Agenda packet — Ontario City Council, December 19, 2023 (part 2 of 8)

AMENDMENT #1
TO
CONTRACT #010521-BCI
THIS AMENDMENT is by and between Sourcewell and BCI Burke Company, LLC (Vendor).

Vendor was awarded a Sourcewell Contract for Playground and Water Play Equipment with Related Accessories and Services effective February 15, 2021, through February 17, 2025, relating to the provision of services by Vendor to Sourcewell and its Members (Original Agreement).

The parties agree that certain terms within the Original Agreement will be updated and amended and only to the extent as hereunder provided.

IN CONSIDERATION OF the mutual covenants and agreements described in this Amendment, the parties agree as follows:

1. This Amendment is effective upon the date of the last signature below.

2. Table 13: Audit and Administrative Fee—Line Item Question 63 of the Proposal is deleted in its entirety and replaced with the following new language:

RESPONSE: Burke is pleased to offer an administrative fee of 2% of the customer price of all products and services, excluding freight and bond charges, invoiced/sold under the Sourcewell contract. This fee will be reported and paid to Sourcewell on a quarterly basis. The sale will be reported, and the fee paid once full payment is received from the Sourcewell customer. Burke agrees not to up-charge or offset the administrative fees to Sourcewell Members.

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Except as amended by this Amendment, the Original Agreement remains in full force and effect.

Sourcewell BCI Burke Company, LLC
By: By:

Authorized Signature Authorized Signature
Jeremy Schwartz Marianne Larson
Name – Printed Name – Printed
Title: Director of Operations & Procurement/CPO Title:

Date: Date:

Sourcewell–APPROVED:

By:

Authorized Signature
Chad Coauette
Name – Printed
Title: Executive Director/CEO
Date:

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AMENDMENT #2
TO
CONTRACT #010521-BCI
THIS AMENDMENT is by and between Sourcewell and BCI Burke Company, LLC (Vendor).

Sourcewell awarded Vendor a contract for Playground and Water Play Equipment with Related Accessories and Services effective February 15, 2021, through February 17, 2025, relating to the provision of services by Vendor to Sourcewell and its Members (Original Agreement).

The parties agree that certain terms within the Original Agreement will be amended and only to the extent as hereunder provided.

IN CONSIDERATION OF the mutual covenants and agreements described in this Amendment, the parties agree as follows:

1. This Amendment is effective upon the date of the last signature below.

2. Section 18. Insurance, Subsection A. Requirements, Item 5 Professional/Technical Errors and Omissions of the Original Agreement is deleted in its entirety.

Except as amended by this Amendment, the Original Agreement remains in full force and effect.

Sourcewell BCI Burke Company, LLC
By: By:

Jeremy Schwartz Doug Pietrowski
Title: Director of Operations & Procurement/CPO Title:

Date: Date:

Sourcewell–APPROVED:

By:

Chad Coauette
Title: Executive Director/CEO
Date:

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AMENDMENT #3
TO
CONTRACT #010521-BCI
THIS AMENDMENT is effective upon the date of the last signature below by and between Sourcewell and BCI Burke Company, LLC (Vendor).

The parties agree that certain terms within the Original Agreement will be amended and only to the extent as hereunder provided.

IN CONSIDERATION OF the mutual covenants and agreements described in this Amendment, the parties agree as follows:

The response to question 49 in Table 10 of the Proposal is clarified to read: "Payment for equipment items will be due within 30 days after the products ship. Service-related items will typically be invoiced at completion of the project and will be due within 30 days of the invoice date. Larger projects may require progress payments, in which case, these terms will be clearly noted on the customer quotation." Except as amended by this Amendment, the Original Agreement remains in full force and effect.

Sourcewell BCI Burke Company, LLC
By: By:

Jeremy Schwartz Marianne Larson
Title: Director of Operations & Procurement/CPO Title:

Date: Date:

Sourcewell–APPROVED:

By:

Chad Coauette
Title: Executive Director/CEO
Date:

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Department: Engineering
Prepared By: Miguel Sotomayor
Staff Member Presenting:

Scott Murphy, Executive Director Community
Development
Reviewed By: Raymond Lee
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 10
SUBJECT: A RESOLUTION AUTHORIZING THE CITY MANAGER TO GRANT DEDICATIONS OF

EASEMENTS WITHIN CITY RIGHT OF WAY

CITY OF ONTARIO
Agenda Report
December 19, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council adopt a Resolution authorizing the City Manager to grant dedications of easements within City Right of Way for public utility and other lawful purposes on behalf of the City.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Pursue City's Goals and Objectives by Working with Other Governmental Agencies Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in Ontario Ranch
FISCAL IMPACT: There is not a direct fiscal impact associated with this action. The applicants shall pay the applicable processing fees to defray the City's cost to process these requests.

BACKGROUND & ANALYSIS: On April 15, 2014, the City Council adopted Resolution No. 2014-028 authorizing the City Manager to grant dedication of easements within Ontario Ranch "Neighborhood Edges" for public utility purposes on behalf of the City. However, due to the current and anticipated future volume of development activity in both Ontario Ranch and the General City, Staff anticipates the need to process a large number of easement dedication requests, some of which will be located outside of the "Neighborhood Edges".

To allow the City to continue providing an efficient and prompt approval process, it is recommended that the City Council authorize the City Manager to grant dedications of easements within City Right of Way for public utility and other lawful purposes (e.g. railroad) on behalf of the City and authorize the City Clerk to attest to and affix the City seal on these documents.

All dedications shall be in a form approved by the City Attorney and the requests shall be reviewed 318
by Engineering Department staff to ensure consistency and compatibility with the City's master plans, as well as conformance to City standards and policies, prior to recommendation to the City Manager for approval.
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RESOLUTION NO. ________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA, AUTHORIZING THE CITY MANAGER TO GRANT

DEDICATIONS OF EASEMENTS WITHIN CITY RIGHT OF WAY FOR
PUBLIC UTILITY AND OTHER LAWFUL PURPOSES.

WHEREAS, in conjunction with new development in both Ontario Ranch and General City, the City will need to process easement dedication requests; and WHEREAS, the City Council desires to provide an efficient and prompt process for approving various dedications of easements for utilities and other lawful purposes; and WHEREAS, the dedications shall be in a form approved by the City Attorney; and WHEREAS, the dedication requests shall be reviewed by the Engineering Department.

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

SECTION 1. That the City Manager is hereby authorized on behalf of the City to grant dedications of easements within City Right of Way for utility and other lawful purposes and execute same on behalf of the City of Ontario; and SECTION 2. That the City Clerk is hereby authorized to attest to and affix the City seal on all said grants of easement; and
SECTION 3. That the City Clerk is hereby authorized to transmit said documents to the San Bernardino County Recorder’s Office for recordation.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 19th day of December 2023. _____________________________________
PAUL S. LEON, MAYOR
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ATTEST:
________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO LEGAL FORM:
_______________________________

BEST, BEST & KREIGER, LLP

CITY ATTORNEY
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STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2023- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held December 19, 2023 by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
The foregoing is the original of Resolution No. 2023- duly passed and adopted by the Ontario City Council at their regular meeting held December 19, 2023. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
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Department: Engineering
Prepared By: Jaime Maciel-Carrera
Staff Member Presenting:

Scott Murphy, Executive Director Community
Development
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 11
SUBJECT: AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT WITH ARDURRA

FOR ON-CALL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES

CITY OF ONTARIO
Agenda Report
December 19, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council approve Amendment No. 2 to the three-year Professional Services Agreement with Ardurra Group, Inc., of El Segundo, California, to provide OnCall Construction Management and Inspection Services for a revised cumulative contract total notto-exceed amount of $2,271,208 with a contingency of $121,121 for a revised total not-to-exceed authorization amount of $2,392,329.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in Ontario Ranch
FISCAL IMPACT: The proposed Amendment No. 2 for Construction Management and Inspection Services is a project-specific task order for the Grove Avenue and Holt Boulevard Intersection Widening Project. The Amendment increases the Agreement amount by $1,211,208, plus an additional ten percent contingency of $121,121 for Fiscal Year 2023-24, for a revised total not-toexceed authorization of $2,392,329. The City’s share of the Intersection Project is 44.4%, funded from General City Street Development Impact Fees. The balance of 55.6% is funded from SBCTA’s Measure I Program. Upon approval, additional appropriations from the General City Street Development Impact Fees and from Measure I will be included in a subsequent quarterly budget report to City Council as needed.

BACKGROUND & ANALYSIS: In August 2021, the City awarded a three-year contract to Ardurra Group for on-call Construction Management and Inspection Services. Subsequent appropriations for additional inspection services were made to supplement the City’s Engineering Department Inspection Staff, bringing the total not-to-exceed amount to $1,060,000. This Amendment will allow the City to maintain the schedule commitments to support the Grove Avenue and Holt Boulevard Intersection Widening Project and ensure that construction progresses in compliance with City 323
requirements, approved plans, and specifications. The recommended action will add $1,211,208 along with $121,121 in contingency, for an additional cost of $1,332,329 and a revised total not-toexceed authorization amount of $2,392,329. 324
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Department: Financial Services
Prepared By: Doreen Nunes
Staff Member Presenting:

Armen Harkalyan, Executive Director of Finance
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 12
SUBJECT: A PROFESSIONAL SERVICES AGREEMENT WITH URBAN FUTURES, INC., FOR

CITYWIDE MUNICIPAL FINANCIAL ADVISORY SERVICES

CITY OF ONTARIO
Agenda Report
December 19, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council authorize the City Manager or designee to execute the Professional Services Agreement with Urban Futures, Inc., of Walnut Creek, California, for the provision of citywide municipal financial advisory services, for a contract authority of a not-toexceed amount of $1,597,500 and a term of three years, with an optional renewal period of two additional years.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT: The Fiscal Year 2023-24 Adopted Budget includes appropriations in the Financial Services Agency's budget for Citywide municipal financial advisory services. The proposed Professional Services Agreement term will be for three years, with an optional renewal period for two years, with a not-to-exceed contract amount of $1,597,500, of which $1,172,500 is for services relating to the future issuance of bonds and will be funded directly from future bond proceeds.

Specific proposals to utilize bond financing for City capital improvement projects and individual development projects will be presented to the City Council for its consideration at the time of issuance. Of the remaining not-to-exceed contract balance of $425,000, this will be funded from both the General Fund and the Special Districts fund. The fixed billing rates specified in the current Agreement will determine the amount charged for service and reflect the actual service provided. If approved, appropriations will be added to the future years' budget consistent with the annual adoption process.

BACKGROUND & ANALYSIS: Over the next several years, it is anticipated that the City will be required to make significant improvements and/or replacements to existing infrastructure and facilities, as well as construct new infrastructure and facilities. This was evident in the City's adoption of a $2.5 billion budget for capital improvement projects, including the Sports Regional Park, Grand Park, Continuum of Care Access Center, Anthony Munoz gymnasium, expansion of the Convention Center, and many other major capital projects. In addition, the City will continue to 328
acquire completed and constructed public infrastructure facilities with the ongoing development of Ontario Ranch.

As part of the financial plan for future Citywide projects, it is recommended that the City secure the services of a dynamic and experienced municipal financial advisor to assist in the development of an overall financial strategy and policies before the issuance of any proposed bonds and/or other financings. The financing strategy will address key terms including forecasting and financial modeling, size of bond issue, maturity period, value-to-lien ration, debt service coverage, credit rating enhancements, eligibility and priority for use of proceeds, and timing of bond issuance.

On August 16, 2023, the City solicited a request for proposals for Citywide Municipal Financial Advisory Services and received a total of three proposals. The Companies that submitted proposals were as follows: CSG Advisors, San Francisco, California; Harrell & Company Advisors, LLC, Tustin, California; and Urban Futures, Inc., Walnut Creek, California. Staff reviewed the proposals for responsiveness and recommends awarding the professional services agreement to Urban Futures, Inc. (UFI), as they have distinguished qualifications that placed them above the other two responses.

Since 1972, UFI has strived to offer the highest level of service, technical skills, innovation, and local knowledge to California municipalities. The firm is ranked as the top financial advisory firm in California over the last 5-year period as measured by the number of transactions completed. In addition, UFI has one of the largest rosters of experienced municipal advisory professionals registered in California.
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46700.00100\40935195.1
BB&K (2023) -2- PROFESSIONAL SERVICES AGREEMENT

3.1.2 Term. The term of this Agreement shall be from December 20, 2023, to December 19, 2026, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than two additional one-year terms. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.

3.2 Compensation.

3.2.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The total compensation shall not exceed Nine Hundred Fifty-Seven Thousand Five Hundred dollars and zero cents ($957,500.00) without written approval of the City Council or City Manager, as applicable. If the City desires to exercise the two additional one-year terms, the total not to exceed contract amount will be One Million Five Hundred Ninety-Seven Thousand Five Hundred dollars and zero cents ($1,597,500.00). Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.

3.2.2 Payment of Compensation. Consultant shall submit to City a monthly invoice which indicates work completed and hours of Services rendered by Consultant. The invoice shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice.

City shall, within 30 days of receiving such invoice, review the invoice and pay all non-disputed and approved charges. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein. Payment shall not constitute acceptance of any Services completed by Consultant. The making of final payment shall not constitute a waiver of any claims by the City for any reason whatsoever.

3.2.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit "C" of this Agreement.

3.2.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement.

Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City.

3.3 Responsibilities of Consultant.

3.3.1 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee.

Any personnel performing the Services on behalf of Consultant shall not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, or any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Consultants officers, employees or agents, except as set forth in this 331
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BB&K (2023) -3- PROFESSIONAL SERVICES AGREEMENT
Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law.

Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.

3.3.2 Schedule of Services. Consultant shall perform the Services in a prompt and timely manner and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services expeditiously. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.

3.3.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.

3.3.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. The key personnel for performance of this Agreement are as follows: Scott Ochoa, City Manager and Armen Harkalyan, Executive Director of Finance.

3.3.5 City's Representative. The City hereby designates Armen Harkalyan, Executive Director of Finance, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative").

City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Services or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the Scope of Services or change the Consultant's total compensation subject to the provisions contained in this Agreement. Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee.

3.3.6 Consultant's Representative. Consultant hereby designates Michael Busch, President, or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.

3.3.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times.

3.3.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards 332
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BB&K (2023) -4- PROFESSIONAL SERVICES AGREEMENT
generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its subconsultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.

3.3.9 Period of Performance.

3.3.9.1 Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Consultant shall also perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.

3.3.9.2 Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the services, only to the extent such strikes and other organized labor action are beyond the control of Consultant and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the services and Agreement.

3.3.9.3 Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events and/or delays, regardless of the Party responsible for the delay, shall not entitle Consultant to any additional compensation.

Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement. 333
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BB&K (2023) -5- PROFESSIONAL SERVICES AGREEMENT

3.3.10 Laws and Regulations; Employee/Labor Certification.

3.3.10.1 Compliance with Laws. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. All violations of such laws and regulations shall be grounds for the City to terminate the Agreement for cause.

3.3.10.2 Employment Eligibility; Consultant. Consultant certifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time and shall require all subconsultants and sub-subconsultants to comply with the same. Consultant certifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement.

3.3.10.3 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.

3.3.10.4 Air Quality. To the extent applicable, Consultant must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the South Coast Air Quality Management District (SCAQMD) and/or California Air Resources Board (CARB). Consultant shall indemnify City against any fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Consultant, its subconsultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement.

3.3.10.5 Water Quality Management and Compliance. Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.); the California Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority. Consultant must additionally comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges. City may seek damages from Consultant for delay in completing the Services caused by Consultant’s failure to comply with the laws, regulations and policies described in this Section, or any other relevant water quality law, regulation, or policy.
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BB&K (2023) -6- PROFESSIONAL SERVICES AGREEMENT

3.3.10.6 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed.

3.3.11 Insurance.

3.3.11.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Agreement for cause.

3.3.11.2 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, the Consultant, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement 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.
(A) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 00 01, or the exact equivalent, with limits of not less than $2,000,000 per occurrence and no less than $4,000,000 in the general aggregate. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions (1) limiting coverage for contractual liability; (2) excluding coverage for claims or suits by one insured against another (cross-liability); (3) products/completed operations liability; or (4) containing any other exclusion(s) contrary to the terms or purposes of this Agreement. (B) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 00 01 covering "Any Auto" (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all activities with limits of not less than $2,000,000 combined limit for each occurrence. (C) 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 per accident for bodily injury and disease. (D) Professional Liability (Errors & Omissions): Liability insurance or Errors & Omissions insurance appropriate to Consultant’s profession with limits of not less than $2,000,000. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusions that may potentially affect the work to be performed (for example, any exclusions relating to lead, asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work, etc.). If coverage is written on a claimsmade basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least five (5) years from termination or expiration of this Agreement. 335
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3.3.11.3 Insurance Endorsements. Required insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
(A) Commercial General Liability: (1) Additional Insured: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement.

Additional Insured Endorsements shall not (1) be restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Consultant; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial General Liability insurance, Consultant shall provide endorsements in the form of ISO CG 20 10 10 01 and 20 37 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement. (2) Cancellation: Required insurance policies shall not be canceled 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. (B) Automobile Liability: (1) Additional Insured: The City, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Vendor or for which the Vendor is responsible. (2) Cancellation: Required insurance policies shall not be canceled 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.
(C) Professional Liability (Errors & Omissions): (1) Cancellation:

Required insurance policies shall not be canceled 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. (2) This insurance shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and include a provision establishing the insurer’s duty to defend.
(D) Workers' Compensation: (1) Cancellation: Required
insurance policies shall not be canceled 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. (2) Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against the City, its officials, officers, employees, agents, and volunteers.

3.3.11.4 Primary and Non-Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.

3.3.11.5 Waiver of Subrogation. All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications 336
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to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.

3.3.11.6 Deductibles and Self-Insured Retentions. Any deductible or selfinsured retention must be approved in writing by the City and shall protect the City, its officials, officers, employees, agents, and volunteers 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.

3.3.11.7 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the City, together with all endorsements affecting each policy. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. 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 and not replaced immediately so as to avoid a lapse in the required coverage, 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.

3.3.11.8 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 transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.

3.3.11.9 Enforcement of Agreement Provisions (non estoppel).

Consultant acknowledges and agrees that actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder.

3.3.11.10 Requirements Not Limiting. Requirement of specific coverage or minimum limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance.

3.3.11.11 Additional Insurance Provisions
(A) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(B) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled 337
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and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
(C) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (D) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.
(E) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
(F) Consultant shall report to the City, in addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in connection with the Services under this Agreement.

3.3.11.12 Insurance for Subconsultants. Consultant shall include all subconsultants engaged in any work for Consultant relating to this Agreement as additional insureds under the Consultant's policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City, its officials, officers, employees, agents, and volunteers as additional insureds to the subconsultant's policies. All policies of Commercial General Liability insurance provided by Consultant’s subconsultants performing work relating to this Agreement shall be endorsed to name the City, its officials, officers, employees, agents and volunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant to commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subconsultant’s compliance with all insurance requirements under this Agreement, to the extent applicable. The Consultant shall provide satisfactory evidence of compliance with this section upon request of the City.

3.4 Labor Code Requirements.

3.4.1 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services 338
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available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents, and volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.

3.4.2 Registration/DIR Compliance. If the Services are being performed on a public works project of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants.

3.4.3 Compliance Monitoring. This Project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the DIR against Consultant or any subconsultant that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Consultant or any subconsultant.

3.4.4 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.

3.5 Termination of Agreement.

3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those Services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. The rights and remedies of the City provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement.

3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. 339
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3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.

3.6 Indemnification.

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

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

3.7 General Provisions.

3.7.1 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.

3.7.2 Independent Contractors and Subcontracting.

3.7.2.1 Use of Consultants. Consultant is aware of statutory and case law regarding classification of workers as independent contractors, including California Labor Code Section 2750.3 and Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018). To ensure that Consultant is in compliance with the California Labor Code, Consultant shall only utilize its employees to provide the Services. Consultant may not provide the services through any independent contractor, subcontractor or subconsultant (“Subcontractor(s)”) unless approved by the City as set forth in Section 3.7.2.2 below. Consultant represents and warrants that all personnel who perform the Services on Consultant’s behalf are Consultant’s employees, and that Consultant complies with all applicable laws, rules and regulations governing its 340
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employees, including, but not limited to, the California Labor Code, Unemployment Insurance Code and all applicable Industrial Welfare Commission Wage Orders.

3.7.2.2 Prior Approval Required. Consultant shall not use any Subcontractor to provide the Services, or any portion of the work required by this Agreement, without prior written approval of City. In the event that City authorizes Consultant to use a Subcontractor, Consultant shall enter into a written agreement with the Subcontractor, which must include all provisions of the Agreement, including a restriction on the Subcontractor’s use of further independent contractors, subcontractors or subconsultants without the City’s prior written consent.

3.7.3 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:

Consultant: Urban Futures, Inc. (“UFI”)
1470 Maria Lane, Suite 315
Walnut Creek, CA 94596
ATTN: Michael Busch, President
City: City of Ontario
303 East “B” Street
Ontario, CA 91764
ATTN: Armen Harkalyan, Executive Director of Finance
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

3.7.4 Ownership of Materials and Confidentiality.

3.7.4.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall be and remain the property of City, and shall not be used in whole or in substantial part by Consultant on other projects without the City’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a 341
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minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.

3.7.4.2 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or its subconsultants, or those provided to Consultant by the City.

3.7.4.3 Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Project or another project, provided that any such use not within the purposes intended by this Agreement or on a project other than this Project without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than this Project, it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Documents & Data on such other project. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant.

3.7.4.4 Indemnification. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by City of the Documents & Data, including any method, process, product, or concept specified or depicted.

3.7.4.5 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.

3.7.4.6 Confidential Information. The City shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the City's legal counsel 342
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determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information.

Consultant shall have five (5) working days after receipt of the release notice to give City written notice of Consultant's objection to the City's release of Proprietary Information. Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of an objection notice unless either: (1) Consultant fails to fully indemnify, defend (with City's choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a final and non-appealable order by a court of competent jurisdiction requires that City release such information.

3.7.5 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.

3.7.6 Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements.

3.7.7 Attorneys’ Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys’ fees and all costs of such action.

3.7.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Consultant must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code 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 Government Code 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.

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

3.7.10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project.

3.7.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.

3.7.12 Assignment or Transfer. Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such 343
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consent shall be void and without legal effect and shall constitute grounds for termination.

Consultant shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.

3.7.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.

3.7.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.

3.7.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.

3.7.16 No Third-Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.

3.7.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

3.7.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subconsultants to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

3.7.19 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.

3.7.20 Counterparts. This Agreement may be signed in counterparts, each of 344
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which shall constitute an original.

3.7.21 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification obligations, shall survive any such expiration or termination.

SIGNATURES ON NEXT PAGE
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SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO AND
URBAN FUTURES, INC. (“UFI”)
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed on the day and year first above written.

CITY OF ONTARIO URBAN FUTURES, INC. (“UFI”)
By: AAA
Its: BBB
Printed Name: CCC
By: DDD
Its: EEE
Printed Name: FFF
Approved By:

Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:

City Clerk
346
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BB&K (2023) Exhibit “A”-1 PROFESSIONAL SERVICES AGREEMENT EXHIBIT "A"

SCOPE OF SERVICES

SERVICES RELATED TO FINANCIAL PLANNING
• Serve as the City’s fiduciary and key project coordinator on large financing projects.

Maintain timelines and schedules, coordinate with external and internal team members, and keep all parties apprised. We strongly recommend a meeting schedule solution or application to organize the myriad of meetings and attendees related to each project. • Provide advice regarding various financing options available and methods the City could use to finance the construction of facilities and re-finance outstanding debt. The financial advisor is expected to recommend the best financing options, while minimizing interest cost.
• Explore and evaluate short-term financing options, including but not limited to, bond anticipation notes and line of credit, as well as long-term financing, including the development on a long-term financial plan, sizing of each bond issue, and calculations of the resulting debt service requirements.
• Proactively inform the City of events in the debt markets and economy in general that may have an impact on decisions to issue additional debt, refund bonds, or complete other debt or financing transactions. Provide information that may influence current outstanding issues.
• Provide financial consulting services as required in matters related to debt planning and debt management.
• Assist as needed in the review of financial policies (i.e., policies pertaining to investments, financing, swaps, etc.) and debt compliance and disclosure policies. Make suggestions on City policies and other debt administration procedures as necessary to align with best practices.
• Advise on current market conditions, future bond issues, and other information which might be influenced by interest rates and bidding conditions; these factors will be considered for the timing, scheduling, and structuring of each stage of a bond issue to produce the best financing terms. Recommendations for and assistance in acquiring bond insurance, if needed, are also to be provided.
• Provide financial consulting services, as needed, pertaining to obtaining or renewing credit facilities.
• Assist in evaluating remarketing agent, dealer, and credit facility performance for commercial paper program and variable rate debt, including evaluating rates, fees, and other costs.
• Attend and participate in City Council and other meetings as required. • Advise the City in performing due diligence investigations with respect to Companies that the City may contemplate using in financial transactions. Such due diligence shall 347
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• Provide assistance in identifying and obtaining new sources of funds for capital needs, such as may be available from state and/or federal programs. • Assist in maintaining credit rating agency relationships, including preparation for the City’s periodic credit rating review, to ensure the most favorable rating possible. • Prepare and present reports and/or presentations as needed to the City Council, and the City’s various Boards and Commissions. Presentations may at times be designed to facilitate an understanding of public section financing and its implications to the City. • Attend/participate (in person or by telephone, as required) in meetings related to financial activities as needed.
• Provide service in other financial analyses and technical research as may be deemed desirable by the City.

SERVICES RELATED TO DEBT ISSUANCE
• Advise on the amount, timing, and nature of borrowing, as well as the credit structure, maturity schedule, call provisions and other items, as needed. • Provide debt service schedules (principal and interest) for future bond issues and final pricing documents.
• Provide bid solicitations, assistance with selection process, negotiation of contract terms, and arrangements for fee payments, for document printing, ratings, paying agents/registrar services, verification agents, underwriters, and other related, required services.
• Prepare request for proposals and provide a listing of prospective bidders to facilitate the selection of service providers, such as liquidity providers, property appraisers, absorption specialists, etc. Provide advice, coordinate, and by following the requirements under the City Ordinance or Municipal Code, assist with the bidding process. • Advise on the merits of competitive, negotiated, or private placement of debt. • Recommend financial provisions to be included in the bond transcript documents. • Participate, as requested by the City, in assembling materials and representing the City in dealings with bond counsel, rating agencies, the City Council, underwriters, and others, as needed, in finalizing offering documents, obtaining required approvals, and closing a bond issue.
• Act as a liaison to the municipal bond market, including, but not limited to, responding to questions or requests for information from underwriters and/or prospective investors. 348
46700.00100\40935195.1
BB&K (2023) Exhibit “A”-3 PROFESSIONAL SERVICES AGREEMENT • Evaluate pricing received for proposed bond issues and recommend the most favorable to the City.
• Provide a post-market evaluation/verification of, including, but not limited to, the underwriters' spread, reasonableness of coupon rates and discounts/ premiums, issuance at a fair market price, and the costs of issuance.
• Provide all other services necessary and/or requested by the City for the issuance of bonds and coordination of an offering.
• Review, analyze and provide guidance on the extension or replacement of letters of credit (LOC) for outstanding variable rate debt, including evaluation of other financing alternatives, such as refunding the bonds with long-term fixed rate debt, short-term fixed rate notes, or floating rate notes.

REPORTING
• The financial advisor shall prepare and submit financial analyses and other reports as requested by the City, including but not limited to, bond transactions’ post-pricing reports, schedule of financing transactions including distribution lists, review and analysis of financing proposals, refunding and debt restructuring analysis, debt service schedules, credit analysis, and rating agency presentations.

SERVICES RELATED TO REAL ESTATE AND FINANCIAL ADVISORY
• Guide development of a program reflecting the highest and best use and analyze financial feasibility to understand the impacts of core project parameters, including key public policy goals, on returns.
• Create compelling project benefits narratives that draw on an assessment of economic and fiscal impacts, as well as other quantitative and qualitative benefits that align with local stakeholder goals.
• Gather insights that can shape the project vision by communicating benefits and tradeoffs among key governmental, business, and community stakeholders. 349
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BB&K (2023) Exhibit “B”-1 PROFESSIONAL SERVICES AGREEMENT EXHIBIT "B"

SCHEDULE OF SERVICES
UFI’s Proposed Fees
Par Amount Fee
Sector 1 (All Bond Types)
< $50 million $45,000
$50 - $100 million $60,000
> $100 million $75,000
Sector 2
CFD Bonds (All Par Amounts) $40,000
CFD Formations Hourly (Typically $5,000 - $10,000)
Our fees for municipal advisory services are exclusive of out-of-pocket expenses such as travel, data recovery, third party data fees, and internal compliance requirements. Out-of-pocket expenses will not exceed $2,500 on any transaction.

UFI’s Hourly Fee Schedule
President $350
Managing Director/Director $300
Associate/Analyst $175
350
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BB&K (2023) Exhibit “C”-1 PROFESSIONAL SERVICES AGREEMENT EXHIBIT "C"

COMPENSATION
Initial 3-year term total compensation shall not exceed Nine Hundred Fifty-Seven Thousand Five Hundred dollars and zero cents ($957,500.00)
MA Bond Fees1 Optional Year 1 Optional Year 2
Fee Year 1 Year 2 Year 3 Year 4 Year 5 Total
CFD Bonds $42,500 $127,500 $127,500 $127,500 $170,000 $170,000 $722,500 Lease Revenue
Bonds $45 - $75K

$150,000 $75,000 -

$75,000

- $300,000
Utility Revenue $45 - $75K - $75,000 -

$75,000 $150,000
Total Bond Fees $277,500 $277,500 $127,500 $245,000 $245,000 $1,172,500 Hourly Work2
Hourly Work -

$125,000 $75,000

$75,000

$75,000 $425,000
Total Hourly Fees $125,000 $75,000 $75,000 $75,000 $75,000 $425,000 Total MA +
Hourly $402,500 $352,500 $202,500 $320,000 $320,000 $1,597,500 # Bond Issues Optional Year 1 Optional Year 2
Fee Year 1 Year 2 Year 3 Year 4 Year 5
CFD Bonds $42,500 3 3 3 4 4
Lease Revenue
Bonds $45 - $75K 2 1 0 1 0
Utility Revenue $45 - $75K 0 1 0 0 1

1. Assumes $75,000 per Lease Revenue Bond/utility transactions for purposes of contract NTEs.

2. Includes financial forecast modeling, CFD formations, other hourly work. 351
Department: Economic Development
Prepared By: Charity Hernandez
Staff Member Presenting:

Jennifer McLain Hiramoto, Economic
Development Director
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 13
SUBJECT: A LEASE AGREEMENT BETWEEN WELLS FARGO, N.A. AND THE CITY OF ONTARIO

CITY OF ONTARIO
Agenda Report
December 19, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council approve a Lease Agreement between Wells Fargo, N.A. (Wells Fargo), and the City of Ontario for the use of the City-owned property located at 120 West "E" Street for a five-year term with the option to extend for up to two additional five-year terms.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
FISCAL IMPACT: The lease rate for the property is proposed at $3,400 per month for the initial 5- year term with a 3% increase each option to extend.

BACKGROUND & ANALYSIS: In 2007, the City displaced the then existing Wells Fargo drive-thru automatic teller machines (ATM's) located at 240 North Euclid Avenue to allow for the construction of Ontario Town Square. The ATM's were relocated to 401 Lemon Avenue, under a lease that ran through 2027.

In 2017, the City acquired the property located on the northeast corner of Euclid Avenue and "D" Street in Downtown, also known as the 400 Block for future redevelopment purposes. The most southeasterly 2,700 square feet of the 400 Block contained the three relocated Wells Fargo drivethru ATM's.

In 2022, the City entered into a Disposition and Development Agreement (DDA) for the development of a new mixed-use project on the 400 Block. Under the terms of the DDA, the City's obligations included the relocation of all tenants occupying the 400 Block.

City Staff worked closely with City Administration and Wells Fargo to identify an appropriate replacement location for two drive-thru ATM's. Staff identified three locations and determined that 120 West "E" Street, approximately 2,700 square feet of an existing City parking lot, was the most suitable location for the displaced ATM's.
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The proposed Lease Agreement will preserve the spirit of the prior lease with Wells Fargo by allowing the ATM's to remain in Downtown, while accomplishing the ultimate goal of making way for an imperative redevelopment project vital to the transformation of Downtown.

Staff recommends that the City Council approve the Lease Agreement with Wells Fargo N.A. to use the City-owned property located at 120 West "E" Street for a five-year term, with the option to extend for up to two additional five-year terms.
353
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ATM LEASE
Northwest Corner Euclid & E. Street, Ontario, CA
(BE #112300)

KEY PROVISIONS SUMMARY
Lease Date: The date this Lease is executed by the last to sign of Landlord and Tenant as shown on the signature page(s) attached hereto.

Landlord: City of Ontario, a municipal corporation
Tenant: Wells Fargo Bank, N.A., a national banking association Landlord’s Property: “Landlord’s Property” means the land shown on the Site Plan attached hereto as Exhibit A, located in the City of Ontario in the middle of the block bounded by N. Laurel Avenue on the west, Euclid Avenue on the east, E Street on the south, and an unnamed alley on the north and known as Assessor’s Parcel No. 1048-355-11. On Landlord’s Property Landlord owns and operates a parking lot (“Landlord’s Parking Lot”) which is located immediately adjacent to the Premises on the east and west sides of the Premises which is also within Assessor’s Parcel No. 1048-355-11.

Premises: “Premises” means the ATM pad and drive through lanes depicted in the site plan attached as Exhibit A (provided, however, that the term “Premises” does not include the land underlying the ATM pad and drive through lanes) Notice Addresses
(Section 22):

Landlord: Tenant:

City of Ontario
Attn: City Manager
303 East B Street,
Ontario, CA 91764
E: [email protected]
Wells Fargo Bank, N.A.

Corporate Properties Group
Attn: Property Admin
(BE #112300)
MAC D1116-L10
1525 West W.T. Harris Blvd.

Charlotte, NC 28262
E: [email protected]
Commencement Date: The date Landlord delivers actual possession of the Premises to Tenant in the condition required under this Lease (Section 2.4)
Outside Delivery Date: If this Lease is not sooner terminated as provided herein, Landlord shall be deemed to have delivered the Premises to Tenant on the later of the first business day after (i) expiration of the Permit Period or (ii) Tenant’s receipt of all required permits and approvals for the ATM facility (with the parties documenting such date of delivery in the Commencement Date Agreement (as defined below)) (Section 4.3)
Rent Commencement
Date:

Tenant shall commence paying Monthly Rent upon the earlier of: (i) the date that the ATM facility becomes fully operational and available for use by Tenant’s customers or (ii) one hundred twenty (120) days after the later to occur of (A) Tenant’s receipt of all permits and approvals needed to install and operate the ATM facility at the Premises or (B) mutual execution of this Lease and delivery of the Premises to Tenant by Landlord (Section 5.1) Inspection Period: 60 days from the Lease Date (Section 3) 354
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Expiration Date: 11:59 pm on the last day of the last full calendar month five (5) years after the Rent Commencement Date, subject to Tenant’s two options to renew/extend the Lease Term as provided below) (for example, if the initial term is five years and begins (i) May 1, 2042, or (ii) any day during April 2042 (other than April 1, 2042), then the Expiration Date would be April 30, 2047).

Renewal Term(s): Tenant shall have two options to renew (i.e., extend) the term of the Lease for a period (each a “Renewal Term”) of five years per option (Section 4.2) Monthly Rent
(Section 5):

Year(s)
*Note: Annual Rent is included for
reference purposes only; Tenant shall only
pay Monthly Rent as provided herein
Annual Rent*
.

Monthly Rent
Initial Term $40,800.00 $3,400.00
Renewal Terms
1 st Renewal Term
2 nd Renewal Term
$42,024.00
$43,284.00
$3,502.00
$3,607.00
Landlord’s Rent
Payment Address:

City of Ontario
Attn: Finance Dept
303 East B Street
Ontario, CA 91764
Contact Phone: 909-395-2000
Permit Period: 90 days beginning upon expiration of the Inspection Period (Section 29) Broker(s): None. (Section 28)
Exhibits: Exhibit A – Site Plans & ATM Facility
Exhibit B – Landlord’s W-9

ATM LEASE
THIS ATM LEASE (“Lease”) is entered into as of the Lease Date by Landlord and Tenant.

The parties agree as follows:

1. Key Provisions Summary; Enumeration of Exhibits; Consent.

References in the body of this Lease to a portion of the Key Provisions Summary (e.g., the defined terms in the left-hand column of the Key Provisions Summary) are deemed and construed to incorporate all the terms provided under each such referenced portion of the Key Provisions Summary. References in the Key Provisions Summary to a portion of the body of this Lease (e.g., Section references in the right-hand column of the Key Provisions Summary) are deemed and construed to incorporate all the terms provided under each such referenced portion of the body of the Lease. Notwithstanding the foregoing, if there is any inconsistency between the Key Provisions Summary and another portion of this Lease, the terms of the Key Provisions Summary control.

The Exhibits enumerated in the Key Provisions Summary and attached to this Lease are incorporated in this Lease by reference and are to be construed as a part of this Lease. Each party shall perform all obligations on its part as set forth in any Exhibit. Except where expressly provided otherwise in this Lease, any consent or approval required under this Lease will not be unreasonably withheld, delayed, or conditioned. Whenever this Lease grants either party the right 355
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to take action, exercise discretion, establish rules and regulations, or make an allocation or other determination, such party shall act reasonably and in good faith and take no action which might result in the frustration of the other party’s reasonable expectations concerning the benefits to be enjoyed under this Lease. If a party withholds its consent or approval, such party shall, upon request, promptly deliver to the other a written statement specifying in detail the reason or reasons why such consent or approval was withheld or refused.

2. Premises, Access, Etc.

2.1. Landlord’s Property & Premises. Landlord is the owner of the Landlord’s Property. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the Premises.

2.2. Access. Tenant, its agents, employees, contractors, and invitees are hereby granted access to the Premises on a 24-hour per day 7-day per week basis for the purpose of installing, using, inspecting, maintaining, servicing, repairing, replacing, protecting, and removing one or more automated teller machines (collectively, “ATM”). At all times, Landlord shall provide uninterrupted access to the Premises, including (a) to the extent permitted by applicable law, the removal of any persons who (or any personal property, refuse, trash or other items which) obstruct or create unsafe path of travel to and from the Premises and the adjacent sidewalks and parking lot by Tenant’s agents, customers and employees, and (b) vehicular access to the drive-through lanes from the adjacent public streets. In the event of any construction, remodeling, or other activity by Landlord at the Landlord’s Parking Lot, Landlord shall undertake such activities so as to permit access to the Premises to the fullest extent possible and so as to prevent the closure of any ATM.

Tenant may abate in full Monthly Rent on a pro-rata basis for every day that the ATM is closed as a directly result of a lack of access to the Premises caused solely by an impediment within Landlord’s reasonable control. Landlord shall not construct any improvements within a 100-foot radius around the ATM facility that might materially impede access to or materially obscure visibility of the ATM facility.

2.3. Common Areas. “Common Areas” (or sometimes “Common Area”) means all areas, improvements, and space at the Landlord’s Property, including Landlord’s Parking Lot, that are now or hereafter made available for the common or joint use and benefit of all tenants, customers, employees, contractors, licensees and invitees of the Landlord’s Property, including parking areas, driveways, exterior lighting, sidewalks, landscaped and planted areas, and trash disposal areas. Except as otherwise specifically provided in this Lease, Tenant, its employees, agents, contractors, licensees, and invitees are authorized, empowered, and privileged to use the Common Areas in common with others during the Lease Term.

2.4. Delivery Condition. Landlord shall deliver the Premises to Tenant in its current as-is condition; provided, however, that Landlord shall deliver the Premises vacant (but including striping for a parking lot) and free of any Hazardous Materials (as defined below).

2.5. Landlord’s Representations. Landlord represents to Tenant that as of the Lease Date and the Commencement Date: Landlord has indefeasible fee simple title to the Premises Notwithstanding the foregoing, Landlord makes no representations regarding the physical condition, status, compliance with laws or suitability for a particular purpose for Tenant's 356
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use, and Tenant acknowledges that Tenant shall be responsible, at Tenant’s sole cost and expense, to obtain any permits or approvals necessary for Tenant’s use of the Premises.

2.6. Intentionally Omitted.

2.7. Operation of the Adjacent Parking Lot. Immediately adjacent to the Premises on the east and west sides of the Premises, Landlord owns and operates a parking lot (“Landlord’s Parking Lot”) on Landlord’s Property. Landlord covenants that it will operate and maintain the Landlord’s Parking Lot in good condition and will not allow any use at the Landlord’s Parking Lot that (i) causes or creates a nuisance, (ii) is obnoxious, (iii) generally detracts from the quality of the Landlord’s Parking Lot, or (iv) is a “drug-involved premises” (as defined in 21 U.S.C. § 856). .

3. Inspection Period.

Within three Business Days after the Lease Date, Landlord shall deliver to Tenant true, correct, and complete copies of any studies, tests, reports, plans, drawings, surveys, agreements, and documents with respect to the Landlord’s Property, Premises, and the Landlord’s Parking Lot which are in Landlord’s possession or control including: (i) any title policies, title commitments, title reports, title opinions, title and zoning documents, appraisals, surveys, deeds, easements, deeds of trust or mortgages, declarations and restrictive covenants and other title exceptions; and (ii) any soil, engineering, structural, geotechnical, flood, and environmental studies, tests, reports, documents, and correspondence. During the Inspection Period, Tenant may inspect and investigate the Premises, the Landlord’s Parking Lot, and the Landlord’s Property; and review and evaluate title, surveys, and other matters related to the use and occupancy of the Premises, provided, however, Tenant shall be prohibited from conducting any invasive testing (such as a Phase II environmental assessment, soil samples, borings, or groundwater testing) without Landlord’s prior written consent, which may be withheld in Landlord’s sole and absolute discretion. Tenant shall will defend and indemnify the City, and its council, officers, and employees from and against all liabilities regardless of nature or type arising out of Tenant’s inspection and examination of the Premises, the Landlord’s Parking Lot, and the Landlord’s Property, or arising from, pertaining to, or relating to the negligence, recklessness, or willful misconduct of Tenant or Tenant’s employees, agents, contractors, subcontractors, or other parties acting on Tenant’s behalf or at the request of Tenant (“Responsible Parties”). Tenant’s indemnification obligations shall survive expiration or earlier termination of this Lease, including, any termination relating to the Inspection Period.

Prior to entering onto the Premises, Landlord’s Parking Lot, and the Landlord’s Property (for purposes of this Paragraph, the “Property”), Tenant shall: obtain and maintain comprehensive general liability insurance with a per occurrence limit of not less than One Million and no/100 Dollars ($1,000,000.00) and an aggregate limit of not less than Two Million and no/100 Dollars ($2,000,000.00), which policy of insurance shall (a) provide coverage against claims which arise out of or result from the exercise of the right of entry granted hereunder, and (b) name Landlord as an additional insured, verify such coverage to Landlord prior to entry. Such policy of insurance shall be issued or re-insured by an insurance company authorized to do business in California with a financial rating of at least an “A-IX” status as rated in the most recent edition of Best’s Insurance Reports, or such other insurer to which Trust may reasonably consent; (ii) promptly pay when due the costs of all entry and inspections and examinations done with regard to the Property; and (iii) 357
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restore the Property to substantially the condition in which the same were found before any such entry upon the Property and inspection or examination was undertaken, wear and tear excepted.

The Inspection Period begins on the Lease Date. Tenant may terminate this Lease for any reason by giving written notice of termination to Landlord on or before 5:00 p.m. on the last day of the Inspection Period, in which event the parties have no further rights or liabilities hereunder (except for any that expressly survive termination of this Lease). If Tenant terminates this Lease pursuant to a right to do so set forth in this Lease for any reason other than a Landlord Default, then Tenant shall pay to Landlord in cash the sum of One Hundred Dollars ($100.00) as independent consideration for the rights granted to Tenant pursuant to this Lease. In addition to any other right available to Tenant, if Tenant exercises any express right to terminate this Lease as provided in this Lease, Landlord shall reimburse Tenant, within thirty (30) days after Landlord’s receipt of invoice therefor, for any out-of-pocket title, engineering, architectural, survey, investigative, and legal costs related to the Premises incurred by Tenant.

4. Term.

4.1. Initial Term. The initial term of this Lease begins on the Commencement Date and expires on the Expiration Date (“Term”).

4.2. Options to Extend. Tenant has the options to renew (extend) the Term set forth in the Key Provisions Summary by giving written notice of renewal to Landlord not later than ninety (90) days prior to expiration of the then current Term, in which event the Expiration Date will be 11:59 pm at the end of the last day of the then current Renewal Term. If the Term is extended, “Term” includes each Renewal Term. Each Renewal Term is subject to the terms of this Lease.

4.3. Delivery of Possession. Landlord shall, on or before the Outside Delivery Date, deliver the Premises to Tenant in the condition required by Section 2.4 above. If Landlord fails to so deliver the Premises to Tenant because of an event or condition outside Landlord’s reasonable control (e.g., the failure of an existing tenant to vacate the Premises), then this Lease is not void or voidable and Landlord will not be in default (except as hereinafter set forth) and the Rent Commencement Date, the Expiration Date, and the Term will be extended by the number of days of delay in delivery of the Premises; provided, however, that notwithstanding anything set forth above, or in Section 27 below, to the contrary, Tenant may terminate this Lease upon ten (10) business day’s prior written notice thereof to Landlord if Landlord fails to so deliver the Premises to Tenant within ninety (90) days after the Outside Delivery Date, such notice to be deemed void if Landlord so delivers the Premises to Tenant during the ten (10) business day notice period.

4.4. Tenant’s Option to Terminate. At any time after the first annual anniversary of the Rent Commencement Date, Tenant may terminate this Lease upon 90 days’ prior written notice to Landlord if Tenant determines in its sole but good faith discretion that the financial performance or profitability of the ATM facility does not meet Tenant’s then-current criteria or to satisfy regulatory or legal requirements. Tenant’s election to terminate is subject to applicable bank regulatory approvals. If Tenant is unable to secure the necessary regulatory approvals for closure of the ATM facility, Tenant’s election to terminate is void. 358
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4.5. Termination for Cause. Tenant may terminate this Lease upon 30 days’ prior written notice to Landlord if Tenant, acting in good faith, reasonably determines that (1) the security of the ATM facility, the ATM network, or Tenant’s proprietary software or systems is threatened or (2) that the Premises are not a safe banking environment for its customers (e.g., vandalism of the ATM or other criminal activities at or near the Premises, etc.).

4.6. Holding Over. Subject to Section 27 below, any holding over with Landlord’s consent after the expiration of the Term will be on a month-to-month basis terminable by either party upon 30 days’ prior written notice. If Tenant holds over, Monthly Rent will be 150% of the Monthly Rent in effect immediately prior to the expiration of the Term.

5. Rent.

5.1. Rent Commencement Date & Payment Address. Tenant shall send all rent payments to Landlord’s Rent Payment Address. Landlord may modify Landlord’s Rent Payment Address upon not less than sixty (60) days’ prior written notice thereof to Tenant (accompanied by a current, complete, and accurate IRS W-9 if not already provided). Landlord acknowledges that Tenant must receive a current, complete, and accurate IRS W-9 from Landlord to process the payment of rent. Tenant is not subject to any late charges or interest or in default for non-payment of rent prior to receipt of a current, complete, and accurate IRS W-9 from Landlord.

Landlord’s current, complete, and accurate W-9 is set forth in Exhibit B.

5.2. Commencement Date Agreement. After the Rent Commencement Date has been determined, and within five (5) business days after receipt of written request therefor from a party, the parties shall execute a mutually agreeable “Commencement Date Agreement” prepared by Tenant confirming: (i) the date Landlord delivered the Premises to Tenant, (ii) the initial term commencement date, (iii) the Rent Commencement Date, (iv) the Expiration Date, and (v) any other matter contingent upon the Rent Commencement Date. Tenant must receive the executed Commencement Date Agreement before Tenant can begin paying rent and Tenant is not liable for any late charges or interest or be in default for non-payment of rent prior to receipt of an executed Commencement Date Agreement from Landlord.

5.3. Conditions of Payment. Except as otherwise provided herein, Tenant shall pay all rent without demand, deduction, set-off, or counterclaim in advance on the first day of each calendar month during the Term. Tenant’s Monthly Rent includes all Common Area maintenance charges and Tenant is not obligated to pay Landlord any other charges for such maintenance in connection with this Lease.

5.4. Definition. “Lease Year” means each period of twelve (12) full consecutive calendar months beginning with the first full calendar month after the Rent Commencement Date and each subsequent period of twelve (12) consecutive calendar months thereafter during the Lease Term; provided, however, that if the Rent Commencement Date occurs on a day other than the first day of a calendar month, then the initial fractional month from the Rent Commencement Date to the last day of the month in which the Rent Commencement Date occurs plus the next succeeding twelve (12) full calendar months constitutes the first Lease Year of the Term. Rent and other matters that are computed with reference to a Lease Year will be ratably adjusted, on a per diem 359
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basis, for any period prior to the first full calendar month of the first Lease Year and for any partial month within the Lease Term.

6. Design and Installation of ATM Facility.

6.1. Plans. Tenant’s proposed ATM facility and site plan are depicted in Exhibit A, which are hereby approved by Landlord in its capacity as Landlord or owner in its proprietary capacity, and not in its governmental or regulatory capacity. Tenant’s construction of the ATM facility will not deviate materially from the ATM facility depicted in Exhibit A without Landlord’s prior written consent. Upon Tenant’s request, Landlord shall provide Tenant with any utility plans, to the extent such utility plans are available and within Landlord’s possession, for the Premises, along with such other available information within Landlord’s possession regarding the Landlord’s Property or the Premises that may be necessary or useful for the installation, construction, or operation of the ATM facility.

6.2. Permits. Tenant shall obtain, at Tenant’s sole expense, all building, signage, construction, utility, and operating permits, approvals, and consents required to install the ATM facility at the Premises. Landlord shall cooperate with Tenant in obtaining such permits, etc., and Tenant shall reimburse Landlord for any actual out-of-pocket costs incurred by Landlord in connection with such cooperation. If Tenant is unable on or before expiration of the Permit Period, to obtain the permits, etc., necessary to install the ATM facility at the Premises, all without payment of unusual fees or costs or the satisfaction of unusual conditions, then Tenant may, at its option without penalty, terminate this Lease upon prior written notice thereof to Landlord prior to expiration of the Permit Period. Notwithstanding anything else set forth in this Lease to the contrary, except with respect to any indemnification obligations relating to Tenant’s inspections or as otherwise set forth herein, Tenant is not obligated to pay any rent or other costs pursuant to this Lease if Tenant is unable to obtain all applicable permits, etc., despite commercially reasonable due diligent efforts.

6.3. Installation. Promptly after the satisfaction of the conditions set forth in Section 29 below, Tenant may proceed to install at Tenant’s sole cost and expense the ATM facility in accordance with Exhibit A together with such additional equipment or features as Tenant deems appropriate, including one or more of the following (a) a telephone or other support system for such equipment, (b) trash receptacles, (c) a branch computer terminal, with all supporting telecommunications equipment, (d) a customer service phone, (e) a merchant depository, (f) utility lines and conduits, and (g) such other equipment and accessories as are or become normally provided by Tenant in connection with the operation of an ATM facility. All or any portion of the ATM facility may be bolted to the floor or ground level surface of the Premises or otherwise securely attached to the Premises. Landlord shall cooperate in good faith to facilitate Tenant’s installation activities, including granting any temporary construction easements or temporary licenses reasonably necessary to construct the ATM facility or related improvements. In addition, Landlord shall provide Tenant with access to perform the necessary site preparation (including the removal or rearrangement of equipment, and the installation of the conduit to provide electrical power and telephone lines to the ATM facility). Notwithstanding anything in this Lease to the contrary, Tenant may change the ATM facility by removing, replacing, or adding, from time to time, some or all of the equipment and features offered. 360
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6.4. Tenant’s Property. The ATM facility and all of Tenant’s trade fixtures and personal property remain the property of Tenant at all times.

6.5. Lighting & Security. Tenant may, at Tenant’s sole cost, install (a) all lighting fixtures reasonably necessary to comply with all laws, regulations, and other government requirements imposed on Tenant or Landlord pertaining to the lighting of ATMs/night depositories and to comply with Tenant’s ATM/night depository lighting policy, as each may change from time to time (collectively, “ATM/Night Depository Lighting Requirements”), and (b) other fixtures and alterations required to comply with any laws governing the operation of ATMs and night depositories. Landlord, at no out-of-pocket cost, shall cooperate with Tenant in Tenant’s efforts to comply with the ATM/Night Depository Lighting Requirements and all other laws and regulations governing the operation of ATMs and night depositories. Landlord shall provide lighting in the Common Areas consistent with lighting provided at comparable developments in the vicinity of the Landlord’s Property. Tenant may, at its own expense, install its own security system at the Premises. Tenant is solely responsible, at Tenant’s sole expense, for the monitoring, operation, and removal of such security system. Any security system installed by Tenant will be for the sole benefit of Tenant and Landlord has no right to rely on any such security system. Landlord shall establish and follow reasonable security standards for the Common Areas and the balance of the Landlord’s Property.

7. Trademarks & Signage.

7.1. Trademarks & Usage. Tenant may operate its ATMs under any trade name, logo, trademark, or service mark permitted by law (collectively, “Marks”). Each party’s Marks remain the sole property of such party. Landlord and Tenant shall not use a Mark of the other party in advertising or otherwise without the prior written consent of the party owning the Mark; provided, however, that Tenant is permitted to include the location/address of the ATM facility in Tenant’s directories of ATM facility locations published by Tenant from time to time.

7.2. Signage. Subject to Landlord’s approval and applicable law, Tenant may place its standard ATM signage on any ATM at the Premises. Landlord hereby approves Tenant’s ATM signage as depicted in Exhibit A. At its discretion, Tenant may enclose an ATM within a kiosk structure and may place its signage on the kiosk structure. Tenant’s signage (a) will be fabricated, installed, and maintained by Tenant at Tenant’s sole expense, (b) will be consistent with the then-current signage standards at the Premises, and (c) will at all times remain the property of Tenant. Subject to applicable law and Landlord’s prior written approval, Tenant may change its signage at any time; provided, however, that Landlord’s consent is not required to change signage based upon a change in Tenant’s standard corporate signage, name, or logo as long as such changes comply with applicable law and Tenant’s signage is not increased in size. At any time, without Landlord’s consent, Tenant may replace its standard ATM signage with generic, unbranded signage, so long as such new replacement signage is no larger than and is installed in the same locations as Tenant’s branded signage.

7.3. Directional Signage. Tenant may place signs identifying Tenant’s operations in the Premises and in the vicinity of the Premises (including “coming soon” or “opening soon” signage). Such signs will be of such dimensions and at such locations as are permitted by applicable law.
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8. Use.

Tenant may use the Premises for the operation of one or more ATMs and related and/or similar equipment. So long as this Lease remains in effect, Landlord shall not, without the prior written consent of Tenant (which consent may be granted or withheld in Tenant’s sole discretion without considering the interests of Landlord or any third-party) install or operate, or permit the installation or operation of, any ATM or similar mechanism for effecting financial transactions within any part of the Landlord’s Property (including within any building or other structure located at the Landlord’s Property).

9. Maintenance.

9.1. Tenant’s Obligations. Subject to Section 15 below, Tenant shall, at Tenant’s sole expense, maintain and repair the ATM facility and the Premises in a clean and good condition, reasonable wear and tear and casualty excepted. Tenant may service the Premises and the ATM facility at any time. Landlord shall provide Tenant with all necessary vehicular and pedestrian access and all authorizations, keys, and other assistance necessary to permit Tenant to service the ATM facility and utilities without prior notice to Landlord. Tenant may engage an independent contractor to perform Tenant’s maintenance obligations hereunder.

9.2. Landlord’s Obligations. Subject to Section 15 below, Landlord shall maintain the Landlord’s Property outside the Premises in first-class condition and repair.

Landlord’s obligations include the removal of trash and debris from Landlord’s Parking Lot surrounding the Premises. Such maintenance shall include the prompt removal of any (i) persons who obstruct or create an unsafe path of travel to and from the Premises and the adjacent sidewalks and parking lot by Tenant’s customers, employees and agents, and (ii) personal property, refuse, debris, trash, or other items which may remain on the Landlord’s Property following the removal of such persons.

10. Services and Utilities.

10.1. Utility Services at the Premises. Tenant, at its sole expense, shall: (a) stub electric and telephone lines to the Premises, (b) install at the Premises a separate electrical meter for such electricity as may be needed to operate the ATM facility, and (c) install a telephone backboard for such telephone service as may be needed to operate the ATM facility. Tenant shall pay for all electricity, telephone, and data lines and other utility services dedicated to Tenant’s operation of the ATM facility. Notwithstanding anything set forth in this Lease to the contrary, if Tenant is unable to obtain electrical power and/or telephone/data lines required to operate the ATM facility prior to the Rent Commencement Date due to circumstances beyond Tenant’s reasonable control, the Rent Commencement Date, the Expiration Date, and the Term will be extended by the number of days of delay in obtaining such services.

10.2. Interruption of Service. Any deliberate interruption of power to the ATM facility caused by Landlord, its agents, employees, or contractors, shall not last more than twentyfour (24) consecutive hours and shall be subject to Tenant’s express prior written consent, which consent may be withheld in Tenant’s reasonable discretion without considering the interests of Landlord or any third-party. Tenant may post notices at the Premises at least twenty-four (24) hours 362
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in advance of any interruption of service. Tenant’s Monthly Rent payable hereunder will be abated on a per diem basis (based on a thirty (30) day month) for any day during which the power and/or service from telephone or data lines is shut off to the ATM facility for more than twelve (12) hours (unless Tenant causes the power or service to be shut off to the ATM facility, as applicable).

Landlord shall reimburse Tenant for any costs and expenses Tenant incurs in making the ATM facility fully operational as a result of any interruption of services, data transmission, or utilities to the ATM facility caused solely by Landlord, its agents, employees, or contractors.

11. Intentionally Omitted.

12. Insurance.

12.1. Property Insurance. During the Lease Term, (i) Landlord shall maintain, or cause to be maintained, Commercial Property insurance (“CP Insurance”) that insures the Landlord’s Property and Landlord’s personal property at the Landlord’s Property on a full replacement cost basis (exclusive of Tenant’s betterments at the Premises) and (ii) Tenant shall maintain CP Insurance that insures Tenant’s personal property and betterments in and about the Premises on a full replacement cost basis. Each CP Insurance policy shall, at a minimum, insure against the perils included in the ISO special causes of loss form CP 10 30 and any amendments or “all-risk” coverage, including loss or damage due to fire and the risks normally included in extended coverage (e.g., flood, windstorm, and earthquake). Landlord is a public agency and may satisfy its insurance obligations via self-insurance or a risk pool.

12.2. Waiver of Subrogation. Except to the extent caused by the gross negligence or willful or wanton misconduct of the other party, Tenant and Landlord hereby waive any and all rights of recovery, claims, actions, or causes of action against each other, by way of subrogation or otherwise, including their respective employees, officers, directors, subsidiaries, affiliates, agents, representatives, and assigns, for any loss or damage that may occur to the Landlord’s Property, Landlord’s personal property, Tenant’s betterments in and about the Premises, and Tenant’s personal property by reason of fire or other casualty, regardless of cause or origin.

Landlord and Tenant shall obtain a waiver of subrogation from their respective insurers and shall endorse their respective CP Insurance policies to reflect such waiver of subrogation. The above waiver of subrogation applies whether or not there are any deductibles or self-insurance and in the absence of any CP Insurance.

12.3. Liability Insurance. During the Term, Landlord and Tenant shall maintain commercial General Liability insurance (“CGL Insurance”) with limits of liability not less than $1,000,000 per occurrence with a general aggregate of not less than $2,000,000 covering liability arising from each party’s operations at the Landlord’s Property or Premises, as applicable, independent contractors, product-completed operations, personal injury, and advertising injury, and contractual liability that includes this Lease as an insured contract.

12.4. Ratings, Certificates. With respect to CGL Insurance, Tenant shall name Landlord as an additional insured and Landlord shall name Tenant as an additional insured. In addition, the CGL Insurance: (i) must be endorsed to be primary and non-contributory, rather than excess, with respect to each party’s additional insured status; (ii) endorsed to provide cross-liability coverage if they do not contain a standard ISO separation of insureds provision; (iii) must not 363
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contain any endorsement or provision that states the limits of the policy will not stack, pyramid or be in addition to any other limits provided by that insurer, and (iv) have no cross suits exclusion, or any similar exclusion that excludes coverage for claims brought by an additional insured under the policy against another insured under the policy. All insurance policies required by this Section 12 (i) must be issued by insurance companies having an “A” rating or better by Standard and Poor’s, and if not rated by Standard & Poor’s, then a rating of “A” by A.M. Best Company, and (ii) may be satisfied by a primary policy or combination of primary, excess, or umbrella policies. The insurance provisions set forth in this Section 12 set forth the minimum amounts and scopes of coverage to be maintained by Landlord and Tenant and are not to be construed in any way as a limitation on each party’s liability under this Lease. Tenant may satisfy any or all of the above insurance requirements by use of self-insurance, deductible, and/or a wholly owned subsidiary insurance company (and the rating requirements set forth above are not applicable to Tenant’s self-insurance or to policies issued by such an owned insurance company). The responsibility to fund any financial obligation for self-insurance, the election not to insure, and the amount of any deductible are assumed by, for the account of, and at the sole risk of each party.

Each party shall furnish Certificates of Insurance to the other party evidencing all of the abovedescribed insurance policies prior to or upon execution of this Lease and annually thereafter, but not later than ten (10) business days after the expiration of each policy. Each party shall notify the other party within 30 days after receiving any Notice of Cancellation, material modification, reduction in coverage, or non-renewal from its insurer that results in non-compliance with the insurance requirements set forth in this Section 12.

13. Indemnification.

Subject to the waiver of subrogation provision in Section 12 above, Tenant shall indemnify, hold harmless, pay, and reimburse Landlord from and for any and all losses, damages, liability, or expenses (including reasonable attorneys’ fees, court costs, and expert witness fees) actually incurred by Landlord, arising from loss of life, personal injury and/or property damage, caused by or resulting from, in whole or in part, any negligent act or omission or intentional misconduct of Tenant, its agents, employees, or contractors, in connection with Tenant’s use or occupancy of the Premises. Subject to the waiver of subrogation provision in Section 12 above, Landlord shall indemnify, hold harmless, pay, and reimburse Tenant from and for any and all losses, damages, liability, or expenses (including reasonable attorneys’ fees, court costs, and expert witness fees) actually incurred by Tenant, arising from loss of life, personal injury and/or property damage, caused by or resulting from, in whole or in part, any negligent act or omission or intentional misconduct of Landlord, its agents, employees, or contractors, in connection with the Landlord’s Property. Notwithstanding the foregoing, in the event of the concurrent negligence or intentional misconduct of Tenant, its agents, employees, or contractors, on the one hand and that of Landlord, its agents, employees, or contractors, on the other hand, a party’s (the “Indemnifying Party”) obligation to indemnify the other as set forth in this Section 13 is limited to the extent of the Indemnifying Party’s negligence and/or intentional misconduct, and that of its agents, employees, or contractors, including the Indemnifying Party’s proportionate share of reasonable costs, attorneys’ fees, court costs, expert witness fees, and other expenses incurred in connection with any claim, action, or proceeding brought with respect to such injury or damage. The obligations of Tenant and Landlord under this Section 13 survive the expiration or earlier termination of this Lease.
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14. Taxes.

Tenant is liable for all taxes assessed by any taxing authority (including sales taxes) which are attributable to Tenant’s operation of the ATM facility and shall pay all personal property taxes assessed on Tenant’s fixtures, equipment, and machinery. Landlord is liable for all taxes and/or assessments assessed by any taxing authority (including sales taxes) which are related to Landlord’s occupancy or use or ownership of the Landlord’s Property, including: (a) personal property, fixtures, or equipment taxes assessed against Landlord’s property; (b) franchise taxes assessed against Landlord; (c) taxes on Landlord’s gross rents or profits; (d) inheritance, state, gift, income, transfer, or excess profit taxes assessed against Landlord; (e) sales taxes payable by Landlord; and (f) real property taxes and assessments, including any fees, interest and penalties arising from any such tax or assessment, assessed against all or any portion of the Landlord’s Property and the improvements located thereon, including any such taxes and assessments attributable to the Premises or any portion thereof. Landlord hereby discloses that this Lease may create a possessory interest subject to property taxes pursuant to Revenue & Taxation Code Section 107.6 and that, if a possessory interest is created, Tenant shall, in accordance with this Section, be responsible for payment of such taxes levied against such possessory interest.

15. Damage by Fire or Other Casualty.

15.1. Damage to Landlord’s Property. If the Landlord’s Property (or any portion thereof other than the Premises) is damaged or destroyed by fire or other casualty, Landlord shall, at Landlord’s cost and expense, promptly repair the same to the extent Landlord’s insurance proceeds are made available to Landlord therefor and provided that (a) such repairs, in Landlord’s reasonable good faith opinion, can be made within 120 days from the date of such damage or destruction (without payment of overtime or other premiums) and (b) the cost of such repairs, in Landlord’s reasonable good faith opinion, will not exceed 50% of the then replacement cost of the Landlord’s Property. If Landlord is not required to repair such damage or destruction, then Landlord shall, within 30 days from the date of such damage or destruction, either (i) notify Tenant in writing of Landlord’s election to repair such damage or destruction, in which event Landlord shall promptly repair the same, or (ii) notify Tenant in writing of Landlord’s election to immediately terminate this Lease, in which event this Lease is terminated effective as of the date of such damage or destruction. As provided in Section 2.2 above, Tenant may abate Monthly Rent if access to the ATM facility is materially impeded by Landlord’s repairs or by such damage or destruction. Notwithstanding anything set forth to the contrary in this Section 15.1, Tenant may terminate this Lease effective as of the date of any such damage or destruction if Tenant reasonably determines in its good faith opinion that such damage or destruction substantially impairs the satisfactory operation of the ATM facility by notifying Landlord in writing of Tenant’s election to terminate not later than 30 days after the date of such damage or destruction. In addition, and notwithstanding anything set forth to the contrary in this Section 15.1, if Landlord fails to complete the repairs described in this Section 15.1 within 120 days from the date of such damage or destruction, Tenant may terminate this Lease by giving 30 days’ prior written notice of termination to Landlord not later than 30 days after such failure (provided, however, that if Landlord completes such repairs within the foregoing 30-day notice period, then Tenant’s termination notice is void).

15.2. Damage to Premises. If the Premises (or any portion thereof) are damaged or destroyed by fire or other casualty, Tenant shall, at Tenant’s cost and expense, promptly repair 365
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the same to the extent Tenant’s insurance proceeds are made available to Tenant. Notwithstanding anything set forth to the contrary in this Section 15.2, Tenant may terminate this Lease effective as of the date of any such damage or destruction if (i) Tenant reasonably determines in its good faith opinion that such damage or destruction substantially impairs the satisfactory operation of the ATM facility, (ii) Tenant is not able to obtain permits to restore the Premises without payment of unusual fees or costs or the satisfaction of unusual conditions, or (iii) Tenant is prevented from restoring the Premises by events or conditions beyond its reasonable control by giving 30 days’ prior written notice of termination to Landlord not later than 30 days after Tenant’s good faith determination of any of the foregoing.

16. Eminent Domain.

Landlord shall promptly forward to Tenant all notices of eminent domain relating to the Premises or the Landlord’s Property. If all of the Premises are taken under the power of eminent domain, then this Lease is terminated as of the effective date of the taking. If a portion of the Premises, the building (if any) within which the Premises are located, the common area surrounding the Premises, or reasonable access to and from the common areas is taken under the power of eminent domain and the loss of such portion materially adversely affects Tenant, then Tenant may terminate this Lease by providing written notice of termination to Landlord not later than 30 days after the date of such taking. In the event of a partial taking, if Tenant does not elect to so terminate this Lease, then Landlord shall, at Landlord’s cost and expense, promptly restore the remaining portion of the Premises, the building (if any), the common areas, and reasonable access as the case may be and the rent payable by Tenant will be abated to the extent that Tenant is unable to occupy and use the Premises. All damages and compensation awarded or paid because of such taking (other than compensation for the loss of Tenant’s good will and improvements installed by Tenant at Tenant’s expense, and Tenant’s relocation expenses) belong to Landlord. All damages and compensation awarded or paid because of a taking of any improvements installed by Tenant at Tenant’s expense belong to Tenant.

17. Removal of ATMs.

Upon the expiration or sooner termination of this Lease, Tenant shall remove the ATM facility and related equipment, Tenant’s signs, and Tenant’s other moveable trade fixtures and personal property from the Premises, at Tenant’s sole expense. Such removal shall occur prior to the expiration or sooner termination of this Lease. Tenant shall, at its sole expense, repair any damage to the Premises caused by such removal. In addition, Tenant shall, at its sole expense, restore the Premises to the condition in which it existed prior to the installation of the ATM facility and related equipment, (including, without limitation restoring the parking stalls as depicted on page 3 of Exhibit A), provided, however, that Tenant will not be required to re-place or re-install the light standard pole removed at the installation of the ATMs. Tenant shall ensure that any repairs or cuts in any paved areas, walls, or other improvements made during the removal of the ATM facility will be made in a good and workmanlike manner so as to match as nearly as practicable the surrounding area. Tenant’s restoration obligations shall survive expiration or earlier termination of this Lease.
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18. Assignment and Subletting.

18.1. Landlord’s Consent. Except as otherwise provided in this Section 18, Tenant shall not assign this Lease or sublet the whole or any part of the Premises (collectively, “Transfer”) without the prior written consent of Landlord. If Tenant elects to initiate a Transfer of this Lease, Tenant shall provide Landlord with a written notice setting forth the reasonable details of such Transfer. If Tenant provides in such notice that Tenant remains liable for the full and complete performance of the terms and conditions of this Lease despite such Transfer, Landlord shall be deemed to have unconditionally given its consent to such Transfer and no further action or notice is required by either Landlord or Tenant. If Landlord’s consent is required for a Transfer, Landlord shall notify Tenant whether the proposed Transfer is approved or rejected in Landlord’s reasonable discretion not later than ten (10) business days after receipt of written notice thereof from Tenant (and if Landlord fails to notify Tenant within the ten (10) business day period, then Landlord’s consent is deemed given). If Landlord does not consent to a proposed Transfer, Landlord shall provide Tenant with a reasonably detailed written explanation as to the reasons for withholding such consent. If the use of the Premises under the proposed Transfer does not violate any restrictive covenant or exclusive use provision applicable to the Premises, then Landlord’s failure to consent to the Transfer of this Lease is deemed unreasonable. Landlord’s consent to a Transfer serves to release Tenant of all further liability under this Lease.

18.2. No Assignment. The following events are not considered a Transfer under this Section 18: (i) a change in ownership of Tenant as a result of a merger, consolidation, reorganization, or joint venture; (ii) the sale of Tenant’s assets (e.g., deposits, loans, this Lease, etc.) at the Premises as a going concern (a “Store Sale”); (iii) a Transfer of this Lease to any entity if a regulatory agency having jurisdiction over Tenant’s business requires that Tenant divest itself of certain deposits and banking facilities (a “Divestiture”); (iv) the Transfer of this Lease to any entity that controls, is controlled by, or is under common control with Tenant; (v) the sale, exchange, issuance, or other transfer of Tenant’s stock on a national exchange or between any entity that controls, is controlled by, or is under common control with Tenant; or (vi) the sale or transfer of at least ten (10) locations (including the Premises and this Lease) in a bulk sale to one transferee (a “Bulk Sale”). Tenant is not required to obtain Landlord’s consent and Landlord shall not delay, alter, or impede any of the foregoing transactions or combinations thereof. Tenant has no further liability under this Lease arising after the effective date of a Store Sale, Divestiture, or Bulk Sale.

18.3. Resolution & Recovery.

18.3.1. “Resolution Event” means the filing of and pursuit of an insolvency related proceeding against Tenant or Tenant’s assets pursuant to applicable law (e.g., the Dodd-Frank Wall Street Reform and Consumer Protection Act). For purposes of this Section 18.3 only, “Affiliate” means any entity that controls, is controlled by, or is under common control with Tenant.

18.3.2. Notwithstanding anything set forth in the Lease to the contrary, if a Resolution Event occurs, and Tenant or an Affiliate continues to (a) pay all rent and other charges under the Lease timely and (b) abide by the other material terms of the Lease, Landlord shall not, while a Resolution Event is pending (and, except as otherwise provided in Section 18.3.4 below, for a period of eighteen (18) months thereafter): (i) terminate or modify the Lease; (ii) recapture 367
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the Premises; (iii) prevent renewal of the Lease pursuant to a right to renew set forth in the Lease (if any); (iv) suspend any services provided to Tenant, an Affiliate, or the Premises under the Lease; or (v) otherwise exercise remedies under or in respect of the Lease arising from a Resolution Event.

18.3.3. In addition, but only in connection with a Resolution Event, Landlord hereby consents to (i) any change of control of Tenant or an Affiliate and (ii) the assignment, delegation, or transfer of any or all of Tenant’s rights and obligations under the Lease, in whole or in part, to any entity that is or becomes (or, as of immediately prior to the Resolution Event, was) an Affiliate or a successor to the whole or a part of the business of Tenant or an Affiliate.

18.3.4. Notwithstanding anything set forth in this Section 18.3 to the contrary, Landlord is not required, even during a Resolution Event, to allow Tenant or an Affiliate to occupy the Premises after the final expiration date of the Lease.

19. Default by Tenant.

19.1. Failure to Perform. The occurrence of any one or more of the following events constitutes a default of this Lease by Tenant (a “Tenant Default”): (a) the failure by Tenant to make any payment of Rent, or any other payment required to be made by Tenant under this Lease, as and when due, where such failure continues for more than ten (10) days after the date such payment is due; (b) the failure by Tenant to observe or perform any of the covenants, conditions, or provisions of this Lease to be observed or performed by Tenant, other than as described in subsection (a) above, where such failure continues for more than thirty (30) days after Tenant’s receipt of written notice of default from Landlord (provided, that if the cure of such Tenant Default reasonably requires more than thirty (30) days to complete, then Tenant is not in default if Tenant promptly commences the cure of such Tenant Default and diligently pursues such cure to completion); and (c) except as otherwise provided in Section 18.3 above, the making by Tenant of any general assignment or general arrangement for the benefit of creditors, the filing by or against Tenant of a petition to have Tenant adjudged bankrupt or a petition reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Tenant, the same is dismissed within sixty (60) days of filing), or the appointment of a trustee or receiver to take possession of substantially all of Tenant’s assets located at the Premises or of Tenant’s interest in this Lease, where such seizure is not discharged in thirty (30) days after appointment of said trustee or receiver, or the filing of a petition for the appointment of the same, whichever occurs first.

19.2. Remedies in Default.

1.1. in Default.

19.2.1. If any Tenant Default (as defined in Section 91.1 above) shall occur, and following notice of default as required by this Lease (for the period applicable to the default under the applicable provision of this Lease), Landlord shall have the following remedies in addition to all other rights and remedies provided by law or equity, to which Landlord may resort cumulatively or in the alternative. Landlord shall have the immediate option to terminate this Lease and all rights of Tenant hereunder by giving written notice of such intention to terminate.

In the event that Landlord shall so elect to terminate this Lease, then Landlord may recover from Tenant: (a) the worth at the time of award of any unpaid rent which had been earned at the time 368
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of such termination; plus (b) the worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss Tenant proves could have been reasonably avoided; plus (c) the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; plus (d) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom. At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable law. As used in (a) and (b) above of this Section, the "worth at the time of award" is computed by allowing interest at the maximum rate an individual is permitted by law to charge. As used in subparagraph (c) above, the "worth at the time of award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%).

19.2.2. In the event of the vacation or abandonment of the Premises by Tenant, or in the event that Landlord shall elect to reenter as provided herein or shall take possession of the Premises pursuant to legal proceeding or pursuant to any notice provided by law, then Landlord shall have the remedy specified by Civil Code Section 1951.4, in which Landlord may from time to time recover all rental as it becomes due or relet the Premises or any part thereof for the account of Tenant on such term or terms and at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, with the right to make alterations and repairs to the Premises. In the event that Landlord shall elect so to relet, then rentals received by Landlord from such reletting shall be applied first, to the payment of any indebtedness, other than rent due hereunder, owed by Tenant to Landlord; second, to the payment of any cost (including commissions) of such reletting; third, to the payment of the cost of any alterations and repairs to the Premises; fourth, to the payment of rent due and unpaid hereunder; and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable during that month by Tenant hereunder, then Tenant shall pay such deficiency to Landlord upon demand.

Tenant shall also pay to Landlord, as soon as ascertained, any and all costs and expenses incurred by Landlord in such reletting or in making such alterations and repairs not covered by the rentals received from such reletting.

19.3. Lien Waiver. LANDLORD HEREBY WAIVES AND DISCLAIMS ALL STATUTORY AND CONTRACTUAL LIEN RIGHTS IN TENANT’S FURNITURE,

FIXTURES, TRADE FIXTURES, EQUIPMENT, MERCHANDISE, AND OTHER PERSONAL PROPERTY NOW OR HEREAFTER PLACED AT THE PREMISES.

20. Default by Landlord.
“Landlord Default” means Landlord’s failure to perform or observe any of its obligations under this Lease after a period of thirty (30) days (or the additional time, if any, that is reasonably necessary to promptly and diligently cure the failure) after receiving notice from Tenant setting forth in reasonable detail the nature and extent of such failure. If Landlord commits a Landlord Default, Tenant, in addition to any remedies available under law or equity, may, without being obligated to and without waiving the Landlord Default, cure the Landlord Default. Landlord shall 369
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pay Tenant, upon demand, all costs, expenses, and disbursements incurred by Tenant to cure the Landlord Default. If Landlord does not make such payment within thirty (30) days of demand, Tenant may deduct all such costs and expenses from the rent next coming due. If Tenant elects not to cure the Landlord Default, Tenant may either terminate this Lease upon written notice to Landlord after the expiration of any applicable cure period or abate any and all rent payments owed to Landlord until the date that such Landlord Default is cured by Landlord (at which time Tenant shall resume making rental payments owed for the period after the date of cure).

21. Control of ATM; Confidentiality.

21.1. Control. Landlord acknowledges that the operation of the ATM facility is governed by the policies and procedures developed or to be developed by Tenant from time to time. Therefore, except as expressly set forth herein otherwise, Tenant has the right to control and manage the ATM facility, the operation and maintenance thereof, and all business and transactions conducted therefrom, including the functions and features provided, the development of products, and the pricing of services (including surcharges on Tenant’s customers or non-customers).

21.2. Confidentiality. In the course of its performance under this Lease, Tenant may deliver to Landlord certain oral and written information, and plans and drawings regarding the ATM facility, and the operation thereof, which information is proprietary in nature (the “Tenant Materials”). Landlord shall (i) keep the Tenant Materials and the existence and contents of this Lease confidential, (ii) only make such information available to its officers, directors, and employees only on a need-to-know basis, and (iii) not disclose such information to any person or entity without the prior written consent of Tenant. If this Lease is terminated, Landlord shall return to Tenant all Tenant Materials and any copies thereof. Landlord shall not, directly or indirectly, use the Tenant Materials in its business or in its dealing with any other person or entity.

22. Notices.

22.1. Written Notice; Delivery Methods. Each party giving or making any notice, request, demand, consent, approval, or other communication (each, a “Notice” (but sometimes “notice”)) pursuant to this Lease shall: (i) give the Notice in writing; (ii) cause the Notice to be signed by an authorized representative of the sending party (the sending party’s attorney is authorized to sign and send a Notice on behalf of the sending party); and (iii) use one of the following methods of delivery, each of which for purposes of this Lease is a writing:
(a) personal delivery; (b) Certified Mail, return receipt requested, with postage paid; (c) nationally recognized overnight courier, with all fees paid; or (d) email (but only if a party’s email address is included in its notice address in the Key Provisions Summary or is otherwise provided to the other party by a Notice).

22.2. Addresses. Each party giving a Notice shall address the Notice to the appropriate person at the receiving party (the “Addressee”) at the address(es) listed in the Notice Addresses section of the Key Provisions Summary or to another Addressee or at another address as designated by a party in a Notice pursuant to this Section 22. Notices may not be sent to the Premises. Any notice sent to the Premises is deemed ineffective. 370
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22.3. Effectiveness of a Notice. Except as provided elsewhere in this Lease, a Notice is effective only if (i) the party giving the Notice has complied with the two subsections set forth above and (ii) the Notice is deemed to have been received by the Addressee. A Notice is deemed to have been received by the Addressee as follows: (a) if a Notice is delivered in person, sent by Certified Mail, or sent by nationally recognized overnight courier: on the earlier of the date of delivery or the date the Notice is available for pickup, all as evidenced by the records of the delivering person or entity; (b) if a Notice is sent by email: on the date the email Notice is sent to the Addressee’s email address; and (c) if the Addressee rejects or otherwise refuses to accept the Notice (e.g., if the Addressee does not pick up the Notice timely), or if the Notice cannot be delivered because of a change in address for which no Notice was given: upon the rejection, refusal, or inability to deliver the Notice, which shall be deemed to be the date of rejection, refusal, inability to deliver, or availability for pickup, all as evidenced by the records of the delivering person or entity. If a Notice is sent by email, the party sending the Notice also must send, unless such requirement is waived in a return email from the receiving party, a confirmation copy of the Notice by one of the other methods in the first subsection set forth above within three (3) business days after the send date of the email, but the lack of delivery of such other Notice does not negate the email Notice.

22.4. Delivery Time of Notice. Notwithstanding the foregoing, if any Notice is received after 5:00 p.m. on a Business Day where the Addressee is located, or on a day that is not a Business Day where the Addressee is located, then the Notice is deemed received at 9:00 a.m. on the next Business Day where the Addressee is located.

23. Subordination, Non-Disturbance, and Attornment.

23.1. This Lease is subject and subordinate to the lien of all mortgages or deeds of trust which may now affect or encumber all or any portion of the Premises and to all renewals, modifications, consolidations, replacements, and extensions thereof. Landlord shall use commercially reasonable efforts to obtain a Subordination, Non-Disturbance, and Attornment Agreement (“SNDA”) from Landlord’s current lender providing generally that the mortgagee, trustee, or any purchaser at the foreclosure of the mortgage or deed of trust will not disturb Tenant’s possession of the Premises and that Tenant will attorn to such mortgagee, trustee, or purchaser at foreclosure as Landlord under the terms and conditions of this Lease upon receiving written notice that such party has succeeded to the interest of Landlord under this Lease. Tenant shall be liable for all costs and expenses of obtaining such SNDA.

23.2. This Lease is subject and subordinate to the lien of all mortgages or deeds of trust which may hereafter affect or encumber all or any portion of the Premises and to all renewals, modifications, consolidations, replacements, and extensions thereof; provided, however, that the foregoing provision shall only be applicable to those mortgages or deeds of trust for which Tenant has been provided an SNDA. Tenant shall be liable for all costs and expenses of obtaining such SNDA.

24. Hazardous Materials.

24.1. Definitions. “Environmental Law” means any law, statute, ordinance, rule, or regulation pertaining to health, industrial hygiene, Hazardous Materials (as defined below), 371
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or the environment including, without limitation CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act of 1980) and RCRA (Resources Conservation and Recovery Act of 1976). “Hazardous Materials” means petroleum, asbestos, polychlorinated biphenyls, formaldehyde, radioactive materials, radon gas, mold, or any chemical, material or substance now or hereafter designated, classified or regulated as being “toxic” or “hazardous” or a “pollutant” or words of similar import, under any Environmental Law.

24.2. Compliance. Tenant and Landlord will each handle, treat, deal with, and manage any Hazardous Materials in, on, under or about the Premises (in the case of Tenant) and the Landlord’s Property (in the case of Landlord) in compliance with all Environmental Laws and prudent industry practices regarding Hazardous Materials. Neither Landlord nor Tenant will use any Hazardous Materials in the Landlord’s Property or the Premises, respectively, except as necessary in the ordinary course of business and in full compliance with all Environmental Laws.

Landlord will use its best efforts to cause any other tenants of Landlord at the Landlord’s Property to comply with all Environmental Laws and to not allow any other tenant to use any Hazardous Materials except as necessary in the ordinary course of business and in compliance with all Environmental Laws. Tenant will promptly notify Landlord of any release or presence of any Hazardous Material in the Premises of which Tenant becomes aware and Landlord will promptly notify Tenant of any release or presence of any Hazardous Material in any area where Tenant’s customers, employees, agents, or contractors may be likely to be present.

24.3. Remediation. If Hazardous Materials are (a) released at the Premises by Tenant, its agents, employees, or contractors, or (b) permitted to be released by Tenant, its agents, employees, or contractors, then Tenant is solely responsible for the removal and/or remediation of such Hazardous Materials in compliance with applicable Environmental Laws. Landlord shall be responsible for any Hazardous Materials existing on or about the Premises prior to the Commencement Date, regardless of when discovered, and will remediate such pre-existing Hazardous Materials to the extent required by governmental authorities in compliance with applicable Environmental Laws to allow, construction, operation and/or removal of the ATM facility.

24.4. Indemnification. Tenant shall indemnify and hold Landlord harmless from and against any and all claims, actions, suits, proceedings, loss, liabilities, damages, fines, costs, or expense (including reasonable attorneys’ fees, consultants’ fees, investigation and laboratory fees, court costs, and litigation expenses), which arise from the presence of Hazardous Materials at the Premises released by (a) Tenant or its agents, employees, or contractors, or (b) permitted to be released by Tenant, its agents, employees, or contractors.

25. Quiet Enjoyment.

Landlord covenants that so long as Tenant has not committed a Tenant Default under the terms of this Lease Tenant will have quiet and peaceful possession of the Premises and will enjoy all of the rights herein granted without interference by Landlord or anyone claiming by, through or under Landlord or by the lessor under any master lease of the Landlord’s Property. 372
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26. Compliance with Laws.

Landlord and Tenant shall comply with applicable federal, state, and local laws, rules, regulations, and ordinances. Tenant shall be responsible for compliance with the American with Disabilities Act and other disabled access laws and regulations (collectively “ADA”) at the Premises. Landlord shall be responsible for compliance with the ADA at the Landlord’s Parking Lot. Landlord shall reasonably cooperate with Tenant, at no expense to Landlord, in connection with Tenant’s efforts to comply with the ADA and other applicable laws. Notwithstanding the foregoing, Landlord acknowledges that many of Tenant’s covenants and obligations hereunder, including the establishment, closure, and relocation of the ATM facility, are subject to Tenant’s obtaining the consent or approval of all regulatory agencies (including the Comptroller of Currency) now or hereafter empowered to regulate Tenant and its business operations and such regulations supersede the terms and conditions of this Lease.

27. Force Majeure.

27.1. Definition. “Force Majeure Event” means any act or event, whether foreseen or unforeseen, that meets all three of the following tests: (a) the act or event prevents a party (the “Non-Performing Party”), in whole or in part, from (i) performing its obligations under this Lease, or (ii) satisfying any conditions to the obligations of the other party (the “Performing Party”) under this Lease; (b) the act or event is beyond the reasonable control of and not the fault of the Non-Performing Party; and (c) the Non-Performing Party has been unable to avoid or overcome the act or event by the exercise of due diligence. In furtherance of the definition of Force Majeure Event and not in limitation of that definition, each of the following acts or events is an example of an act or event that could be a Force Majeure Event if the act or event meets each of the above requirements of this Section 27.1: accident; fire; act of God; act of a public enemy; injunction; riot; strike; lockout; insurrection; war; terrorist attack; court order; requisition or order of governmental body or authority; epidemic, pandemic, or quarantine (such as the events connected with COVID-19); and inability to procure labor or materials from normally available sources. Notwithstanding the preceding definition of a Force Majeure Event, a Force Majeure Event excludes economic hardship, changes in market conditions, and insufficiency of funds.

27.2. Suspension of Performance. Except with respect to Tenant’s payment of Rent or other sums due Landlord hereunder, which shall not be excused, suspended, or delayed, if a Force Majeure Event occurs, if a Force Majeure Event occurs, the Non-Performing Party is excused from (i) whatever performance is prevented by the Force Majeure Event to the extent prevented, and (ii) satisfying whatever conditions precedent to the Performing Party’s obligations that cannot be satisfied, but only to the extent they cannot be satisfied due to the Force Majeure Event. Notwithstanding the preceding sentence, a Force Majeure Event does not excuse any obligation by either the Performing Party or the Non-Performing Party to make any payment required under this Lease.

27.3. Obligations of Non-Performing Party. Not later than five (5) business days after becoming aware of the occurrence of a Force Majeure Event, the Non-Performing Party shall send written notice to the Performing Party describing the particulars of the occurrence, including an estimate of its expected duration and probable impact on the performance of the NonPerforming Party’s obligations under this Lease. During the continuation of the Force Majeure 373
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Event, the Non-Performing Party shall (i) furnish timely, regular written reports updating the initial notice and providing any other information reasonably requested by the Performing Party; (ii) exercise commercially reasonable efforts to mitigate or limit damages to the Performing Party; (iii) exercise commercially reasonable due diligence to overcome the Force Majeure Event; (iv) to the extent that it is able, continue to perform its obligations under this Lease; and (v) cause the suspension of performance to be of no greater scope and no longer duration than the Force Majeure Event requires.

27.4. Resumption of Performance. When a Force Majeure Event no longer prevents the Non-Performing Party from (i) resuming performance of its obligations under this Lease, or (ii) satisfying the conditions precedent to the Performing Party’s obligations, the NonPerforming Party shall immediately give the Performing Party written notice to that effect and shall resume performance under this Lease no later than five (5) business days after the notice is delivered.

27.5. Termination. If the suspension of performance pursuant to Section 27.2 above continues for more than six (6) consecutive months, either party may terminate this Lease by giving written notice of termination to the other party, in which event the parties have no further rights or liabilities hereunder (except for any that expressly survive termination of this Lease).

27.6. Exclusive Remedy. Except as explicitly set forth otherwise in this Lease, the relief offered by this Force Majeure provision is the exclusive remedy available to the NonPerforming Party with respect to a Force Majeure Event. In addition, the liability of either party for an event that arose before the occurrence of the Force Majeure Event is not excused as a result of such occurrence.

28. Brokers.

Each party represents to the other that it has had no dealings with any real estate broker, agent, or finder in connection with the negotiation of this Lease other than the Broker(s) and that it knows of no real estate broker or agent entitled to any commission or finder’s fee in connection with this Lease other than the Broker(s). Landlord shall pay to the Broker(s) a commission fee pursuant to a separate written agreement with the Broker(s). Each party shall indemnify and hold harmless the other party from and against any and all claims, demands, losses, liabilities, lawsuits, judgments, costs, and expenses (including attorneys’ fees and costs) with respect to any leasing commission, finder’s fee, or equivalent compensation alleged to be owing on account of the indemnifying party’s dealings with any real estate broker, agent, or finder.

29. Conditions Precedent.

All obligations of Tenant under this Lease are subject to the occurrence of, or Tenant’s written waiver of, each of the following conditions precedent: (i) sufficient evidence of Landlord’s title to the Premises and authority to enter into this Lease; (ii) Landlord’s receipt of any consent or approval required under any recorded document and from any tenant (anchor or otherwise) or lender having consent or approval rights for this Lease or for the use of the Premises for an ATM; (iii) except as otherwise provided in clause (ii) above, Tenant’s ability to procure all building, signage, construction, and operating permits, approvals, and consents for an ATM at the Premises; 374
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and (iv) Tenant’s ability to access required utilities without payment of unusual fees or costs. In addition, Landlord shall obtain an SNDA from Landlord’s lender for the benefit of Tenant.

Landlord shall cooperate in making and executing any applications that may be requested by Tenant to obtain any necessary permits, approvals, or consents. Each of Tenant’s approvals which are a condition precedent to Tenant’s obligations hereunder may be given or withheld in Tenant’s sole and absolute discretion without considering the interests of Landlord or any third-party. If all of the conditions precedent have not been satisfied or waived in writing by Tenant within the time limits specified herein, then all of Tenant’s obligations hereunder terminate upon written notice given by Tenant to Landlord; provided, however, that Tenant, by written notice to Landlord, may extend by up to 45 days the period within which any condition precedent may be satisfied or waived.

30. Additional Terms.

30.1. Landlord’s Authority. Landlord and Tenant acknowledge and agree that Landlord holds separate functions under this Lease (a) as landlord or owner, in its proprietary capacity under the Lease, and (b) as the authority having jurisdiction acting in its governmental capacity, as building official with full power and authority to authorize, approve, permit and inspect the design and construction of buildings and structures, including activities related to design review, entitlements, building permit issuance, construction inspections, permit signoff, final inspections, and issuance of Certificates of Occupancy, as applicable. The Landlord is entering into this Lease in its proprietary capacity, and not in its regulatory or governmental capacity. Nothing in this Lease shall be construed as restraining, impairing or restricting the City in its regulatory capacity, or granting any rights upon the Tenant with respect to the use, occupancy or operation of the Premises in a manner inconsistent with applicable law. This Lease does not grant any development rights upon the Tenant with respect to the Premises and any such development shall be subject to all applicable provisions of the Ontario Municipal Code.

30.2. Default Rate of Interest. The “Default Rate” of interest shall be the lesser of eight percent (8%) per annum or the rate per annum equal to the then current prime interest rate published in The Wall Street Journal in its “Money Rates” section.

30.3. Successors or Assigns. The terms, conditions, covenants, and agreements of this Lease extend to and are binding upon Landlord, Tenant, and their respective heirs, administrators, executors, legal representatives and permitted successors, subtenants, and assigns, if any, and upon any person or entity coming into ownership or possession of any interest in the Premises by operation of law or otherwise.

30.4. Severability. If any term, covenant, or condition of this Lease or the application thereof to any person or circumstance is, to any extent, invalid, illegal, or unenforceable, the remainder of this Lease, or the application of such term, covenant, or condition to parties or circumstances other than those to which it is held invalid, illegal, or unenforceable, is not affected thereby and each term, covenant, and condition of this Lease remains valid and enforceable to the fullest extent permitted by law, but only if the essential terms and conditions of this Lease for each party remain valid, binding, and enforceable. 375
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30.5. Memorandum of Lease. Neither Landlord nor Tenant will permit, allow or cause this Lease, or any amendment to this Lease, to be recorded in any public registry or office of register of deeds; provided, however, at the request of either party, Landlord and Tenant shall execute a recordable memorandum of this Lease setting forth the names and addresses of the parties, a reference to this Lease with its date of execution, specific legal descriptions of the Premises, the Commencement Date, the Rent Commencement Date, the term of this Lease, and any Renewal Term(s), which memorandum may be recorded by Tenant at Tenant’s expense or by Landlord at Landlord’s expense in the appropriate public records of the jurisdiction in which the Premises are situated.

30.6. Waiver. The parties may waive any provision of this Lease only by a writing executed by the party or parties against whom the waiver is sought to be enforced. No failure or delay in exercising any right or remedy or in requiring the satisfaction of any condition under this Lease, and no act, omission, or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy, or condition. A waiver once given is not to be construed as a waiver on any future occasion or against any other person or entity.

30.7. Amendment. The parties may amend this Lease only by a written agreement of the parties that identifies itself as an amendment to this Lease.

30.8. Headings & Interpretation. The descriptive headings/captions of the sections and subsections of this Lease are for convenience only, do not constitute a part of this Lease, and do not affect this Lease’s construction or interpretation. Whenever used in this Lease:
(i) the words “herein”, “hereof”, and similar words refer to this Lease in its entirety and not solely to any specific sentence, paragraph, or section; (ii) the words “include,” “includes,” and “including” mean considered as part of a larger group, incorporate “without limitation”, and are not limited to the items recited; (iii) the word “shall” means “is obligated to”; (iv) the word “may” means “is permitted to, but is not obligated to”; and (v) unless otherwise noted reference to a specific Section or Exhibit is a reference to a Section or Exhibit in this Lease.

30.9. Choice of Law. The laws of the state, commonwealth, or jurisdiction where the Premises are located (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Lease and the transactions it contemplates, including its interpretation, construction, performance, and enforcement.

30.10. Authority to Execute. Each party represents to the other party that this Lease: (i) resulted from an arm’s-length negotiation; (ii) has been duly authorized, executed, and delivered by and on behalf of such party; and (iii) constitutes the valid, binding, and enforceable agreement of such party in accordance with the terms of this Agreement. In addition, Landlord represents to Tenant that Landlord has the full right, power, and authority to enter into this Lease without the necessity of obtaining any third-party approval (other than those already obtained by Landlord) and that the terms of this Lease do not violate any lease, loan, condition, covenant, restriction, exclusive, or any other agreement or provisions which existed prior to the date of this Lease.

30.11. No Construction Against Drafting Party. Landlord and Tenant acknowledge that each of them and their respective counsel have had an opportunity to review this 376
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Lease and that this Lease will not be construed for or against either party merely because such party prepared or drafted this Lease or any particular provision thereof.

30.12. Counterparts & Digital Signatures. The parties may execute this Lease in multiple counterparts, each of which constitutes an original, and all of which, collectively, constitute only one Lease. The signatures of all parties need not appear on the same counterpart.

This Lease is valid, binding, and enforceable against a party only when executed by an authorized individual on behalf of a party by means of (i) an electronic signature that complies with the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, or any other relevant and applicable electronic signatures law; (ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature has for all purposes the same validity, legal effect, and admissibility in evidence as an original manual signature. This Lease is effective upon delivery of one executed counterpart from each party to the other parties.

In proving this Lease, a party must produce or account only for the executed counterpart of the party to be charged.

30.13. Acceptance. The submission of this Lease to Landlord by Tenant or to Tenant by Landlord does not constitute an offer to lease. This Lease becomes effective only upon the execution and delivery thereof by both Landlord and Tenant.

30.14. Damages. Notwithstanding anything set forth in this Lease to the contrary, neither party is liable to the other for any special, indirect, punitive, or consequential damages.

30.15. Time of the Essence. Time is of the essence in this Lease.

30.16. Business Days. “Business Day” (or “business day”) means, as to any party, any day that is not a Saturday, Sunday, or other day on which national banks are authorized or required to close in the state, commonwealth, or jurisdiction where the Premises are located (“Bank Holiday”). To compute a time period under this Lease when the period is stated in days or a longer unit of time: (i) exclude the day of the event that triggers the period; (ii) count every day, including intermediate Saturdays, Sundays, and Bank Holidays; and (iii) include the last day of the period, but if the last day is a Saturday, Sunday, or Bank Holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or Bank Holiday.

30.17. Attorneys’ Fees. In the event of any litigation related to this Lease, whether to enforce its terms, recover for default, or otherwise, if either party receives a judgment, settlement, or award in its favor (the “Receiving Party”) against the other party (the “Paying Party”) in such litigation, the Paying Party shall pay upon demand all of the Receiving Party’s costs, charges, and expenses (including reasonable attorneys’ fees, court costs, and expert witness fees) arising out of such litigation (including the costs of any appeal related thereto); provided, however, that if prior to commencement of a trial in the litigation the Paying Party offers to pay an amount equal to or in excess of such judgment, settlement, or award, the Receiving Party is not entitled to any such costs, charges, expenses, or attorneys’ fees.

30.18. Third-Party Beneficiaries. This Lease does not and is not intended to confer any rights or remedies upon any person or legal entity other than the signatories. 377
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30.19. Survival. The provisions of this Lease that would require that they survive the expiration or earlier termination of the Lease in whole or part to give them full effect survive the expiration or termination of this Lease in whole or part for any reason, regardless of the date, cause, or manner of such expiration or termination. In addition, all rights of action arising from or related to this Lease that accrue during the term of the Lease, and any remedies for such claims, both legal and equitable, survive the expiration or earlier termination of this Lease.

30.20. Anti-Money Laundering, Sanctions, and Anti-Corruption.

30.20.1. “AML Laws” means all U.S. anti-money laundering laws that criminalize money laundering or any predicate crimes to money laundering. “Anti-Corruption Laws” means the U.S. Foreign Corrupt Practices Act and any similar applicable statute, rule, or regulation relating to bribery or corruption. “Sanctions” means any economic, trade, or financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes, or anti-terrorism laws imposed from time to time by the United States government including but not limited to those administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control.

Each party represents to the other party that it is not a target of Sanctions and will not directly or indirectly transfer any of its interest in the Lease to a target of Sanctions. At all times during the Lease Term each party shall not violate applicable Sanctions, AML Laws, or Anti-Corruption Laws to the extent that such violation results in it being unlawful for the non-violating party to transact business under the Lease with the violating party. If a violation occurs that results in it being unlawful for the non-violating party to transact business under the Lease with the violating party, the non-violating party may suspend, upon written notice thereof to the violating party, any monetary obligations under the Lease until such time as the violating party is no longer in violation.

In addition, if such violation is not cured promptly, the non-violating party may terminate the Lease upon prior written notice thereof to the violating party.

30.21. CASp Inspection. Pursuant to California Civil Code § 1938, Landlord represents that the Premises have not undergone inspection by a Certified Access Specialist (“CASp”) (as defined in California Civil Code § 55.52). A CASp can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises.

30.22. Lease Date. The date this Lease is signed by the last party to sign it (as indicated by the date associated with that party’s signature) will be deemed the date of this Lease.

If a party signs but fails to date a signature the date that the other party receives the signing party’s signature will be deemed to be the date that the signing party signed this Lease and the other party may inscribe that date as the date associated with the signing party’s signature; provided, however, if only one party dated this Lease, then such date is the date of this Lease. 378
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30.23. Merger/Prior Agreements. THIS LEASE CONSTITUTES THE FINAL AGREEMENT BETWEEN THE PARTIES. IT IS THE COMPLETE AND EXCLUSIVE EXPRESSION OF THE PARTIES’ AGREEMENT ON THE MATTERS CONTAINED IN THIS LEASE. ALL PRIOR AND CONTEMPORANEOUS

NEGOTIATIONS AND AGREEMENTS BETWEEN THE PARTIES ON THE MATTERS

CONTAINED IN THIS LEASE ARE EXPRESSLY MERGED INTO AND SUPERSEDED BY THIS LEASE. THE PROVISIONS OF THIS LEASE MAY NOT BE EXPLAINED,

SUPPLEMENTED, OR QUALIFIED THROUGH EVIDENCE OF TRADE USAGE OR A PRIOR COURSE OF DEALINGS. IN ENTERING INTO THIS LEASE, THE PARTIES

HAVE NOT RELIED UPON ANY STATEMENT, REPRESENTATION, OR AGREEMENT

OF THE OTHER PARTY EXCEPT FOR THOSE EXPRESSLY CONTAINED IN THIS LEASE. THERE IS NO CONDITION PRECEDENT TO THE EFFECTIVENESS OF THIS LEASE OTHER THAN THOSE EXPRESSLY STATED IN THIS LEASE.

The parties hereby execute this Lease as of the dates set forth below.

Landlord:

CITY OF ONTARIO
By:

Print Name:

Title:

Date:

Tenant:

WELLS FARGO BANK, N.A.

By:

Print Name:

Title:

Date:

By:

Print Name:

Title:

Date:
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A-1

EXHIBIT A

SITE PLANS & ATM FACILITY
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B-1

EXHIBIT B
LANDLORD’S W-9
381
Department: Fire Department
Prepared By: Janny Phan
Staff Member Presenting:

Ray Gayk, Fire Chief
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 14
SUBJECT: AN AGREEMENT FOR AUTOMATIC AID AND MUTUAL AID BETWEEN SAN

BERNARDINO COUNTY FIRE PROTECTION DISTRICT AND THE CITY OF

ONTARIO

CITY OF ONTARIO
Agenda Report
December 19, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council authorize the City Manager or designee to execute an Agreement with San Bernardino County Fire Protection District for Fire Mutual Aid and Automatic Aid for rapid dispatch services and authorize the Fire Chief to negotiate and serve as the designated signatory on the Operating Plan.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Maintain the Current High Level of Public Safety
Pursue City's Goals and Objectives by Working with Other Governmental Agencies FISCAL IMPACT: The Fiscal Year 2022-23 Adopted Budget includes appropriations in the General Fund for Automatic Aid and Mutual Aid. Approval of this Agreement may have a minimal indirect fiscal impact to the City according to the fundamentals of the California Master Mutual Aid System.

Requests for mutual aid will be provided with no financial reimbursement; however, based on the duration and complexity of an incident, agencies receiving mutual aid are responsible for logistical support to all mutual aid personnel and equipment. There are also reciprocity benefits to the parties.

BACKGROUND & ANALYSIS: Automatic Aid Agreements provide a valuable public safety service by providing rapid dispatch of the closest fire resource to life-threatening emergencies or fires. The computer aided dispatch (CAD) upgrades currently being made at the Ontario Fire Department Dispatch Center will allow for this Agreement to be fully implemented benefiting the citizens within each participating agency’s jurisdiction.

If approved, Staff recommends the effective date of the Agreement shall be the date on which the following conditions are met: (A) It is approved by the legislative bodies of both parties; and (B) the Operating Plan in each Agreement is negotiated and executed by both parties to the Agreement.

The Fire Chief of each agency will be provided the authority on behalf of the parties to negotiate and serve as the designated signatory on the Operating Plan, without requiring this Agreement to return to either party’s legislative body.
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383

AGREEMENT FOR AUTOMATIC AID AND MUTUAL AID

BETWEEN

THE SAN BERNARDINO COUNTY FIRE PROTECTION DISTRICT
AND

CITY OF ONTARIO
This Agreement is made and entered into by and between the SAN BERNARDINO COUNTY FIRE PROTECTION DISTRICT (herein referred to as "the Agency") and the CITY OF ONTARIO (herein referred to as "the City").

WITNESSETH:

WHEREAS, each of the parties to this Agreement maintains equipment and personnel for the suppression of fires and the management of other emergency incidents occurring within areas under their respective jurisdictions, and are legally empowered to provide fire protection and rescue services within their respective jurisdictions; and, WHEREAS, it is in the best interest of the citizens served by the Agency and the City for each party to provide the most expeditious response to suppress fires and render other emergency services; and
WHEREAS, each party is desirous of providing to the other a reasonable and reciprocal exchange of fire, rescue, and emergency medical services on a day-to-day basis; and WHEREAS, each party agrees that this Agreement is not intended to supplement, release, or replace each party's obligation to provide fire protection and rescue services within their respective jurisdiction; and
WHEREAS, each of the parties to this Agreement participate in the California Disaster and Civil Defense Master Mutual Aid Agreement with the State of California pursuant to the California Emergency Services Act for purposes of requesting mutual aid in connection with any incident which cannot be handled adequately by the party’s respective fire department; and
WHEREAS, the parties to this Agreement are authorized to render aid to each other pursuant to Government Code sections 55632 and 6500-6522 and Health and Safety Code sections 13050, 13863 and 13877.

NOW, THEREFORE, in consideration of these mutual covenants, the parties agree to undertake aid under the terms, provisions, and conditions hereinafter provided.

A. MUTUAL AID:

1. “Mutual Aid” is defined as the request of resources based on the needs determined by the persons or entities managing the incident, and subject to authorization by the responding party for each request.

2. “Requesting Party” shall mean any party to this Agreement that requests fire protection or emergency services within its jurisdiction from the other party to this Agreement. 384

3. “Responding Party” shall mean any party to this agreement that receives a request for fire protection or emergency services within its jurisdiction from the other party to this Agreement.

4. The City and Agency agree to provide Mutual Aid for emergency incidents that do, or may, exceed the Requesting Party’s capabilities.

5. Mutual Aid responses from either party shall include personnel, equipment, material, and supplies such as are usually and customarily used within the Responding Party’s jurisdiction. Mutual Aid, for purposes of this Agreement, shall include requests for station coverage when one of the parties to this Agreement is experiencing a reduction in station personnel as a result of an incident occurring in the Requesting Party’s jurisdiction.

6. Agency will, upon notification from its primary dispatch facility, and with approval of its Duty Officer, respond with the requested type of emergency equipment to an incident within the City’s jurisdictional boundaries. The City will, upon notification from its primary dispatch facility, and with approval of its Duty Officer, respond with the requested type of emergency equipment to an incident within Agency's jurisdictional boundaries.

Resources requested by either Agency or the City will be sent as expeditiously as possible to the Requesting Party, and will be released by the Requesting Party as soon as possible.

7. The terms of providing Mutual Aid, as listed in Section 6, are conditional upon the availability of resources from the Responding Party. Neither Agency nor the City, in rendering aid to the other, shall be obligated to reduce its own resources to the extent that a situation is created that is detrimental to its citizens. The Duty Officer in charge of the assisting agency shall make such determination.

8. It is mutually understood and agreed that this Agreement does not relieve either party hereto from the necessity and obligation of using its own resources for furnishing fire and/or rescue response services within any part of its own jurisdiction, and that the Responding Party’s response to a request for aid will be dependent upon the existing emergency conditions within its own jurisdiction and the status of its resources at the time of the request. If the Responding Party cannot respond under this Agreement, it must immediately notify the Requesting Party.

9. Details as to amounts and types of assistance to be dispatched, area to be assisted, methods of dispatching and communications, methods of requesting aid, and positions authorized to send and receive such requests shall be recorded in an Operating Plan which is signed by the Fire Chiefs of Agency and the City, and which will be attached to this Agreement as Attachment "A" and made a part hereof by this reference. The Parties shall meet annually before July 1st of each year to review and update, if necessary, the Operating Plan.

10. In those instances where the Responding Party arrives before the Requesting Party, the Responding Party will take the necessary action dictated by the situation. However, it is assumed that the Requesting Party will arrive shortly after the arrival of the Responding Party. Thereafter, the responsibility for managing the situation will be immediately assumed by the Requesting Party upon its arrival at the scene, subject to a brief period of time built in for the sharing of information between the two departments 385
and the transition of responsibility for the incident. The Responding Party’s personnel will then be under the direction of the officer-in-charge of the Requesting Party. It is further agreed that the Responding Party will be a priority release from the scene as soon as is practical by the Requesting Party.

11. Except as provided in Section D., neither Agency nor the City shall be obligated to reimburse the other for any action taken or aid rendered hereunder, or for any use of materials, damage to equipment, or liability, or claims incurred which may occur in the course of rendering assistance herein provided. It shall be the responsibility of the Requesting Party to utilize the personnel, resources, and equipment of the Responding Party only to the extent that use of such resources is required to bring the emergency under control.

12. Nothing herein shall preclude either party from making claims to signatories of the State of California Cooperative Agreement for Local Government Fire Suppression (Five-Party Agreement), nor any other reimbursement or claim instrument which may arise during the life of this Agreement, if all other criteria for such a claim have been met.

13. City may pursue their own cost recovery for City’s costs. Agency may pursue their own cost recovery for Agency’s costs. Agency shall not complete any cost recovery for City’s costs. City shall not complete any cost recovery for Agency’s costs.

14. Except as provided in Section D., each party shall be fully responsible for all repairs, maintenance, and upkeep, including gas, oil, lubrication, parts replacement, and repair of casualty damage of its own equipment which is used, pursuant to this Agreement, outside of its normal jurisdiction or municipal boundaries. However, during prolonged (eight hours or more) suppression activities, the Requesting Party shall replenish fuel as needed and provide necessary minor maintenance, as that term is defined by this section, on responding equipment to keep it operational during the event. “Minor maintenance” shall generally mean repairs that are less than $100 of value in time and materials, including (but not necessarily limited to) repairs to flat tires, belts, and other small malfunctions that can be handled quickly and inexpensively by the Requesting Party. “Minor maintenance” shall not include major repairs, such as replacement of the transmission or major engine parts, which repairs shall be the responsibility of the party who is providing the equipment to the Requesting Party.

15. Any chemical agents or expandable supplies used during the incident by the Responding Party shall be replenished by the Requesting Party.

B. AUTOMATIC AID:

1. “Automatic Aid” is defined for purposes of this Agreement as the immediate dispatch of a fire or emergency unit within the jurisdiction of the Requesting Party under predetermined terms and conditions agreed upon by the parties to this Agreement and the Operating Plan which will be set forth in Attachment “A” hereto. Automatic Aid, for purposes of this Agreement, shall not include requests for station coverage as a result of an incident occurring within the Requesting Party’s jurisdiction.

2. Automatic Aid shall be limited to the areas identified in the boundary maps. (Attachments "B" and "C"). Attachments “B” and “C” are hereby made a part of this Agreement by this reference.
386

3. Agency will, upon notification from its primary dispatch facility that services are sought by the Requesting Party, respond with the pre-identified type of emergency equipment to an emergency incident within the City's jurisdictional boundaries as identified in Attachment "C." This is to be an immediate response, not requiring individual authorization of the Duty Officer, and is to be considered an initial attack resource.

Should the City request additional units, the Agency Duty Officer shall be notified and that request shall be classified and handled as a "mutual aid" request, subject to discretionary approval by the Duty Officer.

4. The City will, upon notification from its primary dispatch facility that services are sought by the Requesting Party, respond with the pre-identified type of emergency equipment to an emergency incident within Agency's jurisdictional boundaries identified in Attachment "B." This is to be an immediate response, not requiring individual authorization of the Duty Officer, and is to be considered an initial attack resource.

Should Agency request additional units, the City's Duty Officer shall be notified, and that request shall be classified and handled as "mutual aid" request, subject to discretionary approval by the Duty Officer.

5. Details as to amounts and types of assistance to be automatically dispatched, methods of dispatching and communications, shall be recorded in an Operating Plan which is signed by the Fire Chiefs of Agency and the City, and which will be attached to this Agreement as Attachment "A" and made a part hereof by this reference. The Parties shall meet annually before July 1St of each year to review and update, if necessary, the Operating Plan.

6. The terms listed in Sections B.2 through B.5 above are conditional upon the availability of resources from the Responding Party. Neither party, in rendering aid to the other, shall be obligated to send resources that are previously committed to incidents in progress or to the extent that a situation is created that is detrimental to its citizens. The Duty Officer in charge of the Responding Party shall make such determination, based upon current circumstances in the Responding Party’s jurisdiction, available equipment and personnel, and the Duty Officer’s own best judgment. If the Duty Officer determines a response is not possible under the circumstances, the Duty Officer shall inform the Requesting Party of that fact as expeditiously as possible.

7. In those instances where a Responding Party arrives before the Requesting Party, the Responding Party will take the necessary action dictated by the situation. However, it is assumed that the Requesting Party will arrive shortly after the arrival of the Responding Party. Thereafter, the responsibility for managing the situation will be immediately assumed by the Requesting Party upon its arrival at the scene. The Responding Party’s personnel will be under the direction of the officer-in-charge of the Requesting Party. It is further agreed that the Responding Party will be released from the scene as soon as is practical by the Requesting Party.

8. It is mutually understood and agreed that this Agreement does not relieve either party hereto from the necessity and obligation of using its own resources for furnishing fire response services within any part of its own jurisdiction, and that the Responding Party’s response to a request for aid will be dependent upon the existing emergency conditions within its own jurisdiction and the status of its resources. If the Responding Party cannot respond under this Agreement, it must immediately notify the Requesting Party. 387

9. Except as provided in Section D., neither Agency nor the City shall be obligated to reimburse the other for any action taken or aid rendered hereunder, or for any use of materials, damage to equipment, or liability, or claims incurred which may occur in the course of rendering assistance herein provided. It shall be the responsibility of the Requesting Party to utilize the personnel, resources, and equipment of the Responding Party only to the extent that use of such resources is required to bring the emergency under control.

10. City may pursue their own cost recovery for City’s costs. Agency may pursue their own cost recovery for Agency’s costs. Agency shall not complete any cost recovery for City’s costs. City shall not complete any cost recovery for Agency’s costs.

11. Except as provided in Section D., each party shall be fully responsible for all repairs, maintenance, and upkeep, including gas, oil, lubrication, parts replacement, and repair of casualty damage of its own equipment which is used, pursuant to this Agreement, outside of its normal jurisdiction or municipal boundaries. However, during prolonged (eight hours or more) suppression activities, the Requesting Party shall replenish fuel as needed and provide necessary minor maintenance, as that term is defined in Section A.14, on responding equipment to keep it operational during the event.

12. Any chemical agents or expandable supplies used during the incident by the Responding Party shall be replenished by the Requesting Party.

C. BOUNDARY DROP:

1. For purposes of this Agreement, "Boundary Drop" shall mean the use of the closest fire unit regardless of jurisdiction.

2. Agency and the City agree to participate in Boundary Drop, to adhere as closely as practical to the "closest resource concept" for the agreed upon call types identified in this Agreement.

3. Details as to amounts and types of assistance to be automatically dispatched under Boundary Drop, and preferred methods of dispatching and communications, shall be recorded in the Operating Plan to be incorporated in this Agreement as Attachment “A.” D. INDEMNIFICATION:

1. In lieu of and notwithstanding the pro rata risk allocation which might otherwise be imposed between the parties pursuant to Government Code 895.6, the parties hereby agree that all losses or liabilities incurred by a party in connection with this Agreement shall not be shared pro rata. Instead, pursuant to Government Code section 895.4, each party hereto agrees to fully indemnify and hold harmless the other party as set forth below.

2. The City agrees to indemnify, defend (with counsel reasonably approved by Agency), and hold harmless Agency and its authorized officers, employees, agents, and volunteers from any and all claims, actions, losses, damages, and/or liability arising out of this Agreement from any cause whatsoever, including the acts, errors, or o missions of any person and for any costs or expenses incurred by Agency on account of any claim, except where such indemnification is prohibited by law. This indemnification provision shall apply regardless of the existence or degree of fault of indemnitees; the amount of 388
indemnification shall depend on the comparative fault of the parties as set forth in section E., below. The City, and its officers, employees, agents, and volunteers, will not be responsible or liable to Agency for any damage or liability occurring by reason of Agency’s sole negligent acts or omissions or willful misconduct, including those of its officers, employees, agents, and volunteers, in connection with or arising out of any performance, authority, or jurisdiction under this Agreement.

3. Agency agrees to indemnify, defend (with counsel reasonably approved by the City), and hold harmless the City and its authorized officers, employees, agents and volunteers from any and all claims, actions, losses, damages, and/or liability arising out of this Agreement from any cause whatsoever, including the acts, errors, or omissions of any person and for any costs or expenses incurred by the City on account of any claim, except where such indemnification is prohibited by law. This indemnification provision shall apply regardless of the existence or degree of fault of indemnitees; the amount of indemnification shall depend on the comparative fault of the parties as set forth in section E., below. Agency, and its officers, employees, agents, and volunteers, will not be responsible or liable to the City for any damage or liability occurring by reason of the City’s sole negligent acts or omissions or willful misconduct, including those of its officers, employees, agents, and volunteers, in connection with or arising out of any performance, authority, or jurisdiction under this Agreement.

E. COMPARATIVE FAULT:

In the event that Agency and the City are determined to be comparatively at fault for any claim, action, loss or damage which results from their respective obligations under this Agreement, Agency and/or the City shall indemnify the other to the extent of its comparative fault.

F. INSURANCE:

Agency and the City are authorized self-insurance public entities and warrant that through their respective programs of self-insurance, they have adequate coverage or resources to protect against liabilities arising out of the performance of the terms, conditions, or obligations of this Agreement. Either party may request that the other party furnish satisfactory evidence of the required insurance coverage upon request. Each party agrees to provide the other thirty (30) days’ advance written notice of any cancellation, termination, or lapse of any of the insurance or self-insurance coverage. Failure to maintain insurance as required in this Agreement is a material breach of contract and may be grounds for termination of the Agreement.

G. STANDARD OF CARE:

Nothing in the provisions of this Agreement is intended to affect the legal liability of either party to the Agreement by imposing a standard of care that is different from the standard of care otherwise required under the law applicable to each party.

H. RELATIONSHIP OF THE PARTIES:

None of the provisions of this Agreement are intended to create, nor shall be deemed or construed to create, any relationship between the parties other than that of independent parties contracting with each other for the purpose of effecting the provisions of this Agreement. The parties are not, and will not be construed to be, in a relationship of joint 389
venture, partnership, or employer-employee. Neither party has the authority to make any statements, representations, or commitments of any kind on behalf of the other party, or to use the name of the other party in any publication or advertisements, except with the written consent of the other party or as explicitly provided herein. Each party will be solely responsible for the acts and omissions of its officers, agents, employees, contractors, and subcontractors, if any.

I. AGREEMENT NOT FOR BENEFIT OF THIRD PARTIES:

This Agreement shall not be construed as, or deemed to be, an agreement for the benefit of any third party or parties, and no third party or parties shall have any right of action hereunder for any cause whatsoever.

J. NONDISCRIMINATION:

Each party shall comply with all applicable federal, state, and local laws and regulations.

Such laws include but are not limited to the following: Title VII of the Civil Rights Act of 1964 as amended; Americans with Disabilities Act of 1990; the Rehabilitation Act of 1973 (Sections 503 and 504); California Fair Employment and Housing Act (Government Code Sections 12900 et seq.); California Code of Regulations, Title II, Division 4, Chapter 5; and California Labor Code Sections 1101 and 1102. Neither Party shall discriminate against any subcontractor, employee, applicant or any person for employment or in the provision of services because of age, race, color, national origin, ancestry, religion, sex/gender, sexual orientation, mental disability, physical disability, medical condition, political beliefs, organizational affiliations, or marital status.

K. WAIVER OF BREACH:

A waiver of breach of any provision of this Agreement by either party shall not operate as a waiver of any subsequent breach of the same or any other provisions of this Agreement.

L. APPLICABLE LAWS:

At all times during the term of this Agreement, Agency and the City shall comply with all applicable laws, ordinances, rules and regulations of the United States of America and the State of California, including all agencies and subdivisions thereof.

M. GENERAL PROVISIONS:

Unless otherwise specifically prescribed in this Agreement, the following provisions shall govern its interpretation and construction.

1. When consistent with the context of the Agreement, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number.

2. Time is of the essence of this Agreement. Neither Agency nor the City shall be relieved of its obligation to comply promptly with any provisions of this Agreement by any failure of the other party to enforce prompt compliance with any of its provisions.
390

3. Every duty and every act to be performed by either party imposes an obligation of good faith on the party to perform such duty or act.

4. This Agreement must be authorized by the legislative body for each contracting party before it can take effect, and sets forth the entire agreement and understanding between the Agency and the City with respect to the subject matter of this Agreement.

5. This Agreement may not be amended or altered without the written consent of each party. The Fire Chiefs of each party, or their authorized designee(s), shall have the authority to negotiate, execute, and make additions, deletions, or other technical amendments to the Attachments to this Agreement, including the areas in which aid is to be provided and the resources included as part of Attachment “A,” the Operating Plan. Such changes shall be made in writing only upon the Fire Chiefs’ mutual agreement, and shall not require written amendment of this Agreement by the parties.

6. If any term, covenant, condition, or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the terms, covenants, conditions, and provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby.

7. In the event of a dispute, the parties shall use their best efforts to settle the dispute through negotiation with each other in good faith.

8. Pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Health Information Technology for Economic and Clinical Health (HITECH) Act, regulations have been promulgated governing the privacy of individually identifiable health information. City acknowledges that Agency is a covered entity and subject to the requirements of HIPAA and HITECH, and their implementing regulations. Agency agrees to fully comply with the terms of HIPAA and HITECH, and regulations promulgated thereunder. Agency further agrees to comply with the requirements of all other applicable federal and state laws, rules, and regulations that pertain to the protection of health information. As a covered entity and subject to the requirements of HIPAA and HITECH, and their implementing regulations, Agency shall not share any protected health information with City unless authorized by HIPAA/HITECH and state privacy laws, rules, and regulations. This provision shall remain in force even after the termination of this Agreement. City shall comply with all applicable laws, rules, and regulations, including, but not limited to, all privacy laws, rules, and regulations that apply to City.

N. TERM AND TERMINATION; MODIFICATION:

1. The effective date of this Agreement shall be the date on which both of the following conditions are met: (1) it is approved by the legislative bodies of both Agency and the City, and (2) the Operating Plan referenced herein as Attachment A is negotiated and executed by both Parties to this Agreement. For purposes of executing the Operating Plan, the Fire Chief of the Agency and the Fire Chief of the City are provided the authority on behalf of the parties to negotiate and serve as 391
the designated signatory on the Operating Plan, without requiring this Agreement to return to either party’s legislative body. Following the effective date, the term will be through June 30, 2028, unless earlier terminated by either party in accordance with section N.2., below.

2. Either party may, by written notice to the other party, terminate this Agreement at any time and without cause by giving written notice to the other party of such termination, and specifying the effective date thereof, which date is at least ninety (90) days after the date of such notice. The Agreement may be modified only upon mutual written assent of both parties, in accordance with section M.5., above.

O. NOTICE; MISCELLANEOUS:

1. All notices, reports, or demands required to be given in writing under this Agreement shall be deemed to be given when delivered personally to the person designated below, or his successor, or when five (5) days have elapsed after it is deposited in the United States mail in a sealed envelope, with registered or certified mail postage prepaid, or on the next addressed business day if sent by express mail or overnight air courier to the party to which the notice is being given, as follows:

AGENCY:

San Bernardino County Fire Protection District
Attn: Fire Chief/Fire Warden
157 W. 5th Street, 2nd Floor
San Bernardino, CA 92415
THE CITY:

City of Ontario
Attn: Fire Chief
303 East B Street
Ontario, CA 91764
Either party upon written notice may change such addresses to the other party given as provided in this section.

2. It is understood that this Agreement will in no way affect or have any bearing on the existing California Master Mutual Aid Agreement.

P. CAPTIONS:

The paragraph captions and headings in this Agreement are for convenience and reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

Q. DISTRICT REPRESENTATIVES:

1. The City's Representative — The City hereby designates the City Fire Chief, or his or her designee, to act as its representative for the performance of this Agreement. The City's Representative shall have the full authority to represent and act on behalf of the City for all purposes under this Agreement. The City's Representative shall supervise and direct the services, using their best skill and attention, and shall be responsible for 392
all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the services under this Agreement.

2. Agency's Representative — Agency hereby designates the Agency’s Fire Chief, or his or her designee, to act as its representative for the performance of this Agreement.

Agency's Representative shall have the full authority to represent and act on behalf of Agency for all purposes under this Agreement. Agency's Representative shall supervise and direct the services, using their best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the services under this Agreement.

R. VENUE:

The venue of any action or claim brought by any party to the Agreement will be the Superior Court of San Bernardino County. Each party hereby waives any law or rule of the court, which would allow them to request or demand a change of venue. If any action or claim concerning the Agreement is brought by any third-party and filed in another venue, the parties hereto agree to use their best efforts to obtain a change of venue to San Bernardino County.

S. NO ASSIGNMENT:

This Agreement shall be binding on the successors and assignees of the parties hereto, except that no party shall assign this Agreement without the prior written consent of the other party.

IN WITNESS WHEREOF, this Agreement has been executed and approved and is effective and operative as to each of the parties herein provided.

FIRE DEPARTMENT SAN BERNARDINO COUNTY FIRE PROTECTION

DISTRICT
For City of Ontario
By: ______________________________ By: ___________________________________

Name: ____________________________ Name: _________________________________ , Fire Chief Chair, Board of Directors
City of Ontario Fire Department San Bernardino County Fire Protection District

Date: ________________________ Date: ____________________________ 393
Attachment "A"

OPERATING PLAN BETWEEN

SAN BERNARDINO COUNTY FIRE PROTECTION DISTRICT
AND

CITY OF ONTARIO

INTRODUCTION
The purpose of this Operating Plan is to define the process for implementing the Automatic and Mutual Aid Agreement between the San Bernardino County Fire Protection District (“AGENCY”) and the City of Ontario (“the CITY”) (collectively referred to as the "Agreement" or "Plan"). This Plan consists of the following terms and obligations of the parties:

I. Automatic Aid
A. The CITY shall provide Automatic Aid to AGENCY areas identified on Attachment "B". The CITY shall provide the same type and level of service as it would provide to its own service area on initial alarm. Resource needs beyond the initial alarm shall be the responsibility of AGENCY, although assistance may be provided as Mutual Aid by the CITY in accordance with the Agreement.

B. AGENCY shall provide Automatic Aid to the CITY areas identified in Attachment "C". AGENCY shall provide the same type and level of service as it would provide to its own service area on initial alarm. Resource needs beyond this initial response shall be the responsibility of the CITY, although assistance may be provided as Mutual Aid by AGENCY in accordance with the Agreement.

II. Boundary Drop
A. AGENCY and the CITY agree to participate in Boundary Drop, as that term is defined in the Agreement, to the extent identified in this Agreement. The resources dispatched to an incident type under Boundary Drop will be dispatched according to the Requesting Party’s response plan built in CAD and pre-approved by the Responding Agency’s Fire Chief.

B. Response plan updates that may affect the other Party shall not be made without review and approval of the affected Party's Fire Chief. Without specific approval from the Responding Party, response plans shall not be built to request more than two (2) Boundary Drop units to any single incident. Boundary Drop units may include Type I and III Engines, or a truck company (“Truck”), but not more than one (1) Truck per incident. Resource needs beyond the Boundary Drop agreement shall be handled under Mutual Aid. It is agreed that AGENCY or the CITY, acting through the Fire Chiefs or their designee(s), shall have the authority to jointly make day-to-day operational updates to the response plans of the agreed upon call types, which updates are conditional upon the availability of resources from the Responding Party. Notifications of any operational updates will be sent to both agencies and any affected dispatch center. 394
Mutual Aid
Any request beyond Automatic Aid or Boundary Drop shall be considered Mutual Aid, as that term is defined in the Agreement. Immediately upon receiving a Mutual Aid request, the Responding Party’s dispatch center shall contact the Responding Party’s Duty Officer to approve or deny the request.

IV. Types of Mutual Aid Equipment
May include Type 1 and Type 3 Engines, Water Tenders, or Trucks; Hazardous Materials Units; Technical Rescue Units; or any other equipment or personnel which may be requested pursuant to California Master Mutual Aid (MMA) or Assistance by Hire (ABH), such as Hand Crews or Dozers, and which are subject to approval by the Responding Party.

V. Incident Response
Automatic Aid and Boundary Drop resources will be the closest available, as determined by the Responding Party’s dispatch center. Mutual Aid resources will be the closest, most appropriate available, as determined by the Responding Party’s Duty Officer.

VI. Incident Communications
Units shall be dispatched on their agency standard frequency. While en route, the jurisdictional dispatch center will establish the appropriate command and tactical frequencies.

VII. Incident Management
As resources arrive command responsibility is transferred through the following succession: (1) first arriving Company Officer, who may pass command to (2) second arriving Company Officer, then responsibility for managing the incident shall be immediately assumed by (3) the jurisdictional department upon its arrival.

The assisting fire department personnel will be under the direction of the officer-incharge of the jurisdictional department. All incidents will be managed under the Incident Command System (ICS).

FIRE DEPARTMENT SAN BERNARDINO COUNTY FIRE
For City of Ontario PROTECTION DISTRICT
By: ______________________________ By: ___________________________________

Name: ____________________________ Name: _________________________________ , Fire Chief , Fire Chief
City of Ontario Fire Department San Bernardino County Fire Protection District

Date: ________________________ Date: ____________________________ 395
Attachment "B"
BOUNDARY MAP – SAN BERNARDINO COUNTY
396
Attachment "B"
BOUNDARY MAP – SAN BERNARDINO COUNTY
briel River
alley
Blvd
Orange Fwy
1678 ft
Yo rba Linda

LO NE P I N E CA N Y O N
Cajon Junction
10066 ft
8859 ft
Little Creek Wash
Midd le Fo rk Little Cr ee k
Foothill Fwy
Pomona Fwy
Foothill Fwy

C U C A M ON G A C AN Y O N

SA N AN

TO N IO C A N Y O N

JU R U P A H I L LS
Grapeland Alta Loma
Upland
Montclai r
Cla remont
La Ve rne
Onta rio
Pomona
Rancho
Cucamonga Fontana
Sa nta Ana
Ri v e r
Chino C reek
Euclid Ave
Magnolia Ave
Corona
Fwy

C H I N O

H I L L S

C H I N O

V A L L E Y
Mira Loma
Norco
Glen Avon
Chino Hills
Chino
Eastvale Ju rupa Valley
Co rona
5691 ft
Little C reek
Wash
Silve rw
Lake
Riverside
Barstow Fwy

C L E G H O R N

M O U N T A I N
Bloomington
Rialto
Col
A rlington Ave
Woodcrest
Rubidoux
Rive r side
¬«83
¬«138
¬«142
¬«71
§¨¦15
§¨¦60
§¨¦71
§¨¦210
§¨¦60
§¨¦91
§¨¦10
§¨¦215
§¨¦57
§¨¦210
§¨¦15

ARCHIBALD AVE ARROW RTE MILLIKEN AVE

RIVERSIDE AVE

GROVE AVE

CEDAR AVE

RIVERSIDE DR

BASE LINE RD

ETIWANDA AVE

GRAND AVE

SIERRA AVE

ALDER AVE

BELLEGRAVE AV

MERRILL AVE

FOURTH ST

JURUPA ST

SAN BERNARDINO AVE

SLOVER AVE

MILLIKEN AVE

MISSION BL

LYTLE CREEK RD

VALLEY BLV

FOOTHILL BLV

JURUPA AVE

MOUNTAIN AVE

MISSION BLV

HOLT BLV

FOOTHILL BLV

MISSION BLV

CHERRY AVE

MT BALDY RD
200
164
12 72
74 75
76 77
161
229
78 2
71 79
232
73 163
San Bernardno County Fire Stations
San Bernardino County Fire Jurisdiction & Contract Areas City of Ontario
San Bernardino County Boundary
Updated: 11/16/2023
Scale: 1:220,000
North American 1983
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Miles
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Attachment "C"
BOUNDARY MAP – CITY OF ONTARIO
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Department: Public Works
Prepared By: Blaine M Ishii
Staff Member Presenting:

Tito Haes, Executive Director Public Works
Reviewed By: Bonnie Tam, Andrea Ampig
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 15
SUBJECT: A MAINTENANCE SERVICES AGREEMENT WITH CMAX COMMERCIAL MAINTENANCE, INC. FOR COMMERCIAL AND RESIDENTIAL WASTE CONTAINER

MAINTENANCE

CITY OF ONTARIO
Agenda Report
December 19, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council take the following actions:

A. Authorize the City Manager or his designee to execute a Maintenance Services Agreement with CMAX Commercial Maintenance, Inc., of Ontario, California, for commercial and residential waste container maintenance in an amount of $125,000 per year for three (3) years for a total contract amount of $375,000;
B. Authorize a 5% contingency of $6,250 per year for three (3) years to address any unforeseen issues that may arise for a total not-to-exceed contract amount of $393,750; and C. Authorize the City Manager or his designee to execute the optional two (2) one-year extensions to the Maintenance Services Agreement in a total not-to-exceed amount of $656,250 consistent with future budgets adopted by the City Council.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT: The Fiscal Year 2023-24 Adopted Budget includes appropriations in the Integrated Waste Fund for commercial and residential waste container maintenance. The recommended Agreement is $125,000 plus a 5% contingency of $6,250 for a total annual cost of $131,250. The total contract amount shall not exceed $393,750 over the three-year term. At the City’s discretion, two additional one-year extensions may be exercised and shall not exceed $131,250 per year for a total contract amount not-to-exceed $656,250 over the five-year term. The total contract amount is for $625,000, plus a 5% contingency of $31,250, for a total not-to-exceed amount of $656,250.

BACKGROUND & ANALYSIS: Due to the growth of the Ontario Ranch area and State Mandates concerning recycling and organic collections, commercial and residential waste container maintenance is needed on a regular basis. Staff recommends these services to ensure the 401
Integrated Waste Department can continue to maintain commercial and residential waste containers in a timely manner and keep them clean and operational for the City of Ontario customers.

CMAX Commercial Maintenance Inc., was the sole bidder for On Site Cleaning of Commercial and Residential Refuse Bins and As Needed Power Washing and On Route Cleaning Services through the City’s electronic bid management system in response to Bid No. 1706. Staff recommends awarding the Maintenance Services Agreement to CMAX Commercial Maintenance, Inc. 402
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CITY OF ONTARIO

MAINTENANCE SERVICES AGREEMENT

1. PARTIES AND DATE.

This Agreement is made and entered as of ____________, by and between the City of Ontario, a municipal corporation organized under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764-4196, County of San Bernardino, State of California ("City") and CMAX Commercial Maintenance, Inc. a Corporation, with its principal place of business at 316 North Corona Ave. Ontario, CA 91764 ("Contractor").

City and Contractor are sometimes individually referred to herein as "Party" and collectively as "Parties."

2. RECITALS.

2.1 Contractor.

Contractor desires to perform and assume responsibility for the provision of certain maintenance services required by the City on the terms and conditions set forth in this Agreement.

Contractor represents that it is experienced in providing Commercial Maintenance services to public clients, that it and its employees or subcontractors have all necessary licenses and permits to perform the Services in the State of California, and that is familiar with the plans of City.

2.2 Project.

City desires to engage Contractor to render such services for the On Site Cleaning of Commercial and Residential Refuse Bins and As Needed Power Washing and On Route Cleaning Services project (“Project”) as set forth in this Agreement.

3. TERMS.

3.1 Scope of Services and Term.

3.1.1 General Scope of Services. Contractor promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the maintenance services necessary for the Project (“Services”). The Services are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 403
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3.1.2 Term. The term of this Agreement shall be three-year term from January 1, 2024 to December 31, 2027, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than two additional one-year terms. Contractor shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.

3.2 Compensation.

3.2.1 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “C” attached hereto and incorporated herein by reference. The total compensation shall not exceed One Hundred and Twenty-Five Thousand Dollars ($125,000) per year for a total notto-exceed contract amount of Three Hundred Seventy-Five Thousand Dollars ($375,000) without written approval of City Manager or their designee. If the City desires to exercise the first and second option years, the total not-to-exceed contract amount will be Six Hundred Twenty-Five Thousand Dollars ($625,000). Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.

3.2.2 Payment of Compensation. Contractor shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Contractor. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon.

3.2.3 Deductions. City may deduct or withhold, as applicable, from each progress payment an amount necessary to protect City from loss because of: (1) stop payment notices as allowed by state law; (2) unsatisfactory prosecution of the Services by Contractor; (3) sums representing expenses, losses, or damages as determined by the City, incurred by the City for which Contractor is liable under the Agreement; and (4) any other sums which the City is entitled to recover from Contractor under the terms of the Agreement or pursuant to state law, including Section 1727 of the California Labor Code. The failure by the City to deduct any of these sums from a progress payment shall not constitute a waiver of the City's right to such sums.

3.2.4 Reimbursement for Expenses. Contractor shall not be reimbursed for any expenses unless authorized in writing by City.

3.2.5 Extra Work. At any time during the term of this Agreement, City may request that Contractor perform Extra Work. As used herein, “Extra Work” means any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement.

Contractor shall not perform, nor be compensated for, Extra Work without written authorization from City’s Representative.

3.3 Responsibilities of Contractor.

3.3.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Contractor or under its supervision. Contractor will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Contractor on an independent contractor basis and not as an employee. 404
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Contractor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Contractor shall also not be employees of City and shall at all times be under Contractor’s exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.

3.3.2 Schedule of Services. Contractor shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit “B” attached hereto and incorporated herein by reference. Contractor represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Contractor’s conformance with the Schedule, City shall respond to Contractor’s submittals in a timely manner. Upon request of City, Contractor shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.

3.3.3 Conformance to Applicable Requirements. All work prepared by Contractor shall be subject to the approval of City.

3.3.4 City’s Representative. The City hereby designates Integrated Waste Director, Blaine Ishii, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Agreement except for increasing compensation.

Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.

3.3.5 Contractor’s Representative. Contractor hereby designates Frank Gutierrez, or his or her designee, to act as its representative for the performance of this Agreement (“Contractor’s Representative”). Contractor’s Representative shall have full authority to represent and act on behalf of the Contractor for all purposes under this Agreement. The Contractor’s Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.

3.3.6 Coordination of Services. Contractor agrees to work closely with City staff in the performance of Services and shall be available to City’s staff, consultants and other staff at all reasonable times.

3.3.7 Standard of Care; Performance of Employees. Contractor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Services. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this 405
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Agreement, Contractor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Contractor’s failure to comply with the standard of care provided for herein. Any employee of the Contractor or its sub-contractors who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Contractor and shall not be re-employed to perform any of the Services or to work on the Project.

3.3.8 Period of Performance.

3.3.8.1 Contractor shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Contractor shall perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be provided separately in writing to the Contractor. Contractor agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such completion schedule or Project milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.

3.3.8.2 Neither City nor Contractor shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the Services, only to the extent such strikes and other organized labor action are beyond the control of Contractor and its subconsultants, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the Services and Agreement.

3.3.8.3 Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events and/or delays, regardless of the Party responsible for the delay, shall not entitle Contractor to any additional compensation.

Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.

3.3.9 Disputes. Should any dispute arise respecting the true value of any work done, of any work omitted, or of any extra work which Contractor may be required to do, or respecting the size of any payment to Contractor during the performance of this Contract, Contractor shall continue to perform the Work while said dispute is decided by the City. If Contractor disputes the City’s decision, Contractor shall have such remedies as may be provided by law.
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3.3.10 Laws and Regulations; Employee/Labor Certifications.

3.3.10.1 Compliance with Laws. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with Services. If the Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Contractor shall be solely responsible for all costs arising therefrom. City is a public entity of the State of California subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Agreement to the same extent as though set forth herein and will be complied with. These include but are not limited to the payment of prevailing wages, the stipulation that eight (8) hours’ labor shall constitute a legal day’s work and that no worker shall be permitted to work in excess of eight (8) hours during any one calendar day except as permitted by law. Contractor shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.

3.3.10.2 Employment Eligibility; Contractor. By executing this Agreement, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such requirements and restrictions include, but are not limited to, examination and retention of documentation confirming the identity and immigration status of each employee of the Contractor.

Contractor also verifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement. Contractor shall avoid any violation of any such law during the term of this Agreement by participating in an electronic verification of work authorization program operated by the United States Department of Homeland Security, by participating in an equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, or by some other legally acceptable method. Contractor shall maintain records of each such verification, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses related to Contractor’s compliance with the requirements provided for in Section 3.3.10 or any of its subsections.

3.3.10.3 Employment Eligibility; Subcontractors, Sub-subcontractors and Consultants. To the same extent and under the same conditions as Contractor, Contractor shall require all of its subcontractors, sub-subcontractors and consultants performing any work relating to the Project or this Agreement to make the same verifications and comply with all requirements and restrictions provided for in Section 3.3.10.1.

3.3.10.4 Employment Eligibility; Failure to Comply. Each person executing this Agreement on behalf of Contractor verifies that they are a duly authorized officer of Contractor, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Contractor or its subcontractors, sub-subcontractors or consultants to meet any of the requirements provided for in Sections 3.3.10.1 or 3.3.10.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including 407
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in those verifications provided to the Contractor under Section 3.3.10.2); or (3) failure to immediately remove from the Project any person found not to be in compliance with such requirements.

3.3.10.5 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Contractor shall also comply with all relevant provisions of City’s Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.

3.3.10.6 Air Quality. Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (CARB). Contractor shall specifically be aware of the CARB limits and requirements’ application to “portable equipment”, which definition is considered by CARB to include any item of equipment with a fuel-powered engine. Contractor shall indemnify City against any fines or penalties imposed by CARB or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Contractor, its subcontractors, or others for whom Contractor is responsible under its indemnity obligations provided for in this Agreement.

3.3.10.7 Water Quality.
(A) To the extent applicable, Contractor’s Services must account for, and fully comply with, all local, state and federal laws, rules and regulations that may impact water quality compliance, including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); laws, rules and regulations of the Environmental Protection Agency, the State Water Resources Control Board and the Colorado River Regional Water Quality Control Board; the City’s ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State. (B) Liability for Non-Compliance. Failure to comply with the laws, regulations and policies described in this Section is a violation of law that may subject Contractor or City to penalties, fines, or additional regulatory requirements. Contractor shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from and against any and all fines, penalties, claims or other regulatory requirements imposed as a result of Contractor’s non-compliance with the laws, regulations and policies described in this Section, unless such non-compliance is the result of the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers. (C) Training. In addition to any other standard of care requirements set forth in this Agreement, Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them without impacting water quality in violation of the laws, regulations and policies described in this Section. Contractor further warrants that it, its employees and subcontractors will receive 408
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adequate training, as determined by City, regarding the requirements of the laws, regulations and policies described in this Section as they may relate to the Services provided under this Agreement. Upon request, City will provide Contractor with a list of training programs that meet the requirements of this paragraph.

3.3.11 Insurance.

3.3.11.1 Time for Compliance. Contractor shall not commence Services under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this Section. In addition, Contractor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this Section.

3.3.11.2 Minimum Requirements. Contractor shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Contractor, its agents, representatives, employees or subcontractors.

Contractor shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage:
(A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability:

Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. The policy shall not contain any exclusion contrary to the Agreement, including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 29); or (2) cross liability for claims or suits by one insured against another. (B) Minimum Limits of Insurance. Contractor shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used including, but not limited to, form CG 2503, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $2,000,000 per accident for bodily injury and property damage; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Liability limits of $1,000,000 per accident for bodily injury or disease. Defense costs shall be paid in addition to the limits.
(C) Notices; Cancellation or Reduction of Coverage. At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or materially reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be 409
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promptly reimbursed by Contractor or the City may withhold amounts sufficient to pay premium from Contractor payments. In the alternative, the City may suspend or terminate this Agreement. (D) Additional Insured. The City, its directors, officials, officers, employees, agents, and volunteers shall be named as additional insureds on Contractor’s and its subcontractors’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.

3.3.11.3 Insurance Endorsements. The insurance policies shall contain the following provisions, or Contractor shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies:
(A) General Liability. The general liability policy shall include or be endorsed (amended) to state that: (1) using ISO CG forms 20 10 and 20 37, or endorsements providing the exact same coverage, the City of Ontario, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insured with respect to the Services or ongoing and complete operations performed by or on behalf of the Contractor, including materials, parts or equipment furnished in connection with such work; and (2) using ISO form 20 01, or endorsements providing the exact same coverage, the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor’s scheduled underlying coverage. Any excess insurance shall contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of the City, before the City’s own primary insurance, deductible, or self-insurance shall be called upon to protect it as a named insured. Any insurance, deductible, or self-insurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Contractor’s insurance and shall not be called upon to contribute with it in any way. Notwithstanding the minimum limits set forth in Section 3.3.11.2(B), any available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional insureds pursuant to this Section 3.3.11.3(A).
(B) Automobile Liability. The automobile liability policy shall include or be endorsed (amended) to state that: (1) the City, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Contractor or for which the Contractor is responsible; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor’s scheduled underlying coverage. Any insurance, deductible, or selfinsurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Contractor’s insurance and shall not be called upon to contribute with it in any way. Policy shall contain or be endorsed to contain such provisions. Notwithstanding the minimum limits set forth in Section 3.3.11.2(B), any available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional insureds pursuant to this Section 3.3.11.3(B). (C) Workers’ Compensation and Employer’s Liability Coverage.

The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents, and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Contractor. 410
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(D) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days (10 days for nonpayment of premium) prior written notice by certified mail, return receipt requested, has been given to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents, and volunteers.

Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officials, officers, employees, agents and volunteers, or any other additional insureds.

3.3.11.4 Separation of Insureds; No Special Limitations; Waiver of Subrogation. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents, and volunteers.

Requirement of specific coverage or minimum limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. All policies shall waive any right of subrogation of the insurer against the City, its officials, officers, employees, agents, and volunteers, or any other additional insureds, or shall specifically allow Contractor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City, its officials, officers, employees, agents, and volunteers, or any other additional insureds, and shall require similar written express waivers and insurance clauses from each of its subcontractors.

3.3.11.5 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. Contractor shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, employees, agents, and volunteers; or (2) the Contractor shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.

3.3.11.6 Subcontractor Insurance Requirements. Contractor shall not allow any subcontractors to commence work on any subcontract relating to the work under the Agreement until they have provided evidence satisfactory to the City that they have secured all insurance required under this Section. If requested by Contractor, the City may approve different scopes or minimum limits of insurance for particular subcontractors. The Contractor and the City shall be named as additional insureds on all subcontractors’ policies of Commercial General Liability using ISO form 20 38, or coverage at least as broad.

3.3.11.7 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the City.

3.3.11.8 Verification of Coverage. Contractor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 411
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3.3.11.9 Reporting of Claims. Contractor shall report to the City, in addition to Contractor’s insurer, any and all insurance claims submitted by Contractor in connection with the Services under this Agreement.

3.3.12 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Contractor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and lifesaving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.

3.3.13 Bonds.

3.3.13.1 Performance Bond. If required by law or otherwise specifically requested by City in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Agreement a Performance Bond in the amount of the total, not-to-exceed compensation indicated in this Agreement, and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until it has been received and approved by the City.

3.3.13.2 Payment Bond. If required by law or otherwise specifically requested by City in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Agreement a Payment Bond in the amount of the total, not-to-exceed compensation indicated in this Agreement, and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until it has been received and approved by the City.

3.3.13.3 Bond Provisions. Should, in City’s sole opinion, any bond become insufficient or any surety be found to be unsatisfactory, Contractor shall renew or replace the affected bond within 10 days of receiving notice from City. In the event the surety or Contractor intends to reduce or cancel any required bond, at least thirty (30) days prior written notice shall be given to the City, and Contractor shall post acceptable replacement bonds at least ten (10) days prior to expiration of the original bonds. No further payments shall be deemed due or will be made under this Agreement until any replacement bonds required by this Section are accepted by the City. To the extent, if any, that the total compensation is increased in accordance with the Agreement, the Contractor shall, upon request of the City, cause the amount of the bonds to be increased accordingly and shall promptly deliver satisfactory evidence of such increase to the City. To the extent available, the bonds shall further provide that no change or alteration of the Agreement (including, without limitation, an increase in the total compensation, as referred to above), extensions of time, or modifications of the time, terms, or conditions of payment to the Contractor, will release the surety. If the Contractor fails to furnish any required bond, the City may terminate this Agreement for cause.

3.3.13.4 Surety Qualifications. Only bonds executed by an admitted surety insurer, as defined in Code of Civil Procedure Section 995.120, shall be accepted. The 412
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surety must be a California-admitted surety with a current A.M. Best’s rating no less than A:VIII and satisfactory to the City. If a California-admitted surety insurer issuing bonds does not meet these requirements, the insurer will be considered qualified if it is in conformance with Section 995.660 of the California Code of Civil Procedure, and proof of such is provided to the City.

3.3.14 Work Site.

3.3.14.1 Inspection Of Site. Contractor shall visit sites where Services are to be performed and shall become acquainted with all conditions affecting the Services prior to commencing the Services. Contractor shall make such examinations as it deems necessary to determine the condition of the work sites, its accessibility to materials, workmen and equipment, and to determine Contractor’s ability to protect existing surface and subsurface improvements. No claim for allowances–time or money–will be allowed as to such matters after commencement of the Services.

3.3.14.2 Field Measurements. Contractor shall make field measurements, verify field conditions and shall carefully compare such field measurements and conditions and other information known to Contractor with the Contract Documents, including any plans, specifications, or scope of work before commencing Services. Errors, inconsistencies or omissions discovered shall be reported to the City immediately and prior to performing any Services or altering the condition.

3.3.15 Loss and Damage. Contractor shall be responsible for all loss and damage which may arise out of the nature of the Services agreed to herein, or from the action of the elements, or from any unforeseen difficulties which may arise or be encountered in the prosecution of the Services until the same is fully completed and accepted by City.

3.3.16 Warranty. Contractor warrants all Services under the Contract (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year (or the period of time specified elsewhere in the Contract or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by the City of any defect in the Services or non-conformance of the Services to the Contract, commence and prosecute with due diligence all Services necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act sooner as requested by the City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the work (or work of other contractors) damaged by its defective Services or which becomes damaged in the course of repairing or replacing defective work. For any work so corrected, Contractor’s obligation hereunder to correct defective work shall be reinstated for an additional one year period, commencing with the date of acceptance of such corrected work. Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of the Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any portion of the work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the City, regardless of whether or not such warranties and guarantees have been 413
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transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Contract, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non-conforming work and any work damaged by such work or the replacement or correction thereof at Contractor's sole expense. Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand.

3.4 Labor Code Requirements.

3.4.1 Prevailing Wages. Contractor is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. City shall provide Contractor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Contractor’s principal place of business and at the project site. Contractor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.

3.4.2 Registration/DIR Compliance. If the Services are being performed as part of an applicable “public works” or “maintenance” project, and if the total compensation is $15,000 or more, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Contractor and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Contractor shall maintain registration for the duration of the Project and require the same of any subcontractors, as applicable.

3.4.3 Registration/DIR Compliance. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor’s performance of Services, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor. 414
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3.5 Termination of Agreement.

3.5.1 Grounds for Termination. City may, by written notice to Contractor, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Contractor of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Contractor shall be compensated only for those services which have been adequately rendered to City, and Contractor shall be entitled to no further compensation. Contractor may not terminate this Agreement except for cause. The rights and remedies of the City provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement.

3.5.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Contractor to provide all finished or unfinished Documents and Data and other information of any kind prepared by Contractor in connection with the performance of Services under this Agreement. Contractor shall be required to provide such document and other information within fifteen (15) days of the request.

3.5.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.

3.6 Indemnification.

3.6.1 Scope of Indemnity. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold the City, its officials, employees, agents and volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, regardless of whether the allegations are false, fraudulent, or groundless, to property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Contractor, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Contractor’s Services, the Project or this Agreement, including without limitation the payment of all expert witness fees, attorneys’ fees and other related costs and expenses. Notwithstanding the foregoing, to the extent required by Civil Code section 2782, Contractor’s indemnity obligation shall not apply to such loss or damage which is caused by the sole or active negligence or willful misconduct of the City.

3.6.2 Additional Indemnity Obligations. Contractor shall defend, with counsel of City’s choosing and at Contractor’s own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against City or its officials, employees, agents and volunteers. In addition, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Contractor shall also reimburse City for the cost of any settlement paid by City or its officials, employees, agents and volunteers as part of any such 415
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claim, suit, action or other proceeding. Such reimbursement shall include payment for City’s attorney’s fees and costs, including expert witness fees. Contractor shall reimburse City and its officials, employees, agents and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor’s obligation to indemnify shall survive expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by the City, its officials, employees, agents and volunteers.

3.7 General Provisions.

3.7.1 Accounting Records. Contractor shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Contractor shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.

3.7.2 Independent Contractors and Subcontracting.

3.7.2.1 Use of Contractors. Contractor is aware of statutory and case law regarding classification of workers as independent contractors, including California Labor Code Section 2750.3 and Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018). To ensure that Contractor is in compliance with the California Labor Code, Contractor shall only utilize its employees to provide the Services. Contractor may not provide the services through any independent contractor, subcontractor or subconsultant (“Subcontractor(s)”) unless approved by the City as set forth in Section 3.7.2.2 below. Contractor represents and warrants that all personnel who perform the Services on Contractor’s behalf are Contractor’s employees, and that Contractor complies with all applicable laws, rules and regulations governing its employees, including, but not limited to, the California Labor Code, Unemployment Insurance Code and all applicable Industrial Welfare Commission Wage Orders.

3.7.2.2 Prior Approval Required. Contractor shall not use any Subcontractor to provide the Services, or any portion of the work required by this Agreement, without prior written approval of City. In the event that City authorizes Contractor to use a Subcontractor, Contractor shall enter into a written agreement with the Subcontractor, which must include all provisions of the Agreement, including a restriction on the Subcontractor’s use of further independent contractors, subcontractors or subconsultants without the City’s prior written consent.

Contractor:

CMAX Commercial Maintenance Inc.
316 North Corona Avenue
Ontario California 91764
Attn: Frank Gutierrez
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City:

City of Ontario
303 East “B” Street
Ontario, CA 91764
Attn: Blaine Ishii, Integrated Waste
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

3.7.4 Governing Law; Government Code Claim Compliance. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County.

In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Contractor must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Contractor. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Contractor shall be barred from bringing and maintaining a valid lawsuit against the City.

3.7.5 Attorneys’ Fees. If either Party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys’ fees and all other costs of such action.

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

3.7.7 City’s Right to Employ Other Contractors. City reserves right to employ other contractors in connection with this Project.

3.7.8 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.

3.7.9 Assignment or Transfer. Contractor shall not assign, hypothecate or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.

3.7.10 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Contractor include all personnel, employees, agents, and subcontractors of Contractor, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease 417
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of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement.

3.7.11 Amendment; Modification. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.

3.7.12 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise.

3.7.13 No Third Party Beneficiaries. Except to the extent expressly provided for in Section 3.5.7, there are no intended third party beneficiaries of any right or obligation assumed by the Parties.

3.7.14 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

3.7.15 Prohibited Interests. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Agreement. Further, Contractor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Contractor further agrees to file, or shall cause its employees or subcontractors to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

3.7.16 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.

3.7.17 Authority to Enter Agreement. Contractor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.

3.7.18 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.

3.7.19 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties.
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SIGNATURES NEXT PAGE
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SIGNATURE PAGE FOR MAINTENANCE SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO
AND CMAX COMMERCIAL MAINTENANCE INC.

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.

CITY OF ONTARIO CMAX Commercial Maintenance Inc.

By:

Its:

Printed Name:

By:

Its:

Printed Name:
____________________________________
Contractor’s License Number and
Classification
____________________________________
DIR Registration Number
Approved By:

Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:

City Clerk

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BB&K (2023) Exhibit A-1 MAINTENANCE SERVICES AGREEMENT
EXHIBIT “A”

SCOPE OF SERVICES
The City desires to obtain the services of one or more outside organizations to assist with on-site washing/cleaning of commercial refuse bins and/or residential carts on a bi-weekly basis and on the route washing/cleaning of residential carts as directed, also, the City desires the Proposer to provide power washing of hardscape surfaces as directed by Integrated Waste Management on an as needed basis. The consultants must be licensed in the State of California to practice work for which consideration is requested.

SERVICES TO BE PROVIDED
The Firm selected shall provide the following services:

1. ON-SITE WASHING/CLEANING OF APPROXIMTLEY 20 COMMERCIAL REFUSE BINS AND/OR 20 RESIDENTIAL CARTS ON A BI-WEEKLY BASIS.
• Provide documentation of completed work utilizing bin and/or cart numbers. • Provide a bi-weekly schedule for on-site washing/cleaning of Commercial Refuse Bins and Residential Carts.

2. ON THE ROUTE WASHING/CLEANING OF RESIDENTIAL CARTS AS DIRECTED. • Provide documentation of completed work utilizing cart numbers.

3. PROVIDE POWER WASHING OF HARDSCAPE SURFACES AS DIRECTED. 421
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BB&K (2023) Exhibit B-1 MAINTENANCE SERVICES AGREEMENT
EXHIBIT “B”

SCHEDULE OF SERVICES
Services
All services shall be scheduled during business hours and will be coordinated the Integrated Waste Director, or his designated representative. Services shall be completed and invoiced within 30 days of job completion.

Business Hours are Monday through Friday 6:00 a.m. and 3:30 p.m.

Service Locations:

Site Name Address
Municipal Services Center 1425 S. Bon View Ave., Ontario, CA 91761

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BB&K (2023) Exhibit C-1 MAINTENANCE SERVICES AGREEMENT
EXHIBIT “C”

COMPENSATION

COMPENSATION
Description UOM Quantity Price per Unit Total Price
On-Site Washing of Commercial
Refuse Bins
Each TBD $100.00 TBD
On-Site Washing of Residential
Refuse Bins
Each TBD $25.00 TBD
Power Washing Steam Cleaning
Services
Hour TBD $125.00 TBD
On Route Washing of Residential
Carts
Each TBD $7.50 TBD
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BB&K (2023) Exhibit C-2 MAINTENANCE SERVICES AGREEMENT

PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:

THAT WHEREAS, the City of Ontario (hereinafter referred to as “City”) has awarded to ____________________, (hereinafter referred to as the “Contractor”) _______________________ an agreement for ______________________________ (hereinafter referred to as the “Project”).

WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated ________________, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and
WHEREAS, the Contractor is required by said Contract Documents to perform the terms thereof and to furnish a bond for the faithful performance of said Contract Documents.

NOW, THEREFORE, we, _______________, the undersigned Contractor and _____________________________________________ as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto the City in the sum of ___________________________ DOLLARS, ($____________), said sum being not less than one hundred percent (100%) of the total amount of the Contract, for which amount well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH, that, if the Contractor, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Contract Documents and any alteration thereof made as therein provided, on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their intent and meaning; and shall faithfully fulfill all obligations including the one-year guarantee of all materials and workmanship; and shall indemnify and save harmless the City, its officers and agents, as stipulated in said Contract Documents, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.

As a condition precedent to the satisfactory completion of the Contract Documents, unless otherwise provided for in the Contract Documents, the above obligation shall hold good for a period of one (1) year after the acceptance of the work by City, during which time if Contractor shall fail to make full, complete, and satisfactory repair and replacements and totally protect the City from loss or damage resulting from or caused by defective materials or faulty workmanship, Surety shall undertake and faithfully fulfill all such obligations. The obligations of Surety hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall limit the City’s rights or the Contractor or Surety’s obligations under the Contract, law or equity, including, but not limited to, California Code of Civil Procedure section 337.15.

Whenever Contractor shall be, and is declared by the City to be, in default under the Contract Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall promptly, at the City’s option:
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BB&K (2023) Exhibit C-3 MAINTENANCE SERVICES AGREEMENT
(1) Take over and complete the Project in accordance with all terms and conditions in the Contract Documents; or
(2) Obtain a bid or bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible bidder, arrange for a Contract between such bidder, the Surety and the City, and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
(3) Permit the City to complete the Project in any manner consistent with local, California and federal law and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.

Surety expressly agrees that the City may reject any contractor or subcontractor which may be proposed by Surety in fulfillment of its obligations in the event of default by the Contractor.

Surety shall not utilize Contractor in completing the Project nor shall Surety accept a bid from Contractor for completion of the Project if the City, when declaring the Contractor in default, notifies Surety of the City’s objection to Contractor’s further participation in the completion of the Project.

The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project, including but not limited to the provisions of sections 2819 and 2845 of the California Civil Code.
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BB&K (2023) Exhibit C-4 MAINTENANCE SERVICES AGREEMENT
IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__).
(Corporate Seal)
Contractor/ Principal
By
Title
(Corporate Seal)
Surety
By
Attorney-in-Fact
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached.
(Attach Attorney-in-Fact Certificate) Title
The rate of premium on this bond is ____________ per thousand. The total amount of premium charges, $_______________________________.
(The above must be filled in by corporate attorney.)

THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety)
(Name and Address of Agent or
Representative for service of
process in California, if different
from above)
(Telephone number of Surety
and Agent or Representative for
service of process in California)
NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
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BB&K (2023) Exhibit C-5 MAINTENANCE SERVICES AGREEMENT
Notary Acknowledgment
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally
appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature of Notary Public

OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.

CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT  Individual
 Corporate Officer
Title(s) Title or Type of Document
 Partner(s)  Limited
 General Number of Pages
 Attorney-In-Fact
 Trustee(s)
 Guardian/Conservator Date of Document
 Other:

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
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BB&K (2023) Exhibit C-6 MAINTENANCE SERVICES AGREEMENT

PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS That
WHEREAS, the City of Ontario (hereinafter designated as the “City”), has awarded to ________________ hereinafter designated as the “Principal,” a contract for the work described as follows:
_____________________________________________________ (the “Project”); and WHEREAS, the work to be performed by the Principal is more particularly set forth in the Contract Documents for the Project dated __________________ (“Contract Documents”), the terms and conditions of which are expressly incorporated by reference; and WHEREAS, said Principal is required to furnish a bond in connection with said contract; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth.

NOW THEREFORE, we, the Principal and __________________________ as Surety, are held and firmly bound unto the City in the penal sum of ______________ Dollars ($___________) lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in Section 9100 of the Civil Code, fail to pay for any materials, provisions or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to Section 18663 of the Revenue and Taxation Code, with respect to such work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified.

This bond shall inure to the benefit of any of the persons named in Section 9100 of the Civil Code so as to give a right of action to such persons or their assigns in any suit brought upon this bond.

It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement herein above described, nor by any rescission or 428
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BB&K (2023) Exhibit C-7 MAINTENANCE SERVICES AGREEMENT
attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or City and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Section 9100 of the Civil Code, and has not been paid the full amount of his claim and that Surety does hereby waive notice of any such change, extension of time, addition, alteration or modification herein mentioned and the provisions of sections 2819 and 2845 of the California Civil Code.

IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__.
(Corporate Seal)
Contractor/ Principal
By
Title

(Corporate Seal) Surety
By
Attorney-in-Fact
Title
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached. A Power-of-Attorney authorizing the person signing on behalf of the Surety to do so much be attached hereto.

NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
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BB&K (2023) Exhibit C-8 MAINTENANCE SERVICES AGREEMENT
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature of Notary Public

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
430
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BB&K (2023) Exhibit
D-1 MAINTENANCE SERVICES AGREEMENT
431
Department: Public Works
Prepared By: Manuel Rebolledo
Staff Member Presenting:

Tito Haes, Executive Director Public Works
Reviewed By: Bonnie Tam, Andrea Ampig
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 16
SUBJECT: AN AMENDMENT TO THE GOODS AND SERVICES AGREEMENT WITH LOS ANGELES TRUCK CENTERS FOR THE PROCUREMENT OF MEDIUM AND HEAVYDUTY PARTS AND REPAIRS

CITY OF ONTARIO
Agenda Report
December 19, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council authorize the City Manager or his designee to execute Amendment No. 2 to the Goods and Services Agreement with Los Angeles Truck Centers, of Whittier, California, for the procurement of medium and heavy-duty parts, and repairs, in the amount of $1,500,000, increasing the not-to-exceed contract amount to $2,000,000 and extending the Agreement to June 30, 2025.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Maintain the Current High Level of Public Safety
Operate in a Businesslike Manner
FISCAL IMPACT: The Fiscal Year 2023-24 Adopted Budget includes appropriations in the Equipment Services Fund for the procurement of medium and heavy-duty parts and repairs. The recommended Amendment increases the authorized contract amount by $600,000 for Fiscal Year 2023-24 and by $900,000 for Fiscal Year 2024-25 for a new total not-to-exceed contract amount of $2,000,000. The total compensation paid by the City will be contingent upon actual services provided at the contracted rates set forth in the Agreement and shall not exceed $2,000,000 over the five-year term. The City had previously contracted with an additional supplier that provided similar services who did not want to continue service with the City. This led to Staff requesting a higher contract amount for Los Angeles Truck Centers compared to previous years.

BACKGROUND & ANALYSIS: The City owns, operates, maintains, and repairs over 700 vehicles and pieces of equipment to keep them safe and operational. The Fleet Services Department relies on vendors to supply parts and perform certain repairs to our fleet.

On August 18, 2020, the City Council awarded Bid No. 1337 and entered into a three-year Agreement with Los Angeles Truck Centers. Due to supply chain shortages and price increases in raw materials, Staff recommends increasing the total authorized compensation of this contract to ensure the Fleet Services Department can continue to maintain and service vehicles quickly and keep them operational. 432
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Ontario City CouncilDecember 19, 2023

Ontario City Council
December 19, 2023