Agenda packet — Ontario City Council, April 2, 2024 (part 1 of 2)

CITY OF ONTARIO
Regular City Council/Housing Authority
Meeting
APRIL
2, 2024
City Hall
303 East B Street, Ontario, CA 91764

MAYOR PAUL S. LEON • MAYOR PRO TEM DEBRA DORST-PORADA
COUNCIL MEMBERS ALAN D. WAPNER, JIM W. BOWMAN AND RUBEN VALENCIA CITY CLERK SHEILA MAUTZ • TREASURER JAMES R. MILHISER
CITY MANAGER SCOTT OCHOA • CITY ATTORNEY RUBEN DURAN

WELCOME TO A MEETING OF THE ONTARIO CITY COUNCIL

All documents for public review are on ﬁle with the Records Management/City Clerk's Department located at 303 East B Street, Ontario, CA 91764.

Anyone wishing to speak in person during public comment or on a particular item will be required to ﬁll out a blue slip. Blue slips must be turned in prior to public comment beginning or before an agenda item is taken up. The Clerk will not accept blue slips after that time. To comment by email, submit your comments no later than 4:00 p.m. on the day of the meeting by emailing your name, agenda item you are commenting on and your comments to
[email protected].

All
comments received by the deadline will be forwarded to the City Council for consideration before action is taken on the matter and will be entered into the record.

Comments will be limited to 3 minutes. Speakers will be alerted when they have 1 minute remaining and when their time is up. Speakers are then to return to their seats and no further comments will be permitted.

In accordance with State Law, remarks during public comment are to be limited to subjects within Council's jurisdiction. Remarks on other agenda items will be limited to those items.

Remarks from those seated or standing in the back of the chamber will not permitted. All those wishing to speak including Council and Staff need to be recognized by the Chair before speaking.

CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 1

ATTACHMENT:

20240402 Closed Session

ACCOMODATIONS

If you need special assistance or accommodations to participate in this meeting, please contact the City Clerk's oﬃce at 909-395-2009. Notiﬁcation of 48 hours prior to the meeting will help the City make reasonable arrangements. Equipment for the hearing impaired is available in the Records Management Office.

ORDER OF BUSINESS

The regular City Council and Housing Authority meeting begins with Closed Session and Closed Session Comment at 5:30 p.m., Public Comment at 6:30 p.m. immediately followed by the Regular Meeting and Public Hearings. No agenda item will be introduced for consideration after 10:00 p.m. except by majority vote of the City Council.

CALL TO ORDER
(OPEN SESSION)

ROLL CALL

Dorst-Porada, Wapner, Bowman, Valencia, Mayor/Chairman Leon

CLOSED SESSION PUBLIC COMMENT

The Closed Session Public Comment portion of the Council/Housing Authority meeting is limited to a maximum of 3 minutes for each speaker and comments will be limited to matters appearing on the Closed Session. Additional opportunities for further Public Comment will be given during and at the end of the meeting.

CLOSED SESSION
GC 54956.9(d)(1), CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION City of Ontario v. Inland Empire Utilities Agency, San Bernardino Superior Court Case No. CIVSB 2328325

GC 54956.8, CONFERENCE WITH REAL PROPERTY NEGOTIATORS
Property: APN: 218-111-06; 13115 South Ontario Avenue; City/Authority negotiator: Scott Ochoa or his designee; Negotiating parties: Huaiqing Ren and Xia Cui, Husband and Wife as Joint Tenants; Under negotiation: Price and terms of payment.

GC 54956.9 (d)(4), CONFERENCE WITH LEGAL COUNSEL, POTENTIAL INITIATION OF LITIGATION: One (1) case.

CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 2

PLEDGE OF ALLEGIANCE
Council Member Wapner

INVOCATION
Pastor Taylor Kern, Ontario United Reformed Church

REPORT ON CLOSED SESSION
City Attorney

PUBLIC COMMENTS 6:30 P.M.

The Public Comment portion of the Council/Housing Authority meeting is limited to 30 minutes with each speaker given a maximum of 3 minutes. An opportunity for further Public Comment may be given at the end of the meeting. Under provisions of the Brown Act, Council is prohibited from taking action on oral requests.

To comment by email, submit your comments by email no later than 4:00 p.m. on the day of the meeting by emailing your name, agenda item you are commenting on and your comment to [email protected]. All Comments received by the deadline will be forwarded to the City Council for consideration before action is taken on the matter and entered into the record. As previously noted -- if you wish to address the Council, fill out one of the blue slips at the rear of the chambers and give it to the City Clerk.

AGENDA REVIEW/ANNOUNCEMENTS

The City Manager will go over all updated materials and correspondence received after the Agenda was distributed to ensure Council Members have received them. He will also make any necessary recommendations regarding Agenda modiﬁcations or announcements regarding Agenda items to be considered.

INFORMATION RELATIVE TO POSSIBLE CONFLICT OF INTEREST
Agenda item contractors, subcontractors and agents may require member abstentions due to conflict of interests and financial interests. Council Member abstentions shall be stated under this item for recordation on the appropriate item.

CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 3

1. APPROVAL OF MINUTES

ATTACHMENT:

20240305 Meeting Minutes (Not Official Until Approved).docx

2. BILLS & PAYROLL

3. A RESOLUTION ORDERING THE SUMMARY VACATION OF AN EASEMENT FOR PUBLIC STREET PURPOSES LOCATED WITHIN TRACT MAP NO. 18916 AT THE SOUTHWEST CORNER

OF ARCHIBALD AVENUE AND CHINO AVENUE

ATTACHMENT:

20240402 Vacation 324^01 EXH 1.pdf

ATTACHMENT:

20240402 Vacation 324^02^RESO^RM

ATTACHMENT:

20240402 Vacation 324^03 RESO EXH A - B.pdf

4. A RESOLUTION ORDERING THE SUMMARY VACATION OF THE RIGHT-OF-WAY AND

EASEMENT FOR PUBLIC UTILITY PURPOSES IN EAST EAMES STREET, EAST POLLOCK STREET,

SOUTH JACOBSON AVENUE, AND EAST LAUTNER DRIVE AND RECONVEYING ANY OF THE

CITY'S INTEREST THEREIN

CONSENT CALENDAR

All matters listed under CONSENT CALENDAR will be enacted by one motion in the form listed below – there will be no separate discussion on these items prior to the time Council votes on them, unless a member of the Council requests a speciﬁc item be removed from the Consent Calendar for a separate vote.

Each member of the public wishing to address the City Council on items listed on the Consent Calendar will be given a total of 2 minutes.

Minutes for the regular meetings of the City Council and Housing Authority of March 5, 2024 and approving same as on file in the Records Management Department.

Bills March 1, 2024 through March 14, 2024, and Payroll February 25, 2024 through March 9, 2024.

That the City Council adopt a Resolution ordering the summary vacation of an easement for street purposes located within Tract Map No. 18916 at the southwest corner of Archibald Avenue and Chino Avenue.

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

ORDERING THE SUMMARY VACATION OF AN EASEMENT FOR PUBLIC STREET PURPOSES LOCATED WITHIN TRACT MAP NO. 18916 AT THE SOUTHWEST CORNER OF ARCHIBALD AVENUE AND CHINO AVENUE.

ATTACHMENT:

20240402 Vacation 315, 318, 320 & 321^01 EXH 1.pdf

ATTACHMENT:

20240402 Vacation 315, 318, 320, 321^02^RESO^RM

ATTACHMENT:

20240402 Vacation 315, 318, 320 & 321^03 EXH A - H.pdf

5. DESIGN SERVICES AGREEMENTS FOR ON-CALL TRANSPORTATION PLANNING AND

TRAFFIC ENGINEERING DESIGN SERVICES

ATTACHMENT:

02_Contract_Chen Ryan.docx

ATTACHMENT:

02_Contract STC Traffic.docx

ATTACHMENT:

02_Contract Iteris.docx

ATTACHMENT:

02_Contract_ADVANTEC.pdf

ATTACHMENT:

02_Contract_KH.docx

ATTACHMENT:

02_Contract Fehr & Peers.docx

6. AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT WITH TELCON SERVICES,

LLC FOR THE ONTARIONET BROADBAND INTEGRATION TECHNICAL SERVICE PROJECT

ATTACHMENT:

20240402 Telcon Amendment 1^01^AGR

7. AUTHORIZE THE PURCHASE OF HAZARDOUS MATERIALS RESPONSE TRAINING PROPS

WITH ADVANCED ENTERTAINMENT TECHNOLOGY FOR THE ONTARIO FIRE DEPARTMENT

HAZMAT TEAM
Pollock Street, South Jacobson Avenue, and East Lautner Drive near the southwest corner of Mill Creek Avenue and Chino Avenue and reconveying any of the City's interest therein and authorize the City Manager to execute the documents necessary to evidence the vacation and the reconveyance of the City's interest therein.

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

ORDERING THE SUMMARY VACATION OF THE RIGHT-OF-WAY AND EASEMENT FOR

PUBLIC UTILITY PURPOSES IN EAST EAMES STREET, EAST POLLOCK STREET, SOUTH

JACOBSON AVENUE, AND EAST LAUTNER DRIVE AND RECONVEYING ANY OF THE CITY'S INTEREST THEREIN.

That the City Council approve three-year Design Services Agreements with six ﬁrms to provide On-Call Transportation Planning and Traﬃc Engineering Design Services in the amount of $200,000 per year for a three-year total not to exceed $600,000 for each ﬁrm; and authorize the City Manager, or his designee, to execute said Agreements and future amendments within the authorization limits.

That the City Council approve Amendment No. 1 to the Professional Services Agreement with Telcon Services, LLC of Idaho, for additional broadband design, engineering, project management, and inspection services for the OntarioNet Broadband Integration Technical Service Project and ongoing expansion eﬀorts in the amount of $680,000, plus a contingency in the amount of $180,000, for a revised not-to-exceed total of $2,060,000; and authorize the City Manager, or his designee, to execute said Agreement and future amendments within the authorization limits.

That the City Council authorize the City Manager or designee to execute the purchase of CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 5

ATTACHMENT:

Agreement_with_scope_of_services (1).docx

8. AN AMENDMENT TO THE INTERNET SERVICE ORDER WITH CENTURYLINK

COMMUNICATIONS, LLC FOR INTERNET SERVICE UPGRADES

ATTACHMENT:

04022024 Ontario1Gig Existing Services^01^MSA

9. A CHANGE ORDER TO THE CONSTRUCTION AGREEMENT WITH SLS PROPERTY SOLUTIONS, INC. FOR EMERGENCY ON-CALL BOARD UPS AND ABATEMENT

ATTACHMENT:

SLS Property Solutions - Change Order 1.pdf

10. AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT WITH GHD INC. FOR THE DESIGN OF UT1019 WELL 50 TREATMENT FACILITY PROJECT

ATTACHMENT:

Exhibit A.pdf

ATTACHMENT:

20240402 PSA with GHD Amend No. 1
AGRM^01.pdf

11. A RESOLUTION AUTHORIZING THE EXECUTION AND DELIVERY OF AN AGREEMENT WITH DPIF3 CA 36 ONTARIO RANCH, LLC REGARDING COMMUNITY FACILITIES DISTRICT FORMATION FOR ASSESSOR PARCEL NUMBER (LD PARCEL 1) 0218-211-31 AND FEE IN-LIEU Hazardous Materials Response Training Props from Advanced Entertainment Technology, of Monrovia, CA, in the amount of $451,465.

That the City Council approve and authorize the City Manager, or his designee, to execute Amendment No. 1 to the Internet Service Order, with CenturyLink Communications, LLC d/b/a Lumen Technologies Group, of Louisiana, to upgrade internet backhaul bandwidth services from 1Gbps to 10Gbps for the OntarioNet network in the amount of $332,559 plus a 15% contingency of $49,884, for a total not-to-exceed contract amount of $382,443, including expenditures of $35,019 within the current term.

That the City Council authorize Change Order No. 1 to the construction agreement with SLS Property Solutions, Inc. of Santa Ana, CA for emergency on-call board ups and abatements, increasing the not-to-exceed amount to $150,000 per ﬁscal year and the total not-to-exceed amount to $400,000 for the initial term of the agreement; and authorize the City Manager, or his designee, to execute said Agreement and future change orders within the authorization limits.

That the City Council approve and authorize the City Manager or designee to execute Amendment No. 1 to Professional Services Agreement with GHD Inc., of Irvine, California, for professional design services of UT1019 Well No. 50 Treatment Facility Project in the amount of $82,908, plus a 15% contingency of $12,436, for a total amount of $95,344 for a new total not- to-exceed amount of $494,654, and a term from June 7, 2022 to June 6, 2025.

That the City Council consider and:

A
.

Adopt a Resolution Approving an Agreement regarding Community Facilities District Formation for Assessor Parcel Number (LD Parcel 1) 0218-211-31 and Fee In-Lieu (the “Agreement”) between the City of Ontario and DPIF3 CA
36 Ontario Ranch, LLC (the
“Developer”); and
CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 6

ATTACHMENT:

Approving_In-
Lieu_Agreement_w_DPIF3_CA_36_Ontario_Ranch_LLC_RESO_RM.docx

ATTACHMENT:

Rich Haven Industrial Services In-Lieu Agreement^02 Agreement Fee in-Lieu

12. AN ORDINANCE APPROVING FILE NO. PUD23-002, A PLANNED UNIT DEVELOPMENT FOR A

1.22-ACRE PARCEL OF LAND LOCATED AT 218 EAST D STREET; SUBMITTED BY EUCLID INVESTMENT GROUP, LLC.

ATTACHMENT:

PUD23-002 Downtown Lux Apart 02^ORD^RM

ATTACHMENT:

File No. PUD23-002 Downtown Lux Apart^03 PUD.docx

13. AN ORDINANCE APPROVING THE WATERMARKE ONTARIO PLANNED UNIT DEVELOPMENT (FILE NO. PUD22-006) ON A 5.81-ACRE PROJECT SITE LOCATED AT THE NORTHEAST

CORNER OF MOUNTAIN AVENUE AND FOURTH STREET, SUBMITTED BY JAT LAND

DEVELOPMENT
B
.

Authorize the City Manager or his designee to ﬁnalize, execute, and record said Agreement.

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

AUTHORIZING THE EXECUTION AND DELIVERY OF AN AGREEMENT REGARDING

COMMUNITY FACILITIES DISTRICT FORMATION FOR ASSESSOR PARCEL NUMBER (LD PARCEL 1) 0218-211-31 AND FEE IN-LIEU BETWEEN THE CITY OF ONTARIO AND DPIF3 CA 36 ONTARIO RANCH, LLC.

That the City Council consider and adopt an Ordinance Approving File No. PUD23-002, the Downtown Ontario Luxury Apartments (Phase II) Planned Unit Development, establishing development standards and design guidelines to facilitate a multiple-family residential development at 218 East D Street.

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING FILE NO. PUD23-002, A PLANNED UNIT DEVELOPMENT TO ESTABLISH

DEVELOPMENT STANDARDS AND DESIGN GUIDELINES FOR THE PROJECT SITE LOCATED AT 218 EAST D STREET WITHIN THE MU-1 (MIXED USE DOWNTOWN) ZONING DISTRICT AND MAKING FINDINGS IN SUPPORT THEREOF - APNS: 1048- 556-01, 1048-556-02, 1048-556-03, 1048-556-04, 1048-556-05, AND 1048-556-14.

That the City Council consider and adopt an Ordinance approving the Watermarke Ontario Planned Unit Development (File No. PUD22-006).

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING FILE NO. PUD22-006, THE WATERMARKE ONTARIO PLANNED UNIT

DEVELOPMENT, ESTABLISHING DEVELOPMENT STANDARDS AND DESIGN GUIDELINES FOR A 5.81-ACRE PROJECT SITE LOCATED AT THE NORTHEAST

CORNER OF MOUNTAIN AVENUE AND FOURTH STREET, AND MAKING FINDINGS IN SUPPORT THEREOF - APNS: 1008-513-16, 1008-522-01, 1008-522-02, AND 1008- 522-03.

CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 7

ATTACHMENT:

PUD22-006 Watermarke Ontario Mixed Use CC A - PUD
04^ORD^RM.docx

ATTACHMENT:

File No. PUD22-006 Watermarke Ontario Mixed Use CC^05 Ordinance Attachment A - PUD Doc

STAFF MATTERS

City Manager Ochoa

COUNCIL MATTERS

Mayor Leon
Mayor pro Tem Dorst-Porada
Council Member Wapner
Council Member Bowman
Council Member Valencia

ADJOURNMENT
CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 8 1 of 2

CITY OF ONTARIO

CLOSED SESSION REPORT
City Council // Housing Authority // Other // (GC 54957.1) April 2, 2024
ROLL CALL: Dorst-Porada _, Wapner _, Bowman _, Valencia _, Mayor / Chairman Leon _.

STAFF: City Manager / Executive Director __, City Attorney __ In attendance: Dorst-Porada _, Wapner _, Bowman _, Valencia _, Mayor / Chairman Leon _.  GC 54956.9(d)(1), CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION City of Ontario v. Inland Empire Utilities Agency, San Bernardino Superior Court Case No. CIVSB 2328325
No Reportable Action Continue Approved
/ / / / / /
Disposition: _________________________________________________________________ In attendance: Dorst-Porada _, Wapner _, Bowman _, Valencia _, Mayor / Chairman Leon _.  GC 54956.8, CONFERENCE WITH REAL PROPERTY NEGOTIATORS Property: APN: 218-111-06; 13115 South Ontario Avenue; City/Authority negotiator: Scott Ochoa or his designee; Negotiating parties: Huaiqing Ren and Xia Cui, Husband and Wife as Joint Tenants; Under negotiation: Price and terms of payment No Reportable Action Continue Approved
/ / / / / /
Disposition: _________________________________________________________________ 9 2 of 2

CITY OF ONTARIO

CLOSED SESSION REPORT
City Council // Housing Authority // Other // (GC 54957.1) April 2, 2024
(Continued)
In attendance: Dorst-Porada _, Wapner _, Bowman _, Valencia _, Mayor / Chairman Leon _.  GC 54956.9 (d)(4), CONFERENCE WITH LEGAL COUNSEL, POTENTIAL INITIATION OF LITIGATION: One (1) case.

No Reportable Action Continue Approved
/ / / / / /
Disposition: _________________________________________________________________ Reported by:
___________________________________________
City Attorney / City Manager / Executive Director
10 ONTARIO CITY COUNCIL/

ONTARIO HOUSING AUTHORITY

MINUTES
March 5, 2024
(Not Official Until Approved)
(Not Official Until Approved)

JOINT MEETINGS
The regular meetings of the Ontario City Council and the Housing Authority were held on Tuesday, March 5, 2024 at Ontario City Hall, 303 E. B Street Ontario, California.

CALL TO ORDER
Mayor Leon called the joint meetings to order at 6:01 p.m.

ROLL CALL
PRESENT: Mayor/Chairman: Paul S. Leon
Mayor pro Tem/Vice Chair: Debra Porada
Council/Authority Members: Alan D. Wapner, and Ruben Valencia.

ABSENT: Council/Authority Members: Jim W. Bowman
Also present were City Manager / Executive Director Scott Ochoa, Assistant City Attorney/Legal Counsel Ruben Duran, and City Clerk / Secretary Sheila Mautz.

INFORMATION RELATIVE TO POSSIBLE CONFLICTS OF INTEREST
There were no conflicts of interest announced by the City Council.

CLOSED SESSION
Mayor Leon inquired whether persons were present who wished to speak to the Closed Session items. Hearing no one, City Attorney Duran announced the matters for discussion as listed on the agenda and recessed to Closed Session at 6:03 p.m. for discussion of the following:

GC 54956.8, CONFERENCE WITH REAL PROPERTY NEGOTIATORS
Property: APNs: 1048-564-03, 1048-564-04,1048-564-05, 1048-564-06; 121-143 North Euclid Avenue; City/Authority negotiator: Scott Ochoa or his designee; Negotiating parties: LAB-CO LLC; Under negotiation: Price and terms of payment GC 54956.8, CONFERENCE WITH REAL PROPERTY NEGOTIATORS
Property: APNs: 1047-543-20, 1047-543-30, 1047-543-31; 315-405 East Fourth Street and 406 East Harvard Place; City/Authority negotiator: Scott Ochoa or his designee; Negotiating parties: C.C. Graber Co.; Under negotiation: Price and terms of payment. 11 OPEN MEETING CALLED TO ORDER
Mayor Leon reconvened the meetings at 6:30 p.m. for the regular session.

REPORT ON CLOSED SESSION
City Attorney Duran stated there was no reportable action.

PLEDGE OF ALLEGIANCE
The Pledge of Allegiance was led by Mayor pro Tem Porada.

INVOCATION
Mayor Leon led a moment of silence.

PUBLIC COMMENTS
Assistant City Clerk Isbell announced there were six written public comments:

Harry Gutierrez, regarding parking congestion near Cherry Avenue and C Street.

Marisol Becerra, regarding traffic delinquency on I Street.

Loree Masonis, regarding the ongoing fentanyl crisis and clarification on Measure I.

Arthur & Melinda Delgado, regarding building requirements for their fence project.

Husam Suleiman, regarding transparency in the City of Ontario’s investments.

Mayor Leon called upon the first speaker:

Dr. Peter Bloomfield, regarding an open invitation to collaborate with the City of Ontario.

Ezequiel Franco, regarding an open invitation to collaborate with the City of Ontario.

Alejandra Ruiz, regarding an open invitation to collaborate with the City of Ontario.

AGENDA REVIEW/ANNOUNCEMENTS
City Manager Ochoa made no announcements.

CONSENT CALENDAR
MOTION: Moved by Mayor pro Tem Porada, seconded by Council Member Wapner and carried by a unanimous vote 4-0, to approve the Consent Calendar, with Council Member Bowman absent.

1. APPROVAL OF MINUTES
Approved minutes for the regular meetings of the City Council and Housing Authority of February 6, 2024, and approving same as on file in the Records Management Department.
12 2. BILLS & PAYROLL
Approved bills February 2, 2024 through February 15, 2024, in the amount of $23,324,860.68, and Payroll January 28, 2024 through February 10, 2024 in the amount of $5,018,735.48.

3. AN AMENDMENT TO THE DESIGN SERVICES AGREEMENT WITH POPULOUS, INC. FOR ADDITONAL MASTER PLANNING SERVICES FOR THE PROPOSED

MINOR LEAGUE BASEBALL STADIUM AND PARKING STRUCTURE PROJECT,

AND AN AMENDMENT TO THE ON-CALL PROFESSIONAL SERVICES
AGREEMENT WITH TILDEN-COIL CONSTRUCTORS, INC. FOR

CONSTRUCTION MANAGEMENT MULTI-PRIME SERVICES FOR THE ONTARIO

SPORTS COMPLEX PROJECT
The City Council took the following actions:

A. Authorized the City Manager, or his designee, to execute Amendment No. 1 to the Design Services Agreement with Populous, Inc., of Los Angeles, California, to provide additional Master Planning Services for the Proposed Minor League Baseball Stadium and Parking Structure Project in the amount of $2,987,375 for a total not-to-exceed contract amount of $9,775,010; and B. Authorized the City Manager, or his designee, to execute Amendment No. 2 to the Professional Services Agreement with Tilden-Coil Constructors, Inc., of Riverside, California, to provide Construction Management Multi-Prime Services for the mass grading of the entire 192-acre site, construction management for the o site infrastructure construction, and the additional scope added to the Proposed Minor League Baseball Stadium and Parking Structure in the amount of $14,813,944 for a new not-to-exceed contract amount of $18,352,944 and to extend the contract term until October 27, 2027.

4. FISCAL YEAR 2023-24 MID-YEAR BUDGET UPDATE REPORT
The City Council approved the budget adjustments and recommendations as presented in the Fiscal Year 2023-24 Mid-Year Budget Update Report.

5. A SERVICE AND SOFTWARE LICENSING AGREEMENT WITH ACCELA, INC. TO UPGRADE THE CITY’S LAND MANAGEMENT SOFTWARE SYSTEM
The City Council authorized the City Manager, or his designee, to execute an Agreement with Accela, Inc., of San Ramon, California, to upgrade the City’s land management software system, in an amount not-to-exceed $3,041,548. 13 6. AMENDMENTS TO THE PROFESSIONAL SERVICE AGREEMENT WITH TRANSTECH ENGINEERS, INC. FOR ON-CALL PROJECT MANAGEMENT

SERVICES
The City Council took the following actions:

A. Authorized the City Manager, or his designee, to execute Amendment No. 2 to the Professional Services Agreement with Transtech Engineers, Inc. (Transtech), of Chino, California, for on-call Project Management Services for the Concession Stand Remodel at Latimer Field in an amount of $7,040 for a total not-to-exceed contract amount of $1,146,000; and B. Authorized the City Manager or his designee to execute Amendment No. 3 to the Professional Services Agreement with Transtech, of Chino, California, for on-call Project Management Services in an amount of $150,000 for a total not-to-exceed contract amount of $1,296,000.

7. A PROFESSIONAL SERVICES AGREEMENT WITH WITT O'BRIEN'S, LLC FOR

A CONTINUITY OF OPERATIONS PLAN
The City Council authorized the City Manager, or his designee, to execute a Professional Services Agreement with Witt O'Brien's, LLC, for consulting services in the creation of a citywide Continuity of Operations Plan, inclusive of the Continuity of Government and Disaster Recovery plans for a not-to-exceed contract amount of $211,900.

8. AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT WITH STETSON ENGINEERING INC. FOR THE EVALUATION OF AN ADVANCED

WASTEWATER PURIFICATION FACILITY ALTERNATIVE SUPPLY PROGRAM

PROJECT
The City Council authorized the City Manager, or designee to execute Amendment No. 1 to the Professional Services Agreement with Stetson Engineering Inc., of Covina, California, for the Evaluation of an Advanced Wastewater Puri ﬁcation Facility Alternative Supply Program Project for $150,000, for a new total not-to- exceed contract amount of $336,148 and a term from July 19, 2022 to January 1, 2025.

9. A RESOLUTION APPROVING AN IMPROVEMENT AGREEMENT,
IMPROVEMENT SECURITY AND FINAL TRACT MAP NO. 20449 LOCATED AT

THE SOUTHEAST CORNER OF HAVEN AVENUE AND ONTARIO RANCH
ROAD
The City Council adopted a Resolution approving an Improvement Agreement, Improvement Security and Final Tract Map No. 20449 located at the southeast corner of Haven Avenue and Ontario Ranch Road.
14 RESOLUTION NO. 2024-006 A RESOLUTION OF THE CITY COUNCIL OF THE

CITY OF ONTARIO, CALIFORNIA, APPROVING AN IMPROVEMENT
AGREEMENT, IMPROVEMENT SECURITY AND FINAL TRACT MAP NO. 20449

LOCATED AT THE SOUTHEAST CORNER OF HAVEN AVENUE AND ONTARIO RANCH ROAD.

10. A CONSTRUCTION CONTRACT WITH MAMCO INC., A PROFESSIONAL SERVICES AGREEMENT WITH STANTEC CONSULTING SERVICE INC., AND

AMENDMENTS TO THE PROFESSIONAL SERVICES AGREEMENTS WITH ANSER ADVISORY MANAGEMENT LLC AND KLEINFELDER INC., FOR THE

ARCHIBALD SEWER DIVERSION PROJECT
The City Council took the following actions:

A. Approved the plans and speciﬁcations and awarded Contract No. UT1016 to Mamco Inc., of Perris, California, for the construction of the Archibald Sewer Diversion Project, in the amount of $3,666,666 plus a 15% contingency of $550,000, for a total not-to-exceed amount of $4,216,666, a term of 200 calendar days after issuance of notice to proceed; and authorize the City Manager, or his designee, to execute said contract and ﬁle a notice of completion at the conclusion of all construction activities related to the project.

B. Authorized the City Manager, or his designee, to execute a Professional Services Agreement with Stantec Consulting Services Inc., of Irvine, California, for a total not-to- exceed amount of $129,000 for construction engineering services and a term from March 5, 2024 to March 31, 2026.

C. Authorized the City Manager, or his designee, to execute Amendment No. 10 to the Professional Services Agreement with ANSER Advisory Management LLC DBA Wallace and Associates Consulting Inc., of Santa Ana, California, to amend the Agreement amount by $137,660 for a new total not-to-exceed amount of $2,172,433 for construction management and inspection services and a term from March 5, 2024 to October 1, 2024.

D. Authorized the City Manager, or his designee, to execute Amendment No. 5 to the Professional Services Agreement with Kleinfelder Inc., of Ontario, California, to amend the Agreement amount by $87,951 for a new total not- to-exceed amount of $1,016,486 for geotechnical and material testing services and a term from March 5, 2024 to June 30, 2025.

11. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, AMENDING CERTAIN SECTIONS OF CHAPTER 13 OF THE

ONTARIO MUNICIPAL CODE RELATING TO THE FLOOD DAMAGE

PREVENTION PROGRAM
The City Council adopted an Ordinance amending certain sections of Chapter 13 of the Ontario Municipal Code relating to the City's flood damage prevention program. 15 ORDINANCE NO. 3271 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, AMENDING CERTAIN SECTIONS OF CHAPTER 13

OF THE ONTARIO MUNICIPAL CODE RELATING TO THE FLOOD DAMAGE PREVENTION PROGRAM.

12. A GRANT APPLICATION FROM OMNITRANS MEASURE I FOR THE ONTARIO SILVER S.T.A.R.S. PROGRAM
The City Council authorized the City Manager, or his designee, to execute all documents necessary to apply for and accept a 2-year grant in the amount of $1,519,198 from Omnitrans Measure I for the Ontario Silver S.T.A.R.S. Program STAFF MATTERS:

City Manager Ochoa made no announcements.

COUNCIL MATTERS:

Mayor pro Tem Porada invited the community to the Ontario Heritage’s March 15th golf tournament and to visit the Emporia Arts District third Saturday Artwalk event.

Mayor Leon asked the Council for consent to adjourn the meeting in memory of Tom Liegler.

All members of the Council agreed to Mayor Leon’s request.

ADJOURNMENT:

Mayor Leon adjourned the meetings of the Joint Agencies at 6:43 p.m. in memory of Tom Liegler. Mayor Leon announced the next regular meeting was scheduled for March 19, 2024.

Respectfully submitted,
____________________________________

SHEILA MAUTZ, CITY CLERK/SECRETARY
APPROVED:
_____________________________________
PAUL S. LEON, MAYOR
16 Department: Engineering
Prepared By: Angela Truong
Staff Member Presenting: Scott Murphy,
Executive Director Community Development
Reviewed By: Raymond Lee, Khoi Do
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 3
SUBJECT:

A RESOLUTION ORDERING THE SUMMARY VACATION OF AN EASEMENT FOR PUBLIC STREET PURPOSES LOCATED WITHIN TRACT MAP NO. 18916 AT THE

SOUTHWEST CORNER OF ARCHIBALD AVENUE AND CHINO AVENUE

CITY OF ONTARIO
Agenda Report
April
2, 2024
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Focus Resources in Ontario's Commercial and Residential Neighborhoods 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 City did not pay to acquire the subject easement. The Developer has paid the applicable processing fees to defray any City cost to process this request.

BACKGROUND & ANALYSIS:

The applicant, KB Home, has requested that the City vacate an existing easement for street purposes, as shown on Exhibit 1, to facilitate the development of the area. The easement is not needed for any present or future street purposes. There are currently no existing public utilities within the easement and the easement is determined to be excess.

Section
8334(a) of the California Streets and Highways Code authorizes the City to summarily vacate (by Resolution with no public hearing) an excess right-of-way of a street or highway not required for street or highway purposes.

This summary vacation meets the California Government Code, Streets and Highways Code, Ontario Municipal Code, and has been reviewed and approved by the City Engineer. 17 © 2024 Microsoft Corporation © 2024 Maxar ©CNES (2024) Distribution Airbus DS LOT 25
DOLOMITE STREETKINGLET AVENUELOT 28LOT 29LOT 32LOT 33LOT 36LOT "K" LOT "L"LOT "M"LOT 26LOT 27LOT 30LOT 31LOT 34LOT 35 LEGENDAREA TO BE VACATED - 1,017 SQUARE FEET
SHEET 1 OF 1
KDM MERIDIAN, INC. - 1340 REYNOLDS AVE., STE. 110 - IRVINE, CA. 92614 - PH. (949)768-0731KDMM JOB NO. 22-HAR-49 EXHIBIT 1PUBLIC EASEMENT VACATION
18 RESOLUTION NO. ________

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

CALIFORNIA, ORDERING THE SUMMARY VACATION OF AN

EASEMENT FOR PUBLIC STREET PURPOSES LOCATED WITHIN
TRACT MAP NO. 18916 AT THE SOUTHWEST CORNER OF
ARCHIBALD AVENUE AND CHINO AVENUE.

WHEREAS, the City Council of the City of Ontario, California, pursuant to Division 9, Part 3, Chapter 4, of the Streets and Highways Code, may summarily vacate an easement under certain conditions specified therein; and WHEREAS, an easement for public street purposes located within Tract Map No. 18916, shown on a portion of the land described in Easement Deed of Right-of-Way Dedication recorded February 15, 2023 as Document No. 2023-0035993, of Official Records in the Office of the County Recorder of San Bernardino County, lying within Lots 25, "K", 28, 29, "L", 32",33, "M", and 36 as shown on Tract Map No. 18916 recorded November 2, 2023 in Book 366 Pages 65 through 69, inclusive, of Maps in the Office of said County Recorder, is not needed for any present or future street or public utility or other municipal purposes and is determined to be excess; WHEREAS, an easement for public utility purposes within above described portions of land will be reserved; and
WHEREAS, 8334(a) of the California Streets and Highways Code authorizes the City to summarily vacate (by Resolution with no public hearing) an excess right-of-way of a street or highway not required for street or highway purposes; NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Ontario, California:

1. That the above recitals are true and correct.

2. That title to the above-described said properties, more specifically described in Exhibit “A” and depicted on Exhibit “B” attached hereto, shall be vacated.

3. That the City Clerk of the City of Ontario, California, shall cause a copy of this Resolution to be recorded in the office of the County Recorder of San Bernardino County, California.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.
19 PASSED, APPROVED, AND ADOPTED this 2nd day of April, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
20 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. 2024- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held April 2, 2024 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. 2024- duly passed and adopted by the Ontario City Council at their regular meeting held April 2, 2024. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
21 22
23 Department: Engineering
Prepared By: Angela Truong
Staff Member Presenting: Scott Murphy,
Executive Director Community Development
Reviewed By: Raymond Lee, Khoi Do
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 4
SUBJECT:

A RESOLUTION ORDERING THE SUMMARY VACATION OF THE RIGHT-OF-WAY

AND EASEMENT FOR PUBLIC UTILITY PURPOSES IN EAST EAMES STREET, EAST

POLLOCK STREET, SOUTH JACOBSON AVENUE, AND EAST LAUTNER DRIVE AND

RECONVEYING ANY OF THE CITY'S INTEREST THEREIN

CITY OF ONTARIO
Agenda Report
April
2, 2024
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council adopt a Resolution ordering the summary vacation of the right-of-way and public utility easements located within Tract Map No. 20134 in East Eames Street, East Pollock Street, South Jacobson Avenue, and East Lautner Drive near the southwest corner of Mill Creek Avenue and Chino Avenue and reconveying any of the City's interest therein and authorize the City Manager to execute the documents necessary to evidence the vacation and the reconveyance of the City's interest therein.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

There is not a direct ﬁscal impact associated with this action. The City did not pay to acquire the subject easements. The Developers have paid the applicable processing fees to defray any City cost to process this request.

BACKGROUND & ANALYSIS:

The Developers, Richland Communities and Landsea Homes, have oﬀered certain portions of East Eames Street, East Pollock Street, South Jacobson Avenue, and East Lautner Drive for street right-of-way dedication in fee simple and for public utility purposes, as one of the requirements for the development of Tract Map No. 20134 within the Rich Haven Speciﬁc Plan.

Due to a Speciﬁc Plan Amendment changing the land use from residential to industrial, the aforementioned streets will not be needed for any present or future street and/or public utility 24 purposes. The Developers have requested that the City vacate the existing right-of-way and easements, as shown on Exhibit 1, and reconvey the vacated portion to the Developers. There are currently no existing public utilities within those streets and easements and the easements are determined to be excess.

Section 66477.5(c) of the California Government Code requires the City to reconvey the subject property in interest to the subdivider if the dedication was made in fee simple and the City has determined that the same public purpose for which the dedication was required no longer exists.

Since the Developer oﬀered the right-of-way in fee simple, and the right-of-way and easements are no longer required, the City will reconvey the property to the Developer.

Section 8334(a) of the California Streets and Highways Code authorizes the City to summarily vacate (by Resolution with no public hearing) right-of-way or highway determined to be excess and not required.

Section 8333(c) of the California Streets and Highways Code authorizes the City to summarily vacate (by Resolution with no public hearing) a public service easement that has been superseded by relocation or determined to be excess, and there are no public facilities located within the easement.

This summary vacation meets the California Government Code, Streets and Highways Code, Ontario Municipal Code, and has been reviewed and approved by the City Engineer.

25 26
RESOLUTION NO. ________

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

CALIFORNIA, ORDERING THE SUMMARY VACATION OF THE RIGHT-

OF-WAY AND EASEMENT FOR PUBLIC UTILITY PURPOSES IN EAST

EAMES STREET, EAST POLLOCK STREET, SOUTH JACOBSON

AVENUE, AND EAST LAUTNER DRIVE AND RECONVEYING ANY OF

THE CITY'S INTEREST THEREIN
WHEREAS, the City Council of the City of Ontario, California, pursuant to Division 9, Part 3, Chapter 4, of the Streets and Highways Code, may summarily vacate streets and easements under certain conditions specified therein; and WHEREAS, right-of-way and easement for public utility purposes shown on Tract Map No. 20134, recorded November 10, 2020 as Document No. 2020-0445112, of Official Records of the County Recorder of San Bernardino County, State of California, as per map recorded in Book 357, Pages 23 through 33 of Tract Maps Official Records of Said County, is not needed for any present or future public utility or other municipal purposes and is determined to be excess after a Specific Plan Amendment changed the land use; and
WHEREAS, Section 66477.5(c) of the California Government Code requires the City to reconvey the subject property in interest to the subdivider if the dedication was made in fee simple and the City has determined that the same public purpose for which the dedication was required no longer exists; and
WHEREAS, Section 8334(a) of the California Streets and Highways Code authorizes the City to summarily vacate (by Resolution with no public hearing) right-of- way or highway determined to be excess and not required; and WHEREAS, Section 8333(c) of the California Streets and Highways Code authorizes the City to summarily vacate a public service easement that has been superseded by relocation or determined to be excess and there are no other public utilities located within the easement;
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Ontario, California:

1. That the above recitals are true and correct.

2. That title to the above-described said properties, more specifically described in Exhibits “A,” “C,” “E,” and “G” and depicted on Exhibits “B,” “D,” “F,” and “H” attached hereto, shall be vacated.

3. That the City Clerk of the City of Ontario, California, shall cause a copy of this Resolution to be recorded in the office of the County Recorder of San Bernardino County, California.
27 The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 2nd day of April 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER, LLP

CITY ATTORNEY
28 STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
29 30
31 EXHIBIT "C"
32 EXHIBIT "C"
33 EXHIBIT "D"
34 35
36 37
38 EXHIBIT "B"
EXHIBIT "C"
39 EXHIBIT "B"
EXHIBIT "C"
40 EXHIBIT "D"
41 EXHIBIT "D"
42 Department: Engineering
Prepared By: Craig Cruz
Staff Member Presenting: Scott Murphy,
Executive Director Community Development
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 5
SUBJECT:

DESIGN SERVICES AGREEMENTS FOR ON-CALL TRANSPORTATION PLANNING

AND TRAFFIC ENGINEERING DESIGN SERVICES

CITY OF ONTARIO
Agenda Report
April
2, 2024
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Maintain the Current High Level of Public Safety
Focus Resources in Ontario's Commercial and Residential Neighborhoods 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 Fiscal Year 2023-24 Adopted Budget includes, and future year budgets will include appropriations in the related projects for design services as needed. In no event shall the proposed agreement with each ﬁrm exceed $600,000 over a three-year period with an allocation of $200,000 per year. At the City's discretion, up to two additional one-year extensions may be executed for each firm, commensurate with future City Council approved budgets.

BACKGROUND & ANALYSIS:

The City has a need for on-call transportation planning and traﬃc engineering services for work that cannot be provided by City Staﬀ. Services may include, but are not limited to, traﬃc study review, traﬃc improvement designs, traﬃc design plan check services, and staﬀ augmentation. Staﬀ is recommending contracts with a total of six qualiﬁed ﬁrms to ensure a timely and cost-effective option is always available for each task order. Additionally, Staff is recommending that all contracts be executed between the ﬁrms and the City so that any City agency can utilize these ﬁrms. This procedure reduces overhead charges and increases eﬃciency in completing critical projects, ultimately resulting in more satisfactory work products.

On December 12, 2023, the City solicited requests for qualiﬁcations (RFQ) for On-Call 43 Transportation Planning and Traﬃc Engineering Design Services, and responses from the following firms were evaluated:

COMPANY

LOCATION
ADVANTEC Consulting Engineers
Ontario, CA
AGA Engineers, Inc.

Fullerton, CA
Chen Ryan Associates, Inc.

San Diego, CA
EXP US SERVICES, Inc.

San Bernardino, CA
Fehr & Peers
Irvine, CA
GTS
Los Angeles, CA
HR Green, Inc.

Cedar Rapids, IA
Iteris, Inc.

Santa Ana, CA
JMD
City of Industry, CA
Kimley-Horn and Associates, Inc.

Orange, CA
KOA Corporation
Ontario, CA
Linscott, Law, and Greenspan, Engineers
Irvine, CA
Michael Baker International, Inc.

Ontario, CA
STC Traffic, Inc.

Carlsbad, CA
TKE Engineering, Inc.

Riverside, CA
Toole Design Group, LLC
Silver Spring, MD
Urban Crossroads, Inc.

Newport Beach, CA
Willdan Engineering
Anaheim, CA

Using a qualiﬁcations-based selection process, a panel of City Staﬀ reviewed the statements of qualiﬁcations for all ﬁrms that submitted a response to the RFQ. The ﬁrms were scored on the criteria of clarity and conformance of proposal, proposer and team member's experience and performance, and proposed method to accomplish work. ADVANTEC Consulting Engineers, Chen Ryan Associates, Inc., Fehr & Peers, Iteris, Inc., Kimley-Horn & Associates, Inc., and STC Traﬃc, Inc., were determined to be the most qualified firms.
44 46700.00100\40935196.1
BB&K (2023) 1

CITY OF ONTARIO

DESIGN SERVICES AGREEMENT

FOR ON-CALL SERVICES

1. PARTIES AND DATE.

This Agreement is made and entered into as of ____________, by and between the City of Ontario, a municipal corporation organized and operating under th e 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 CR Associates , a CORPORATION with its principal place of business at 3900 5th Avenue, Suite 310, San Diego, California (hereinafter referred to as “ Consultant”). City and Consultant are sometimes individually referred to herein as “Party” and collectively as “Parties.”

2. RECITALS.

2.1 City. City is a municipal corporation organ ized under the laws of the State of California, with power to contract for services necessary to achieve its purpose.

2.2 Consultant. Consultant desires to perform and assume responsibility for the provision of certain professional engineering design services required by the City on the terms and conditions set forth in this Agreement. Consultant warrants that it is fully licensed, qualified, and willing to perform the services required by this Agreement; provided, however, that if Consultant is a corporation or other organization, the Project Consultant designated pursuant to Section 3.2, and not the Consultant itself, shall be fully licensed to practice as an engineer in the State of California.

2.3 Project. City desires to engage Consultant to render such services for the On-Call Transportation Planning & Traffic Engineering Design Services ("Project") as set forth in this Agreement.

3. TERMS

3.1 Employment of Consultant.

3.1.1 Scope of Services. Consultant promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional engineering and related services necessary for the full and adequate completion of the Project described in Exhibit “A” attached hereto and incorporated herein by reference (“Services”). The Services shall be more particularly described in the individual Task Order issued by the City or its designee. No Services sh all be performed unless authorized by a fully executed Task Order in the form attached hereto as Exhibit “C”. All Services PAUL S. LEON
MAYOR

DEBRA PORADA

MAYOR PRO TEM
ALAN D. WAPNER
JIM W. BOWMAN

RUBEN VALENCIA

COUNCIL MEMBERS

SHEILA MAUTZ

CITY CLERK
JAMES R. MILHISER

TREASURER

SCOTT OCHOA

CITY MANAGER
45 46700.00100\40935196.1
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BB&K (2023) 2
shall be subject to, and performed in accordance with, this Agreement, each Task Order, any exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. All Services performed by Consultant shall be subject to the sole and discretionary approval of the City, which approval shall not be unreasonably withheld.

3.1.2 Term. The term of this Agreement shall be from April 2, 2024 to April 2, 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 (2) additional one- year terms. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines.

3.2 Project Consultant; Key Personnel.

3.2.1 Engineer of Record. Consultant shall name a specific individual to act as Project Consultant, subject to the approval of City. Consultant hereby designates Monique Chen (License No. T2272) to act as the Engineer of Record for the Project. The Engineer of Record shall: (1) maintain oversight of the Services; (2) have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement; (3) supervise and direct the Services using his or her best skill and attention; (4) be responsible for the means, methods, techniques, sequences and procedures used for the Services; (5) adequately coordinate all portions of the Services; and (6) act as principal contact with City and all contractors, consultants, engineers and inspectors on the Project. Any change in the Engineer of Record shall be subject to the City’s prior written approval, which approval shall not be unreasonably withheld. The new Engineer of Record shall be of at least equal competence as the prior Engineer of Record. In the event that City and Consultant cannot agree as to the substitution of a new Engineer of Record, City shall be entitled to terminate this Agreement for cause.

3.3 Hiring of Consultants and Personnel.

3.3.1 Right to Hire or Employ. Consultant shall have the option, unless City objects in writing after notice, to employ at its expense architects, engineers, experts or other consultants qualified and licensed to render services in connection with the planning and/or administration of the Project, and to delegate to them such duties as Consultant may delegate without relieving Consultant from administrative or other responsibility under this Agreement.

Consultant shall be responsible for the coordination and cooperation of Consultant’s architects, engineers, experts or other consultants. All consultants, including changes in consultants, shall be subject to approval by City in its sole and reasonable discretion. Consultant shall notify City of the identity of all consultants at least fourteen (14) days prior to their commencement of work to allow City to review their qualifications and approve to their participation on the Project in its sole and reasonable discretion.
46 46700.00100\40935196.1
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3.3.2 Qualification and License. All architects, engineers, experts and other consultants retained by Consultant in performance of this Agreement shall be qualified to perform the Services assigned to them, and shall be licensed to practice in their respective professions, where required by law.

3.3.3 Standards and Insurance. All architects, engineers, experts and other consultants hired by Consultant shall be required to meet all of the same standards and insurance requirements set forth in this Agreement, unless other standards or requirements are approved by the City in writing. Unless changes are approved in writing by the City, Consultant’s agreements with its consultants shall contain a provision making them subject to all provisions stipulated in this Agreement.

3.3.4 Assignments or Staff Changes. Consultant shall promptly obtain written City approval of any assignment, reassignment or replacement of such architects, engineers, experts and consultants, or of other staff changes of key personnel working on the Project. As provided in the Agreement, any changes in Consultant’s consultants and key personnel shall be subject to approval by City.

3.3.5 Draftsman and Clerical Support. Draftsmen and clerical personnel shall be retained by Consultant at Consultant’s sole expense.

3.4 Standard of Care.

3.4.1 Standard of Care. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals qualified to perform the Services in the same discipline in the State of California, and shall be responsible to City for damages sustained by the City and delays to the Project as specified in the indemnification provision of this Agreement. Without limiting the foregoing, Consultant shall be fully responsible to the City for any increased costs incurred by the City as a result of any such delays in the design or construction of the Project. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants and represents that all of its employees, architects, engineers, experts and other consultants shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees, architects, engineers, experts and other consultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services assigned to or rendered by them and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions 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.

3.4.2 Performance of Employees. Any employee or consultant 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 or consultant 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.
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BB&K (2023) 4

3.5 Laws and Regulations.

3.5.1 Knowledge and Compliance. Consultant shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and regulations in any manner affecting the performance of the Services or the Project, and shall give all notices required of the Consultant by law. Consultant shall be liable, pursuant to the standard of care and indemnification provisions of this Agreement, for all violations of such laws and regulations in connection with its Services. Consultant shall defend, indemnify and hold City, its officials, 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.

3.5.2 Drawings and Specifications. Consultant shall cause all drawings and specifications to conform to any applicable requirements of federal, state and local laws, rules and regulations, including the Uniform Building Code, in effect as of the time the drawings and specifications are prepared or revised during the latest phase of the Services described in Exhibit “A” attached hereto. Any significant revisions made necessary by changes in such laws, rules and regulations after this time may be compensated as Additional Services which were not known or reasonably should not have been known by Consultant. Consultant shall cause the necessary copies of such drawings and specifications to be filed with any governmental bodies with approval jurisdiction over the Project, in accordance with the Services described in Exhibit “A” attached hereto. For the preparation of all such drawings and specifications, the Consultant shall use Computer Aided Design Drafting (“CADD”) (e.g., AutoCAD) or other technology acceptable to the Consultant and City.

3.5.3 Americans with Disabilities Act. Consultant will use its best professional efforts to interpret all applicable federal, state and local laws, rules and regulations with respect to access, including those of the Americans with Disabilities Act (“ADA”). Consultant shall inform City of the existence of inconsistencies of which it is aware or reasonably should be aware between federal and state accessibility laws, rules and regulations, as well as any other issues which are subject to conflicting interpretations of the law, and shall provide the City with its interpretation of such inconsistencies and conflicting interpretations. Unless Consultant brings such inconsistencies and conflicting interpretations to the attention of the City and requests City’s direction on how to proceed, the Consultant’s interpretation of such inconsistencies and conflicting interpretations shall be the sole responsibility and liability of Consultant, and the Consultant shall correct all plans, specifications and other documents prepared for the Project at no additional cost if its interpretations are shown to be incorrect. In the event that the Consultant request’s City’s direction on how to proceed with respect to any inconsistent and/or conflicting interpretation, the Consultant shall be responsible to the City only pursuant to the indemnification provisions of this Agreement.

3.5.4 Permits, Approvals and Authorizations. Consultant shall provide City with a list of all permits, approvals or other authorizations required for the Project from all federal, state or local governmental bodies with approval jurisdiction over the Project. Consultant shall then assist the City in obtaining all such permits, approvals and other authorizations. The costs of such permits, approvals and other authorizations shall be paid by the City.

3.5.5 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. § 48 46700.00100\40935196.1
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BB&K (2023) 5
1251 et seq.); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000- 14950); and any and all regulations, policies, or permits issued pursuant to any such authority.

Consultant shall 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. Failure to comply with laws, regulations, and ordinances listed in this Section is a violation of federal and state law.

3.6 Independent Contractor.

3.6.1 Control and Payment of Subordinates. City retains Consultant on an independent contractor basis and Consultant is not an employee of City. Consultant is not an employee for state tax, federal tax or any other purpose, and is not entitled to the rights or benefits afforded to City’s employees. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City, and shall at all times be under Consultant’s exclusive direction and control. 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.

3.7 Schedule of Services.

3.7.1 Consultant Services. Consultant shall fully and adequately complete the Services described in this Agreement, each individual Task Order issued by the City, and in Exhibit “A” attached hereto and incorporated herein by reference.

3.7.2 Timely Performance Standard. Consultant shall perform all Services hereunder as expeditiously as is consistent with professional skill and care, as well as the orderly progress of the Project work so as not to be the cause, in whole or in part, of delays in the completion of the Project or in the achievement of any Project milestones, as provided herein.

Specifically, Consultant shall perform its Services so as to allow for the full and adequate completion of the Project within the time required by the City and within any completion schedules adopted for the Project. Consultant agrees to coordinate with City’s staff, contractors and consultants in the performance of the Services, and shall be available to City’s staff, contractors and consultants at all reasonable times.

3.7.3 Performance Schedule. Consultant shall prepare an estimated time schedule for the performance of Consultant’s Services, to be adjusted as the Project proceeds.

Such schedule shall be subject to the City’s review and approval, which approval shall not be unreasonably withheld, and shall include allowances for periods of time required for City’s review and approval of submissions, and for approvals of authorities having jurisdiction over Project approval and funding. If City and Consultant cannot mutually agree on a performance schedule, City shall have the authority to immediately terminate this Agreement. The schedule shall not be exceeded by Consultant without the prior written approval of City. If the Consultant’s Services are not completed within the time provided by the agreed upon performance schedule, or any milestones established therein, it is understood, acknowledged and agreed that the City will suffer damage for which the Consultant will be responsible.

3.7.4 Excusable Delays. Any delays in Consultant’s work caused by the following may be added to the time for completion of any obligations of Consultant: (1) the actions 49 46700.00100\40935196.1
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of City or its employees; (2) the actions of those in direct contractual relationship with City; (3) the actions of any governmental agency having jurisdiction over the Project; (4) the actions of any parties not within the reasonable control of the Consultant; and (5) any Force Majeure Event (as defined herein) or other unforeseen occurrence not due to any fault or negligence on the part of Consultant. Neither the City nor the Consultant shall be liable for damages, liquidated or otherwise, to the other on account of such delays.

3.7.5 Force Majeure Events. 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. Should a Force Majeure Event occur, the non- performing Party shall, within fifteen (15) calendar days of the beginning of an Force Majeure Event, 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 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.

3.7.6 Request for Excusable Delay Credit. The Consultant shall, within fifteen (15) calendar days of the beginning of any excusable delay, notify the City in writing of the causes of delay (unless City grants in writing a further period of time to file such notice prior to the date of final payment under the Agreement). City will then ascertain the facts and the extent of the delay, and grant an extension of time for completing the Services when, in its sole judgment, the findings of fact justify such an extension. The City’s findings of fact thereon shall be final and conclusive on the Parties. Extensions of time shall apply only to that portion of the Services affected by the delay and shall not apply to other portions of the Services not so affected. The sole remedy of Consultant for extensions of time shall be an extension of the performance time at no cost to the City. If Additional Services are required as a result of an excusable delay, the Parties shall mutually agree thereto pursuant to the Additional Services provision of this Agreement. Should Consultant make an application for an extension of time, Consultant shall submit evidence that the insurance policies required by this Agreement remain in effect during the requested additional period of time.

3.8 Additional Services.

3.8.1 Request for Services. At City’s request, Consultant may be asked to perform services not otherwise included in this Agreement, not included within the basic services listed in Exhibit “A” attached hereto, and/or not customarily furnished in accordance with generally accepted architectural practice.
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3.8.2 Definition. As used herein, “Additional Services” mean: (1) 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 for the Consultant to perform at the execution of this Agreement; or (2) any work listed as Additional Services in Exhibit “A” attached hereto. Consultant shall not perform, nor be compensated for, Additional Services without prior written authorization from City and without an agreement between the City and Consultant as to the compensation to be paid for such services. City shall pay Consultant for any approved Additional Services, pursuant to the compensation provisions herein, so long as such services are not made necessary through the fault of Consultant pursuant to the indemnification provision of this Agreement.

3.8.3 Examples of Additional Services. Such Additional Services shall not include any redesign or revisions to drawings, specifications or other documents when such revisions are necessary in order to bring such documents into compliance with applicable laws, rules, regulations or codes of which Consultant was aware or should have been aware pursuant to the laws and regulations provision of this Agreement above. Such Additional Services may include, but shall not be limited to:
(a) Separately Bid Portions of Project. Plan preparation and/or administration of work on portions of the Project separately bid. (b) Furniture and Interior Design. Assistance to City, if requested, for the selection of moveable furniture, equipment or articles which are not included in the Construction Documents.
(c) Fault of Contractor. Services caused by delinquency, default or insolvency of contractor, or by major defects in the work of the contractor, provided that any such services made necessary by the failure of Consultant to detect and report such matters when it reasonably should have done so shall not be compensated. (d) Inconsistent Approvals or Instructions. Revisions in drawings, specifications or other documents when such revisions are inconsistent with written approvals or instructions previously given and are due to causes beyond the control of Consultant. (e) Legal Proceedings. Serving as an expert witness on City's behalf or attending legal proceedings to which the Consultant is not a party. (f) Damage Repair. Supervision of repair of damages to any structure. (g) Extra Environmental Services. Additional work required for environmental conditions (e.g. asbestos or site conditions) not already contemplated within the Consultant's services for the Project.

3.9 City Responsibilities. City’s responsibilities shall include the following:

3.9.1 Data and Information. City shall make available to Consultant all necessary data and information concerning the purpose and requirements of the Project, including scheduling and budget limitations, objectives, constraints and criteria. As part of the budget limitation information, the City shall provide the Consultant with a preliminary construction budget (“City’s Preliminary Construction Budget”).
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3.9.2 Project Survey. If required pursuant to the scope of the Project and if requested by Consultant, City shall furnish Consultant with, or direct Consultant to procure at City’s expense, a survey of the Project site prepared by a registered surveyor or civil engineer, any other record documents which shall indicate existing structures, land features, improvements, sewer, water, gas, electrical and utility lines, topographical information and boundary dimensions of the site, and any other such pertinent information.

3.9.3 Bid Phase. Distribute Construction Documents to bidders and conduct the opening and review of bids for the Project.

3.9.4 Testing. Retain consultant(s) to conduct chemical, mechanical, soils, geological or other tests required for proper design of the Project, and furnish such surveys, borings, test pits, and other tests as may be necessary to reveal conditions of the site which must be known to determine soil condition or to ensure the proper development of the required drawings and specifications.

3.9.5 Required Inspections and Tests. Retain consultant(s) to conduct materials testing and inspection or environmental/hazardous materials testing and inspection pursuant to any applicable laws, rules or regulations.

3.9.6 Fees of Reviewing or Licensing Agencies. Directly pay or reimburse the payment of all fees required by any reviewing or licensing agency, or other agency having approval jurisdiction over the Project.

3.9.7 City’s Representative. The City hereby designates the City Manager, 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 Contract. The City Manager hereby designates Jay Bautista, Transportation Manager, or his or her designee, as the City’s contact for the implementation of the Services hereunder. Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.

3.9.8 Review and Approved Documents. Review all documents submitted by Consultant, including change orders and other matters requiring approval by the City Council or other officials. City shall advise Consultant of decisions pertaining to such documents within a reasonable time after submission, so as not to cause unreasonable delay as provided in the excusable delay provisions of this Agreement above.

3.10 Compensation.

3.10.1 Consultant’s Compensation for Basic Services. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "B" attached hereto and incorporated herein by reference. The maximum compensation for Services to be provided pursuant to each Task Order shall be set forth in the relevant Task Order. The total compensation for all Task Orders issued hereunder shall not exceed Two Hundred Thousand Dollars and Zero Cents ($200,000.00) without written approval of the City Council or City Manager, as applicable. The Total Compensation, as may be adjusted upon mutual agreement, shall constitute complete and adequate payment for Services under this Agreement.

3.10.2 Payment for Additional Services. At any time during the term of this Agreement, City may request that Consultant perform Additional Services. As used herein, 52 46700.00100\40935196.1
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Additional Services 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. Any additional work in excess of this amount must be approved by the City. If authorized, such Additional Services will be compensated at the rates and in the manner set forth in Exhibit “B” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the Parties. If City requires Consultant to hire consultants to perform any Additional Services, Consultant shall be compensated therefore at the rates and in the manner set forth in Exhibit “B” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the Parties. City shall have the authority to review and approve the rates of any such consultants. In addition, Consultant shall be reimbursed for any expenses incurred by such consultants pursuant to the terms and conditions of Section 3.10.3.

3.10.3 Reimbursable Expenses. Reimbursable expenses are in addition to compensation for the Services and Additional Services. Consultant shall not be reimbursed for any expenses unless authorized in writing by City, which approval may be evidenced by inclusion in Exhibit “B” attached hereto. Such reimbursable expenses shall include only those expenses which are reasonably and necessarily incurred by Consultant in the interest of the Project.

Consultant shall be required to acquire prior written consent in order to obtain reimbursement for the following: (1) extraordinary transportation expenses incurred in connection with the Project; (2) out-of-town travel expenses incurred in connection with the Project; (3) fees paid for securing approval of authorities having jurisdiction over the Project; (4) bid document duplication costs in excess of $1,000; and (5) other costs, fees and expenses in excess of $1,000.

3.10.4 Payment to Consultant. Consultant’s compensation and reimbursable expenses shall be paid by City to Consultant no more often than monthly. Such periodic payments shall be made based upon the percentage of work completed, and in accordance with the compensation rates indicated in Exhibit “B” attached hereto and incorporated herein by reference.

In order to receive payment, Consultant shall present to City an itemized statement which indicates Services performed, percentage of Services completed, method for computing the amount payable, and the amount to be paid. The statement 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 statement, as well as those expenses for which reimbursement is requested for that statement period. The amount paid to Consultant shall never exceed the percentage amounts authorized by the phasing and funding schedule located in Exhibit “B”, attached hereto. City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon pursuant to the provisions of Civil Code Section 3320. Disputed amounts shall be resolved by the Parties in a mutually agreeable manner.

Payments made for Additional Services shall be made in installments, not more often than monthly, proportionate to the degree of completion of such services or in such other manner as the Parties shall specify when such services are agreed upon, and in accordance with any authorized fee or rate schedule. In order to receive payment, Consultant shall present to City an itemized statement which indicates the Additional Services performed, percentage of Additional Services completed, method for computing the amount payable, and the amount to be paid. The statement shall describe the amount of Additional Services 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 thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon pursuant to the provisions of Civil Code Section 3320. Disputed amounts shall be resolved by the Parties in a mutually agreeable manner.

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set forth in the termination provision herein.

3.10.5 Withholding Payment to Consultant. The City may withhold payment, in whole or in part, to the extent reasonably necessary to protect the City from claims, demands, causes of action, costs, expenses, liabilities, losses, damages, or injuries of any kind to the extent arising out of or caused by the negligence, recklessness, or willful misconduct protected under the indemnification provisions of this Agreement. Failure by City to deduct any sums from a progress payment shall not constitute a waiver of the City’s right to such sums. The City may keep any moneys which would otherwise be payable at any time hereunder and apply the same, or so much as may be necessary therefor, to the payment of any expenses, losses, or damages as determined by the City, incurred by the City for which Consultant is liable under the Agreement or state law. Payments to the Consultant for compensation and reimbursable expenses due shall not be contingent on the construction, completion or ultimate success of the Project. Payment to the Consultant shall not be withheld, postponed, or made contingent upon receipt by the City of offsetting reimbursement or credit from Parties not within the Consultant’s reasonable control.

3.10.6 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Sections 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 certain “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 and to require its consultants 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 available to interested parties upon request, and shall post copies at the Consultant’s principal place of business and at the Project site. It shall be mandatory upon the Consultant and all subconsultants 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.

Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure of the Consultant or its consultants to comply with the Prevailing Wage Laws.
(a) Registration/DIR Compliance. If the Services are being performed as part of an applicable “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 performing such Services 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. 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 54 46700.00100\40935196.1
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issued by the Department of Industrial Relations 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 Department of Industrial Relations against Consultant or any subconsultant.

3.11 Notice to Proceed.

Consultant shall not proceed with performance of any Services under this Agreement unless and until the City provides a written notice to proceed.

3.12 Termination, Suspension and Abandonment.

3.12.1 Grounds for Termination; Consultant’s Termination for Cause. City hereby reserves the right to suspend or abandon, at any time and for any reason, all or any portion of the Project and the construction work thereon, or to terminate this Agreement at any time with or without cause. Consultant shall be provided with at least seven (7) days advanced written notice of such suspension, abandonment or termination. In the event of such suspension, abandonment or termination, Consultant shall be paid for Services and reimbursable expenses rendered up to the date of such suspension, abandonment or termination, pursuant to the schedule of payments provided for in this Agreement, less any claims against or damages suffered by City as a result of the default, if any, by Consultant. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement, except as set forth herein, in the event of such suspension, abandonment or termination. Consultant may terminate this Agreement for substantial breach of performance by the City such as failure to make payment to Consultant as provided in this Agreement.

3.12.2 City’s Suspension of Work. If Consultant’s Services are suspended by City, City may require Consultant to resume such Services within ninety (90) days after written notice from City. When the Project is resumed, the Total Compensation and schedule of Services shall be equitably adjusted upon mutual agreement of the City and Consultant.

3.12.3 Documents and Other Data. Upon suspension, abandonment or termination, Consultant shall provide to City all preliminary studies, sketches, working drawings, specifications, computations, and all other Project Documents, as defined below, to which City would have been entitled at the completion of Consultant’s Services under this Agreement. Upon payment of the amount required to be paid to Consultant pursuant to the termination provisions of this Agreement, City shall have the rights, as provided in this Agreement hereinafter, to use such Project Documents prepared by or on behalf of Consultant under this Agreement.

Consultant shall make such documents available to City upon request and without additional compensation other than as may be approved as a reimbursable expense.

3.12.4 Employment of other Consultants. 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.

3.13 Ownership and Use of Documents; Confidentiality.

3.13.1 Ownership. All plans, specifications, original or reproducible transparencies of working drawings and master plans, preliminary sketches, architectural 55 46700.00100\40935196.1
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presentation drawings, structural computations, estimates and any other documents prepared pursuant to this Agreement, including, but not limited to, any other works of authorship fixed in any tangible medium of expression such as writings, physical drawings and data magnetically or otherwise recorded on computer diskettes (hereinafter referred to as the “Project Documents”) shall be and remain the property of City. Although the official copyright in all Project Documents shall remain with the Consultant or other applicable subcontractors or consultants, the Project Documents shall be the property of City whether or not the work for which they were made is executed or completed. Within thirty (30) calendar days following completion of the Project, Consultant shall provide to City copies of all Project Documents required by City. In addition, Consultant shall retain copies of all Project Documents on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of reasonable duplication costs. Before destroying the Project Documents following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.

3.13.2 Right to Use. Consultant grants to City the right to use and reuse all or part of the Project Documents, at City’s sole discretion and with no additional compensation to Consultant, for the following purposes:
(a) The construction of all or part of this Project.
(b) The repair, renovation, modernization, replacement, reconstruction or expansion of this Project at any time;
(c) The construction of another project by or on behalf of the City for its ownership and use;
City is not bound by this Agreement to employ the services of Consultant in the event such documents are used or reused for these purposes. City shall be able to use or reuse the Project Documents for these purposes without risk of liability to the Consultant or third parties with respect to the condition of the Project Documents, and the use or reuse of the Project Documents for these purposes shall not be construed or interpreted to waive or limit City’s right to recover for latent defects or for errors or omissions of the Consultant.

Any use or reuse by City of the Project Documents on any project other than this Project without employing the services of Consultant shall be at City’s own risk with respect to third parties. If City uses or reuses the Project Documents on any project other than this Project, it shall remove the Consultant’s seal from the Project Documents and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Project Documents on such other project.

3.13.3 License. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify or reuse any and all Project Documents and any intellectual property rights therein. Consultant shall require any and all subcontractors and consultants to agree in writing that City is granted a non-exclusive and perpetual license for the work of such subcontractors or consultants performed pursuant to this Agreement.

3.13.4 Right to License. Consultant represents and warrants that Consultant has the legal right to license any and all copyrights, designs and other intellectual property embodied in the Project Documents that Consultant prepares or causes to be prepared pursuant to this Agreement. Consultant shall indemnify and hold City harmless pursuant to the indemnification provisions of this Agreement for any breach of this Section. Consultant makes no such 56 46700.00100\40935196.1
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representation and warranty in regard to previously prepared designs, plans, specifications, studies, drawings, estimates or other documents that were prepared by design professionals other than Consultant and provided to Consultant by City.

3.13.5 Confidentiality. All Project Documents, either created by or provided to Consultant in connection with the performance of this Agreement, shall be held confidential by Consultant to the extent they are not subject to disclosure pursuant to the Public Records Act. All Project Documents shall not, without the written consent of City, be used or reproduced by Consultant for any purposes other than the performance of the Services. Consultant shall not disclose, cause or facilitate the disclosure of the Project Documents 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 written consent of City.

3.14 Indemnification.

3.14.1 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.

3.14.2 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.

3.15 Insurance. 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.

3.15.1 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, Consultant shall, at its expense, procure and maintain in full force and effect for the duration of the Agreement the following policies of insurance. If the 57 46700.00100\40935196.1
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existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so.

3.15.2 Additional Insured. The City of Ontario, its officials, officers, employees, agents, and volunteers shall be named as additional insureds on Consultant’s and its subconsultants’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.

3.15.3 Commercial General Liability
(a) The Consultant shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City. (b) Coverage for Commercial General Liability insurance shall be at least as broad as the following: Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. Commercial General Liability Insurance must include coverage for the following:
(i) Bodily Injury and Property Damage
(ii) Personal Injury/Advertising Injury
(iii) Premises/Operations Liability
(iv) Products/Completed Operations Liability
(v) Aggregate Limits that Apply per Project
(vi) Explosion, Collapse and Underground (UCX) exclusion deleted
(vii) Contractual Liability with respect to this Contract (viii) Broad Form Property Damage
(ix) Independent Consultants Coverage
(c) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement.
(d) The policy shall give City, the City Council and each member of the City Council, its officers, employees, agents and City designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
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3.15.4 Automobile Liability
(a) At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City.
(b) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto).
(c) The policy shall give City, the City Council and each member of the City Council, its officers, employees, agents and City designated volunteers additional insured status.
(d) Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention.

3.15.5 Workers’ Compensation/Employer’s Liability
(a) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement.
(b) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this Section.

3.15.6 Professional Liability (Errors and Omissions)
(a) At all times during the performance of the work under this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein. This insurance shall be 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 must include a provision establishing the insurer's duty to defend.

3.15.7 Minimum Policy Limits Required
(a) The following insurance limits are required for the Agreement:
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Coverage Combined Single Limit
Commercial General Liability $2,000,000 per occurrence/ $4,000,000 aggregate for bodily injury, personal
injury, and property damage
Automobile Liability $2,000,000 per occurrence for bodily injury and property damage
Employer’s Liability $1,000,000 per occurrence
Professional Liability $2,000,000 per claim and aggregate (errors and omissions)
(b) Defense costs shall be payable in addition to the limits. (c) Requirements of specific coverage or limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement.

3.15.8 Evidence Required
(a) Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance.

3.15.9 Policy Provisions Required
(a) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration.
(b) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant’s policy is primary insurance and that any 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.
(c) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced 60 46700.00100\40935196.1
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past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement.
(d) 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 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.
(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.

3.15.10 Qualifying Insurers
(a) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: 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 admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.

3.15.11 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 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 the City Council, nor any member of the City Council, nor any of the officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. 61 46700.00100\40935196.1
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3.15.12 Subconsultant Insurance Requirements
(a) Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this Section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants.

3.16 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 five (5) years from the date of final payment under this Agreement.

3.17 Standardized Manufactured Items.

Consultant shall cooperate and consult with City in the use and selection of manufactured items on the Project, including but not limited to, paint, hardware, plumbing, mechanical and electrical equipment, fixtures, roofing materials and floor coverings. All such manufactured items shall be standardized to City’s criteria to the extent such criteria do not interfere with building design.

3.18 Limitation of Agreement.

This Agreement is limited to and includes only the work included in the Project described herein. Any additional or subsequent construction at the site of the Project, or at any other City site, will be covered by, and be the subject of, a separate Agreement for engineering services between City and the Consultant chosen therefor by City.

3.19 Mediation.

Disputes arising from this Agreement may be submitted to mediation if mutually agreeable to the Parties hereto. The type and process of mediation to be utilized shall be subject to the mutual agreement of the Parties.

3.20 Successors and Assigns.

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

3.21 Asbestos Certification.

Consultant shall certify to City, in writing and under penalty of perjury, that to the best of 62 46700.00100\40935196.1
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BB&K (2023) 19
its knowledge, information and belief no asbestos-containing material or other material deemed to be hazardous by the state or federal government was specified as a building material in any construction document that the Consultant prepares for the Project. Consultant shall require all consultants who prepare any other documents for the Project to submit the same written certification. Consultant shall also assist the City in ensuring that contractors provide City with certification, in writing and under penalty of perjury, that to the best of their knowledge, information and belief no material furnished, installed or incorporated into the Project contains asbestos or any other material deemed to be hazardous by the state or federal government. These certifications shall be part of the final Project submittal. Consultant shall include statements in its specifications that materials containing asbestos or any other material deemed to be hazardous by the state or federal government are not to be included.

3.22 No Third Party Rights.

This Agreement shall not create any rights in, or inure to the benefits of, any third party except as expressly provided herein.

3.23 Governing Law.

This Agreement shall be construed in accordance with, and governed by, the laws of the State of California. Venue shall be in San Bernardino County.

3.24 Exhibits and Recitals.

All exhibits and recitals contained herein and attached hereto are material parts of this Agreement and are incorporated as if fully set forth.

3.25 Severability.

Should any provision in the Agreement be held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall continue in full force and effect.

3.26 Non-Waiver.

None of the provisions of this Agreement shall be considered waived by either Party, unless such waiver is specifically specified in writing.

3.27 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 its employees, consultant and subcontractors appropriate to the nature of the work and the conditions under which the work is to be performed.

3.28 Harassment Policy.

Consultant shall provide a copy of the City's Harassment Policy to each of its employees assigned to perform the tasks under this Agreement. Consultant shall submit to the City's Personnel Manager a statement signed by each of its employees who are assigned to perform the Services under this Agreement certifying receipt of City's Harassment Policy and certifying that they have read the Harassment Policy. A finding by the City that any of Consultant's 63 46700.00100\40935196.1
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employees has harassed a City employee shall be grounds for appropriate discipline, up to and including such employee's removal from performance of this Agreement at City's request.

3.29 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:

CITY:

City of Ontario
303 East “B” Street
Ontario, CA 91764
Attn: Craig Cruz, Engineering
CONSULTANT:

CR Associates
3900 5th Avenue, #310
San Diego, CA 92103
Monique Chen, Principal
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.

3.30 Time of Essence.

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

3.31 City’s Right to Employ Other Consultants.

City reserves right to employ other consultants, including designers, in connection with this Project or other projects.

3.32 Prohibited Interests.

3.32.1 Solicitation. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability.

3.32.2 Conflict of Interest. For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

3.33 Equal Opportunity Employment.

Such non-discrimination shall include, but not be limited to, all activities related to initial 64 46700.00100\40935196.1
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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.

3.34 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.

3.35 Subcontracting.

As specified in this Agreement, 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 each and every provision of this Agreement.

3.36 Supplemental Conditions.

Any supplemental conditions shall be attached as an exhibit to this Agreement, and that exhibit shall be incorporated herein by reference.

3.37 Entire Agreement.

This Agreement, with its exhibits, contains the entire agreement of the Parties hereto, and supersedes any and all other prior or contemporaneous negotiations, understandings and oral or written agreements between the Parties hereto. Each Party acknowledges that no representations, inducements, promises or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. Furthermore, any modification of this Agreement shall only be effective if in writing signed by all Parties hereto.

SIGNATURES ON FOLLOWING PAGE
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Signature Page for Design Services Agreement
Between the City of Ontario
and [CR Associates]
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.

CITY OF ONTARIO CR Associates
By:

Its: President
Printed Name: Monique Chen
By:

Its: Secretary
Printed Name: Sherry Ryan
[If Corporation, TWO SIGNATURES,
President OR Vice President AND Secretary
OR Treasurer REQUIRED]
Approved By:

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

City Clerk
66 46700.00100\40935196.1
BB&K (2023) Exhibit A-1
EXHIBIT “A”

SCOPE OF SERVICES
The City of Ontario is seeking proposals from qualified consulting engineers (the Consultant) to provide On-Call Services for three (3) years, with an option of renewing for two (2) consecutive one (1) year terms for services in transportation planning & traffic engineering design with the intention of maintaining a list of multiple qualified prime engineering firms, with subconsultant support services as needed. Task orders will be issued to firms on a competitive basis based on the qualifications and expertise of the firm and their subconsultants. There is no designated minimum nor maximum value of services to be awarded to any one consultant.

The Consultant is expected to furnish all services as required to complete the scope of services described below for task order projects and to manage and control costs and resources, and complete work in adherence to the agreed upon Project schedule. The Consultant will assign a Project Manager who will act as the City’s primary contact and will be entirely responsible for project management activities throughout the duration of an awarded task (including subconsultant work, if applicable). The following is a suggested breakdown of Project tasks and should be incorporated into the fee schedule under the appropriate activities.

TRANSPORTATION AND TRAFFIC ENGINEERING PROJECT DESIGN SERVICES The City of Ontario is seeking a Request for Qualifications from firms for Professional Services:

Consultant shall be aware that certain labor categories above may be subject to prevailing wage rates as identified in the California Labor Code commencing Section 1770 et. Seq.

Determination of whether or not Prevailing Wages shall apply will be determined when the City’s project manager identifies the scope of specific task orders. Please refer to Paragraph I.10 “Prevailing Wage” of this RFQ, and Paragraph 3.10.6 “Prevailing Wages” of the DSA for further requirements.

Expected services to be provided under this on-call contract will be performed under a task order system and may include:
1) Transportation Planning
Development Support Services
 Traffic Study Preparation and Review
 Parking Analysis Preparation and Review
 Trip Generation Analysis Preparation and Review
 VMT Analysis Preparation and Review
 SB743 Analysis Preparation and Review
 Traffic Simulations
 On-site circulation analysis
 Data Collection and Analysis
 Traffic Model Support
 On-Site “extension to staff” support services
Long Range Planning
67 46700.00100\40935196.1
BB&K (2023) Exhibit A-2
 General Plan Support
 Specific Plan Support
 Active Transportation Plans and Programs
 Context Sensitive Solutions
 Maintain and Update City Traffic Study Guidelines
 Transit Studies
 Corridor Studies
 On-Site “extension to staff” support services
 Coordination with outside agencies
 Support for funding and grant applications
2) Traffic Engineering
 Traffic Design Plan (including civil work) and Cost Estimate Preparation and Review  Traffic Signal Plan and Cost Estimate Preparation and Review  Pedestrian Hybrid Beacon Plan and Cost Estimate Preparation and Review  Street Light Plan and Cost Estimate Preparation and Review  Traffic Studies for Capital Projects
 Support for funding and grant applications
 Intelligent Transportation Systems Design
 Traffic Signal Timing and Coordination Studies
 Traffic Control Plan Design and Review
 Technical services and support for non-motorized capital projects  Active Transportation Design and Review
 Traffic Calming Support
 Traffic Calming Plan Design and Review
 On-Site “extension to staff” support services
 Traffic Counts Support
 Engineering and Traffic Surveys
 Warrant Analyses
 Coordination with outside agencies (Caltrans, railroads, neighboring cities, etc.)  Signing and Striping Support
Project Design/Plans, Specifications, and Estimates (PS&E) Preparation Firms shall be capable of performing the following tasks:
 Land Surveying & Mapping
 Civil Engineering Design
 Detailed Engineering/Cost Estimation
 Preparation of construction bid documents and specifications  Any other work required to complete project design
Consultant shall perform research of records including utility companies and other agency records as necessary to secure information required to identify, locate, and accurately layout all existing improvements and right-of-way within project limits that may interfere with the proposed 68 46700.00100\40935196.1
BB&K (2023) Exhibit A-3
improvements. Consultant will identify estimated number of potholes required for a project in their cost proposal for each individual task order.

Consultant shall conduct a site visit to observe the topography and visualize the proposed improvements at the project location and review available subsurface data from nearby structures or published geologic maps to determine general subsurface conditions at the project site.

Additionally, if a traffic control plan is required, Consultant shall prepare the plan. Such documents shall be forwarded to the respective permit issuing agency, for review and concurrence prior to beginning any field investigation.

The Consultant shall complete a topographic survey map of the site to prepare a base map for the construction plans. This includes, but is not limited to:

1. Horizontal and vertical control, drainage surveys, topographical surveys within the right-of-way, cross sections, grid grades, open-ended traverses, profile data sheets and required documentation. (Horizontal Control shall be based on NAD 83; Vertical Control shall be based on NAVD 88).

2. Establish street centerlines, right-of-way lines existing and proposed, and all easements from available record information.

3. Provide the basis-of-bearing and benchmark information used for the survey and necessary for construction.

4. Locate and tie any features that would affect the design or construction.

5. Obtain Record of Surveys, benchmark and centerline tie information.

The City will provide the title block and specification boiler plate to the Consultant. All drawings shall utilize AutoCAD 2021 or later and shall utilize the City of Ontario standard title block. For interim submittals, the City may opt to receive only PDF versions of the plans for reviewing purposes. If so, the Consultant team will provide plans and/or specifications accordingly. All original plan sheets, the title sheet of the specifications, calculations, and reports shall be signed and stamped by the Consultants’ licensed professional engineer responsible/in-charge of the project.

The Consultant will be expected to revise the documents within a revised schedule set by the City. There will be no additional compensation necessary for the consultant to complete the work to the satisfaction of the City for required revisions. The Consultant’s services for plan specifications and estimating (PS&E) for engineering project preparation and special studies/investigations shall include and be in conformance with the latest editions of the Greenbook Standard Specifications for Public Works Construction and the City of Ontario standards, unless otherwise specified. Latest editions of the Caltrans Standards and Specifications shall be used for traffic signal design. 69 46700.00100\40935196.1
BB&K (2023) Exhibit A-4
For the City plan check process, the Consultant will be required to submit one PDF electronic copy for all submittals. Consultant shall also be responsible for submitting plans and reports for plan check and approval/permit issuance to any affected agencies.

Permitting
 Prepare and file all necessary documents and apply for all required permits or provide support including, but not limited to:
i. Federal, Caltrans, Railroad, environmental, and utility permits ii. Valet parking review
iii. Permit Parking review
iv. On-Site “extension to staff” support services
Consultant shall coordinate permits and any other issues with the City, other agencies, and all utility companies as required. At the direction of the City, the Consultant shall be the liaison with affected agencies.
3) Construction Support and Other Tasks
Firms shall be capable of performing the following tasks:
 Project presentations and meetings
 Construction Support Services
 Any other work required to successfully plan for projects and adequately assess project feasibility
During the bidding process and construction, the Consultant shall assist in answering questions regarding the technical specifications, design drawings or conflicts in the design, respond to City staff and/or contractor RFI’s for any technical design clarification or design conflicts that arise during construction, review and recommend materials submittals and shop drawings for concurrence with plans and specifications, attend milestone meetings and pre-con meetings, and prepare record drawings that incorporate redlines comments prepared by the contractor and City Staff. One (1) bond set of the record drawings shall be submitted and all drawings shall be provided to the City electronically, as a PDF file and with the latest AutoCAD file format.

Change Orders (Change to Scope of Work)
All changes must be submitted in writing for City approval. The Consultant shall submit a cost fee proposal for all changes. The City will evaluate and issue a Notice to Proceed for each Change Order separately

1. GENERAL REQUIREMENTS.

1.1 Basic Services. Consultant agrees to perform all the necessary professional architectural, engineering (e.g. mechanical, electrical, plumbing, structural, site engineering, and any other necessary engineering services mutually agreeable to the Parties) and construction 70 46700.00100\40935196.1
BB&K (2023) Exhibit A-5
administration services for the Project in a timely and professional manner, consistent with the standards of the profession, including those provided for herein.

1.2 Exclusions from Basic Services. The following services shall be excluded from the basic services listed above: N/A

1.3 Additional Services. Consultant shall perform the following Additional Services for the Project: N/A

1.4 Communication with City. Consultant shall participate in consultations and conferences with authorized representatives of City and/or other local, regional, or state agencies concerned with the Project, which may be necessary for the completion of the Project or the development of the drawings, specifications and documents in accordance with the applicable standards and requirements of law and the City. Such consultations and conferences shall continue throughout the planning and construction of the Project and the contractor’s warranty period. Consultant shall take direction only from the City’s Representative, or any other representative specifically designated by the City for this Project, including any construction manager hired by the City.

1.5 Coordination and Cooperation with Construction Manager. The City may hire a construction manager to administer and coordinate all or any part of the Project on its behalf. If the City does so, it shall provide a copy of its agreement with the construction manager so that the Consultant will be fully aware of the duties and responsibilities of the construction manager.

The Consultant shall cooperate with the construction manager and respond to any requests or directives authorized by the City to be made or given by the construction manager. The Consultant shall request clarification from the City in writing if the Consultant should have any questions regarding the authority of the construction manager.

2. INITIAL PLANNING PHASE.

During the initial planning phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

2.1 Project Feasibility. Provide advice and assistance to City in determining the feasibility of the Project, analysis of the type and quality of materials and construction to be selected, the site location, and other initial planning matters.

2.2 Meeting Budget and Project Goals. Consultant shall notify City in writing of potential complications, cost overruns, unusual conditions, and general needs that potentially impact the Project budget and time line, including the City’s Preliminary Construction Budget.

Consultant shall use its best judgment in determining the balance between the size, type and quality of construction to achieve a satisfactory solution within the Project’s budget and construction allowance. It shall be the duty of the Consultant to design the Project within budget.

As discussed herein, including in Section 7.3, if the lowest responsive and responsible bid for the Project exceeds the budget by the stated amount, Consultant may be required to make the necessary changes in the drawing and specifications, at its sole cost and expense, to bring the bids within the required budget.

2.3 Permits, Approvals and Authorizations. As indicated in Section 3.5.4 of the Agreement, Consultant shall assist City in securing easements, encroachment permits, rights of 71 46700.00100\40935196.1
BB&K (2023) Exhibit A-6
way, dedications, infrastructures and road improvements, as well as coordinating with utilities and adjacent property owners.

3. SCHEMATIC PLAN PHASE.

During the schematic plan phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

3.1 Funding Documents. Consultant shall provide a site plan and all other Project- related information necessary and required for an application by City to any federal, state, regional, or local agencies for funds to finance the construction Project.

3.2 Schematic Plans. In cooperation with City, Consultant shall prepare preliminary plans and studies, schematic drawings, site utilization plans, and phasing plans showing the scale and relationship of the components of the Project, the plot plan development at the site, and the proposed architectural concept of the buildings (“Schematic Plans”). Consultant shall incorporate the functional requirements of City into the Schematic Plans. The Schematic Plans shall meet all laws, rules and regulations of the State of California. The Schematic Plans shall show all rooms incorporated in each building of the Project in single-line drawings, and shall include all revisions required by City or by any federal, state, regional or local agency having jurisdiction over the Project. All architectural drawings for the Project shall be in a form suitable for reproduction.

3.3 Preliminary Project Budget. Consultant shall use the City’s Preliminary Construction Budget and its own expertise and experience with the Project to establish a preliminary project budget or allowance in a format required by City (“Consultant’s Preliminary Project Budget”). The purpose of the Consultant’s Preliminary Project Budget is to show the probable Project cost in relation to City’s Preliminary Construction Budget and the construction standards of any applicable funding agency. If Consultant perceives site considerations which render the Project expensive or cost prohibitive, Consultant shall disclose such conditions in writing to City immediately. As discussed herein, including in Section 7.3, if the lowest responsive and responsible bid for the Project exceeds the budget by more than the stated amount, Consultant may be required to make the necessary changes in the drawings and specifications, at its sole cost and expense, to bring the bids within the required budget Consultant shall provide a preliminary written time schedule for the performance of all construction work on the Project.

3.4 Copies of Schematic Plans and Other Documents. Consultant, at its own expense, shall provide a complete set of the Schematic Plans described herein for City’s review and approval. Additionally, at City’s expense, Consultant shall provide such documents as may be required by any federal, state, regional or local agencies concerned with the Project. Any additional copies required by City shall be provided at actual cost to City.

4. DESIGN DEVELOPMENT PHASE.

During the design development phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

4.1 Design Development Documents. Once City provides Consultant with specific written approval of the Schematic Plans described herein, Consultant shall prepare design development documents consisting of: (1) site and floor plans; (2) elevations; and (3) any other drawings and documents sufficient to fix and describe the types and makeup of materials, as well as the size and character of the Project’s structural, mechanical and electrical systems, and to 72 46700.00100\40935196.1
BB&K (2023) Exhibit A-7
outline the Project specifications (“Design Development Documents”). The Design Development Documents shall be prepared in sufficient form to present to the City Council for approval.

4.2 Copies of Design Development and Other Documents. Consultant, at its own expense, shall provide a complete set of the Design Development Documents described herein for City’s review and approval. Additionally, at City’s expense, Consultant shall provide such documents as may be required by any federal, state, regional or local agencies concerned with the Project. Any additional copies required by City shall be provided at actual cost to City.

4.3 Updated Project Budget. Consultant shall use its Preliminary Project Budget and expertise and experience with the Project to establish an updated estimate of probable construction costs, containing detail consistent with the Design Development Documents as set forth herein and containing a breakdown based on types of materials and specifications identified herein (“Consultant’s Updated Project Budget”).

4.4 Timetable. Consultant shall provide a written timetable for full and adequate completion of the Project to City.

4.5 Application for Approvals. Consultant shall assist City in applying for and obtaining required approvals from all federal, state, regional or local agencies concerned with the Project. Consultant shall furnish and process all architectural and engineering information required to prepare and process applications to applicable utilities in order to secure priorities and materials, to aid in the construction of the Project and to obtain final Project approval and acceptance by any of the above agencies as may be required.

4.6 Color and Other Aesthetic Issues. Consultant shall provide, for City’s review and approval, a preliminary schedule of all color materials and selections of textures, finishes and other matters involving an aesthetic decision about the Project.

5. FINAL WORKING DRAWINGS AND SPECIFICATIONS.

During the final working drawings and specifications phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

5.1 Final Working Drawings and Specifications. Once City provides Consultant with specific written approval of the Design Development Documents described herein, Consultant shall prepare such complete working drawings and specifications as are necessary for developing complete bids and for properly executing the Project work in an efficient and thorough manner (“Final Working Drawings and Specifications”). Such Final Working Drawings and Specifications shall be developed from the Schematic Plans and Design Development Documents approved by City. The Final Working Drawings and Specifications shall set forth in detail all of the following: (1) the Project construction work to be done; (2) the materials, workmanship, finishes, and equipment required for the architectural, structural, mechanical, and electrical systems; and (3) the utility service connection equipment and site work. As indicated in Section 3.9.2 of the Agreement, City may be requested to supply Consultant with the necessary information to determine the proper location of all improvements on and off site, including record drawings (“as-built drawings”) in City’s possession. Consultant will make a good-faith effort to verify the accuracy of such information by means of a thorough interior and exterior visual survey of site conditions. City shall also make a good-faith effort to verify the accuracy of the as-built 73 46700.00100\40935196.1
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drawings and provide any supplemental information to Consultant which may not be shown on the as-built drawings.

5.2 Form. The Final Working Drawings and Specifications must be in such form as will enable Consultant and City to secure the required permits and approvals from all federal, state, regional or local agencies concerned with the Project. In addition, the Final Working Drawings and Specifications must be in such form as will enable City to obtain, by competitive bidding, a responsible and responsive bid within the applicable budgetary limitations and cost standards. The Final Working Drawings and Specifications shall be clear and legible so that uniform copies may be on standard architectural size paper, properly indexed and numbered, and shall be capable of being clearly copied and assembled in a professional manner by Consultant.

5.3 Approval and Revisions. City shall review, study, and check the Final Working Drawings and Specifications presented to it by Consultant, and request any necessary revisions or obtain any necessary approvals by the City Council, subject to the approval of all federal, state, regional or local agencies concerned with the Project. Consultant shall make all City-requested changes, additions, deletions, and corrections in the Final Working Drawings and Specifications at no additional cost, so long as they are not in conflict with the requirements of public agencies having jurisdiction or prior approval, or inconsistent with earlier City direction or Consultant’s professional judgment. Consultant shall bring any such conflicts and/or inconsistencies to the attention of City. The Parties agree that Consultant, and not the City, possesses the requisite expertise to determine the constructability of the Final Working Drawings and Specifications.

However, the City reserves the right to conduct one or more constructability review processes with the Final Working Drawings and Specifications, and to hire an independent architect or other consultant to perform such reviews. Any such independent constructability review shall be at City’s expense. Consultant shall make all City-requested changes, additions, deletions, and corrections in the Final Working Drawings and Specifications which may result from any constructability review, at no additional cost to the City, so long as they are not in conflict with the requirements of public agencies having jurisdiction or prior approval, or inconsistent with earlier City direction or Consultant’s professional judgment. If such changes, additions, deletions or corrections are inconsistent with prior City direction, Consultant shall make such alterations and be compensated therefore pursuant to the Additional Services provision of this Agreement.

5.4 Costs of Construction. It is understood by Consultant that should the Final Working Drawings and Specifications be ordered by City, City shall specify the sum of money set aside to cover the total cost of construction of the work, exclusive of Consultant’s fees. Should it become evident that the total construction cost will exceed the specified sum, Consultant shall at once present a statement in writing to the City’s Representative setting forth this fact and giving a full statement of the cost estimates on which the conclusion is based.

5.5 Copies of Final Working Drawings and Specifications and Other Documents.

Consultant, at its own expense, shall provide a complete set of the Final Working Drawings and Specifications described herein for City’s review and approval. Additionally, at City’s expense, Consultant shall provide such documents as may be required by any federal, state, regional or local agencies concerned with the Project. Any additional copies required by City shall be provided at actual cost to City.

6. CONSTRUCTION CONTRACT DOCUMENTS.

During the construction contract documents phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
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BB&K (2023) Exhibit A-9

6.1 Bid and Contract Documents. If so required by City, Consultant shall assist City in the completion of all bid and construction documents, including but not limited to, the Notice Inviting Bids, Instructions to Bidders, Contract Bid Forms (including Alternate Bids as requested by City), `Contract, General Conditions, Supplementary General Conditions, Special Conditions, DVBE and other applicable affirmative action documents, Performance Bond, Payment Bond, Escrow Agreement for Security Deposits, and any other certifications and documents required by federal, state and local laws, rules and regulations which may be reasonably required in order to obtain bids responsive to the specifications and drawings. All such documents shall be subject to the approval of City and City’s legal counsel.

6.2 Final Estimate. At the time of delivery of these bid and construction documents, which shall include the Final Working Drawings and Specifications (collectively referred to herein as the “Construction Documents”), Consultant shall provide City with its final estimate of probable construction cost (“Consultant’s Final Estimate”). As discussed herein, including in Section 7.3, it shall be the Consultant’s duty to design the Project within budget.

7. BID PHASE.

During the bid phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

7.1 Reproducible Construction Documents. Once City provides Consultant with specific written approval of the Construction Documents and Consultant’s Final Estimate, Consultant shall provide to City one set of reproducible Construction Documents.

7.2 Distribution of Contract Documents and Review of Bids. Consultant shall assist City in distributing the Construction Documents to bidders and conducting the opening and review of bids for the Project.

7.3 Over Budget. If the apparent lowest responsive and responsible bid on the Project exceeds the Consultant’s Final Estimate by more than five percent (5%), City may request Consultant to amend, at Consultant’s sole cost and expense, the Final Drawings and Specifications in order to rebid the Project and receive a lowest responsive and responsible bid equal to or less than the Consultant’s Final Estimate. All revisions necessary to bring the lowest responsible and responsive bid within the Consultant’s Final Estimate, including any omissions, deferrals or alternates, shall be made in consultation with, and subject to the approval of, the City.

8. CONSTRUCTION PHASE.

During the construction phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

8.1 Observation. The Project Consultant shall observe work executed from the Final Working Drawings and Specifications in person, provided that City may, in its discretion, consent to such observation by another competent representative of Consultant.

8.2 General Administration. Consultant shall provide general administration of the Construction Documents and the work performed by the contractors.

8.3 Pre-Construction Meeting. Consultant shall conduct one or more pre- construction meetings, as the City determines is needed for the Project, with all interested Parties. 75 46700.00100\40935196.1
BB&K (2023) Exhibit A-10

8.4 Site Visits of Contractor’s Work. Consultant shall conduct site visits to observe each contractors’ work for general conformance with the Construction Documents and with any approved construction schedules or milestones. Such site visits shall be conducted as often as are necessary and appropriate to the stage of construction, according to the City’s sole discretion, but in no event less than weekly.

8.5 Site Visits of Inspector’s Work. Consultant shall conduct site visits to communicate and observe the activities of the City inspectors. Such site visits shall be conducted as often as is mutually acceptable to Consultant and City. Consultant shall direct the City inspectors and the Project contractors to coordinate the preparation of record drawings indicating dimensions and location of all “as-built” conditions, including but not limited to, underground utility lines.

8.6 Coordination of Subconsultants. Consultant shall cause all architects, engineers and other consultants, as may be hired by Consultant or City, to observe the work completed under their disciplines as required, and approve and review all test results for general conformance with the Construction Documents.

8.7 Reports. Consultant shall make regular reports as may be required by applicable federal, state or local laws, rules or regulations, as well as the federal, state, regional or local agencies concerned with the Project.

8.8 Construction Meetings; Minutes. Consultant shall attend all construction meetings and provide written reports/minutes to the City after each construction meeting in order to keep City informed of the progress of the work. Such meetings shall occur at a frequency necessary for the progress of the Project work, according to the City’s sole discretion, but no less than weekly.

8.9 Written Reports. Consultant shall make written reports to City as necessary to inform City of problems arising during construction, changes contemplated as a result of each such problems, and progress of the Project work.

8.10 Written Records. Consultant shall keep accurate written records of the progress and quality of the Project work and the time schedules, and shall advise the contractors and City of any deviations from the time schedule which could delay timely completion of the Project.

8.11 Material and Test Reports. Consultant shall check and process, in a timely manner, all required material and test reports for the Project work. In addition, Consultant shall provide notice of any deficiencies in material or work reflected in such reports, as well as its recommendation for correction of such deficiencies, to the contractors and City.

8.12 Review and Response to Submissions. Consultant shall review and respond, in a timely manner, to all schedules, submittals, shop drawings, samples, information requests, change requests, and other submissions of the contractor and subcontractors for compliance with, or alterations and additions to, the Construction Documents. Consultant’s review and response shall be done in such a manner so as to ensure the timely and uninterrupted progress of the Project work.

8.13 Rejection of Work. Consultant shall promptly reject, as discussed with City, work or materials which do not conform to the Construction Documents. Consultant shall immediately notify the City and contractor(s) of such rejections. Consultant shall also have the authority to 76 46700.00100\40935196.1
BB&K (2023) Exhibit A-11
recommend to the City that additional inspection or testing of the work be performed, whether or not such work is fabricated, installed or completed.

8.14 Substitutions. Consultant shall consult with City, in a timely manner, with regard to substitution of materials, equipment and laboratory reports thereof, prior to the City’s final written approval of such substitutions. Consultant’s consultation shall be done in such a manner so as to ensure the timely and uninterrupted progress of the Project work.

8.15 Revised Documents and Drawings. Consultant shall prepare, at no additional expense to City, all documents and/or drawings made necessary by errors and omissions in the originally approved Construction Documents.

8.16 Change Requests and Material Changes. Consultant shall evaluate and advise City, in a timely manner and in writing, of any change requests and material change(s) which may be requested or necessary in the Project plans and specifications. Consultant shall provide the City with its opinion as to whether such change requests should be approved, denied or revised.

If the City has not hired a construction manager or other person to do so, the Consultant shall prepare and execute all change orders and submit them to the City for authorization. If the City has designated a construction manager or other person to prepare all change orders, the Consultant shall review all change orders prepared by such person, execute them and deliver them to the City for authorization if they meet with the Consultant’s approval, or submit them to the City with recommendations for revision or denial if necessary. Consultant shall not order contractors to make any changes affecting the contract price without approval by City of such a written change order, pursuant to the terms of the Construction Documents. Consultant may order, on its own responsibility and pending City Council approval, changes necessary to meet construction emergencies, if written approval of City’s Representative is first secured.

8.17 Applications for Payment. Consultant shall examine, verify and approve contractor’s applications for payment, and shall issue certificates for payment in amounts approved by the City’s inspector.

8.18 Final Color and Product Selection. Consultant shall coordinate final color and product selection with City’s original design concept.

8.19 Substantial Completion. Consultant shall determine the date of substantial completion, in consultation with the City.

8.20 Punch List. After determining that the Project is substantially complete, Consultant shall participate in the inspection of the Project and shall review all remaining deficiencies and minor items needed to be corrected or completed on the Project, including those identified on the punch list prepared by the contractor (“Punch List Items”). Consultant shall notify contractor in writing that all Punch List Items must be corrected prior to final acceptance of the Project and final payment. Consultant shall also notify City of all Punch List Items.

8.21 Warranties. Consultant shall review materials assembled by the contractor and subcontractors with regard to all written warranties, guarantees, owners’ manuals, instruction books, diagrams, record “as built” drawings, and any other materials required from the contractors and subcontractors pursuant to the Construction Documents. Consultant shall coordinate and provide these materials to the City.
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BB&K (2023) Exhibit A-12

8.22 Certificate of Completion. Consultant shall participate in any further inspections of the Project necessary to issue Consultant’s Certificate of Completion and final certificate for payment.

8.23 Documents for Project Close-Out. Consultant shall cause all other architects, engineers and other consultants, as may be hired by Consultant, to file any and all required documentation with the City or other governmental authorities necessary to close out the Project.

Consultant shall assist the City in obtaining such documentation from all other architects, engineers, or other consultants.

9. AS-BUILT DRAWINGS.

During the as-built drawings phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

9.1 As-Built Drawings and Specifications. Not later than thirty (30) days after substantial completion of the Project, before receipt of final payment, Consultant shall review and forward the Final Working Drawings and Specifications, indicating on them all changes made by change orders or otherwise pursuant to the Construction Documents, as well as all information called for on the specifications, thus producing an “as-built” set of Final Working Drawings and Specifications (“As-Built Drawings and Specifications”). The As-Built Drawings and Specifications shall show, among other things, the location of all concealed pipe, buried conduit runs and other similar elements within the completed Project. Consultant shall personally review and certify that the As-Built Drawings and Specifications are a correct representation of the information supplied to Consultant by any inspectors and the contractor, and shall obtain certifications from any inspectors and the contractor that the drawings are correct.

9.2 Approval. Once City provides Consultant with specific written approval of the As- Built Drawings and Specifications, Consultant shall forward to City the complete set of original As-Built Drawings and Specifications or a complete set of reproducible duplicate As-Built Drawings and Specifications. The tracing shall be of such quality that clear and legible prints may be made without appreciable and objectionable loss of detail.

9.3 Documents for Final Payment. Prior to the receipt of Consultant’s final payment, Consultant shall forward to City all of the following: (1) one clear and legible set of reproductions of the computations; (2) the original copy of the specifications; (3) the As-Built Drawings and Specifications as required herein; and (4) Consultant’s Certificate of Completion.

10. WARRANTY PERIOD.

During the warranty period phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

10.1 Advice. Consultant shall provide advice to City on apparent deficiencies in the Project during any applicable warranty periods for the Project. 78 46700.00100\40935196.1
BB&K (2023) Ex. B - 1
EXHIBIT “B”

COMPENSATION RATES AND REIMBURSABLE EXPENSES

1. HOURLY COMPENSATION RATES.

CRA 2024 Standard Billing Rates by Classifications
Job Classification Hourly Bill Rate
Principal III $390.00
Principal II $330.00
Principal I $300.00
Planning
Senior Planner III $255.00
Senior Planner II $230.00
Senior Planner I $205.00
Associate Planner III $190.00
Associate Planner II $175.00
Associate Planner I $160.00
Assistant Planner II $150.00
Assistant Planner I $135.00
Traffic Engineering Operations
Senior Engineer III $270.00
Senior Engineer II $250.00
Senior Engineer I $230.00
Associate Engineer III $205.00
Associate Engineer II $180.00
Associate Engineer I $165.00
Assistant Engineer II $150.00
Assistant Engineer I $140.00
Design
Senior Professional III $300.00
Senior Professional II $280.00
Senior Professional I $250.00
Professional III $225.00
Professional II $210.00
Professional I $200.00
Analyst III $185.00
Analyst II $165.00
Analyst I $150.00
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Support
Graphic Design $165.00
Project Accountant $160.00
Senior Admin $155.00
Admin Support $105.00
Intern $90.00
Notes:

1. Rates are effective through December 31, 2024.

2. Direct expenses such as but not limited to printing and reproduction, travel expenses, deliveries, materials, shipping, postage, etc. will be invoiced at cost.

3. Labor rates shall be subject to an annual increase of 4%, effective January 1st of each subsequent year.

2. REIMBURSABLE EXPENSES.

Mileage: $0.67 per mile for 2024. Future year mileage expenses will be in accordance with Internal Revenue Service (IRS) issued standard mileage rates.

Other direct expenses will be based on project needs upon City’s approval.

3. ADDITIONAL SERVICES.

Additional Services shall be computed at the actual hourly rates listed above.

4. ADDITIONAL CONSULTANTS.

If City requires Consultant to hire consultants to perform any Additional Services, Consultant shall be compensated therefore at the Consultant’s actual hourly rates plus 5%. Owner shall have the authority to review and approve the rates of any such consultants. 80 46700.00100\40935196.1
BB&K (2023) Ex. C - 1
EXHIBIT "C"

SAMPLE TASK ORDER FORM
Task Order No. _______
Agreement: DESIGN SERVICES AGREEMENT FOR ON-CALL SERVICES Consultant: [INSERT NAME OF CONSULTANT]
The Consultant is hereby authorized to perform the following services subject to the provisions of the Agreement identified above:

List any attachments: (Please provide if any.)
Dollar Amount of Task Order: Not to exceed $_____,_____.00 Completion Date: _____________
The undersigned Consultant hereby agrees that it will provide all equipment, furnish all materials, except as may be otherwise noted above, and perform all services for the work above specified in accordance with the Agreement identified above and will accept as full payment therefore the amount shown above.

CITY OF ONTARIO [INSERT NAME OF CONSULTANT]
Dated: Dated:

By: By:
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CITY OF ONTARIO

DESIGN SERVICES AGREEMENT

FOR ON-CALL SERVICES

1. PARTIES AND DATE.

This Agreement is made and entered into as of ____________, by and between the City of Ontario, a municipal corporation organized and operating under th e 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 STC Traffic, Inc., a Corporation with its principal place of business at 5973 Avenida Encinas #218, Carlsbad, CA 92008 (hereinafter referred to as “Consultant”). City and Consultant are sometimes individually referred to herein as “Party” and collectively as “Parties.”

2. RECITALS.

2.1 City. City is a municipal corporation organized under the laws of the State of California, with power to contract for services necessary to achieve its purpose.

2.2 Consultant. Consultant desires to perform and assume responsibility for the provision of certain pro fessional engineering design services required by the City on the terms and conditions set forth in this Agreement. Consultant warrants that it is fully licensed, qualified, and willing to perform the services required by this Agreement; provided, however , that if Consultant is a corporation or other organization, the Project Consultant designated pursuant to Section 3.2, and not the Consultant itself, shall be fully licensed to practice as an engineer in the State of California.

2.3 Project. City desires to engage Consultant to render such services for the On-Call Transportation Planning & Traffic Engineering Design Services ("Project") as set forth in this Agreement.

3. TERMS

3.1 Employment of Consultant.

DEBRA PORADA

MAYOR PRO TEM
ALAN D. WAPNER
JIM W. BOWMAN

RUBEN VALENCIA

COUNCIL MEMBERS

SHEILA MAUTZ

CITY CLERK
JAMES R. MILHISER

TREASURER

SCOTT OCHOA

CITY MANAGER
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shall be subject to, and performed in accordance with, this Agreement, each Task Order, any exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. All Services performed by Consultant shall be subject to the sole and discretionary approval of the City, which approval shall not be unreasonably withheld.

3.2 Project Consultant; Key Personnel.

3.2.1 Engineer of Record. Consultant shall name a specific individual to act as Project Consultant, subject to the approval of City. Consultant hereby designates Rob Blough, Principal Manager (PE #C60204, TE #TR1829) to act as the Engineer of Record for the Project.

The Engineer of Record shall: (1) maintain oversight of the Services; (2) have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement; (3) supervise and direct the Services using his or her best skill and attention; (4) be responsible for the means, methods, techniques, sequences and procedures used for the Services; (5) adequately coordinate all portions of the Services; and (6) act as principal contact with City and all contractors, consultants, engineers and inspectors on the Project. Any change in the Engineer of Record shall be subject to the City’s prior written approval, which approval shall not be unreasonably withheld.

The new Engineer of Record shall be of at least equal competence as the prior Engineer of Record. In the event that City and Consultant cannot agree as to the substitution of a new Engineer of Record, City shall be entitled to terminate this Agreement for cause.

Jason Stack, Principal-In-Charge (TE #2790, PTOE #4174) Christian Lambarth, Senior Project Manager (PE #C86675, TE #TR2927, PTOE #5180) Philip Wragg, Project Manager (AICP #32473)
Phil Kern, Senior Principal Manager (PE #40831)
Hiring of Consultants and Personnel.

3.2.3 Right to Hire or Employ. Consultant shall have the option, unless City objects in writing after notice, to employ at its expense architects, engineers, experts or other consultants qualified and licensed to render services in connection with the planning and/or administration of the Project, and to delegate to them such duties as Consultant may delegate 83 46700.00100\40935196.1
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without relieving Consultant from administrative or other responsibility under this Agreement.

3.2.4 Qualification and License. All architects, engineers, experts and other consultants retained by Consultant in performance of this Agreement shall be qualified to perform the Services assigned to them, and shall be licensed to practice in their respective professions, where required by law.

3.2.5 Standards and Insurance. All architects, engineers, experts and other consultants hired by Consultant shall be required to meet all of the same standards and insurance requirements set forth in this Agreement, unless other standards or requirements are approved by the City in writing. Unless changes are approved in writing by the City, Consultant’s agreements with its consultants shall contain a provision making them subject to all provisions stipulated in this Agreement.

3.2.6 Assignments or Staff Changes. Consultant shall promptly obtain written City approval of any assignment, reassignment or replacement of such architects, engineers, experts and consultants, or of other staff changes of key personnel working on the Project. As provided in the Agreement, any changes in Consultant’s consultants and key personnel shall be subject to approval by City.

3.2.7 Draftsman and Clerical Support. Draftsmen and clerical personnel shall be retained by Consultant at Consultant’s sole expense.

3.3 Standard of Care.

3.3.1 Standard of Care. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals qualified to perform the Services in the same discipline in the State of California, and shall be responsible to City for damages sustained by the City and delays to the Project as specified in the indemnification provision of this Agreement. Without limiting the foregoing, Consultant shall be fully responsible to the City for any increased costs incurred by the City as a result of any such delays in the design or construction of the Project. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants and represents that all of its employees, architects, engineers, experts and other consultants shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees, architects, engineers, experts and other consultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services assigned to or rendered by them and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions 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.

3.3.2 Performance of Employees. Any employee or consultant who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely 84 46700.00100\40935196.1
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completion of the Project, a threat to the safety of persons or property, or any employee or consultant 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.

3.4 Laws and Regulations.

3.4.1 Knowledge and Compliance. Consultant shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and regulations in any manner affecting the performance of the Services or the Project, and shall give all notices required of the Consultant by law. Consultant shall be liable, pursuant to the standard of care and indemnification provisions of this Agreement, for all violations of such laws and regulations in connection with its Services. Consultant shall defend, indemnify and hold City, its officials, 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.

3.4.2 Drawings and Specifications. Consultant shall cause all drawings and specifications to conform to any applicable requirements of federal, state and local laws, rules and regulations, including the Uniform Building Code, in effect as of the time the drawings and specifications are prepared or revised during the latest phase of the Services described in Exhibit “A” attached hereto. Any significant revisions made necessary by changes in such laws, rules and regulations after this time may be compensated as Additional Services which were not known or reasonably should not have been known by Consultant. Consultant shall cause the necessary copies of such drawings and specifications to be filed with any governmental bodies with approval jurisdiction over the Project, in accordance with the Services described in Exhibit “A” attached hereto. For the preparation of all such drawings and specifications, the Consultant shall use Computer Aided Design Drafting (“CADD”) (e.g., AutoCAD) or other technology acceptable to the Consultant and City.

3.4.3 Americans with Disabilities Act. Consultant will use its best professional efforts to interpret all applicable federal, state and local laws, rules and regulations with respect to access, including those of the Americans with Disabilities Act (“ADA”). Consultant shall inform City of the existence of inconsistencies of which it is aware or reasonably should be aware between federal and state accessibility laws, rules and regulations, as well as any other issues which are subject to conflicting interpretations of the law, and shall provide the City with its interpretation of such inconsistencies and conflicting interpretations. Unless Consultant brings such inconsistencies and conflicting interpretations to the attention of the City and requests City’s direction on how to proceed, the Consultant’s interpretation of such inconsistencies and conflicting interpretations shall be the sole responsibility and liability of Consultant, and the Consultant shall correct all plans, specifications and other documents prepared for the Project at no additional cost if its interpretations are shown to be incorrect. In the event that the Consultant request’s City’s direction on how to proceed with respect to any inconsistent and/or conflicting interpretation, the Consultant shall be responsible to the City only pursuant to the indemnification provisions of this Agreement.

3.4.4 Permits, Approvals and Authorizations. Consultant shall provide City with a list of all permits, approvals or other authorizations required for the Project from all federal, state or local governmental bodies with approval jurisdiction over the Project. Consultant shall then assist the City in obtaining all such permits, approvals and other authorizations. The costs of such permits, approvals and other authorizations shall be paid by the City. 85 46700.00100\40935196.1
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3.4.5 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 (Cal Water Code §§ 13000- 14950); and any and all regulations, policies, or permits issued pursuant to any such authority.

3.5 Independent Contractor.

3.5.1 Control and Payment of Subordinates. City retains Consultant on an independent contractor basis and Consultant is not an employee of City. Consultant is not an employee for state tax, federal tax or any other purpose, and is not entitled to the rights or benefits afforded to City’s employees. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City, and shall at all times be under Consultant’s exclusive direction and control. 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.

3.6 Schedule of Services.

3.6.1 Consultant Services. Consultant shall fully and adequately complete the Services described in this Agreement, each individual Task Order issued by the City, and in Exhibit “A” attached hereto and incorporated herein by reference.

3.6.2 Timely Performance Standard. Consultant shall perform all Services hereunder as expeditiously as is consistent with professional skill and care, as well as the orderly progress of the Project work so as not to be the cause, in whole or in part, of delays in the completion of the Project or in the achievement of any Project milestones, as provided herein.

3.6.3 Performance Schedule. Consultant shall prepare an estimated time schedule for the performance of Consultant’s Services, to be adjusted as the Project proceeds.

Such schedule shall be subject to the City’s review and approval, which approval shall not be unreasonably withheld, and shall include allowances for periods of time required for City’s review and approval of submissions, and for approvals of authorities having jurisdiction over Project approval and funding. If City and Consultant cannot mutually agree on a performance schedule, City shall have the authority to immediately terminate this Agreement. The schedule shall not be exceeded by Consultant without the prior written approval of City. If the Consultant’s Services are not completed within the time provided by the agreed upon performance schedule, or any 86 46700.00100\40935196.1
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milestones established therein, it is understood, acknowledged and agreed that the City will suffer damage for which the Consultant will be responsible.

3.6.4 Excusable Delays. Any delays in Consultant’s work caused by the following may be added to the time for completion of any obligations of Consultant: (1) the actions of City or its employees; (2) the actions of those in direct contractual relationship with City; (3) the actions of any governmental agency having jurisdiction over the Project; (4) the actions of any parties not within the reasonable control of the Consultant; and (5) any Force Majeure Event (as defined herein) or other unforeseen occurrence not due to any fault or negligence on the part of Consultant. Neither the City nor the Consultant shall be liable for damages, liquidated or otherwise, to the other on account of such delays.

3.6.5 Force Majeure Events. 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. Should a Force Majeure Event occur, the non- performing Party shall, within fifteen (15) calendar days of the beginning of an Force Majeure Event, 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 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.

3.6.6 Request for Excusable Delay Credit. The Consultant shall, within fifteen (15) calendar days of the beginning of any excusable delay, notify the City in writing of the causes of delay (unless City grants in writing a further period of time to file such notice prior to the date of final payment under the Agreement). City will then ascertain the facts and the extent of the delay, and grant an extension of time for completing the Services when, in its sole judgment, the findings of fact justify such an extension. The City’s findings of fact thereon shall be final and conclusive on the Parties. Extensions of time shall apply only to that portion of the Services affected by the delay and shall not apply to other portions of the Services not so affected. The sole remedy of Consultant for extensions of time shall be an extension of the performance time at no cost to the City. If Additional Services are required as a result of an excusable delay, the Parties shall mutually agree thereto pursuant to the Additional Services provision of this Agreement. Should Consultant make an application for an extension of time, Consultant shall submit evidence that the insurance policies required by this Agreement remain in effect during the requested additional period of time.
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3.7 Additional Services.

3.7.1 Request for Services. At City’s request, Consultant may be asked to perform services not otherwise included in this Agreement, not included within the basic services listed in Exhibit “A” attached hereto, and/or not customarily furnished in accordance with generally accepted architectural practice.

3.7.2 Definition. As used herein, “Additional Services” mean: (1) 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 for the Consultant to perform at the execution of this Agreement; or (2) any work listed as Additional Services in Exhibit “A” attached hereto. Consultant shall not perform, nor be compensated for, Additional Services without prior written authorization from City and without an agreement between the City and Consultant as to the compensation to be paid for such services. City shall pay Consultant for any approved Additional Services, pursuant to the compensation provisions herein, so long as such services are not made necessary through the fault of Consultant pursuant to the indemnification provision of this Agreement.

3.7.3 Examples of Additional Services. Such Additional Services shall not include any redesign or revisions to drawings, specifications or other documents when such revisions are necessary in order to bring such documents into compliance with applicable laws, rules, regulations or codes of which Consultant was aware or should have been aware pursuant to the laws and regulations provision of this Agreement above. Such Additional Services may include, but shall not be limited to:
(a) Separately Bid Portions of Project. Plan preparation and/or administration of work on portions of the Project separately bid. (b) Furniture and Interior Design. Assistance to City, if requested, for the selection of moveable furniture, equipment or articles which are not included in the Construction Documents.
(c) Fault of Contractor. Services caused by delinquency, default or insolvency of contractor, or by major defects in the work of the contractor, provided that any such services made necessary by the failure of Consultant to detect and report such matters when it reasonably should have done so shall not be compensated. (d) Inconsistent Approvals or Instructions. Revisions in drawings, specifications or other documents when such revisions are inconsistent with written approvals or instructions previously given and are due to causes beyond the control of Consultant. (e) Legal Proceedings. Serving as an expert witness on City's behalf or attending legal proceedings to which the Consultant is not a party. (f) Damage Repair. Supervision of repair of damages to any structure. (g) Extra Environmental Services. Additional work required for environmental conditions (e.g. asbestos or site conditions) not already contemplated within the Consultant's services for the Project.
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3.8 City Responsibilities. City’s responsibilities shall include the following:

3.8.1 Data and Information. City shall make available to Consultant all necessary data and information concerning the purpose and requirements of the Project, including scheduling and budget limitations, objectives, constraints and criteria. As part of the budget limitation information, the City shall provide the Consultant with a preliminary construction budget (“City’s Preliminary Construction Budget”).

3.8.2 Project Survey. If required pursuant to the scope of the Project and if requested by Consultant, City shall furnish Consultant with, or direct Consultant to procure at City’s expense, a survey of the Project site prepared by a registered surveyor or civil engineer, any other record documents which shall indicate existing structures, land features, improvements, sewer, water, gas, electrical and utility lines, topographical information and boundary dimensions of the site, and any other such pertinent information.

3.8.3 Bid Phase. Distribute Construction Documents to bidders and conduct the opening and review of bids for the Project.

3.8.4 Testing. Retain consultant(s) to conduct chemical, mechanical, soils, geological or other tests required for proper design of the Project, and furnish such surveys, borings, test pits, and other tests as may be necessary to reveal conditions of the site which must be known to determine soil condition or to ensure the proper development of the required drawings and specifications.

3.8.5 Required Inspections and Tests. Retain consultant(s) to conduct materials testing and inspection or environmental/hazardous materials testing and inspection pursuant to any applicable laws, rules or regulations.

3.8.6 Fees of Reviewing or Licensing Agencies. Directly pay or reimburse the payment of all fees required by any reviewing or licensing agency, or other agency having approval jurisdiction over the Project.

3.8.7 City’s Representative. The City hereby designates the City Manager, 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 Contract. The City Manager hereby designates Jay Bautista, Transportation Manager, or his or her designee, as the City’s contact for the implementation of the Services hereunder. Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.

3.8.8 Review and Approved Documents. Review all documents submitted by Consultant, including change orders and other matters requiring approval by the City Council or other officials. City shall advise Consultant of decisions pertaining to such documents within a reasonable time after submission, so as not to cause unreasonable delay as provided in the excusable delay provisions of this Agreement above.

3.9 Compensation.

3.9.1 Consultant’s Compensation for Basic Services. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "B" attached hereto and incorporated herein by reference. The maximum compensation for Services to be provided pursuant to each Task Order 89 46700.00100\40935196.1
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shall be set forth in the relevant Task Order. The total compensation for all Task Orders issued hereunder shall not exceed Two Hundred Thousand Dollars and Zero Cents ($200,000.00) without written approval of the City Council or City Manager, as applicable. The Total Compensation, as may be adjusted upon mutual agreement, shall constitute complete and adequate payment for Services under this Agreement.

3.9.2 Payment for Additional Services. At any time during the term of this Agreement, City may request that Consultant perform Additional Services. As used herein, Additional Services 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. Any additional work in excess of this amount must be approved by the City. If authorized, such Additional Services will be compensated at the rates and in the manner set forth in Exhibit “B” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the Parties. If City requires Consultant to hire consultants to perform any Additional Services, Consultant shall be compensated therefore at the rates and in the manner set forth in Exhibit “B” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the Parties. City shall have the authority to review and approve the rates of any such consultants. In addition, Consultant shall be reimbursed for any expenses incurred by such consultants pursuant to the terms and conditions of Section 3.10.3.

3.9.3 Reimbursable Expenses. Reimbursable expenses are in addition to compensation for the Services and Additional Services. Consultant shall not be reimbursed for any expenses unless authorized in writing by City, which approval may be evidenced by inclusion in Exhibit “B” attached hereto. Such reimbursable expenses shall include only those expenses which are reasonably and necessarily incurred by Consultant in the interest of the Project.

3.9.4 Payment to Consultant. Consultant’s compensation and reimbursable expenses shall be paid by City to Consultant no more often than monthly. Such periodic payments shall be made based upon the percentage of work completed, and in accordance with the compensation rates indicated in Exhibit “B” attached hereto and incorporated herein by reference.

Payments made for Additional Services shall be made in installments, not more often than monthly, proportionate to the degree of completion of such services or in such other manner as the Parties shall specify when such services are agreed upon, and in accordance with any authorized fee or rate schedule. In order to receive payment, Consultant shall present to City an itemized statement which indicates the Additional Services performed, percentage of Additional 90 46700.00100\40935196.1
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Services completed, method for computing the amount payable, and the amount to be paid. The statement shall describe the amount of Additional Services 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 thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon pursuant to the provisions of Civil Code Section 3320. Disputed amounts shall be resolved by the Parties in a mutually agreeable manner.

Upon cancellation or termination of this Agreement, Consultant shall be compensated as set forth in the termination provision herein.

3.9.5 Withholding Payment to Consultant. The City may withhold payment, in whole or in part, to the extent reasonably necessary to protect the City from claims, demands, causes of action, costs, expenses, liabilities, losses, damages, or injuries of any kind to the extent arising out of or caused by the negligence, recklessness, or willful misconduct protected under the indemnification provisions of this Agreement. Failure by City to deduct any sums from a progress payment shall not constitute a waiver of the City’s right to such sums. The City may keep any moneys which would otherwise be payable at any time hereunder and apply the same, or so much as may be necessary therefor, to the payment of any expenses, losses, or damages as determined by the City, incurred by the City for which Consultant is liable under the Agreement or state law. Payments to the Consultant for compensation and reimbursable expenses due shall not be contingent on the construction, completion or ultimate success of the Project. Payment to the Consultant shall not be withheld, postponed, or made contingent upon receipt by the City of offsetting reimbursement or credit from Parties not within the Consultant’s reasonable control.

3.9.6 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Sections 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 certain “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 and to require its consultants 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 defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure of the Consultant or its consultants to comply with the Prevailing Wage Laws.
(a) Registration/DIR Compliance. If the Services are being performed as part of an applicable “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 91 46700.00100\40935196.1
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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 performing such Services 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. 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 Department of Industrial Relations 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 Department of Industrial Relations against Consultant or any subconsultant.

3.10 Notice to Proceed.

Consultant shall not proceed with performance of any Services under this Agreement unless and until the City provides a written notice to proceed.

3.11 Termination, Suspension and Abandonment.

3.11.1 Grounds for Termination; Consultant’s Termination for Cause. City hereby reserves the right to suspend or abandon, at any time and for any reason, all or any portion of the Project and the construction work thereon, or to terminate this Agreement at any time with or without cause. Consultant shall be provided with at least seven (7) days advanced written notice of such suspension, abandonment or termination. In the event of such suspension, abandonment or termination, Consultant shall be paid for Services and reimbursable expenses rendered up to the date of such suspension, abandonment or termination, pursuant to the schedule of payments provided for in this Agreement, less any claims against or damages suffered by City as a result of the default, if any, by Consultant. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement, except as set forth herein, in the event of such suspension, abandonment or termination. Consultant may terminate this Agreement for substantial breach of performance by the City such as failure to make payment to Consultant as provided in this Agreement.

3.11.2 City’s Suspension of Work. If Consultant’s Services are suspended by City, City may require Consultant to resume such Services within ninety (90) days after written notice from City. When the Project is resumed, the Total Compensation and schedule of Services shall be equitably adjusted upon mutual agreement of the City and Consultant.

3.11.3 Documents and Other Data. Upon suspension, abandonment or termination, Consultant shall provide to City all preliminary studies, sketches, working drawings, specifications, computations, and all other Project Documents, as defined below, to which City would have been entitled at the completion of Consultant’s Services under this Agreement. Upon payment of the amount required to be paid to Consultant pursuant to the termination provisions of this Agreement, City shall have the rights, as provided in this Agreement hereinafter, to use such Project Documents prepared by or on behalf of Consultant under this Agreement.

Consultant shall make such documents available to City upon request and without additional compensation other than as may be approved as a reimbursable expense. 92 46700.00100\40935196.1
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3.11.4 Employment of other Consultants. 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.

3.12 Ownership and Use of Documents; Confidentiality.

3.12.1 Ownership. All plans, specifications, original or reproducible transparencies of working drawings and master plans, preliminary sketches, architectural presentation drawings, structural computations, estimates and any other documents prepared pursuant to this Agreement, including, but not limited to, any other works of authorship fixed in any tangible medium of expression such as writings, physical drawings and data magnetically or otherwise recorded on computer diskettes (hereinafter referred to as the “Project Documents”) shall be and remain the property of City. Although the official copyright in all Project Documents shall remain with the Consultant or other applicable subcontractors or consultants, the Project Documents shall be the property of City whether or not the work for which they were made is executed or completed. Within thirty (30) calendar days following completion of the Project, Consultant shall provide to City copies of all Project Documents required by City. In addition, Consultant shall retain copies of all Project Documents on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of reasonable duplication costs. Before destroying the Project Documents following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.

3.12.2 Right to Use. Consultant grants to City the right to use and reuse all or part of the Project Documents, at City’s sole discretion and with no additional compensation to Consultant, for the following purposes:
(a) The construction of all or part of this Project.
(b) The repair, renovation, modernization, replacement, reconstruction or expansion of this Project at any time;
(c) The construction of another project by or on behalf of the City for its ownership and use;
City is not bound by this Agreement to employ the services of Consultant in the event such documents are used or reused for these purposes. City shall be able to use or reuse the Project Documents for these purposes without risk of liability to the Consultant or third parties with respect to the condition of the Project Documents, and the use or reuse of the Project Documents for these purposes shall not be construed or interpreted to waive or limit City’s right to recover for latent defects or for errors or omissions of the Consultant.

3.12.3 License. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify or reuse any and all Project Documents and any intellectual property rights therein. Consultant shall require any and all subcontractors and consultants to agree in 93 46700.00100\40935196.1
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writing that City is granted a non-exclusive and perpetual license for the work of such subcontractors or consultants performed pursuant to this Agreement.

3.12.4 Right to License. Consultant represents and warrants that Consultant has the legal right to license any and all copyrights, designs and other intellectual property embodied in the Project Documents that Consultant prepares or causes to be prepared pursuant to this Agreement. Consultant shall indemnify and hold City harmless pursuant to the indemnification provisions of this Agreement for any breach of this Section. Consultant makes no such representation and warranty in regard to previously prepared designs, plans, specifications, studies, drawings, estimates or other documents that were prepared by design professionals other than Consultant and provided to Consultant by City.

3.12.5 Confidentiality. All Project Documents, either created by or provided to Consultant in connection with the performance of this Agreement, shall be held confidential by Consultant to the extent they are not subject to disclosure pursuant to the Public Records Act. All Project Documents shall not, without the written consent of City, be used or reproduced by Consultant for any purposes other than the performance of the Services. Consultant shall not disclose, cause or facilitate the disclosure of the Project Documents 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 written consent of City.

3.13 Indemnification.

3.13.1 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.

3.13.2 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.

3.14 Insurance. 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 94 46700.00100\40935196.1
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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.

3.14.1 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, Consultant shall, at its expense, procure and maintain in full force and effect for the duration 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.

3.14.2 Additional Insured. The City of Ontario, its officials, officers, employees, agents, and volunteers shall be named as additional insureds on Consultant’s and its subconsultants’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.

3.14.3 Commercial General Liability
(a) The Consultant shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City. (b) Coverage for Commercial General Liability insurance shall be at least as broad as the following: Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. Commercial General Liability Insurance must include coverage for the following:
(i) Bodily Injury and Property Damage
(ii) Personal Injury/Advertising Injury
(iii) Premises/Operations Liability
(iv) Products/Completed Operations Liability
(v) Aggregate Limits that Apply per Project
(vi) Explosion, Collapse and Underground (UCX) exclusion deleted
(vii) Contractual Liability with respect to this Contract (viii) Broad Form Property Damage
(ix) Independent Consultants Coverage
(c) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement.
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(d) The policy shall give City, the City Council and each member of the City Council, its officers, employees, agents and City designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(e) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured.

3.14.4 Automobile Liability
(a) At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City.
(b) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto).
(c) The policy shall give City, the City Council and each member of the City Council, its officers, employees, agents and City designated volunteers additional insured status.
(d) Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention.

3.14.5 Workers’ Compensation/Employer’s Liability
(a) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement.
(b) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this Section.

3.14.6 Professional Liability (Errors and Omissions)
(a) At all times during the performance of the work under this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein. This insurance shall be written on a policy form coverage 96 46700.00100\40935196.1
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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 must include a provision establishing the insurer's duty to defend.

3.14.7 Minimum Policy Limits Required
(a) The following insurance limits are required for the Agreement:

Coverage Combined Single Limit
Commercial General Liability $2,000,000 per occurrence/ $4,000,000 aggregate for bodily injury, personal
injury, and property damage
Automobile Liability $2,000,000 per occurrence for bodily injury and property damage
Employer’s Liability $1,000,000 per occurrence
Professional Liability $2,000,000 per claim and aggregate (errors and omissions)
(b) Defense costs shall be payable in addition to the limits. (c) Requirements of specific coverage or limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement.

3.14.8 Evidence Required
(a) Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance.

3.14.9 Policy Provisions Required
(a) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration.
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(b) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant’s policy is primary insurance and that any 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.
(c) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement.
(d) 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 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.
(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.

3.14.10 Qualifying Insurers
(a) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: 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 admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.

3.14.11 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 and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
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(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 the City Council, nor any member of the City Council, nor any of the officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.

3.14.12 Subconsultant Insurance Requirements
(a) Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this Section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants.

3.15 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.

3.16 Standardized Manufactured Items.

3.17 Limitation of Agreement.

3.18 Mediation.

3.19 Successors and Assigns.

This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each Party to this Agreement. However, 99 46700.00100\40935196.1
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Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void.

3.20 Asbestos Certification.

Consultant shall certify to City, in writing and under penalty of perjury, that to the best of its knowledge, information and belief no asbestos-containing material or other material deemed to be hazardous by the state or federal government was specified as a building material in any construction document that the Consultant prepares for the Project. Consultant shall require all consultants who prepare any other documents for the Project to submit the same written certification. Consultant shall also assist the City in ensuring that contractors provide City with certification, in writing and under penalty of perjury, that to the best of their knowledge, information and belief no material furnished, installed or incorporated into the Project contains asbestos or any other material deemed to be hazardous by the state or federal government. These certifications shall be part of the final Project submittal. Consultant shall include statements in its specifications that materials containing asbestos or any other material deemed to be hazardous by the state or federal government are not to be included.

3.21 No Third Party Rights.

This Agreement shall not create any rights in, or inure to the benefits of, any third party except as expressly provided herein.

3.22 Governing Law.

This Agreement shall be construed in accordance with, and governed by, the laws of the State of California. Venue shall be in San Bernardino County.

3.23 Exhibits and Recitals.

All exhibits and recitals contained herein and attached hereto are material parts of this Agreement and are incorporated as if fully set forth.

3.24 Severability.

Should any provision in the Agreement be held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall continue in full force and effect.

3.25 Non-Waiver.

None of the provisions of this Agreement shall be considered waived by either Party, unless such waiver is specifically specified in writing.

3.26 Safety.

3.27 Harassment Policy.

Consultant shall provide a copy of the City's Harassment Policy to each of its employees assigned to perform the tasks under this Agreement. Consultant shall submit to the City's Personnel Manager a statement signed by each of its employees who are assigned to perform the Services under this Agreement certifying receipt of City's Harassment Policy and certifying that they have read the Harassment Policy. A finding by the City that any of Consultant's employees has harassed a City employee shall be grounds for appropriate discipline, up to and including such employee's removal from performance of this Agreement at City's request.

3.28 Delivery of Notices.

CITY:

City of Ontario
303 East “B” Street
Ontario, CA 91764
Attn: Craig Cruz, Engineering
CONSULTANT:

STC Traffic, Inc.
5973 Avenida Encinas, Suite #218
Carlsbad, CA 92008
Attn: Jason Stack, President
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.

3.29 Time of Essence.

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

3.30 City’s Right to Employ Other Consultants.

City reserves right to employ other consultants, including designers, in connection with this Project or other projects.

3.31 Prohibited Interests.

3.31.1 Solicitation. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability.

3.31.2 Conflict of Interest. For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 101
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3.32 Equal Opportunity Employment.

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.

3.33 Labor Certification.

3.34 Subcontracting.

3.35 Supplemental Conditions.

Any supplemental conditions shall be attached as an exhibit to this Agreement, and that exhibit shall be incorporated herein by reference.

3.36 Entire Agreement.

SIGNATURES ON FOLLOWING PAGE
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Signature Page for Design Services Agreement
Between the City of Ontario
and STC Traffic, Inc.

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

CITY OF ONTARIO STC Traffic, Inc.

By:

Its: President
Printed Name: Jason Stack
By:

Its: CFO
Printed Name: Sandra Sass
[If Corporation, TWO SIGNATURES,
President OR Vice President AND Secretary
OR Treasurer REQUIRED]
Approved By:

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

City Clerk
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EXHIBIT “A”

TRANSPORTATION AND TRAFFIC ENGINEERING PROJECT DESIGN SERVICES The City of Ontario is seeking a Request for Qualifications from firms for Professional Services:

Consultant shall be aware that certain labor categories above may be subject to prevailing wage rates as identified in the California Labor Code commencing Section 1770 et. Seq.

Expected services to be provided under this on-call contract will be performed under a task order system and may include:
1) Transportation Planning
Development Support Services
 Traffic Study Preparation and Review
 Parking Analysis Preparation and Review
 Trip Generation Analysis Preparation and Review
 VMT Analysis Preparation and Review
 SB743 Analysis Preparation and Review
 Traffic Simulations
 On-site circulation analysis
 Data Collection and Analysis
 Traffic Model Support
 On-Site “extension to staff” support services
Long Range Planning
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 General Plan Support
 Specific Plan Support
 Active Transportation Plans and Programs
 Context Sensitive Solutions
 Maintain and Update City Traffic Study Guidelines
 Transit Studies
 Corridor Studies
 On-Site “extension to staff” support services
 Coordination with outside agencies
 Support for funding and grant applications
2) Traffic Engineering
 Traffic Design Plan (including civil work) and Cost Estimate Preparation and Review  Traffic Signal Plan and Cost Estimate Preparation and Review  Pedestrian Hybrid Beacon Plan and Cost Estimate Preparation and Review  Street Light Plan and Cost Estimate Preparation and Review  Traffic Studies for Capital Projects
 Support for funding and grant applications
 Intelligent Transportation Systems Design
 Traffic Signal Timing and Coordination Studies
 Traffic Control Plan Design and Review
 Technical services and support for non-motorized capital projects  Active Transportation Design and Review
 Traffic Calming Support
 Traffic Calming Plan Design and Review
 On-Site “extension to staff” support services
 Traffic Counts Support
 Engineering and Traffic Surveys
 Warrant Analyses
 Coordination with outside agencies (Caltrans, railroads, neighboring cities, etc.)  Signing and Striping Support
Project Design/Plans, Specifications, and Estimates (PS&E) Preparation Firms shall be capable of performing the following tasks:
 Land Surveying & Mapping
 Civil Engineering Design
 Detailed Engineering/Cost Estimation
 Preparation of construction bid documents and specifications  Any other work required to complete project design
Consultant shall perform research of records including utility companies and other agency records as necessary to secure information required to identify, locate, and accurately layout all existing improvements and right-of-way within project limits that may interfere with the proposed 105
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improvements. Consultant will identify estimated number of potholes required for a project in their cost proposal for each individual task order.

The Consultant shall complete a topographic survey map of the site to prepare a base map for the construction plans. This includes, but is not limited to:

2. Establish street centerlines, right-of-way lines existing and proposed, and all easements from available record information.

3. Provide the basis-of-bearing and benchmark information used for the survey and necessary for construction.

4. Locate and tie any features that would affect the design or construction.

5. Obtain Record of Surveys, benchmark and centerline tie information.

The Consultant will be expected to revise the documents within a revised schedule set by the City. There will be no additional compensation necessary for the consultant to complete the work to the satisfaction of the City for required revisions. The Consultant’s services for plan specifications and estimating (PS&E) for engineering project preparation and special studies/investigations shall include and be in conformance with the latest editions of the Greenbook Standard Specifications for Public Works Construction and the City of Ontario standards, unless otherwise specified. Latest editions of the Caltrans Standards and Specifications shall be used for traffic signal design. 106
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For the City plan check process, the Consultant will be required to submit one PDF electronic copy for all submittals. Consultant shall also be responsible for submitting plans and reports for plan check and approval/permit issuance to any affected agencies.

1. GENERAL REQUIREMENTS.

1.1 Basic Services. Consultant agrees to perform all the necessary professional architectural, engineering (e.g. mechanical, electrical, plumbing, structural, site engineering, and any other necessary engineering services mutually agreeable to the Parties) and construction 107
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administration services for the Project in a timely and professional manner, consistent with the standards of the profession, including those provided for herein.

1.2 Exclusions from Basic Services. The following services shall be excluded from the basic services listed above: N/A

1.3 Additional Services. Consultant shall perform the following Additional Services for the Project: N/A

2. INITIAL PLANNING PHASE.

During the initial planning phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

2.3 Permits, Approvals and Authorizations. As indicated in Section 3.5.4 of the Agreement, Consultant shall assist City in securing easements, encroachment permits, rights of 108
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way, dedications, infrastructures and road improvements, as well as coordinating with utilities and adjacent property owners.

3. SCHEMATIC PLAN PHASE.

During the schematic plan phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

4. DESIGN DEVELOPMENT PHASE.

During the design development phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

4.1 Design Development Documents. Once City provides Consultant with specific written approval of the Schematic Plans described herein, Consultant shall prepare design development documents consisting of: (1) site and floor plans; (2) elevations; and (3) any other drawings and documents sufficient to fix and describe the types and makeup of materials, as well as the size and character of the Project’s structural, mechanical and electrical systems, and to 109
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outline the Project specifications (“Design Development Documents”). The Design Development Documents shall be prepared in sufficient form to present to the City Council for approval.

4.4 Timetable. Consultant shall provide a written timetable for full and adequate completion of the Project to City.

5. FINAL WORKING DRAWINGS AND SPECIFICATIONS.

During the final working drawings and specifications phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

5.1 Final Working Drawings and Specifications. Once City provides Consultant with specific written approval of the Design Development Documents described herein, Consultant shall prepare such complete working drawings and specifications as are necessary for developing complete bids and for properly executing the Project work in an efficient and thorough manner (“Final Working Drawings and Specifications”). Such Final Working Drawings and Specifications shall be developed from the Schematic Plans and Design Development Documents approved by City. The Final Working Drawings and Specifications shall set forth in detail all of the following: (1) the Project construction work to be done; (2) the materials, workmanship, finishes, and equipment required for the architectural, structural, mechanical, and electrical systems; and (3) the utility service connection equipment and site work. As indicated in Section 3.9.2 of the Agreement, City may be requested to supply Consultant with the necessary information to determine the proper location of all improvements on and off site, including record drawings (“as-built drawings”) in City’s possession. Consultant will make a good-faith effort to verify the accuracy of such information by means of a thorough interior and exterior visual survey of site conditions. City shall also make a good-faith effort to verify the accuracy of the as-built 110
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drawings and provide any supplemental information to Consultant which may not be shown on the as-built drawings.

5.5 Copies of Final Working Drawings and Specifications and Other Documents.

6. CONSTRUCTION CONTRACT DOCUMENTS.

During the construction contract documents phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
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7. BID PHASE.

During the bid phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

8. CONSTRUCTION PHASE.

During the construction phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

8.2 General Administration. Consultant shall provide general administration of the Construction Documents and the work performed by the contractors.

8.3 Pre-Construction Meeting. Consultant shall conduct one or more pre- construction meetings, as the City determines is needed for the Project, with all interested Parties. 112
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8.13 Rejection of Work. Consultant shall promptly reject, as discussed with City, work or materials which do not conform to the Construction Documents. Consultant shall immediately notify the City and contractor(s) of such rejections. Consultant shall also have the authority to 113
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recommend to the City that additional inspection or testing of the work be performed, whether or not such work is fabricated, installed or completed.

8.18 Final Color and Product Selection. Consultant shall coordinate final color and product selection with City’s original design concept.

8.19 Substantial Completion. Consultant shall determine the date of substantial completion, in consultation with the City.

8.22 Certificate of Completion. Consultant shall participate in any further inspections of the Project necessary to issue Consultant’s Certificate of Completion and final certificate for payment.

Consultant shall assist the City in obtaining such documentation from all other architects, engineers, or other consultants.

9. AS-BUILT DRAWINGS.

During the as-built drawings phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

10. WARRANTY PERIOD.

During the warranty period phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

10.1 Advice. Consultant shall provide advice to City on apparent deficiencies in the Project during any applicable warranty periods for the Project. 115
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EXHIBIT “B”

COMPENSATION RATES AND REIMBURSABLE EXPENSES

1. HOURLY COMPENSATION RATES.

See schedule below

2. REIMBURSABLE EXPENSES.

See schedule below

3. ADDITIONAL SERVICES.

Additional Services shall be computed at the actual hourly rates listed above.

4. ADDITIONAL CONSULTANTS.

If City requires Consultant to hire consultants to perform any Additional Services, Consultant shall be compensated therefore at the Consultant’s actual hourly rates with no mark- up. Owner shall have the authority to review and approve the rates of any such consultants.

STC Traffic • Fee Schedule
Executive/Management
Classifications
Hourly Rate
Principal-In-Charge $290
Senior Principal Manager $270
Principal Manager $260
Senior Project Manager $240
Project Manager III $220
Project Manager II $210
Project Manager I $200
Professional Engineering Classifications
Principal Engineer $230
Senior Project Engineer $210
Project Engineer III $190
Project Engineer II $160
Project Engineer I $140
Professional Planning Classifications
Principal Planner $200
Senior Project Planner $180
Project Planner III $170
Project Planner II $140
Project Planner I $120
Technical/Specialized Classifications
Senior Systems Engineer/Technical
Specialist
$220
Systems Engineer / Technical
Specialist III
$200
Systems Engineer / Technical
Specialist II
$170
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Systems Engineer / Technical
Specialist I
$150
Construction Manager $240
Senior Construction
Engineer/Inspector
$220
Construction Engineer/Inspector III $190
Construction Engineer/Inspector II $160
Construction Engineer/Inspector I $140
Senior Drafter $160
Drafter III $150
Drafter II $130
Drafter I $110
Other Classifications
Intern $100
Expert Witness $400
STC Traffic is a local business and there are no direct costs for mileage.

Outsourced reimbursable expenses such as printing and reproduction, deliveries and overnight shipping, computerized plotting, materials, etc., will be charged to the client at the consultant’s cost without mark‐up. 117
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EXHIBIT "C"

SAMPLE TASK ORDER FORM
Task Order No. _______
Agreement: DESIGN SERVICES AGREEMENT FOR ON-CALL SERVICES Consultant: STC Traffic, Inc.

The Consultant is hereby authorized to perform the following services subject to the provisions of the Agreement identified above:

CITY OF ONTARIO STC Traffic, Inc.

Dated: Dated:

By: By:
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CITY OF ONTARIO

DESIGN SERVICES AGREEMENT

FOR ON-CALL SERVICES

1. PARTIES AND DATE.

This Agreement is made and entered into as of ____________, by and between the City of Ontario, a municipal corporation organized and operating under th e 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 Iteris, Inc. , a Delaware Corporation with its principal place of business at 1700 Carnegie Avenue, Suite 100; Santa Ana, CA 92705 (hereinafter referred to as “Consultant”). City and Consultant are sometimes individually referred to herein as “Party” and collectively as “Parties.”

2. RECITALS.

2.1 City. City is a municipal corporation organized under the laws of the State of California, with power to contract for services necessary to achieve its purpose.

2.3 Project. City desires to engage Consultant torender such services for the On-Call Transportation Planning & Traffic Engineering Design Services ("Project") as set forth in this Agreement.

3. TERMS

3.1 Employment of Consultant.

DEBRA PORADA

MAYOR PRO TEM
ALAN D. WAPNER
JIM W. BOWMAN

RUBEN VALENCIA

COUNCIL MEMBERS

SHEILA MAUTZ

CITY CLERK
JAMES R. MILHISER

TREASURER

SCOTT OCHOA

CITY MANAGER
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shall be subject to, and performed in accordance with, this Agreement, each Task Order, any exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. All Services performed by Consultant shall be subject to the sole and discretionary approval of the City, which approval shall not be unreasonably withheld.

3.2 Project Consultant; Key Personnel.

3.2.1 Engineer of Record. Consultant shall name a specific individual to act as Project Consultant, subject to the approval of City. Consultant hereby designates Deepak Kaushik, PE (#72838) to act as the Engineer of Record for the Project. The Engineer of Record shall: (1) maintain oversight of the Services; (2) have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement; (3) supervise and direct the Services using his or her best skill and attention; (4) be responsible for the means, methods, techniques, sequences and procedures used for the Services; (5) adequately coordinate all portions of the Services; and (6) act as principal contact with City and all contractors, consultants, engineers and inspectors on the Project. Any change in the Engineer of Record shall be subject to the City’s prior written approval, which approval shall not be unreasonably withheld. The new Engineer of Record shall be of at least equal competence as the prior Engineer of Record. In the event that City and Consultant cannot agree as to the substitution of a new Engineer of Record, City shall be entitled to terminate this Agreement for cause.

3.3 Hiring of Consultants and Personnel.

Consultant shall be responsible for the coordination and cooperation of Consultant’s architects, engineers, experts or other consultants. All consultants, including changes in consultants, shall be subject to approval by City in its sole and reasonable discretion. Consultant shall notify City of the identity of all consultants at least fourteen (14) days prior to their commencement of work to allow City to review their qualifications and approve to their participation on the Project in its sole and reasonable discretion.
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3.3.5 Draftsman and Clerical Support. Draftsmen and clerical personnel shall be retained by Consultant at Consultant’s sole expense.

3.4 Standard of Care.

3.4.2 Performance of Employees. Any employee or consultant 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 or consultant 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.
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3.5 Laws and Regulations.

3.5.5 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. § 122
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1251 et seq.); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000- 14950); and any and all regulations, policies, or permits issued pursuant to any such authority.

3.6 Independent Contractor.

3.7 Schedule of Services.

3.7.3 Performance Schedule. Consultant shall prepare an estimated time schedule for the performance of Consultant’s Services, to be adjusted as the Project proceeds.

3.7.4 Excusable Delays. Any delays in Consultant’s work caused by the following may be added to the time for completion of any obligations of Consultant: (1) the actions 123
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of City or its employees; (2) the actions of those in direct contractual relationship with City; (3) the actions of any governmental agency having jurisdiction over the Project; (4) the actions of any parties not within the reasonable control of the Consultant; and (5) any Force Majeure Event (as defined herein) or other unforeseen occurrence not due to any fault or negligence on the part of Consultant. Neither the City nor the Consultant shall be liable for damages, liquidated or otherwise, to the other on account of such delays.

3.8 Additional Services.

3.8.1 Request for Services. At City’s request, Consultant may be asked to perform services not otherwise included in this Agreement, not included within the basic services listed in Exhibit “A” attached hereto, and/or not customarily furnished in accordance with generally accepted architectural practice.
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3.9 City Responsibilities. City’s responsibilities shall include the following:

3.9.1 Data and Information. City shall make available to Consultant all necessary data and information concerning the purpose and requirements of the Project, including scheduling and budget limitations, objectives, constraints and criteria. As part of the budget limitation information, the City shall provide the Consultant with a preliminary construction budget (“City’s Preliminary Construction Budget”).
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3.9.3 Bid Phase. Distribute Construction Documents to bidders and conduct the opening and review of bids for the Project.

3.10 Compensation.

3.10.2 Payment for Additional Services. At any time during the term of this Agreement, City may request that Consultant perform Additional Services. As used herein, 126
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Additional Services 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. Any additional work in excess of this amount must be approved by the City. If authorized, such Additional Services will be compensated at the rates and in the manner set forth in Exhibit “B” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the Parties. If City requires Consultant to hire consultants to perform any Additional Services, Consultant shall be compensated therefore at the rates and in the manner set forth in Exhibit “B” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the Parties. City shall have the authority to review and approve the rates of any such consultants. In addition, Consultant shall be reimbursed for any expenses incurred by such consultants pursuant to the terms and conditions of Section 3.10.3.

Upon cancellation or termination of this Agreement, Consultant shall be compensated as 127
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set forth in the termination provision herein.

Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure of the Consultant or its consultants to comply with the Prevailing Wage Laws.
(a) Registration/DIR Compliance. If the Services are being performed as part of an applicable “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 performing such Services 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. 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 128
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issued by the Department of Industrial Relations 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 Department of Industrial Relations against Consultant or any subconsultant.

3.11 Notice to Proceed.

Consultant shall not proceed with performance of any Services under this Agreement unless and until the City provides a written notice to proceed.

3.12 Termination, Suspension and Abandonment.

Consultant shall make such documents available to City upon request and without additional compensation other than as may be approved as a reimbursable expense.

3.13 Ownership and Use of Documents; Confidentiality.

3.13.1 Ownership. All plans, specifications, original or reproducible transparencies of working drawings and master plans, preliminary sketches, architectural 129
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presentation drawings, structural computations, estimates and any other documents prepared pursuant to this Agreement, including, but not limited to, any other works of authorship fixed in any tangible medium of expression such as writings, physical drawings and data magnetically or otherwise recorded on computer diskettes (hereinafter referred to as the “Project Documents”) shall be and remain the property of City. Although the official copyright in all Project Documents shall remain with the Consultant or other applicable subcontractors or consultants, the Project Documents shall be the property of City whether or not the work for which they were made is executed or completed. Within thirty (30) calendar days following completion of the Project, Consultant shall provide to City copies of all Project Documents required by City. In addition, Consultant shall retain copies of all Project Documents on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of reasonable duplication costs. Before destroying the Project Documents following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.

3.13.4 Right to License. Consultant represents and warrants that Consultant has the legal right to license any and all copyrights, designs and other intellectual property embodied in the Project Documents that Consultant prepares or causes to be prepared pursuant to this Agreement. Consultant shall indemnify and hold City harmless pursuant to the indemnification provisions of this Agreement for any breach of this Section. Consultant makes no such 130
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representation and warranty in regard to previously prepared designs, plans, specifications, studies, drawings, estimates or other documents that were prepared by design professionals other than Consultant and provided to Consultant by City.

3.14 Indemnification.

3.15.1 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, Consultant shall, at its expense, procure and maintain in full force and effect for the duration of the Agreement the following policies of insurance. If the 131
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existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so.

3.15.3 Commercial General Liability
(a) The Consultant shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City. (b) Coverage for Commercial General Liability insurance shall be at least as broad as the following: Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. Commercial General Liability Insurance must include coverage for the following:
(i) Bodily Injury and Property Damage
(ii) Personal Injury/Advertising Injury
(iii) Premises/Operations Liability
(iv) Products/Completed Operations Liability
(v) Aggregate Limits that Apply per Project
(vi) Explosion, Collapse and Underground (UCX) exclusion deleted
(vii) Contractual Liability with respect to this Contract (viii) Broad Form Property Damage
(ix) Independent Consultants Coverage
(c) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement.
(d) The policy shall give City, the City Council and each member of the City Council, its officers, employees, agents and City designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(e) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured. 132
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3.15.7 Minimum Policy Limits Required
(a) The following insurance limits are required for the Agreement:
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Coverage Combined Single Limit
Commercial General Liability $2,000,000 per occurrence/ $4,000,000 aggregate for bodily injury, personal
injury, and property damage
Automobile Liability $2,000,000 per occurrence for bodily injury and property damage
Employer’s Liability $1,000,000 per occurrence
Professional Liability $2,000,000 per claim and aggregate (errors and omissions)
(b) Defense costs shall be payable in addition to the limits. (c) Requirements of specific coverage or limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement.

3.15.9 Policy Provisions Required
(a) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration.
(b) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant’s policy is primary insurance and that any 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.
(c) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced 134
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past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement.
(d) 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 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.
(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.

3.15.11 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 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 the City Council, nor any member of the City Council, nor any of the officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. 135
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3.16 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.

3.17 Standardized Manufactured Items.

3.18 Limitation of Agreement.

3.19 Mediation.

3.20 Successors and Assigns.

3.21 Asbestos Certification.

Consultant shall certify to City, in writing and under penalty of perjury, that to the best of 136
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its knowledge, information and belief no asbestos-containing material or other material deemed to be hazardous by the state or federal government was specified as a building material in any construction document that the Consultant prepares for the Project. Consultant shall require all consultants who prepare any other documents for the Project to submit the same written certification. Consultant shall also assist the City in ensuring that contractors provide City with certification, in writing and under penalty of perjury, that to the best of their knowledge, information and belief no material furnished, installed or incorporated into the Project contains asbestos or any other material deemed to be hazardous by the state or federal government. These certifications shall be part of the final Project submittal. Consultant shall include statements in its specifications that materials containing asbestos or any other material deemed to be hazardous by the state or federal government are not to be included.

3.22 No Third Party Rights.

This Agreement shall not create any rights in, or inure to the benefits of, any third party except as expressly provided herein.

3.23 Governing Law.

This Agreement shall be construed in accordance with, and governed by, the laws of the State of California. Venue shall be in San Bernardino County.

3.24 Exhibits and Recitals.

All exhibits and recitals contained herein and attached hereto are material parts of this Agreement and are incorporated as if fully set forth.

3.25 Severability.

Should any provision in the Agreement be held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall continue in full force and effect.

3.26 Non-Waiver.

None of the provisions of this Agreement shall be considered waived by either Party, unless such waiver is specifically specified in writing.

3.27 Safety.

3.28 Harassment Policy.

Consultant shall provide a copy of the City's Harassment Policy to each of its employees assigned to perform the tasks under this Agreement. Consultant shall submit to the City's Personnel Manager a statement signed by each of its employees who are assigned to perform the Services under this Agreement certifying receipt of City's Harassment Policy and certifying that they have read the Harassment Policy. A finding by the City that any of Consultant's 137
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employees has harassed a City employee shall be grounds for appropriate discipline, up to and including such employee's removal from performance of this Agreement at City's request.

3.29 Delivery of Notices.

CITY:

City of Ontario
303 East “B” Street
Ontario, CA 91764
Attn: Craig Cruz, Engineering
CONSULTANT:

Iteris, Inc.
1700 Carnegie Avenue, Suite 100
Santa Ana, CA 92705
Attn: Iteris Legal Department
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.

3.30 Time of Essence.

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

3.31 City’s Right to Employ Other Consultants.

City reserves right to employ other consultants, including designers, in connection with this Project or other projects.

3.32 Prohibited Interests.

3.33 Equal Opportunity Employment.

Such non-discrimination shall include, but not be limited to, all activities related to initial 138
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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.

3.34 Labor Certification.

3.35 Subcontracting.

3.36 Supplemental Conditions.

Any supplemental conditions shall be attached as an exhibit to this Agreement, and that exhibit shall be incorporated herein by reference.

3.37 Entire Agreement.

SIGNATURES ON FOLLOWING PAGE
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Signature Page for Design Services Agreement
Between the City of Ontario
and ITERIS, INC.

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

CITY OF ONTARIO Iteris, Inc.

By:

Its:

Printed Name:

By:

Its:

Printed Name:
[If Corporation, TWO SIGNATURES,
President OR Vice President AND Secretary
OR Treasurer REQUIRED]
Approved By:

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

City Clerk
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EXHIBIT “A”

TRANSPORTATION AND TRAFFIC ENGINEERING PROJECT DESIGN SERVICES The City of Ontario is seeking a Request for Qualifications from firms for Professional Services:

Consultant shall be aware that certain labor categories above may be subject to prevailing wage rates as identified in the California Labor Code commencing Section 1770 et. Seq.

Expected services to be provided under this on-call contract will be performed under a task order system and may include:
1) Transportation Planning
Development Support Services
 Traffic Study Preparation and Review
 Parking Analysis Preparation and Review
 Trip Generation Analysis Preparation and Review
 VMT Analysis Preparation and Review
 SB743 Analysis Preparation and Review
 Traffic Simulations
 On-site circulation analysis
 Data Collection and Analysis
 Traffic Model Support
 On-Site “extension to staff” support services
Long Range Planning
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 General Plan Support
 Specific Plan Support
 Active Transportation Plans and Programs
 Context Sensitive Solutions
 Maintain and Update City Traffic Study Guidelines
 Transit Studies
 Corridor Studies
 On-Site “extension to staff” support services
 Coordination with outside agencies
 Support for funding and grant applications
2) Traffic Engineering
 Traffic Design Plan (including civil work) and Cost Estimate Preparation and Review  Traffic Signal Plan and Cost Estimate Preparation and Review  Pedestrian Hybrid Beacon Plan and Cost Estimate Preparation and Review  Street Light Plan and Cost Estimate Preparation and Review  Traffic Studies for Capital Projects
 Support for funding and grant applications
 Intelligent Transportation Systems Design
 Traffic Signal Timing and Coordination Studies
 Traffic Control Plan Design and Review
 Technical services and support for non-motorized capital projects  Active Transportation Design and Review
 Traffic Calming Support
 Traffic Calming Plan Design and Review
 On-Site “extension to staff” support services
 Traffic Counts Support
 Engineering and Traffic Surveys
 Warrant Analyses
 Coordination with outside agencies (Caltrans, railroads, neighboring cities, etc.)  Signing and Striping Support
Project Design/Plans, Specifications, and Estimates (PS&E) Preparation Firms shall be capable of performing the following tasks:
 Land Surveying & Mapping
 Civil Engineering Design
 Detailed Engineering/Cost Estimation
 Preparation of construction bid documents and specifications  Any other work required to complete project design
Consultant shall perform research of records including utility companies and other agency records as necessary to secure information required to identify, locate, and accurately layout all existing improvements and right-of-way within project limits that may interfere with the proposed 142
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improvements. Consultant will identify estimated number of potholes required for a project in their cost proposal for each individual task order.

The Consultant shall complete a topographic survey map of the site to prepare a base map for the construction plans. This includes, but is not limited to:

2. Establish street centerlines, right-of-way lines existing and proposed, and all easements from available record information.

3. Provide the basis-of-bearing and benchmark information used for the survey and necessary for construction.

4. Locate and tie any features that would affect the design or construction.

5. Obtain Record of Surveys, benchmark and centerline tie information.

The Consultant will be expected to revise the documents within a revised schedule set by the City. There will be no additional compensation necessary for the consultant to complete the work to the satisfaction of the City for required revisions. The Consultant’s services for plan specifications and estimating (PS&E) for engineering project preparation and special studies/investigations shall include and be in conformance with the latest editions of the Greenbook Standard Specifications for Public Works Construction and the City of Ontario standards, unless otherwise specified. Latest editions of the Caltrans Standards and Specifications shall be used for traffic signal design. 143
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For the City plan check process, the Consultant will be required to submit one PDF electronic copy for all submittals. Consultant shall also be responsible for submitting plans and reports for plan check and approval/permit issuance to any affected agencies.

1. GENERAL REQUIREMENTS.

1.1 Basic Services. Consultant agrees to perform all the necessary professional architectural, engineering (e.g. mechanical, electrical, plumbing, structural, site engineering, and any other necessary engineering services mutually agreeable to the Parties) and construction 144
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administration services for the Project in a timely and professional manner, consistent with the standards of the profession, including those provided for herein.

1.2 Exclusions from Basic Services. The following services shall be excluded from the basic services listed above: N/A

1.3 Additional Services. Consultant shall perform the following Additional Services for the Project: N/A

2. INITIAL PLANNING PHASE.

During the initial planning phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

2.3 Permits, Approvals and Authorizations. As indicated in Section 3.5.4 of the Agreement, Consultant shall assist City in securing easements, encroachment permits, rights of 145
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way, dedications, infrastructures and road improvements, as well as coordinating with utilities and adjacent property owners.

3. SCHEMATIC PLAN PHASE.

During the schematic plan phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

4. DESIGN DEVELOPMENT PHASE.

During the design development phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

4.1 Design Development Documents. Once City provides Consultant with specific written approval of the Schematic Plans described herein, Consultant shall prepare design development documents consisting of: (1) site and floor plans; (2) elevations; and (3) any other drawings and documents sufficient to fix and describe the types and makeup of materials, as well as the size and character of the Project’s structural, mechanical and electrical systems, and to 146
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outline the Project specifications (“Design Development Documents”). The Design Development Documents shall be prepared in sufficient form to present to the City Council for approval.

4.4 Timetable. Consultant shall provide a written timetable for full and adequate completion of the Project to City.

5. FINAL WORKING DRAWINGS AND SPECIFICATIONS.

During the final working drawings and specifications phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

5.1 Final Working Drawings and Specifications. Once City provides Consultant with specific written approval of the Design Development Documents described herein, Consultant shall prepare such complete working drawings and specifications as are necessary for developing complete bids and for properly executing the Project work in an efficient and thorough manner (“Final Working Drawings and Specifications”). Such Final Working Drawings and Specifications shall be developed from the Schematic Plans and Design Development Documents approved by City. The Final Working Drawings and Specifications shall set forth in detail all of the following: (1) the Project construction work to be done; (2) the materials, workmanship, finishes, and equipment required for the architectural, structural, mechanical, and electrical systems; and (3) the utility service connection equipment and site work. As indicated in Section 3.9.2 of the Agreement, City may be requested to supply Consultant with the necessary information to determine the proper location of all improvements on and off site, including record drawings (“as-built drawings”) in City’s possession. Consultant will make a good-faith effort to verify the accuracy of such information by means of a thorough interior and exterior visual survey of site conditions. City shall also make a good-faith effort to verify the accuracy of the as-built 147
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drawings and provide any supplemental information to Consultant which may not be shown on the as-built drawings.

5.5 Copies of Final Working Drawings and Specifications and Other Documents.

6. CONSTRUCTION CONTRACT DOCUMENTS.

During the construction contract documents phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
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7. BID PHASE.

During the bid phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

8. CONSTRUCTION PHASE.

During the construction phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

8.2 General Administration. Consultant shall provide general administration of the Construction Documents and the work performed by the contractors.

8.13 Rejection of Work. Consultant shall promptly reject, as discussed with City, work or materials which do not conform to the Construction Documents. Consultant shall immediately notify the City and contractor(s) of such rejections. Consultant shall also have the authority to 150
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recommend to the City that additional inspection or testing of the work be performed, whether or not such work is fabricated, installed or completed.

8.18 Final Color and Product Selection. Consultant shall coordinate final color and product selection with City’s original design concept.

8.19 Substantial Completion. Consultant shall determine the date of substantial completion, in consultation with the City.

8.22 Certificate of Completion. Consultant shall participate in any further inspections of the Project necessary to issue Consultant’s Certificate of Completion and final certificate for payment.

Consultant shall assist the City in obtaining such documentation from all other architects, engineers, or other consultants.

9. AS-BUILT DRAWINGS.

During the as-built drawings phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

10. WARRANTY PERIOD.

During the warranty period phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

10.1 Advice. Consultant shall provide advice to City on apparent deficiencies in the Project during any applicable warranty periods for the Project. 152
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EXHIBIT “B”

COMPENSATION RATES AND REIMBURSABLE EXPENSES

1. HOURLY COMPENSATION RATES.

STAFF CLASSIFICATION Through 3/31/2025
Min Max
Assistant Engineer/Planner $120 $145
Associate Engineer/Planner $140 $160
Engineer/Planner $150 $185
Senior Engineer/Planner $190 $240
Senior Manager/Principal Engineer $225 $275
Associate Vice President $255 $340
Vice President $340 $375

2. REIMBURSABLE EXPENSES.

Mileage at $0.62/mile

3. ADDITIONAL SERVICES.

Additional Services shall be computed at the actual hourly rates listed above.

4. ADDITIONAL CONSULTANTS.

If City requires Consultant to hire consultants to perform any Additional Services, Consultant shall be compensated therefore at the Consultant’s actual hourly rates plus 10%.

Owner shall have the authority to review and approve the rates of any such consultants. 153
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EXHIBIT "C"

CITY OF ONTARIO [INSERT NAME OF CONSULTANT]
Dated: Dated:

By: By:
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CITY OF ONTARIO

DESIGN SERVICES AGREEMENT

FOR ON-CALL SERVICES

1. PARTIES AND DATE.

This Agreement is made and entered into as of ____________, by and between the City of Ontario, a municipal corporation organized and operating 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 ADVANTEC CONSULTING ENGINEERS INC., a CALIFORNIA CORPORATION with its principal place of business at 1200 ROOSEVELT, IRVINE, CA 92620 (hereinafter referred to as “Consultant”). City and Consultant are sometimes individually referred to herein as “Party” and collectively as “Parties.”

2. RECITALS.

2.1 City. City is a municipal corporation organized under the laws of the State of California, with power to contract for services necessary to achieve its purpose.

2.2 Consultant. Consultant desires to perform and assume responsibil ity for the provision of certain professional engineering design services required by the City on the terms and conditions set forth in this Agreement. Consultant warrants that it is fully licensed, qualified, and willing to perform the services required by this Agreement; provided, however, that if Consultant is a corporation or other organization, the Project Consultant designated pursuant to Section 3.2, and not the Consultant itself, shall be fully licensed to practice as an engineer in the State of California.

2.3 Project. City desires to engage Consultant to render such services for the On-Call Transportation Planning & Traffic Engineering Design Services ("Project") as set forth in this Agreement.

3. TERMS

3.1 Employment of Consultant.

3.1.1 Scope of Services. Consultant promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional engineering and related services necessary for the fu ll and adequate completion of the Project described in Exhibit “A” attached hereto and incorporated herein by reference (“Services”). The Services shall be more particularly described in the individual Task Order issued by the City or its designee. No Ser vices shall be performed unless authorized by a fully executed Task Order in the form attached hereto as Exhibit “C”. All Services PAUL S. LEON
MAYOR

DEBRA PORADA

MAYOR PRO TEM

ALAN D. WAPNER
JIM W. BOWMAN

RUBEN VALENCIA

COUNCIL MEMBERS

SHEILA MAUTZ

CITY CLERK

JAMES R. MILHISER

TREASURER
AD

SCOTT OCHOA

CITY MANAGER

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shall be subject to, and performed in accordance with, this Agreement, each Task Order, any exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. All Services performed by Consultant shall be subject to the sole and discretionary approval of the City, which approval shall not be unreasonably withheld.

3.1.2 Term. The term of this Agreement shall be from April 2, 2024 to April 2, 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 (2) additional one- year terms. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines.

3.2 Project Consultant; Key Personnel.

3.2.1 Engineer of Record. Consultant shall name a specific individual to act as Project Consultant, subject to the approval of City. Consultant hereby designates Carlos Oritz, PE, TE, P TOE (License No. Civil Engineer, CA, 57535, Traffic Engineer, CA, TR2025, PTOE, US, 426) to act as the Engineer of Record for the Project. The Engineer of Record shall: (1) maintain oversight of the Services; (2) have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement; (3) supervise and direct the Services using his or her best skill and attention; (4) be responsible for the means, methods, techniques, sequences and procedures used for the Services; (5) adequately coordinate all portions of the Services; and (6) act as principal contact with City and all contractors, consultants, engineers and inspectors on the Project. Any change in the Engineer of Record shall be subject to the City’s prior written approval, which approval shall not be unreasonably withheld. The new Engineer of Record shall be of at least equal competence as the prior Engineer of Record . In the event that City and Consultant cannot agree as to the substitution of a new Engineer of Record, City shall be entitled to terminate this Agreement for cause.

3.2.2 Key Personnel . In addition to the Engineer of Record , Consultant has represented to the City that certain additional key personnel, engineers and consultants will perform the Services under this Agreement. Should one or more of such personnel, engineers or consultants become unavailable, Consultant may substitute others of at least equal competence upon written approval of the City. In the event that City and Consultant cannot agree as to the substitution of key personnel, engineers or consultants, City shall be entitled to terminate this Agreement for cause. The key additional personnel, engineers and consultants for performance of this Agreement are as follows: Carlos Ortiz, PE, TE, PTOE, Project Director, Civil Engineer, CA, 57535, Traffic Engineer, CA, TR2025, PTOE, US, 426; John Dorado, PE, Project Manager/Task Leader: Traffic & Transportation S tudies, Civil Engineer, CA 74405; Madeleine Ortiz, Assistant Project Manager/Lead Project Engineer, Engineer -in-Training, CA, 161349; Armando Solis, PE, Key Personnel/Task Leader: Traffic Engineering PS&E, Civil Engineer, CA 72012; Jose Guedes, TE, Key Personnel/Task Leader: Traffic Signal Timing & Operations, Traffic Engineering, CA TR1861; Keith Rand, PE, TE, Key Personnel/Task Leader: Developer/Plan Check Review, Civil Engineer, CA 60090, Traffic Engineer, CA TR2103; Chris Buscarino, Key Personnel/Task L eader: Civil Engineering, Civil Engineer, CA 54878; John Cox, Key Personnel/Task Leader: Traffic Signal/ Communications/ITS PS&E, Lawrence Tai, TE, Key Personnel/Task Leader: Safety Studies, Grants, Traffic Engineer, CA TR1437; and Dean Arizabal, Key Personnel/Task Leader for Transportation Planning.

3.3 Hiring of Consultants and Personnel.

3.3.1 Right to Hire or Employ . Consultant shall have the option, unless City objects in writing after notice, to employ at its expense architects, engineers, experts or other 156
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consultants qualified and licensed to render services in connection with the planning and/or administration of the Project, and to delegate to them such duties as Consultant may delegate without relieving Consultant from administrative or other responsibilit y under this Agreement.

Consultant shall be responsible for the coordination and cooperation of Consultant’s architects, engineers, experts or other consultants. All consultants, including changes in consultants, shall be subject to approval by City in i ts sole and reasonable discretion. Consultant shall notify City of the identity of all consultants at least fourteen (14) days prior to their commencement of work to allow City to review their qualifications and approve to their participation on the Proje ct in its sole and reasonable discretion.

3.3.2 Qualification and License . All architects, engineers, experts and other consultants retained by Consultant in performance of this Agreement shall be qualified to perform the Services assigned to them, and shall be licensed to practice in their respective professions, where required by law.

3.3.3 Standards and Insurance . All architects, engineers, experts and other consultants hired by Consultant shall be required to meet all of the same standards and insurance requirements set forth in this Agreement, unless other standards or requirements are approved by the City in writing. Unless changes are approved in writing by the City, Consultant’s agreements with its consultants shall contain a provision making them subject to all provisions stipulated in this Agreement.

3.3.4 Assignments or Staff Changes . Consultant shall promptly obtain written City approval of any assignment, reassignment or replacement of such architects, engineers, experts and consultants, or of other staff chan ges of key personnel working on the Project. As provided in the Agreement, any changes in Consultant’s consultants and key personnel shall be subject to approval by City.

3.3.5 Draftsman and Clerical Support. Draftsmen and clerical personnel shall be retained by Consultant at Consultant’s sole expense.

3.4 Standard of Care.

3.4.1 Standard of Care . Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals qualified to perform the Services in the same discipline in the State of California, and shall be responsible to City for damages sustained by the City and delays to the Project as specified in the indemnification provision of this Agreement. Without limiting the foregoing, Consultant shall be fully responsible to the City for any increased costs incurred by the City as a result of any such delays in the design or construction of the Project. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants and represents that all of its employees, architects, engineers, experts and other consultants shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees, architects, engineers, experts and other consultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services assigned to or rendered by them and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbur sement 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.
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3.4.2 Performance of Employees . Any employee or consultant 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 or consultant who fails or refuses to perform the Services in a manner acceptable to the Ci ty, 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.

3.5 Laws and Regulations.

3.5.1 Knowledge and Compliance. Consultant shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and regulations in any manner affecting the performance of the Services or the Project, and shall give all notices required of the Consultant by law. Consultant shall be liable, pursuant t o the standard of care and indemnification provisions of this Agreement, for all violations of such laws and regulations in connection with its Services. Consultant shall defend, indemnify and hold City, its officials, 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.

3.5.2 Drawings and Specifications . Consultant shall cause all d rawings and specifications to conform to any applicable requirements of federal, state and local laws, rules and regulations, including the Uniform Building Code, in effect as of the time the drawings and specifications are prepared or revised during the latest phase of the Services described in Exhibit “A” attached hereto. Any significant revisions made necessary by changes in such laws, rules and regulations after this time may be compensated as Additional Services which were not known or reasonably should not have been known by Consultant. Consultant shall cause the necessary copies of such drawings and specifications to be filed with any governmental bodies with approval jurisdiction over the Project, in accordance with the Services described in Exhibi t “A” attached hereto. For the preparation of all such drawings and specifications, the Consultant shall use Computer Aided Design Drafting (“CADD”) (e.g., AutoCAD) or other technology acceptable to the Consultant and City.

3.5.3 Americans with Disabilities Act . Consultant will use its best professional efforts to interpret all applicable federal, state and local laws, rules and regulations with respect to access, including those of the Americans with Disabilities Act (“ADA”). Consultant shall inform City of t he existence of inconsistencies of which it is aware or reasonably should be aware between federal and state accessibility laws, rules and regulations, as well as any other issues which are subject to conflicting interpretations of the law, and shall provi de the City with its interpretation of such inconsistencies and conflicting interpretations. Unless Consultant brings such inconsistencies and conflicting interpretations to the attention of the City and requests City’s direction on how to proceed, the Consultant’s interpretation of such inconsistencies and conflicting interpretations shall be the sole responsibility and liability of Consultant, and the Consultant shall correct all plans, specifications and other documents prepared for the Project at no additional cost if its interpretations are shown to be incorrect. In the event that the Consultant request’s City’s direction on how to proceed with respect to any inconsistent and/or conflicting interpretation, the Consultant shall be responsible to the City only pursuant to the indemnification provisions of this Agreement.

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assist the City in obtaining all such permits, approvals and other authorizations. The costs of such permits, approvals and other authorizations shall be paid by the City.

3.5.5 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 (Cal Water Code §§ 13000- 14950); and any and all regulations, policies, or permits issued pursuant to any such authority.

Consultant shall additionally comply with the lawful requirements of the C ity, 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. Failure to comply with laws, regulations, and ordina nces listed in this Section is a violation of federal and state law.

3.6 Independent Contractor.

3.6.1 Control and Payment of Subordinates . City retains Consultant on an independent contractor basis and Consultant is not an employee of City. Consultant is not an employee for state tax, federal tax or any other purpose, and is not entitled to the rights or benefits afforded to City’s employees. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City, and shall at all times be under Consultant’s exclusive direction and control. 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’ compensat ion insurance.

3.7 Schedule of Services.

3.7.1 Consultant Services. Consultant shall fully and adequately complete the Services described in this Agreement , each individual Task Order issued by the City, and in Exhibit “A” attached hereto and incorporated herein by reference.

3.7.2 Timely Performance Standard . Consultant shall perform all Services hereunder as expeditiously as is consistent with professional skill and care, as well as the orderly progress of the Project work so as not to be the cause, in whole or in part , of delays in the completion of the Project or in the achievement of any Project milestones, as provided herein.

3.7.3 Performance Schedule . Consultant shall prepare an estimated time schedule for the performance of Consultant’s Services, to be adjusted as the Project proceeds.

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City shall have the authority to immediately terminate this Agreement. The schedule shall not be exceeded by Consultant without the prior written approval of City. If the Consultant’s Services are not completed within the time provided by the agreed upon performance schedule, or any milestones established therein, it is understood, acknowledged and agreed that the City will suffer damage for which the Consultant will be responsible.

3.7.4 Excusable D elays. Any delays in Consultant’s work caused by the following may be added to the time for completion of any obligations of Consultant: (1) the actions of City or its employees; (2) the actions of those in direct contractual relationship with City; (3) the actions of any governmental agency having jurisdiction over the Project; (4) the actions of any parties not within the reasonable control of the Consultant; and (5) any Force Majeure Event (as defined herein) or other unforeseen occurrence not due to a ny fault or negligence on the part of Consultant. Neither the City nor the Consultant shall be liable for damages, liquidated or otherwise, to the other on account of such delays.

3.7.5 Force Majeure Events. 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 limi tation, 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 quarantin e 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 p ublic agency applicable to the Services and Agreement. Should a Force Majeure Event occur, the non- performing Party shall, within fifteen (15) calendar days of the beginning of an Force Majeure Event, 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 shall not entitle Consultant to any additional compensation. Notwithstanding the foregoing in this section, the City may still terminate this Agreement i n accordance with the termination provisions of this Agreement.

3.7.6 Request for Excusable Delay Credit . The Consultant shall, within fifteen (15) calendar days of the beginning of any excusable delay, notify the City in writing of the causes of delay (unless City grants in writing a further period of time to file such notice prior to the date of final payment under the Agreement). City will then ascertain the facts and the extent of the delay, and grant an extension of time for completing the Services when, in its sole judgment, the findings of fact justify such an extension. The City’s findings of fact thereon shall be final and conclusive on the Parties. Extensions of time shall apply only to that portion of the Services affected by the delay and shall not apply to other portions of the Services not so affected. The sole remedy of Consultant for extensions of time shall be an extension of the performance time at no cost to the City. If Additional Services are required as a result of an excusable delay, th e Parties shall mutually agree thereto pursuant to the Additional Services provision of this Agreement. Should Consultant make an application for an extension of time, Consultant shall submit evidence that the insurance policies required by this Agreement remain in effect during the requested additional period of time.
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3.8 Additional Services.

3.8.1 Request for Services . At City’s request, Consultant may be asked to perform services not otherwise included in this Agreement, not included within the basic services listed in Exhibit “A” attached hereto, and/or not customarily furnished in accordance with generally accepted architectural practice.

3.8.2 Definition. As used herein, “Additional Services” mean: (1) 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 for the Consultant to perform at the execution of this Agreement; or (2) any work listed as Additional Services in Exhibit “A” attached hereto. Consultant shall not perform, nor be compensated for, Additional Services without prior written authorization from City and without an agreement between the City and Consultant as to the compensation to be paid for such services. City shall pay Consult ant for any approved Additional Services, pursuant to the compensation provisions herein, so long as such services are not made necessary through the fault of Consultant pursuant to the indemnification provision of this Agreement.

3.8.3 Examples of Additional Se rvices. Such Additional Services shall not include any redesign or revisions to drawings, specifications or other documents when such revisions are necessary in order to bring such documents into compliance with applicable laws, rules, regulations or codes of which Consultant was aware or should have been aware pursuant to the laws and regulations provision of this Agreement above. Such Additional Services may include, but shall not be limited to:
(a) Separately Bid Portions of Project . Plan preparation and/ or administration of work on portions of the Project separately bid. (b) Furniture and Interior Design. Assistance to City, if requested, for the selection of moveable furniture, equipment or articles which are not included in the Construction Documents.
(c) Fault of Contractor . Services caused by delinquency, default or insolvency of contractor, or by major defects in the work of the contractor, provided that any such services made necessary by the failure of Consultant to detect and report such matters when it reasonably should have done so shall not be compensated. (d) Inconsistent Approvals or Instructions . Revisions in drawings, specifications or other documents when such revisions are inconsistent with written approvals or instructions previously given and are due to causes beyond the control of Consultant. (e) Legal Proceedings. Serving as an expert witness on City's behalf or attending legal proceedings to which the Consultant is not a party. (f) Damage Repair. Supervision of repair of damages to any structure. (g) Extra Environmental Services . Additional work required for environmental conditions (e.g. asbestos or site conditions) not already contemplated within the Consultant's services for the Project.
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3.9 City Responsibilities. City’s responsibilities shall include the following:

3.9.1 Data and Information. City shall make available to Consultant all necessary data and information concerning the purpose and requirements of the Project, including scheduling and budget limitations, objectives, constraints and criteria. As par t of the budget limitation information, the City shall provide the Consultant with a preliminary construction budget (“City’s Preliminary Construction Budget”).

3.9.2 Project Survey . If required pursuant to the scope of the Project and if requested by Consultan t, City shall furnish Consultant with, or direct Consultant to procure at City’s expense, a survey of the Project site prepared by a registered surveyor or civil engineer, any other record documents which shall indicate existing structures, land features, improvements, sewer, water, gas, electrical and utility lines, topographical information and boundary dimensions of the site, and any other such pertinent information.

3.9.3 Bid Phase. Distribute Construction Documents to bidders and conduct the opening and review of bids for the Project.

3.9.5 Required Inspections and Tests. Retain consultant(s) to conduct materials testing and inspection o r environmental/hazardous materials testing and inspection pursuant to any applicable laws, rules or regulations.

3.9.6 Fees of Reviewing or Licensing Agencies . Directly pay or reimburse the payment of all fees required by any reviewing or licensing agency, or other agency having approval jurisdiction over the Project.

3.9.7 City’s Representative. The City hereby designates the City Manager, 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 Contract. The City Manager hereby designates Jay Bautista, Transportation Manager, or his or her designee, as the City’s contact for the implementation of the Serv ices hereunder. Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.

3.9.8 Review and Approved Documents . Review all documents submitted by Consultant, including change orders and other matters requiring approval by the City Council or other officials. City shall advise Consultant of decisions pertaining to such documents within a reasonable time after submission, so as not to cause unreasonable delay as provided in the excusable delay provisions of this Agreement above.

3.10 Compensation.

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shall be set forth in the relevant Task Order. The total compensation for all Task Orders issued hereunder shall not exceed Two Hundred Thousand Dollars and Zero Cents ($200,000.00) without written approval of the City Council or City Manager, as applicable. The Total Compensation, as may be adjusted upon mutual agreement, shall constitute complete and adequate payment for Services under this Agreement.

3.10.2 Payment for Additional Services . At any time during the term of this Agreement, City may request that Consultant perform Additional Services. As used herein, Additional Services means any work which is determined b y 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. Any additional work in excess of this amount must be approved by the City . If auth orized, such Additional Services will be compensated at the rates and in the manner set forth in Exhibit “B” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the Parties. If City requires Consultant to hire consultants to perform any Additional Services, Consultant shall be compensated therefore at the rates and in the manner set forth in Exhibit “B” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the Parties. City shall have the authority to review and approve the rates of any such consultants. In addition, Consultant shall be reimbursed for any expenses incurred by such consultants pursuant to the terms and conditions of Section 3.10.3.

3.10.3 Reimbursable Expenses . Reimbursable expenses are in addition to compensation for the Services and Additional Services. Consultant shall not be reimbursed for any expenses unless authorized in writing by City, which approval may be evidenced by inclusion in Exhibit “B” attached hereto. Such reimbursable expenses shall include only those expenses which are reasonably and necessarily incurred by Consultant in the interest of the Project.

3.10.4 Payment to Consultant. Consultant’s compensation a nd reimbursable expenses shall be paid by City to Consultant no more often than monthly. Such periodic payments shall be made based upon the percentage of work completed, and in accordance with the compensation rates indicated in Exhibit “B” attached hereto and incorporated herein by reference.

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Services completed, method for computing the amount payable, and the amount to be paid. The statement shall describe the amount of Additional Services 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 thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon pursuant to the provisions of Civil Code Section 3320. Disputed amounts shall be resolved by the Parties in a mutually agreeable manner.

Upon cancellation or termination of this Agreement, Consultant shall be compensated as set forth in the termination provision herein.

3.10.5 Withholding Payment to Consultant. The City may withhold payment, in whole or in part, to the extent reasonably n ecessary to protect the City from claims, demands, causes of action, costs, expenses, liabilities, losses, damages, or injuries of any kind to the extent arising out of or caused by the negligence, recklessness, or willful misconduct protected under the indemnification provisions of this Agreement. Failure by City to deduct any sums from a progress payment shall not constitute a waiver of the City’s right to such sums. The City may keep any moneys which would otherwise be payable at any time hereunder and apply the same, or so much as may be necessary therefor, to the payment of any expenses, losses, or damages as determined by the City, incurred by the City for which Consultant is liable under the Agreement or state law. Payments to the Consultant for compensation and reimbursable expenses due shall not be contingent on the construction, completion or ultimate success of the Project. Payment to the Consultant shall not be withheld, postponed, or made contingent upon receipt by the City of offsetting reimbursement or credit from Parties not within the Consultant’s reasonable control.

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 available to interested parties upon request, and shall post copies at the Consultant’s principal place of business and at the Project site. It shall be mandatory upon the Consultant and all subconsultants 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 Section s 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 exempt ion specified in Labor Code Section 1771.4.

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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 al l subconsultants performing such Services 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. 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 s top orders issued by the Department of Industrial Relations 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 fro m 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 aris ing out of stop orders issued by the Department of Industrial Relations against Consultant or any subconsultant.

3.11 Notice to Proceed.

Consultant shall not proceed with performance of any Services under this Agreement unless and until the City provides a written notice to proceed.

3.12 Termination, Suspension and Abandonment.

3.12.3 Documents and Other Data . Upon suspension, abandonment or termination, Consultant shall provide to City all preliminary studies, sketches, working drawings, specifications, computations, and all other Project Documents, as defined below, to which City would have been entitled at the completion of Consultant’s Services under this Agreement. Upon payment of the amount required to be paid to Consultant pursuant to the termination provisions of this Agreement, City shall ha ve the rights, as provided in this Agreement hereinafter, to use such Project Documents prepared by or on behalf of Consultant under this Agreement.

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3.13 Ownership and Use of Documents; Confidentiality.

3.13.1 Ownership. All plans, specifications, original or reproducible transparencies of working drawings and master plans, preliminary sketches, architectural presentation drawings, structural computations, estimates and any other documents prepared pursuant to this Agreement, including, but not limited to, any other works of authorship fixed in any tangible medium of expression such as writings, physical drawings and data magnetically or otherwise recorded on computer diskettes (hereinafter referred to as the “Project Documents”) shall be and remain the property of City. Although the official copyright in all Project Documents shall remain with the Consultant or other applica ble subcontractors or consultants, the Project Documents shall be the property of City whether or not the work for which they were made is executed or completed. Within thirty (30) calendar days following completion of the Project, Consultant shall provid e to City copies of all Project Documents required by City. In addition, Consultant shall retain copies of all Project Documents on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of reasonable duplication costs. Before destroying the Project Documents following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.

3.13.2 Right to Use. Consultant grants to City the right to use and reuse all or part of the Project Documents, at City’s sole discretion and with no additional compensation to Consultant, for the following purposes:
(a) The construction of all or part of this Project.
(b) The repair, renovation, modernization, replacement, reconstruction or expansion of this Project at any time;
(c) The construction of another project by or on behalf of the City for its ownership and use;
City is not bound by this Agreement to employ the services of Consultant in the event such documents are used or reused for these purposes. City shall be able to use or reuse the Project Documents for these purposes without risk of liability to the Consultant or third parties with respect to the condition of the Project D ocuments, and the use or reuse of the Project Documents for these purposes shall not be construed or interpreted to waive or limit City’s right to recover for latent defects or for errors or omissions of the Consultant.

3.13.3 License. This Agreemen t creates a non -exclusive and perpetual license for City to copy, use, modify or reuse any and all Project Documents and any intellectual property rights therein. Consultant shall require any and all subcontractors and consultants to agree in 166
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writing that City is granted a non -exclusive and perpetual license for the work of such subcontractors or consultants performed pursuant to this Agreement.

3.13.4 Right to License. Consultant represents and warrants that Consultant has the legal right to license any and all copyrights, designs and other intellectual property embodied in the Project Documents that Consultant prepares or causes to be prepared pursuant to this Agreement. Consultant shall indemnify and hold City harmless pursuant to the indemnification provisions of this Agreement for any breach of this Section. Consultant makes no such representation and warranty in regard to previously prepared designs, plans, specifications, studies, drawings, estimates or other documents that were prepared by design profes sionals other than Consultant and provided to Consultant by City.

3.13.5 Confidentiality. All Project Documents, either created by or provided to Consultant in connection with the performance of this Agreement, shall be held confidential by Consultant to the extent they are not subject to disclosure pursuant to the Public Records Act. All Project Documents shall not, without the written consent of City, be used or reproduced by Consultant for any purposes other than the performance of the Services. Consultant s hall not disclose, cause or facilitate the disclosure of the Project Documents 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 generall y 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 written consent of City.

3.14 Indemnification.

3.14.2 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 278 2.8, 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.

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Section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satis factory to the City that the subconsultant has secured all insurance required under this section.

3.15.1 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, Consultant shall, at its expense, procure and maintain in full force and effect for the duration 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.

3.15.2 Additional Insured. The City of Ontario, its officials, officers, employees, agents, and volunteers shall be named as additional insureds on Consultant’s and its subconsultants’ policies of commercial general liab ility and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.

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(d) The policy shall give City, the City Council and each member of the City Council, its officers, employees, agents and City designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(e) The general liability program may utilize either deductibles or provide coverage excess of a self -insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured.

3.15.4 Automobile Liability
(a) At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City.
(b) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automob ile liability (Coverage Symbol 1, any auto).
(c) The policy shall give City, the City Council and each member of the City Council, its officers, employees, agents and City designated volunteers additional insured status.
(d) Subject to written approval by the City , the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention.

3.15.5 Workers’ Compensation/Employer’s Liability
(a) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self -insurance in accordance with the provisions of that code, and he/she will co mply with such provisions before commencing work under this Agreement.
(b) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same typ e a nd limits as specified in this Section.

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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 ins ured and must include a provision establishing the insurer's duty to defend.

3.15.7 Minimum Policy Limits Required
(a) The following insurance limits are required for the Agreement:

(b) Defense costs shall be payable in addition to the limits. (c) Requirements of specific coverage or limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement.

3.15.8 Evidence Required
(a) Prior to execution of the Agreeme nt, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer a nd shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance.

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(b) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant’s policy is primary insurance and that any 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.
(c) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims -made policy with a retroactive date subsequent to the effective date of this Agreement.
(d) 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 volunteer s or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require sim ilar written express waivers and insurance clauses from each of its subconsultants.
(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 ac tions available to the City under other provisions of the Agreement or law.

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(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 the City Council, nor any member of the City Council, nor any of the officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.

3.15.12 Subconsultant Insurance Requirements
(a) Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this Section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, City may approve differ ent scopes or minimum limits of insurance for particular subcontractors or subconsultants.

3.16 Records.

Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be cle arly identifiable.

3.17 Standardized Manufactured Items.

Consultant shall cooperate and consult with City in the use and selection of manufactured items on the Project, including but not limited to, paint, hardware, plumbing, mechanical and electrical equipment, fixtures, roofing materials and floor coverings. All such manufactured items shall be standardized to Ci ty’s criteria to the extent such criteria do not interfere with building design.

3.18 Limitation of Agreement.

This Agreement is limited to and includes only the work included in the Project described herein. Any additional or subsequent construction at the si te of the Project, or at any other City site, will be covered by, and be the subject of, a separate Agreement for engineering services between City and the Consultant chosen therefor by City.

3.19 Mediation.

3.20 Successors and Assigns.

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Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void.

3.21 Asbestos Certification.

Consultant shall certify to City, in writing and under penalty of perjury, that to the best of its knowledge, information and b elief no asbestos-containing material or other material deemed to be hazardous by the state or federal government was specified as a building material in any construction document that the Consultant prepares for the Project. Consultant shall require all consultants who prepare any other documents for the Project to submit the same written certification. Consultant shall also assist the City in ensuring that contractors provide City with certification, in writing and under penalty of perjury, that to the best of their knowledge, information and belief no material furnished, installed or incorporated into the Project contains asbestos or any other material deemed to be hazardous by the state or federal government. These certifications shall be part of the final Project submittal. Consultant shall include statements in its specifications that materials containing asbestos or any other material deemed to be hazardous by the state or federal government are not to be included.

3.22 No Third Party Rights.

This Agreement shall not create any rights in, or inure to the benefits of, any third party except as expressly provided herein.

3.23 Governing Law.

This Agreement shall be construed in accordance with, and governed by, the laws of the State of California. Venue shall be in San Bernardino County.

3.24 Exhibits and Recitals.

All exhibits and recitals contained herein and attached hereto are material parts of this Agreement and are incorporated as if fully set forth.

3.25 Severability.

Should any provision in the Agreement be held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall continue in full force and effect.

3.26 Non-Waiver.

None of the provisions of this Agreement shall be considered waived by either Party, unless such waiver is specifically specified in writing.

3.27 Safety.

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3.28 Harassment Policy.

Consultant shall provide a copy of the City's Harassment Policy to each of its employees assigned to perform the tasks under this Agreement. Consultant shall submit to the City's Personnel Manager a statement signed by each of its employees who are assigned to perform the Services under this Agreement certifying receipt of City's Harassment Policy and certifying that they have read the Harassment Policy. A finding by the City that any of Consultant's employees has harassed a City employee shall be grounds for appropriate discipline, up to and including such employee's removal from performance of this Agreement at City's request.

3.29 Delivery of Notices.

CITY:

City of Ontario
303 East “B” Street
Ontario, CA 91764
Attn: Craig Cruz, Engineering
CONSULTANT:

ADVANTEC Consulting Engineers Inc.
1200 Roosevelt
Irvine, CA 92620
Attn: Carlos Ortiz, CEO

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.

3.30 Time of Essence.

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

3.31 City’s Right to Employ Other Consultants.

City reserves right to employ other consultants, including designers, in connection with this Project or other projects.

3.32 Prohibited Interests.

3.32.2 Conflict of Interest . For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 174
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BB&K (2023) 21

3.33 Equal Opportunity Employment.

Such non -discrimination shall include, but not be limited to, all activities related to initial employment, upgradi ng, 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 guideline s currently in effect or hereinafter enacted.

3.34 Labor Certification.

3.35 Subcontracting.

As specified in this Agreement, Consultan t 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 each and every provision of this Agreement.

3.36 Supplemental Conditions.

Any supplemental conditions shall be attached as an exhibit to this Agreement, and that exhibit shall be incorporated herein by reference.

3.37 Entire Agreement.

This Agreement, with its exhibits, contains the entire agreement of the Parties hereto, and supersedes any and all other prior or contemporaneous negotiations, understandings and oral or written agreements between the Parties hereto. Each Party acknowledges that no representations, inducements, promises or agreeme nts have been made by any person which are not incorporated herein, and that any other agreements shall be void. Furthermore, any modification of this Agreement shall only be effective if in writing signed by all Parties hereto.

SIGNATURES ON FOLLOWING PAGE
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BB&K (2023) 22

Signature Page for Design Services Agreement
Between the City of Ontario
and ADVANTEC Consulting Engineers Inc.

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

CITY OF ONTARIO ADVANTEC Consulting Engineers Inc.

By:

Its: Corporate Secretary
Printed Name: Pauline Yip
By:

Its: CEO
Printed Name: Carlos Ortiz

[If Corporation, TWO SIGNATURES,
President OR Vice President AND Secretary
OR Treasurer REQUIRED]

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

EXHIBIT “A”

SCOPE OF SERVICES
The City of Ontario is seeking proposals from qualified consulting engineers (the Consultant) to provide On-Call Services for three (3) years, with an option of renewing for two (2) consecutive one (1) year terms for services in transportation planning & traffic engineering design with the intention of maintaining a list of multiple qualified prime engineering firms, with subconsultant support services as needed. Task orders will be issued to firms on a competitive basis based on the qualificati ons and expertise of the firm and their subconsultants. There is no designated minimum nor maximum value of services to be awarded to any one consultant.

TRANSPORTATION AND TRAFFIC ENGINEERING PROJECT DESIGN SERVICES The City of Ontario is seeking a Request for Qualifications from firms for Professional Services:

Consultant shall be aware that certain labor categories above may be subject to prevailing wage rates as identified in the California Labor Code commencing Section 1770 et. Seq.

Expected services to be provided under this on-call contract will be performed under a task order system and may include:

1) Transportation Planning

Development Support Services

• Traffic Study Preparation and Review
• Parking Analysis Preparation and Review
• Trip Generation Analysis Preparation and Review
• VMT Analysis Preparation and Review
• SB743 Analysis Preparation and Review
• Traffic Simulations
• On-site circulation analysis
• Data Collection and Analysis
• Traffic Model Support
• On-Site “extension to staff” support services

Long Range Planning
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BB&K (2023) Exhibit A-2

• General Plan Support
• Specific Plan Support
• Active Transportation Plans and Programs
• Context Sensitive Solutions
• Maintain and Update City Traffic Study Guidelines
• Transit Studies
• Corridor Studies
• On-Site “extension to staff” support services
• Coordination with outside agencies
• Support for funding and grant applications

2) Traffic Engineering

• Traffic Design Plan (including civil work) and Cost Estimate Preparation and Review • Traffic Signal Plan and Cost Estimate Preparation and Review • Pedestrian Hybrid Beacon Plan and Cost Estimate Preparation and Review • Street Light Plan and Cost Estimate Preparation and Review • Traffic Studies for Capital Projects
• Support for funding and grant applications
• Intelligent Transportation Systems Design
• Traffic Signal Timing and Coordination Studies
• Traffic Control Plan Design and Review
• Technical services and support for non-motorized capital projects • Active Transportation Design and Review
• Traffic Calming Support
• Traffic Calming Plan Design and Review
• On-Site “extension to staff” support services
• Traffic Counts Support
• Engineering and Traffic Surveys
• Warrant Analyses
• Coordination with outside agencies (Caltrans, railroads, neighboring cities, etc.) • Signing and Striping Support

Project Design/Plans, Specifications, and Estimates (PS&E) Preparation

Firms shall be capable of performing the following tasks:

• Land Surveying & Mapping
• Civil Engineering Design
• Detailed Engineering/Cost Estimation
• Preparation of construction bid documents and specifications • Any other work required to complete project design

Consultant shall perform research of records including utility companies and other agency records as necessary to secure information required to identify, locate, and accurately layout all existing improvements and right-of-way within project limits that may interfere with the proposed 178
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BB&K (2023) Exhibit A-3

improvements. Consultant will identify estimated number of potholes required for a project in their cost proposal for each individual task order.

General Requirements and Project Deliverables

All surveys shall be performed by Consultant in accordance with accepted professional surveying standards. Consultant shall obtain applicable encroachment permits from the City of Ontario, Railroad, Caltrans, and neighboring cities prior to beginning any field investigation.

The Consultant shall complete a topographic survey map of the site to prepare a base map for the construction plans. This includes, but is not limited to:

1. Horizontal and vertical control, drainage surveys, topographical surveys within the right-of-way, cross se ctions, grid grades, open -ended traverses, profile data sheets and required documentation. (Horizontal Control shall be based on NAD 83; Vertical Control shall be based on NAVD 88).

2. Establish street centerlines, right -of-way lines existing and proposed, a nd all easements from available record information.

3. Provide the basis-of-bearing and benchmark information used for the survey and necessary for construction.

4. Locate and tie any features that would affect the design or construction.

5. Obtain Record of Surveys, benchmark and centerline tie information.

BB&K (2023) Exhibit A-4

For the City plan check process, the Consultant will be required to submit one PDF electronic copy for all submittals. Consultant shall also be responsible for submitting plans and reports for plan check and approval/permit issuance to any affected agencies.

Permitting

• Prepare and file all necessary documents and apply for all required permits or provide support including, but not limited to:
i. Federal, Caltrans, Railroad, environmental, and utility permits ii. Valet parking review
iii. Permit Parking review
iv. On-Site “extension to staff” support services
Consultant shall coordinate permits and any other issues with the City, other agencies, and all utility companies as required. At the direction of the City, the Consultant shall be the liaison with affected agencies.

3) Construction Support and Other Tasks

Firms shall be capable of performing the following tasks:

• Project presentations and meetings
• Construction Support Services
• Any other work required to successfully plan for projects and adequately assess project feasibility

During the bidding process and construction, the Consultant shall assist in answering questions regarding the technical specifications, design drawings or conflicts in the design, respond to City staff and/or contractor RFI’s for any technical design clarification or design conflicts that arise during construction, review and recommend materials submittals and shop drawings for concurrence with plans and specifications, attend milestone meetings and pre-con meetings, and prepare record drawings that incorporate redlines comments prepared by the contractor and City Staff. One (1) bond set of the record drawings shall be submitted and all drawings shall be provided to the City electronically, as a PDF file and with the latest AutoCAD file format.

1. GENERAL REQUIREMENTS.

BB&K (2023) Exhibit A-5

administration services for the Project in a timely and professional manner, consistent with the standards of the profession, including those provided for herein.

1.2 Exclusions from Basic Services. The following services shall be excluded from the basic services listed above: N/A

1.3 Additional Services. Consultant shall perform the following Additional Services for the Project: N/A

1.4 Communication with City. Consultant shall participate in consultations and conferences with authorized representatives of City and/or other local, regional, or state agencies concerned with the Project, which may be necessary for the completion of the Project or the development of the draw ings, specifications and documents in accordance with the applicable standards and requirements of law and the City. Such consultations and conferences shall continue throughout the planning and construction of the Project and the contractor’s warranty period. Consultant shall take direction only from the City’s Representative, or any other representative specifically designated by the City for this Project, including any construction manager hired by the City.

2. INITIAL PLANNING PHASE.

During the initial planning phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

Consultant shall use its best judgment in determining the balance between the size, type and quality of construction to achieve a satisfactory solution within the Project’s budge t and construction allowance. It shall be the duty of the Consultant to design the Project within budget.

BB&K (2023) Exhibit A-6

way, dedications, infrastructures and road improvements, as well as coordinating with utilities and adjacent property owners.

3. SCHEMATIC PLAN PHASE.

During the schematic plan phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

3.1 Funding Documents. Consultant shall provide a site plan and all other Project - related information necessary and required for an application by C ity to any federal, state, regional, or local agencies for funds to finance the construction Project.

3.3 Preliminary Project Budget. Consultant shall use t he City’s Preliminary Construction Budget and its own expertise and experience with the Project to establish a preliminary project budget or allowance in a format required by City (“Consultant’s Preliminary Project Budget”). The purpose of the Consultant’ s Preliminary Project Budget is to show the probable Project cost in relation to City’s Preliminary Construction Budget and the construction standards of any applicable funding agency. If Consultant perceives site considerations which render the Project e xpensive or cost prohibitive, Consultant shall disclose such conditions in writing to City immediately. As discussed herein, including in Section 7.3, if the lowest responsive and responsible bid for the Project exceeds the budget by more than the stated amount, Consultant may be required to make the necessary changes in the drawings and specifications, at its sole cost and expense, to bring the bids within the required budget Consultant shall provide a preliminary written time schedule for the performance of all construction work on the Project.

4. DESIGN DEVELOPMENT PHASE.

During the design development phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

BB&K (2023) Exhibit A-7

outline the Project specifications (“Design Development Documents”). The Design Development Documents shall be prepared in sufficient form to present to the City Council for approval.

4.4 Timetable. Consultant shall provide a written timetable for full and adequate completion of the Project to City.

4.5 Application for Approvals. Consultant s hall assist City in applying for and obtaining required approvals from all federal, state, regional or local agencies concerned with the Project. Consultant shall furnish and process all architectural and engineering information required to prepare and process applications to applicable utilities in order to secure priorities and materials, to aid in the construction of the Project and to obtain final Project approval and acceptance by any of the above agencies as may be required.

5. FINAL WORKING DRAWINGS AND SPECIFICATIONS.

During the final working drawings and specifications phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

5.1 Final Working Drawings and Specifications. Once City provides Consultant with specific written approval of the Design Development Documents described herein, Consultant shall prepare such complete working drawings and specifications as are necessary for developing complete bids and for properly executing the Project work in an efficient and thorough manner (“Final Working Drawings and Specifications”). Such Final Working Drawings and Specifications shall be developed from the Schematic Plans and Design Development Documents approved by City. The Final Working Drawings and Specifications shal l set forth in detail all of the following: (1) the Project construction work to be done; (2) the materials, workmanship, finishes, and equipment required for the architectural, structural, mechanical, and electrical systems; and (3) the utility service connection equipment and site work. As indicated in Section 3.9.2 of the Agreement, City may be requested to supply Consultant with the necessary information to determine the proper location of all improvements on and off site, including record drawings (“as-built drawings”) in City’s possession. Consultant will make a good -faith effort to verify the accuracy of such information by means of a thorough interior and exterior visual survey of site conditions. City shall also make a good -faith effort to verify the accuracy of the as -built 183
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BB&K (2023) Exhibit A-8

drawings and provide any supplemental information to Consultant which may not be shown on the as-built drawings.

5.2 Form. The Final Working Drawings and Specifications must be in such form as will enable Consultant and City to s ecure the required permits and approvals from all federal, state, regional or local agencies concerned with the Project. In addition, the Final Working Drawings and Specifications must be in such form as will enable City to obtain, by competitive bidding, a responsible and responsive bid within the applicable budgetary limitations and cost standards. The Final Working Drawings and Specifications shall be clear and legible so that uniform copies may be on standard architectural size paper, properly indexed and numbered, and shall be capable of being clearly copied and assembled in a professional manner by Consultant.

5.3 Approval and Revisions. City shall review, study, and check the Final Working Drawings and Specifications presented to it by Consultant, and request any necessary revisions or obtain any necessary approvals by the City Council, subject to the approval of all federal, state, regional or local agencies concerned with the Project. Consultant shall make all City -requested changes, additions, deletions, and corrections in the Final Working Drawings and Specifications at no additional cost, so long as they are not in conflict with the requirements of public agencies having jurisdiction or prior approval, or inconsistent with earlier City direction or Consultant’s professional judgment. Consultant shall bring any such conflicts and/or inconsistencies to the attention of City. The Parties agree that Consultant, and not the City, possesses the requisite expertise to determine the constructability of th e Final Working Drawings and Specifications.

However, the City reserves the right to conduct one or more constructability review processes with the Final Working Drawings and Specifications, and to hire an independent architect or other consultant to perf orm such reviews. Any such independent constructability review shall be at City’s expense. Consultant shall make all City -requested changes, additions, deletions, and corrections in the Final Working Drawings and Specifications which may result from any constructability review, at no additional cost to the City, so long as they are not in conflict with the requirements of public agencies having jurisdiction or prior approval, or inconsistent with earlier City direction or Consultant’s professional judgmen t. If such changes, additions, deletions or corrections are inconsistent with prior City direction, Consultant shall make such alterations and be compensated therefore pursuant to the Additional Services provision of this Agreement.

5.5 Copies of Final Working Drawings and Specifications and Other Documents.

Consultant, at its own expense, shall provide a complete set of the Final Working Drawings and Specifications described herein for City’s review and approval. Additiona lly, at City’s expense, Consultant shall provide such documents as may be required by any federal, state, regional or local agencies concerned with the Project. Any additional copies required by City shall be provided at actual cost to City.

6. CONSTRUCTION CONTRACT DOCUMENTS.

During the construction contract documents phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
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BB&K (2023) Exhibit A-9

7. BID PHASE.

During the bid phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

8. CONSTRUCTION PHASE.

During the construction phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

8.2 General Administration. Consultant shall provide general administration of the Construction Documents and the work performed by the contractors.

8.3 Pre-Construction Meeting. Consultant shall conduct one or more pre - construction meetings, as the City determines is needed for the Project, with all interested Parties. 185
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BB&K (2023) Exhibit A-10

8.5 Site Visits of Inspector’s Work. Consultant shall conduct site v isits to communicate and observe the activities of the City inspectors. Such site visits shall be conducted as often as is mutually acceptable to Consultant and City. Consultant shall direct the City inspectors and the Project contractors to coordinate the preparation of record drawings indicating dimensions and location of all “as-built” conditions, including but not limited to, underground utility lines.

8.11 Material and Test Reports. Consultant shall check and process, in a timely manner, all required material and test reports for the Project work. In addition, Consultant shall provide notice of any deficiencies in material or w ork reflected in such reports, as well as its recommendation for correction of such deficiencies, to the contractors and City.

BB&K (2023) Exhibit A-11

recommend to the City that additional inspection or testing of the work be performed, whether or not such work is fabricated, installed or completed.

8.15 Revised Documents and Drawings. Consultant shall prepare, at no additional expense to City, all documents and/or drawings made necessary by errors and omissio ns in the originally approved Construction Documents.

If the City has not hired a construction manager or other person to do so, the Consultant shall prepare and execute all change orders and submit them to the City for authorization. If the City has designated a construction manager or other person to prepare all change orders, the Consultant shall review all change orders prepared b y such person, execute them and deliver them to the City for authorization if they meet with the Consultant’s approval, or submit them to the City with recommendations for revision or denial if necessary. Consultant shall not order contractors to make any changes affecting the contract price without approval by City of such a written change order, pursuant to the terms of the Construction Documents. Consultant may order, on its own responsibility and pending City Council approval, changes necessary to mee t construction emergencies, if written approval of City’s Representative is first secured.

8.18 Final Color and Product Selection. Consultant shall coordinate final color and product selection with City’s original design concept.

8.19 Substantial Completion. Consultant shall determine the date of substantial completion, in consultation with the City.

BB&K (2023) Exhibit A-12

8.22 Certificate of Completion. Consultant shall participate in any further inspections of the Project necessary to issue Consultant’s Certificate of Completion and final certificate for payment.

8.23 Documents for Project Close -Out. Consultant shall cause all other architects, engineers and other con sultants, as may be hired by Consultant, to file any and all required documentation with the City or other governmental authorities necessary to close out the Project.

Consultant shall assist the City in obtaining such documentation from all other archite cts, engineers, or other consultants.

9. AS-BUILT DRAWINGS.

During the as-built drawings phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

9.1 As-Built Drawings and Specifications. Not later than thirty ( 30) days after substantial completion of the Project, before receipt of final payment, Consultant shall review and forward the Final Working Drawings and Specifications, indicating on them all changes made by change orders or otherwise pursuant to the Cons truction Documents, as well as all information called for on the specifications, thus producing an “as -built” set of Final Working Drawings and Specifications (“As-Built Drawings and Specifications”). The As-Built Drawings and Specifications shall show, among other things, the location of all concealed pipe, buried conduit runs and other similar elements within the completed Project. Consultant shall personally review and certify that the As-Built Drawings and Specifications are a correct representation of the information supplied to Consultant by any inspectors and the contractor, and shall obtain certifications from any inspectors and the contractor that the drawings are correct.

9.2 Approval. Once City provides Consultant with specific written approval of the As- Built Drawings and Specifications, Consultant shall forward to City the complete set of original As-Built Drawings and Specifications or a complete set of reproducible duplicate As -Built Drawings and Specifications. The tracing shall be of such quality that clear and legible prints may be made without appreciable and objectionable loss of detail.

9.3 Documents for Final Payment. Prior to the receipt of Consultant’s final payment, Consultant shall forward to City all of the following: (1) one clear and legible set of reproductions of the computations; (2) the original copy of the specifications; (3) the As -Built Drawings and Specifications as required herein; and (4) Consultant’s Certificate of Completion.

10. WARRANTY PERIOD.

During the warranty period phas e of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

10.1 Advice. Consultant shall provide advice to City on apparent deficiencies in the Project during any applicable warranty periods for the Project. 188
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BB&K (2023) Ex. B - 1

EXHIBIT “B”

COMPENSATION RATES AND REIMBURSABLE EXPENSES
Please see following sheet.

189
ADVANTEC Consulting Engineers

1200 Roosevelt | Irvine | CA 92620
T 949.861.4999 F 949.502.5522 www.advantec-usa.com

Hourly Rates
Effective January 2024

Classification Rate
Project Director $375 / hour
Senior Project Manager VIII $315 / hour
Senior Project Manager VII $250 / hour
Project Manager/ Senior Engineer VI $220 / hour
Project Manager/ Engineer V-3 $200 / hour
Project Manager/ Engineer V-2 $180 / hour
Project Manager/ Engineer V-1 $160 / hour
Associate Engineer IV $145 / hour
Associate Engineer III $135 / hour
Assistant Engineer II $125 / hour
Assistant Engineer I $110 / hour
Administrative III $140 / hour
Administrative II $120 / hour
Administrative I $100 / hour

Direct Costs

Effective January 2024

Mileage Current Rate per IRS
In House Plotting (Mylar) $20.00 per D-size sheet
In House Plotting (Bond) $10.00 per D-size sheet
Other Direct Costs At Cost + 10% admin

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BB&K (2023) Ex. C - 1

EXHIBIT "C"

SAMPLE TASK ORDER FORM

Task Order No. _______
Agreement: DESIGN SERVICES AGREEMENT FOR ON-CALL SERVICES

Consultant: ADVANTEC Consulting Engineers Inc.

The Consultant is hereby authorized to perform the following services subject to the provisions of the Agreement identified above:

List any attachments: (Please provide if any.)
Dollar Amount of Task Order: Not to exceed $_________,_____.00 Completion Date: _____________
The undersigned Consultant hereby agrees that it will provide all equipment, furnish all materials, except as may be otherwise noted above, and perform all services for the work above specified in accordance with the Agreement identified above and will accept as full payment therefore the amount shown above.

CITY OF ONTARIO ADVANTEC Consulting Engineers Inc.

Dated: Dated:

By: By:

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CITY OF ONTARIO

DESIGN SERVICES AGREEMENT

FOR ON-CALL SERVICES

1. PARTIES AND DATE.

This Agreement is made and entered into as of ____________, by and between the City of Ontario, a municipal corporation organized and operating under th e 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”), andKimley- Horn and Associates, Inc., a North Carolina Corporation with its principal place of business at 1100 W Town & Country Road, Suite 700, Orange, CA 92868 (hereinafter referred to as “Consultant”). City and Consultant are sometimes individually referred to herein as “Party” and collectively as “Parties.”

2. RECITALS.

2.1 City. City is a municipal corporation organized under the laws of the State of California, with power to contract for services necessary to achieve its purpose.

2.2 Consultant. Consultant desires to perform and assume responsibility for the provision of ce rtain professional engineering design services required by the City on the terms and conditions set forth in this Agreement. Consultant warrants that it is fully licensed, qualified, and willing to perform the services required by this Agreement; provided , however, that if Consultant is a corporation or other organization, the Project Consultant designated pursuant to Section 3.2, and not the Consultant itself, shall be fully licensed to practice as an engineer in the State of California.

2.3 Project. City desires to engage Consultant to render such services for the On-Call Transportation Planning & Traffic Engineering Design Services ("Project") as set forth in this Agreement.

3. TERMS

3.1 Employment of Consultant.

DEBRA PORADA

MAYOR PRO TEM
ALAN D. WAPNER
JIM W. BOWMAN

RUBEN VALENCIA

COUNCIL MEMBERS

SHEILA MAUTZ

CITY CLERK
JAMES R. MILHISER

TREASURER

SCOTT OCHOA

CITY MANAGER
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authorized by a fully executed Task Order in the form attached hereto as Exhibit “C”. All Services shall be subject to, and performed in accordance with, this Agreement, each Task Order, any exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. All Services performed by Consultant shall be subject to the sole and discretionary approval of the City, which approval shall not be unreasonably withheld.

3.2 Project Consultant; Key Personnel.

3.2.1 Engineer of Record. Consultant shall name a specific individual to act as Project Consultant, subject to the approval of City. Consultant hereby designates Jason Melchor (CA License No. 65218) to act as the Engineer of Record for the Project. The Engineer of Record shall: (1) maintain oversight of the Services; (2) have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement; (3) supervise and direct the Services using his or her best skill and attention; (4) be responsible for the means, methods, techniques, sequences and procedures used for the Services; (5) adequately coordinate all portions of the Services; and (6) act as principal contact with City and all contractors, consultants, engineers and inspectors on the Project. Any change in the Engineer of Record shall be subject to the City’s prior written approval, which approval shall not be unreasonably withheld. The new Engineer of Record shall be of at least equal competence as the prior Engineer of Record. In the event that City and Consultant cannot agree as to the substitution of a new Engineer of Record, City shall be entitled to terminate this Agreement for cause.

Jason Melchor, P.E. #65218 – Project Manager

3.3 Hiring of Consultants and Personnel.

Consultant shall be responsible for the coordination and cooperation of Consultant’s architects, engineers, experts or other consultants. All consultants, including changes in consultants, shall be subject to approval by City in its sole and reasonable discretion. Consultant shall notify City of the identity of all consultants at least fourteen (14) days prior to their commencement of work to allow City to review their qualifications and approve to their participation on the Project in its sole and reasonable discretion.
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3.4 Standard of Care.

3.5 Laws and Regulations.

3.5.1 Knowledge and Compliance. Consultant shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and regulations in any manner affecting the performance of the Services or the Project, and shall give all notices required of the Consultant by law. Consultant shall be liable, pursuant to the standard of care and 194
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indemnification provisions of this Agreement, for all violations of such laws and regulations in connection with its Services. Consultant shall defend, indemnify and hold City, its officials, 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.

3.5.5 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 (Cal Water Code §§ 13000- 14950); and any and all regulations, policies, or permits issued pursuant to any such authority.

Consultant shall 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. Failure to 195
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BB&K (2023) 5
comply with laws, regulations, and ordinances listed in this Section is a violation of federal and state law.

3.6 Independent Contractor.

3.7 Schedule of Services.

3.7.3 Performance Schedule. Consultant shall prepare an estimated time schedule for the performance of Consultant’s Services, to be adjusted as the Project proceeds.

3.7.4 Excusable Delays. Any delays in Consultant’s work caused by the following may be added to the time for completion of any obligations of Consultant: (1) the actions of City or its employees; (2) the actions of those in direct contractual relationship with City; (3) the actions of any governmental agency having jurisdiction over the Project; (4) the actions of any parties not within the reasonable control of the Consultant; and (5) any Force Majeure Event (as defined herein) or other unforeseen occurrence not due to any fault or negligence on the part of 196
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Consultant. Neither the City nor the Consultant shall be liable for damages, liquidated or otherwise, to the other on account of such delays.

3.8 Additional Services.

3.8.2 Definition. As used herein, “Additional Services” mean: (1) 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 for the Consultant to perform at the execution of this Agreement; or (2) any work listed as Additional Services in Exhibit “A” attached hereto. Consultant shall not perform, nor be compensated for, Additional Services without prior 197
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written authorization from City and without an agreement between the City and Consultant as to the compensation to be paid for such services. City shall pay Consultant for any approved Additional Services, pursuant to the compensation provisions herein, so long as such services are not made necessary through the fault of Consultant pursuant to the indemnification provision of this Agreement.

3.9 City Responsibilities. City’s responsibilities shall include the following:

3.9.3 Bid Phase. Distribute Construction Documents to bidders and conduct the opening and review of bids for the Project.

3.10 Compensation.

3.10.2 Payment for Additional Services. At any time during the term of this Agreement, City may request that Consultant perform Additional Services. As used herein, Additional Services 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. Any additional work in excess of this amount must be approved by the City. If authorized, such Additional Services will be compensated at the rates and in the manner set forth in Exhibit “B” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the Parties. If City requires Consultant to hire consultants to perform any Additional Services, Consultant shall 199
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be compensated therefore at the rates and in the manner set forth in Exhibit “B” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the Parties. City shall have the authority to review and approve the rates of any such consultants. In addition, Consultant shall be reimbursed for any expenses incurred by such consultants pursuant to the terms and conditions of Section 3.10.3.

Disputed amounts shall be resolved by the Parties in a mutually agreeable manner.

Upon cancellation or termination of this Agreement, Consultant shall be compensated as set forth in the termination provision herein.

3.10.5 Withholding Payment to Consultant. The City may withhold payment, in whole or in part, to the extent reasonably necessary to protect the City from claims, demands, causes of action, costs, expenses, liabilities, losses, damages, or injuries of any kind to the extent arising out of or caused by the negligence, recklessness, or willful misconduct protected under 200
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the indemnification provisions of this Agreement. Failure by City to deduct any sums from a progress payment shall not constitute a waiver of the City’s right to such sums. The City may keep any moneys which would otherwise be payable at any time hereunder and apply the same, or so much as may be necessary therefor, to the payment of any expenses, losses, or damages as determined by the City, incurred by the City for which Consultant is liable under the Agreement or state law. Payments to the Consultant for compensation and reimbursable expenses due shall not be contingent on the construction, completion or ultimate success of the Project. Payment to the Consultant shall not be withheld, postponed, or made contingent upon receipt by the City of offsetting reimbursement or credit from Parties not within the Consultant’s reasonable control.

Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure of the Consultant or its consultants to comply with the Prevailing Wage Laws.
(a) Registration/DIR Compliance. If the Services are being performed as part of an applicable “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 performing such Services 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. 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 Department of Industrial Relations 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 201
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any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subconsultant.

3.11 Notice to Proceed.

Consultant shall not proceed with performance of any Services under this Agreement unless and until the City provides a written notice to proceed.

3.12 Termination, Suspension and Abandonment.

Consultant shall make such documents available to City upon request and without additional compensation other than as may be approved as a reimbursable expense.

3.13 Ownership and Use of Documents; Confidentiality.

3.13.1 Ownership. All plans, specifications, original or reproducible transparencies of working drawings and master plans, preliminary sketches, architectural presentation drawings, structural computations, estimates and any other documents prepared pursuant to this Agreement, including, but not limited to, any other works of authorship fixed in any tangible medium of expression such as writings, physical drawings and data magnetically or otherwise recorded on computer diskettes (hereinafter referred to as the “Project Documents”) shall be and remain the property of City. Although the official copyright in all Project Documents 202
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shall remain with the Consultant or other applicable subcontractors or consultants, the Project Documents shall be the property of City whether or not the work for which they were made is executed or completed. Within thirty (30) calendar days following completion of the Project, Consultant shall provide to City copies of all Project Documents required by City. In addition, Consultant shall retain copies of all Project Documents on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of reasonable duplication costs. Before destroying the Project Documents following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.

3.13.4 Right to License. Consultant represents and warrants that Consultant has the legal right to license any and all copyrights, designs and other intellectual property embodied in the Project Documents that Consultant prepares or causes to be prepared pursuant to this Agreement. Consultant shall indemnify and hold City harmless pursuant to the indemnification provisions of this Agreement for any breach of this Section. Consultant makes no such representation and warranty in regard to previously prepared designs, plans, specifications, studies, drawings, estimates or other documents that were prepared by design professionals other than Consultant and provided to Consultant by City. 203
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3.14 Indemnification.

3.14.1 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 to the extent arising out of, pertaining to, or incident to any negligent 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.

3.15.2 Additional Insured. The City of Ontario, its officials, officers, employees, agents, and volunteers shall be named as additional insureds on Consultant’s and its 204
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subconsultants’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.

3.15.4 Automobile Liability
(a) At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and 205
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property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City.
(b) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto).
(c) The policy shall give City, the City Council and each member of the City Council, its officers, employees, agents and City designated volunteers additional insured status.
(d) Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention.

3.15.6 Professional Liability (Errors and Omissions)
(a) At all times during the performance of the work under this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein. This insurance shall be written on a policy form coverage specifically designed to protect against negligent 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 must include a provision establishing the insurer's duty to defend.

3.15.7 Minimum Policy Limits Required
(a) The following insurance limits are required for the Agreement:

Coverage Combined Single Limit
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Commercial General Liability $2,000,000 per occurrence/ $4,000,000 aggregate for bodily injury, personal
injury, and property damage
Automobile Liability $2,000,000 per occurrence for bodily injury and property damage
Employer’s Liability $1,000,000 per occurrence
Professional Liability $2,000,000 per claim and aggregate (errors and omissions)
(b) Defense costs shall be payable in addition to the limits. (c) Requirements of specific coverage or limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement.

3.15.9 Policy Provisions Required
(a) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration.
(b) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant’s policy is primary insurance and that any 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.
(c) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the 207
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policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement.
(d) 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 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.
(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.

3.15.11 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 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 the City Council, nor any member of the City Council, nor any of the officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. 208
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3.16 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.

3.17 Standardized Manufactured Items.

3.18 Limitation of Agreement.

3.19 Mediation.

3.20 Successors and Assigns.

This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each Party to this Agreement.

However, Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void.

3.21 Asbestos Certification.

Consultant shall certify to City, in writing and under penalty of perjury, that to the 209
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best of its knowledge, information and belief no asbestos-containing material or other material deemed to be hazardous by the state or federal government was specified as a building material in any construction document that the Consultant prepares for the Project. Consultant shall require all consultants who prepare any other documents for the Project to submit the same written certification. Consultant shall also assist the City in ensuring that contractors provide City with certification, in writing and under penalty of perjury, that to the best of their knowledge, information and belief no material furnished, installed or incorporated into the Project contains asbestos or any other material deemed to be hazardous by the state or federal government. These certifications shall be part of the final Project submittal. Consultant shall include statements in its specifications that materials containing asbestos or any other material deemed to be hazardous by the state or federal government are not to be included.

3.22 No Third Party Rights.

This Agreement shall not create any rights in, or inure to the benefits of, any third party except as expressly provided herein.

3.23 Governing Law.

This Agreement shall be construed in accordance with, and governed by, the laws of the State of California. Venue shall be in San Bernardino County.

3.24 Exhibits and Recitals.

All exhibits and recitals contained herein and attached hereto are material parts of this Agreement and are incorporated as if fully set forth.

3.25 Severability.

Should any provision in the Agreement be held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall continue in full force and effect.

3.26 Non-Waiver.

None of the provisions of this Agreement shall be considered waived by either Party, unless such waiver is specifically specified in writing.

3.27 Safety.

3.28 Harassment Policy.

Consultant shall provide a copy of the City's Harassment Policy to each of its employees assigned to perform the tasks under this Agreement. Consultant shall submit 210
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to the City's Personnel Manager a statement signed by each of its employees who are assigned to perform the Services under this Agreement certifying receipt of City's Harassment Policy and certifying that they have read the Harassment Policy. A finding by the City that any of Consultant's employees has harassed a City employee shall be grounds for appropriate discipline, up to and including such employee's removal from performance of this Agreement at City's request.

3.29 Delivery of Notices.

CITY:

City of Ontario
303 East “B” Street
Ontario, CA 91764
Attn: Craig Cruz, Engineering
CONSULTANT:

Kimley-Horn and Associates, Inc.
1100 W Town & Country Rd, Suite 700
Orange, CA 92868
Attn: Jason Melchor
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.

3.30 Time of Essence.

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

3.31 City’s Right to Employ Other Consultants.

City reserves right to employ other consultants, including designers, in connection with this Project or other projects.

3.32 Prohibited Interests.

3.33 Equal Opportunity Employment.

Consultant represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or any other classification protected by federal or state law. 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.

3.34 Labor Certification.

3.35 Subcontracting.

3.36 Supplemental Conditions.

Any supplemental conditions shall be attached as an exhibit to this Agreement, and that exhibit shall be incorporated herein by reference.

3.37 Entire Agreement.

SIGNATURES ON FOLLOWING PAGE
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Signature Page for Design Services Agreement
Between the City of Ontario
and Kimley-Horn and Associates, Inc.

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

CITY OF ONTARIO KIMLEY-HORN AND ASSOCIATES, INC.

By:

Its:

Printed Name:

By:

Its:

Printed Name:
[If Corporation, TWO SIGNATURES,
President OR Vice President AND Secretary
OR Treasurer REQUIRED]
Approved By:

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

City Clerk
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EXHIBIT “A”

TRANSPORTATION AND TRAFFIC ENGINEERING PROJECT DESIGN SERVICES The City of Ontario is seeking a Request for Qualifications from firms for Professional Services:

Consultant shall be aware that certain labor categories above may be subject to prevailing wage rates as identified in the California Labor Code commencing Section 1770 et. Seq.

Expected services to be provided under this on-call contract will be performed under a task order system and may include:
1) Transportation Planning
Development Support Services
 Traffic Study Preparation and Review
 Parking Analysis Preparation and Review
 Trip Generation Analysis Preparation and Review
 VMT Analysis Preparation and Review
 SB743 Analysis Preparation and Review
 Traffic Simulations
 On-site circulation analysis
 Data Collection and Analysis
 Traffic Model Support
 On-Site “extension to staff” support services
Long Range Planning
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 General Plan Support
 Specific Plan Support
 Active Transportation Plans and Programs
 Context Sensitive Solutions
 Maintain and Update City Traffic Study Guidelines
 Transit Studies
 Corridor Studies
 On-Site “extension to staff” support services
 Coordination with outside agencies
 Support for funding and grant applications
2) Traffic Engineering
 Traffic Design Plan (including civil work) and Cost Estimate Preparation and Review  Traffic Signal Plan and Cost Estimate Preparation and Review  Pedestrian Hybrid Beacon Plan and Cost Estimate Preparation and Review  Street Light Plan and Cost Estimate Preparation and Review  Traffic Studies for Capital Projects
 Support for funding and grant applications
 Intelligent Transportation Systems Design
 Traffic Signal Timing and Coordination Studies
 Traffic Control Plan Design and Review
 Technical services and support for non-motorized capital projects  Active Transportation Design and Review
 Traffic Calming Support
 Traffic Calming Plan Design and Review
 On-Site “extension to staff” support services
 Traffic Counts Support
 Engineering and Traffic Surveys
 Warrant Analyses
 Coordination with outside agencies (Caltrans, railroads, neighboring cities, etc.)  Signing and Striping Support
Project Design/Plans, Specifications, and Estimates (PS&E) Preparation Firms shall be capable of performing the following tasks:
 Land Surveying & Mapping
 Civil Engineering Design
 Detailed Engineering/Cost Estimation
 Preparation of construction bid documents and specifications  Any other work required to complete project design
Consultant shall perform research of records including utility companies and other agency records as necessary to secure information required to identify, locate, and accurately layout all existing improvements and right-of-way within project limits that may interfere with the proposed 215
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improvements. Consultant will identify estimated number of potholes required for a project in their cost proposal for each individual task order.

General Requirements and Project Deliverables
All surveys shall be performed by Consultant in accordance with accepted professional surveying standards. Consultant shall obtain applicable encroachment permits from the City of Ontario, Railroad, Caltrans, and neighboring cities prior to beginning any field investigation. Additionally, if a traffic control plan is required, Consultant shall prepare the plan. Such documents shall be forwarded to the respective permit issuing agency, for review and concurrence prior to beginning any field investigation.

The Consultant shall complete a topographic survey map of the site to prepare a base map for the construction plans. This includes, but is not limited to:

2. Establish street centerlines, right-of-way lines existing and proposed, and all easements from available record information.

3. Provide the basis-of-bearing and benchmark information used for the survey and necessary for construction.

4. Locate and tie any features that would affect the design or construction.

5. Obtain Record of Surveys, benchmark and centerline tie information.

The Consultant will be expected to revise the documents within a revised schedule set by the City. There will be no additional compensation necessary for the consultant to complete the work to the satisfaction of the City for required revisions. The Consultant’s services for plan specifications and estimating (PS&E) for engineering project preparation and special studies/investigations shall include and be in conformance with the latest editions of the Greenbook Standard Specifications for Public Works Construction and the City of Ontario 216
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standards, unless otherwise specified. Latest editions of the Caltrans Standards and Specifications shall be used for traffic signal design.

1. GENERAL REQUIREMENTS.

1.1 Basic Services. Consultant agrees to perform all the necessary professional architectural, engineering (e.g. mechanical, electrical, plumbing, structural, site engineering, and any other necessary engineering services mutually agreeable to the Parties) and construction administration services for the Project in a timely and professional manner, consistent with the standards of the profession, including those provided for herein.

1.2 Exclusions from Basic Services. The following services shall be excluded from the basic services listed above: N/A

1.3 Additional Services. Consultant shall perform the following Additional Services for the Project: N/A

2. INITIAL PLANNING PHASE.

During the initial planning phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

As discussed herein, including in Section 7.3, if the lowest responsive and responsible bid for the Project exceeds the budget by the stated amount, Consultant may be required to make the 218
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necessary changes in the drawing and specifications, at its sole cost and expense, to bring the bids within the required budget.

2.3 Permits, Approvals and Authorizations. As indicated in Section 3.5.4 of the Agreement, Consultant shall assist City in securing easements, encroachment permits, rights of way, dedications, infrastructures and road improvements, as well as coordinating with utilities and adjacent property owners.

3. SCHEMATIC PLAN PHASE.

During the schematic plan phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:

Ontario City CouncilApril 2, 2024

Ontario City Council
April 2, 2024