seconded by Mayor Pro Tem
Johnson, and carried unanimously to approve the minutes of the Personnel Committee meeting on November 6, 2023.

IV. PUBLIC COMMENT – None
V. CLOSED SESSION
At 6:01 p.m., the Personnel Committee went into Closed Session regarding personnel matters related to appointments, resignations/ terminations, and evaluations of employee performance.

At 6:15 p.m., the Personnel Committee returned from Closed Session.

Mayor Pro Tem Johnson stated that no announcements would be made at this time.

VI. ADJOURNMENT
At 6:15 p.m., Mayor Pro Tem Johnson adjourned the Personnel Committee.

Submitted for Personnel Committee approval,
Edward C. Starr
City Manager
MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 181 of 188

PENDING

APPROVAL
Joint City Council/Successor Agency Board/Montclair Housing Corporation Board/Montclair Housing Authority Commission/ Montclair Community Foundation Board Meeting Minutes – November 20, 2023 Page 1 of 7

MINUTES OF THE REGULAR JOINT MEETING OF THE MONTCLAIR

CITY COUNCIL, SUCCESSOR AGENCY AND MONTCLAIR HOUSING

CORPORATION BOARDS, MONTCLAIR HOUSING AUTHORITY

COMMISSION, AND MONTCLAIR COMMUNITY FOUNDATION
BOARD HELD ON MONDAY, NOVEMBER 20, 2023, AT 7:00 P.M. IN THE CITY COUNCIL CHAMBERS, 5111 BENITO STREET,

MONTCLAIR, CALIFORNIA
I. CALL TO ORDER
Mayor/Chair Dutrey called the meeting to order at 7:00 p.m.

II. INVOCATION
Police Department Chaplain/Pastor Josh Matlock, Bethany Baptist Church, gave the invocation.

III. PLEDGE OF ALLEGIANCE
Council Member/Director Lopez led meeting participants in the Pledge.

IV. ROLL CALL

Present: Mayor/Chair Dutrey; Mayor Pro Tem/Vice Chair Johnson; Council Members/Directors Ruh, Martinez, and Lopez
City Manager/Executive Director Starr; Director of Community Development Diaz; Director of Finance Kulbeck; Director of Public Works/City Engineer Heredia; Acting Police Chief Reed; City Attorney Robbins; City Clerk Myrick
V. PRESENTATIONS
A. Introduction of New Police Officers
Mayor Dutrey announced this presentation would be rescheduled for another meeting.

VI. PUBLIC COMMENT
 Carolyn Raft, Board Trustee representing Montclair, West Valley Mosquito and Vector Control District, stated she has no updates from the District and wished everyone a happy Thanksgiving.

VII. PUBLIC HEARINGS — None
VIII. CONSENT CALENDAR
ACTION – Consent Calendar
ACTING: City Council
Successor Agency Board
Montclair Housing Corporation Board
Montclair Housing Authority Commissioners
Montclair Community Foundation Board
DISCUSSION: Items B–10, C–2, and C–3
MOTION: Approve the Consent Calendar as presented.

MADE BY:

SECOND BY:

Council Member/Director Ruh
Mayor Pro Tem/Vice Chair Johnson
AYES:

NOES:

ABSTAIN:

ABSENT:

Lopez, Martinez, Ruh, Johnson, Dutrey
None
None
None
RESULT: Motion carried 5–0.

MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 182 of 188

PENDING

APPROVAL
Joint City Council/Successor Agency Board/Montclair Housing Corporation Board/Montclair Housing Authority Commission/ Montclair Community Foundation Board Meeting Minutes – November 20, 2023 Page 2 of 7 A. Approval of Minutes

1. Regular Joint Meeting — November 6, 2023
ACTION – Consent Calendar – Item A–1
ACTING: City Council
Successor Agency Board
Montclair Housing Corporation Board
Montclair Housing Authority Commissioners
Montclair Community Foundation Board
RESULT: Approved on Consent Calendar; motion carried 5–0.

B. Administrative Reports

1. Consider Receiving and Filing City Treasurer’s Report – October 2023
ACTION – Consent Calendar – Item B–1
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.

2. Consider Approval of City Warrant Register and Payroll Documentation
ACTION – Consent Calendar – Item B–2
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.

3. Consider Receiving and Filing SA Treasurer’s Report – October 2023
ACTION – Consent Calendar – Item B–3
ACTING: Successor Agency Board
RESULT: Approved on Consent Calendar; motion carried 5–0.

4. Consider Approval of SA Warrant Register – October 2023 ACTION – Consent Calendar – Item B–4
ACTING: Successor Agency Board
RESULT: Approved on Consent Calendar; motion carried 5–0.

5. Consider Receiving and Filing MHC Treasurer’s Report – October 2023
ACTION – Consent Calendar – Item B–5
ACTING: Montclair Housing Corporation Board
RESULT: Approved on Consent Calendar; motion carried 5–0.

MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 183 of 188

PENDING

APPROVAL
Joint City Council/Successor Agency Board/Montclair Housing Corporation Board/Montclair Housing Authority Commission/ Montclair Community Foundation Board Meeting Minutes – November 20, 2023 Page 3 of 7

6. Consider Approval of MHC Warrant Register – October 2023 ACTION – Consent Calendar – Item B–6
ACTING: Montclair Housing Corporation Board
RESULT: Approved on Consent Calendar; motion carried 5–0.

7. Consider Receiving and Filing of MHA Treasurer’s Report – October 2023
ACTION – Consent Calendar – Item B–7
ACTING: Montclair Housing Authority Commissioners
RESULT: Approved on Consent Calendar; motion carried 5–0.

8. Consider Approval of MHA Warrant Register – October 2023 ACTION – Consent Calendar – Item B–8
ACTING: Montclair Housing Authority Commissioners
RESULT: Approved on Consent Calendar; motion carried 5–0.

9. Consider Confirming the Mayor’s Recommendation to
Reappoint Carolyn Raft to a Four–Year Term on the West
Valley Mosquito and Vector Control District Board
ACTION – Consent Calendar – Item B–9
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.

10. Consider Authorization to Advertise for Bid Proposals for the Alleyway Improvements Project
Consider Authorizing a $2,000,000 Appropriation from 2021 Lease Revenue Bond Proceeds for Construction Costs Related to the Alleyway Improvements Project
Mayor Pro Tem Johnson and Council Members Ruh and Lopez expressed concerns about impacts to residents whose alleyways will be affected by construction.

Staff provided clarification on the project timeline of three months to complete all of the scheduled alleyways, and on staff’s intent to communicate and coordinate with affected residents and make accommodations such as suspending the issuance of parking citations on the streets in front of impacted homes on street sweeping days during construction, and moving trash pickup to the front of those homes.

ACTION – Consent Calendar – Item B–10
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.

C. Agreements

1. Consider Authorizing a $719,800 Appropriation from the Redevelopment Project Area No. III Tax Allocation Bond Fund for Costs Related to Construction of the Arrow Highway and Fremont Avenue Improvement Project
MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 184 of 188

PENDING

APPROVAL
Joint City Council/Successor Agency Board/Montclair Housing Corporation Board/Montclair Housing Authority Commission/ Montclair Community Foundation Board Meeting Minutes – November 20, 2023 Page 4 of 7 Consider Award of Contract to Gentry Brothers, Inc. in the Amount of $1,588,920 for Construction of the Arrow
Highway and Fremont Avenue Improvement Project
Consider Approval of Agreement No. 23–75 with Gentry
Brothers, Inc. for Construction of the Arrow Highway and Fremont Avenue Improvement Project, Subject to Any
Revisions Deemed Necessary by the City Attorney
Consider Authorizing a $158,892 Construction Contingency for the Arrow Highway and Fremont Avenue Improvement
Project
ACTION – Consent Calendar – Item C–1
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.

2. Consider Approval of Agreement No. 23–87 Amending
Agreement No. 22–118 with Securitas Security Services USA, Inc. for Security Guard Services at the Montclair Transcenter Mayor Pro Tem Johnson received confirmation that there is one security guard assigned to the Transcenter at all times, and was informed that the City intends to hire a new company to take over security services at the Transcenter in the coming months.

ACTION – Consent Calendar – Item C–2
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.

3. Consider Approval of Agreement No. 23–88 with Incremental Movement Consulting, LLC to Provide Homeless Outreach
Consulting Services on an As–Need Basis, Subject to Any Revisions Deemed Necessary by the City Attorney
Mayor Pro Tem Johnson requested more information about the consultant, noting she was not able to find information online.

City Manager Starr advised that before starting his consulting firm, Ken Gominsky provided homeless services in Orange County and has developed several successful homeless
assistance programs. He noted Mr. Gominsky has extensive knowledge of relevant laws and can also assist with securing grants for homeless services.

Economic Development Agency Director Fuentes added that Mr. Gominsky is the former Deputy Police Chief of Santa Ana where he oversaw homeless outreach services and brought Santa Ana into compliance with laws related to addressing homeless issues and responding to lawsuits brought by
homeless advocates.

Council Member Lopez asked what resources in San Bernardino County could be accessed by IMC, and for information about the property the City is looking to acquire for transitional housing.

City Manager Starr advised San Bernardino County does not currently have homeless assistance programs or resources available, and IMC would assist with developing those
connections. He stated the City is looking to purchase the Welcome Inn Motel on Mission Boulevard and IMC will assist with acquiring grants for the conversion and programming for that property.

Council Member Ruh stated he looks forward to the City working with this consultant.

MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 185 of 188

PENDING

APPROVAL
Joint City Council/Successor Agency Board/Montclair Housing Corporation Board/Montclair Housing Authority Commission/ Montclair Community Foundation Board Meeting Minutes – November 20, 2023 Page 5 of 7 ACTION – Consent Calendar – Item C–3
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.

4. Consider Amending the 2019–2024 Capital Improvement
Program to Include the Silicon Avenue and Third Street
Improvements Project
Consider Approval of Agreement No. 23–89 with Rick
Engineering Company for Design Services for the Silicon Avenue and Third Street Improvements Project, Subject to Any Revisions Deemed Necessary by the City Attorney
Consider Authorizing a $144,520 Appropriation from Sb1
Funding for Costs Related to Agreement No. 23–89
Consider Authorizing a $15,480 Design Services Contingency for the Silicon Avenue and Third Street Improvements Project ACTION – Consent Calendar – Item C–4
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.

D. Resolutions — None
IX. PULLED CONSENT CALENDAR ITEMS — None
X. COMMUNICATIONS
A. Department Reports

1. Human Services — Holiday Events
Recreation Manager Saltos made the following announcements:
 The Community Activities Commission invites everyone to the Holly Jolly Holiday Event on Thursday, November 30, from 6:00 to 8:30 p.m. at the Youth Center. The event includes a tree–lighting ceremony, complimentary photos with Santa, a letter–to–Santa writing station, and free refreshments while supplies last. Gift Lights in honor or memory of a loved one may also be purchased at the event.
 Holiday Home Decoration Contest — Applications are
available on the City’s website and entries are due by Friday, December 1, at 6:00 p.m. The Community Activities
Commission will select the winners and present them at an upcoming City Council meeting.

2. Police — Dashing Through Montclair & Costco Food & Toy Drives
Acting Police Chief Reed made the following announcements:
 The Police Department will accompany Santa and Mrs. Clause as they go dashing through Montclair on Saturday,
December 2, from noon to 6:00 p.m. Santa and Mrs. Claus will be dashing through the streets of Montclair on their sleigh to greet residents and spread holiday cheer. The route is available on the City’s website, including several stops.  The Police and Fire Departments are hosting food and toy drives in support of the Holiday Food & Toy Basket Program at Costco in Montclair on Friday, December 1, and Friday, December 8, from 10:00 a.m. to 2:00 p.m. both days.

MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 186 of 188

PENDING

APPROVAL
Joint City Council/Successor Agency Board/Montclair Housing Corporation Board/Montclair Housing Authority Commission/ Montclair Community Foundation Board Meeting Minutes – November 20, 2023 Page 6 of 7 B. City Attorney
City Attorney Robbins stated the City Council is no longer requested to hold a closed session for the following item:

1. Closed Session Pursuant to Government Code Section
54956.8 Regarding Real Property Negotiations
Property: APNs 1008–011–14–0000 & 1008–011–15–0000
Negotiating Parties: City of Montclair and Mu–Wang Liu
Agency Negotiator: Edward C. Starr, City Manager
Under Negotiations: Recommendations Regarding Purchase Price City Attorney Robbins confirmed the City Council’s availability to hold an appeal hearing for former Police Sergeant John Minook on January 29, 2024, at 6:00 p.m. She also provided the following update on the Dow/Alvarran v. Montclair case: The City of Pomona has refused to enter into a tolling agreement with the City of Montclair in relation to this case; therefore the City of Montclair will file a claim with the City of Pomona.

C. City Manager/Executive Director — None
D. Mayor/Chair

1. Notice of Cancellation of December 4, 2023 Regular Joint Meeting
Mayor/Chair Dutrey announced the December 4, 2023 regular joint meeting is cancelled due to the anticipated lack of pressing business.

2. Mayor/Chair Dutrey complimented the Veterans Dance event held at the Senior Center, announced tonight’s meeting would be adjourned in memory of former First Lady Rosalynn Carter and his wife Anne’s mother Patricia Maloon; and wished
everyone a happy Thanksgiving.

E. Council Members/Directors

1. Council Member/Director Ruh discussed the accomplishments of Rosalynn Carter including her advocacy for mental health and her extensive work with and dedication to Habitat for Humanity; noted two food distribution events he participated in recently, one by local church Christian Development Center and another hosted by Assembly Member Blanca Rubio in
partnership with State Senator Susan Rubio; stated November 22 will be the 60th anniversary of the assassination of President John F. Kennedy; and read an excerpt from
President Kennedy’s 1963 Thanksgiving Proclamation.

2. Council Member/Director Lopez received clarification from City Manager Starr that the City does not have a park rental policy and currently rents parks to established leagues on a contract basis; congratulated Montclair High School’s football team for making it to the CIF Championships, despite not winning the title, and for its booster club having a very successful first annual antique car show; encouraged everyone to shop local on Small Business Saturday this weekend; and read an excerpt from President Abraham Lincoln’s decree of the first Thanksgiving issued on October 3, 1863.

3. Mayor Pro Tem/Vice Chair Johnson praised Montclair High School for its Ready to Launch event that was very successful and clearly produces students who are prepared to enter the workforce; invited everyone to attend the Montclair Chamber of Commerce Holiday Lunch and Donation Event on November 29 at noon in the Community Center, with a BBQ lunch sponsored by I–10 Towing free with a food, toy, or $10 monetary donation; MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 187 of 188

PENDING

APPROVAL
Joint City Council/Successor Agency Board/Montclair Housing Corporation Board/Montclair Housing Authority Commission/ Montclair Community Foundation Board Meeting Minutes – November 20, 2023 Page 7 of 7 and announced the Chamber is working with the Economic
Development Agency to develop a shop local promotion where those who shop in Montclair can be entered into a monthly raffle.

4. Council Member/Director Martinez congratulated Carolyn Raft on her reappointment to the West Valley Mosquito and Vector Control District Board; wished everyone a happy Thanksgiving; and stated she hopes to see everyone at the upcoming holiday events.

F. Committee Meeting Minutes
The following committee minutes were received and filed for informational purposes:

1. Personnel Committee – November 6, 2023
XI. CLOSED SESSION — None
XII. CLOSED SESSION ANNOUNCEMENTS — None
XIII. ADJOURNMENT
At 8:08 p.m., the City Council, Successor Agency Board, Montclair Housing Corporation Board, Montclair Housing Authority Commission, and Montclair Community Foundation Board were adjourned.

Submitted for City Council/Successor Agency Board/Montclair Housing Corporation Board/ Montclair Housing Authority
Commission/Montclair Community Foundation Board approval,

Andrea Myrick,
City Clerk
The meeting was adjourned in memory of former U.S. First Lady Rosalynn Carter and Patricia Meade Maloon, mother–in–law of Mayor Dutrey.

MONTCLAIR CITY COUNCIL MEETING – 12/18/2023 Page 188 of 188