Ontario City Council
April 16, 2024

CITY OF ONTARIO
Regular City Council/Housing Authority
Meeting
APRIL 16, 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 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 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
Porada, Wapner, Bowman, Valencia, Mayor/Chairman Leon

PLEDGE OF ALLEGIANCE
Council Member Bowman

INVOCATION
Federico Diaz, Alpha Omega Ministry
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.

CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 2 1. APPROVAL OF MINUTES
ATTACHMENT: 20240319 Meeting Minutes (Not official until approved)

2. BILLS & PAYROLL

3. ACCEPT WRITTEN PETITIONS TO CREATE A COMMUNITY FACILITIES DISTRICT; ADOPT A

RESOLUTION OF INTENTION TO ESTABLISH CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 65 (FALLONCREST) AND TO AUTHORIZE THE LEVY OF SPECIAL TAXES; AND

ADOPT A RESOLUTION DECLARING IT NECESSARY TO INCUR BONDED INDEBTEDNESS

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.

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 19, 2024 and approving same as on file in the Records Management Department.

Bills March 15, 2024 through March 28, 2024, and Payroll March 10, 2024 through March 23, 2024.

That the City Council consider and:

CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 3 ATTACHMENT: CC 3 CFD No. 65 Falloncrest Resolution of Intention^01^RM.doc ATTACHMENT: CFD No. 65 Falloncrest^01A EXH A, Boundary Map.pdf ATTACHMENT: CFD No. 65 Falloncrest^01B EXH C, RMA .pdf
ATTACHMENT: CFD No. 65 Falloncrest Resolution Declaring Necessity^02^RM

4. A RESOLUTION APPROVING AN IMPROVEMENT AGREEMENT, IMPROVEMENT SECURITY AND FINAL TRACT MAP NO. 20530, LOCATED SOUTH OF CHINO AVENUE BETWEEN HAVEN

AVENUE AND MILL CREEK AVENUE WITHIN THE RICH-HAVEN SPECIFIC PLAN ATTACHMENT: 20240416 TM-20530^01 EX.pdf
ATTACHMENT: 20240416 TM-20530^02^RESO^RM

5. A LEASE AGREEMENT WITH FLETCHER JONES MERCEDES BENZ OF ONTARIO ATTACHMENT: MERCEDES BENZ OF ONTARIO - UPGRADE AGREEMENT.pdf A. Accept written petitions (on file with the Records Management Department) from Lennar Homes of California, LLC and KL LHB DSD AIV LLC ("Landowners"), to create a Community Facilities District ("CFD") and to waive certain procedural matters, under the Mello-Roos Community Facilities Act of 1982;
B. Adopt a Resolution of Intention to establish City of Ontario Community Facilities District No. 65 (Falloncrest), authorize the associated levy of special taxes therein; and set a public hearing for the formation of the CFD as part of the regularly scheduled City Council meeting on Tuesday, May 21, 2024; and
C. Adopt a Resolution Declaring It Necessary for the City of Ontario Facilities District No. 65 (Falloncrest) to Incur Bonded Indebtedness.

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

INTENTION TO ESTABLISH A COMMUNITY FACILITIES DISTRICT PROPOSED TO BE NAMED CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 65 (FALLONCREST) AND TO AUTHORIZE THE LEVY OF A SPECIAL TAX THEREIN.

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

DECLARING IT NECESSARY FOR THE CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 65 (FALLONCREST) TO INCUR BONDED INDEBTEDNESS.

That the City Council adopt a Resolution approving an Improvement Agreement, Improvement Security and Final Tract Map No. 20530, located south of Chino Avenue between Haven Avenue and Mill Creek Avenue within the Rich-Haven Specific Plan.

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

APPROVING AN IMPROVEMENT AGREEMENT, IMPROVEMENT SECURITY AND FINAL TRACT MAP NO. 20530 LOCATED SOUTH OF CHINO AVENUE BETWEEN HAVEN AVENUE AND MILL CREEK AVENUE WITHIN THE RICH-HAVEN SPECIFIC PLAN.

That the City Council authorize City Manager or his designee to execute a Lease Agreement between the City and Fletcher Jones Mercedes Benz of Ontario ("Fletcher Jones") related to upgrades to their existing LED sign.

CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 4 ATTACHMENT: Ontario - Fletcher Jones Company LED Sign License and Reimbursement Agreement.docx

6. A RESOLUTION FOR PLACEMENT OF SPECIAL ASSESSMENTS ON THE SAN BERNARDINO

COUNTY TAX ROLLS
ATTACHMENT: Comm Imp Special Assessments for County Tax Rolls^01^RESO^RM.docx
ATTACHMENT: Special Assessments^02 - Exhibit A.pdf
ATTACHMENT: Special Assessments^03 - Exhibit B.pdf
ATTACHMENT: Special Assessments^04 - Exhibit C.pdf

7. A RESOLUTION OF INTENT TO DESIGNATE PORTIONS OF D STREET, PLUM AVENUE,

CHERRY AVENUE, AND SULTANA AVENUE AS A RESIDENTIAL PERMIT PARKING ZONE FOR

THE BENEFIT OF ADJACENT RESIDENCES
ATTACHMENT: EXHIBIT A.pdf
ATTACHMENT: Permit Parking Zone Resolution^RESO^RM

8. AN AMENDMENT TO THE DESIGN SERVICES AGREEMENT WITH RJM DESIGN GROUP, INC.

FOR LANDSCAPE ARCHITECTURAL SERVICES FOR THE ONTARIO SPORTS COMPLEX

PROJECT AND AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT WITH TILDEN-COIL CONSTRUCTORS, INC. FOR CONSTRUCTION MANAGEMENT MULTI-PRIME

SERVICES FOR THE ONTARIO SPORTS COMPLEX PROJECT
That the City Council adopt a Resolution for recovery of fees and costs incurred in abating property and dangerous building violations, as well as administrative citations and civil penalties associated with property maintenance violations and placing assessments on the San Bernardino County Tax Rolls.

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

ADOPTING A REPORT REQUESTING THE PLACEMENT OF SPECIAL ASSESSMENTS

ON PROPERTY TAX BILLS FOR CIVIL PENALTIES OR RECOVERY OF COSTS INCURRED FOR ABATEMENT OF VIOLATIONS OF CITY CODES AND ORDINANCES.

That the City Council adopt a Resolution declaring the intent to designate portions of D Street, Plum Avenue, Cherry Avenue, and Sultana Avenue as a residential permit parking zone for the benefit of adjacent residences and to set the date, time, and place for a public hearing to consider the matter.

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

PERTAINING TO DESIGNATING PORTIONS OF D STREET, PLUM AVENUE, CHERRY

AVENUE, AND SULTANA AVENUE AS A RESIDENTIAL PERMIT PARKING ZONE AND TO SET THE DATE, TIME, AND PLACE FOR A PUBLIC HEARING.

That the City Council take the following actions:

A. Authorize the City Manager or his designee to execute Amendment No. 6 to the Design CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 5 ATTACHMENT: Amendment No. 6 RJM Design Group, Inc..pdf ATTACHMENT: Tilden-Coil Amendment 3 AA3.pdf

9. MAINTENANCE SERVICES AGREEMENTS WITH PRIORITY LANDSCAPE SERVICES, LLC. AND RPW SERVICES, INC. FOR LANDSCAPE MAINTENANCE SERVICES IN THE ONTARIO

PARKWAY MAINTENANCE ASSESSMENT DISTRICTS AND CITYWIDE WEED ABATEMENT

SERVICES
ATTACHMENT: Districts PM 2425-02 AGREEMENT.pdf
ATTACHMENT: City Wide Weed Abatement Services PM 2425-01 Agreement.pdf

10. MAINTENANCE SERVICES AGREEMENTS WITH BRIGHTVIEW LANDSCAPE SERVICES, INC.

AND MERCHANTS LANDSCAPE SERVICES, INC. FOR LANDSCAPE MAINTENANCE SERVICES

AT THE ONTARIO SOCCER PARK, THE ONTARIO TOWN SQUARE AND VARIOUS CITY PARKS Services Agreement for Contract No. PM 1819-1 with RJM Design Group, Inc., of San Juan Capistrano, California, to provide landscape architectural services for the Ontario Sports Complex Project in the amount of $6,552,590 for a total not-to-exceed contract amount of $7,079,690;
B. Authorize the City Manager or his designee to execute Amendment No. 3 to the Professional Services Agreement with Tilden-Coil Constructors, Inc., of Riverside, California, to provide Construction Management Multi-Prime Services for the Sports Complex in the amount of $11,691,003 for a total not-to-exceed contract amount of $30,043,947 and extend the term of the contract to October 27, 2028; and C. Authorize the City Manager or his designee to execute all documents required for the completion of the project including, but not limited to, contracts, agreements, assessments, easements, reduction of retention accounts, and filing a notice of completion at the conclusion of all construction related activities.

That the City Council take the following actions:

A. Authorize the City Manager or his designee to execute a Maintenance Services Agreement for Contract No. PM 2425-02 Ontario Parkway Maintenance Assessment Districts Landscape Maintenance Services with Priority Landscape Services, LLC., of Anaheim, California, for a total contract amount not-to-exceed $2,368,361 for up to five (5) years; and
B. Authorize the City Manager or his designee to execute a Maintenance Services Agreement for Contract No. PM 2425-01 Citywide Weed Abatement Services with RPW Services, Inc., of Orange, California, for a total contract amount not-to-exceed $394,680 for up to five (5) years.

That the City Council take the following actions:

A. Authorize the City Manager or his designee to execute a Maintenance Services Agreement for Ontario Soccer Park with BrightView Landscape Services, Inc., of Upland, California, for a total contract amount not-to-exceed $1,413,113 for up to five (5) years, and
B. Authorize the City Manager or his designee to execute a Maintenance Services CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 6 ATTACHMENT: Various Parks Agreement.pdf
ATTACHMENT: Ontario Town Square Agreement.pdf
ATTACHMENT: Ontario Soccer Park Agreement.pdf

11. MAINTENANCE SERVICES AGREEMENTS WITH GREENTECH LANDSCAPE, INC. AND MERCHANTS LANDSCAPE SERVICES, INC. FOR LANDSCAPE MAINTENANCE SERVICES IN

THE NORTHEAST, NORTHWEST, SOUTHEAST, AND SOUTHWEST QUADRANTS OF ONTARIO RANCH
ATTACHMENT: Agreement - Ontario Ranch North East PM 2324-05.pdf ATTACHMENT: Agreement - Ontario Ranch South West PM 2324-08.pdf ATTACHMENT: Agreement - Ontario Ranch North West PM 2324-06.pdf ATTACHMENT: Agreement - Ontario Ranch South East PM 2324-07.pdf

12. AN AMENDMENT TO THE AGREEMENT WITH GRANICUS, LLC., TO ADD SPANISH CAPTIONS Agreement for Ontario Town Square with BrightView Landscape Services, Inc., of Upland, California, for a total contract amount not-to-exceed $558,147 for up to five (5) years; and
C. Authorize the City Manager or his designee to execute a Maintenance Services Agreement for Various City Parks with Merchants Landscape Services, Inc., of Rancho Cucamonga, California, for a total contract amount not-to-exceed $4,108,498 for up to five (5) years.

That the City Council take the following actions:

A. Authorize the City Manager or his designee to execute a Maintenance Services Agreement for Northeast Quadrant of Ontario Ranch Landscape Maintenance Services with Greentech Landscape Inc., of Whittier, California, for a total contract amount not-toexceed $2,315,439 for up to five (5) years, and B. Authorize the City Manager or his designee to execute a Maintenance Services Agreement for Northwest Quadrant of Ontario Ranch Landscape Maintenance Services with Merchants Landscape Services, Inc., of Rancho Cucamonga, California, for a total contract amount not-to-exceed $427,492 for up to five (5) years, and C. Authorize the City Manager or his designee to execute a Maintenance Services Agreement for Southeast Quadrant of Ontario Ranch Landscape Maintenance Services with Merchants Landscape Services, Inc., of Rancho Cucamonga, California, for a total contract amount not-to-exceed $1,546,460 for up to five (5) years; and D. Authorize the City Manager or his designee to execute a Maintenance Services Agreement for Southwest Quadrant of Ontario Ranch Landscape Maintenance Services with Merchants Landscape Services, Inc., of Rancho Cucamonga, California, for a total contract amount not-to-exceed $1,491,488 for up to five (5) years.

That the City Council authorize the City Manager or his designee to execute Amendment No. 1 to the Software as a Services Agreement with Granicus, LLC., of St. Paul, Minnesota, for Spanish captioning services, in the amount of $10,501 for a total not-to-exceed contract amount of $346,981.

CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 7 ATTACHMENT: Amendment 1 - Granicus - closed captioning.pdf

13. A PUBLIC HEARING TO CONSIDER AN AMENDMENT TO THE GROVE AVENUE SPECIFIC PLAN, FILE NO PSPA22-007, FOR PROPERTY LOCATED AT 2042 S. GROVE AVENUE (APN:
1050-491-11)
ATTACHMENT: 20240416 File No. PSPA22-007^01 PC Back-up.pdf ATTACHMENT: 20240416 File No. PSPA22-007 02 ADDENDUM^RESO^RM ATTACHMENT: 20240416 File No. PSPA22-007^03 Attachment A - Addendum.pdf ATTACHMENT: 20240416 File No. PSPA22-007^04 SPA^RESO^RM ATTACHMENT: Attachment A Grove Ave SP - Land Use Map 2024

PUBLIC HEARINGS
Pursuant to Government Code Section 65009, if you challenge the City’s zoning, planning or any other decision in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City Council at, or prior to the public hearing. Affidavits of posting compliance, for all items below, are on file with the Records Management Department.

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

That the City Council consider and adopt:

A. A Resolution approving an addendum to The Ontario Plan (TOP) 2050 Supplemental Environmental Impact Report (State Clearinghouse No. 2021070364), certified by the City of Ontario City Council on August 16, 2022, in conjunction with File No. PGPA20-002; and B. A Resolution approving an amendment to the Grove Avenue Specific Plan (File No.

PSPA22-007), to change the land use designation on 4.20 acres of land, from Office/Commercial to Business Park for property located at 2042 S. Grove Avenue.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING AN ADDENDUM TO THE ONTARIO PLAN (TOP) 2050 SUPPLEMENTAL ENVIRONMENTAL IMPACT REPORT (STATE CLEARINGHOUSE NO. 2021070364), CERTIFIED BY THE ONTARIO CITY COUNCIL ON AUGUST 16, 2022, PURSUANT TO

THE REQUIREMENTS OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT, AS AMENDED, FOR FILE NO PSPA22-007.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING FILE NO. PSPA22-007, AN AMENDMENT TO THE GROVE AVENUE SPECIFIC PLAN TO CHANGE THE LAND USE DESIGNATION OF 4.20 ACRES OF LAND FROM OFFICE/COMMERCIAL TO BUSINESS PARK FOR PROPERTY LOCATED AT 2042 S. GROVE AVENUE, AND MAKING FINDINGS IN SUPPORT THEREOF - APN: 1050- 491-11.

CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 8 STAFF MATTERS
City Manager Ochoa

COUNCIL MATTERS
Mayor Leon
Mayor pro Tem 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 9 ONTARIO CITY COUNCIL/

ONTARIO HOUSING AUTHORITY

MINUTES
March 19, 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 19, 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, Jim W. Bowman and Ruben Valencia.

ABSENT: Council/Authority Members: None.

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: 1052-121-01, 1052-211-02, 1052-211-03; 13107 Campus Avenue; City/Authorized negotiator: Scott Ochoa or his designee; Negotiating parties: Costello Investments, LLC; Under negotiation: Price and terms of payment.

OPEN MEETING CALLED TO ORDER
Mayor Leon reconvened the meetings at 6:30 p.m. for the regular session. 10 Ontario City Council/Ontario Housing Authority
Regular MeeƟng Minutes – March 19, 2024

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

PLEDGE OF ALLEGIANCE
The Pledge of Allegiance was led by Council Member Valencia.

INVOCATION
Tom Burciaga provided the invocation.

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

Annette Lee, regarding the homeless population.

Alejandro Gonzalez-Bernier, regarding boards and commissions.

Mayor Leon called upon the first speaker:

Enrique Flores-Guerra, spoke regarding an open invitation to collaborate with the City of Ontario.

Ezequiel Franco, spoke regarding an open invitation to the Hispanic Chamber of Commerce’s Cinco de Mayo event.

Lorena Corona, spoke regarding an overview of the Esperanza Scholarship Foundation.

Anthony Pace, spoke regarding privacy concerns pertaining to Ovitt Family Community Library’s office machines.

AGENDA REVIEW/ANNOUNCEMENTS
City Manager Ochoa brought to attention the development of a second sinkhole because of the recent rainstorms. City Manager Ochoa conveyed the need for the City Council to ratify the proposed Local State of Emergency to authorize and mobilize City resources.

Mayor Leon indicated that for the Resolution Proclaiming the Existence of a Local Emergency be added to the agenda a motion must be brought forth.

MOTION: Moved by Mayor pro Tem Porada seconded by Council Member Bowman and carried by a unanimous vote 5-0, to add the item onto the agenda.

RESOLUTION NO. 2024-013 A RESOLUTION OF THE CITY COUNCIL OF THE CITY

OF ONTARIO, CALIFORNIA, PROCLAIMING THE EXISTENCE OF A LOCAL

EMERGENCY AND DIRECT THE EMERGENCY ORGANIZATION OF THE CITY OF

ONTARIO TO TAKE THE NECESSARY STEPS FOR THE PROTECTION OF LIFE, HEALTH AND SAFETY IN THE CITY OF ONTARIO.

Mayor Leon opened the item for Council discussion.
11 Ontario City Council/Ontario Housing Authority
Regular MeeƟng Minutes – March 19, 2024

MOTION: Moved by Council Member Bowman, seconded by Mayor pro Tem Porada and carried by a unanimous vote 5-0, to adopt Resolution No. 2024-013.

CONSENT CALENDAR
MOTION: Moved by Council Member Bowman, seconded by Council Member Valencia and carried by a unanimous vote 5-0, to approve the Consent Calendar.

1. APPROVAL OF MINUTES
Approved minutes for the regular meetings of the City Council and Housing Authority of February 20, 2024, and approving same as on file in the Records Management Department.

2. BILLS & PAYROLL

Approved Bills February 16, 2024 through February 29, 2024, in the amount of $21,219,394.51, and Payroll February 11, 2024 through February 24, 2024 in the amount of $5,359,341.31.

3. A RESOLUTION APPROVING THE SUMMARY VACATION OF AN EASEMENT

FOR PUBLIC UTILITY PURPOSES LOCATED AT THE SOUTHEAST CORNER OF

HAVEN AVENUE AND PHILADELPHIA STREET
The City Council adopted a Resolution ordering the summary vacation of an easement for public utility purposes located at the southeast corner of Haven Avenue and Philadelphia Street.

RESOLUTION 2024-007 A RESOLUTION OF THE CITY COUNCIL OF THE CITY

OF ONTARIO, CALIFORNIA, APPROVING THE SUMMARY VACATION OF AN

EASEMENT FOR PUBLIC UTILITY PURPOSES LOCATED AT THE SOUTHEAST CORNER OF HAVEN AVENUE AND PHILADELPHIA STREET.

4. A RESOLUTION AUTHORIZING SUBMITTAL OF A CLAIM TO THE SAN BERNARDINO COUNTY TRANSPORTATION AUTHORITY FOR THE 2023 TRANSPORTATION DEVELOPMENT ACT, ARTICLE 3 FUNDS FOR THE BUS

STOP BOARDING PAD INSTALLATION PROJECT
The City Council adopted a Resolution approving the submittal of a claim for $32,835 to the San Bernardino County Transportation Authority (SBCTA) for the 2023 Transportation Development Act (TDA) Article 3 Funds for the Bus Stop Boarding Pad Installation Project and authorized the City Manager, or his designee, to execute all necessary documents to submit a reimbursement claim. 12 Ontario City Council/Ontario Housing Authority
Regular MeeƟng Minutes – March 19, 2024

RESOLUTION 2024-008 A RESOLUTION OF THE CITY COUNCIL OF THE CITY

OF ONTARIO, CALIFORNIA, AUTHORIZING SUBMITTAL OF A CLAIM TO THE

SAN BERNARDINO COUNTY TRANSPORTATION AUTHORITY FOR
TRANSPORTATION DEVELOPMENT ACT ARTICLE 3 FUNDS FOR THE BUS STOP BOARDING PAD INSTALLATION PROJECT.

5. A RESOLUTION APPROVING AN IMPROVEMENT AGREEMENT,
IMPROVEMENT SECURITY AND FINAL TRACT MAP NO. 20452 LOCATED ON THE WEST SIDE OF HAVEN AVENUE, APPROXIMATELY 600 FEET NORTH OF

CHINO AVENUE
The City Council adopted a Resolution approving an Improvement Agreement, Improvement Security and Final Tract Map No. 20452 located on the west side of Haven Avenue, approximately 600 feet north of Chino Avenue.

RESOLUTION 2024-009 A RESOLUTION OF THE CITY COUNCIL OF THE CITY

OF ONTARIO, CALIFORNIA, APPROVING AN IMPROVEMENT AGREEMENT, IMPROVEMENT SECURITY AND FINAL TRACT MAP NO. 20452, LOCATED ON THE WEST SIDE OF HAVEN AVENUE, APPROXIMATELY 600 FEET NORTH OF CHINO AVENUE.

6. A RESOLUTION APPROVING THE 2023 GENERAL PLAN ANNUAL PROGRESS REPORT AND 2023 HOUSING ELEMENT ANNUAL PROGRESS REPORT
The City Council adopted a Resolution authorizing Staff to transmit the 2023 General Plan Annual Progress Report, which includes the 2023 Housing Element Annual Progress Report, to the California Department of Housing and Community Development and Governor's Office of Planning and Research.

RESOLUTION 2024-010 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING THE 2023 GENERAL PLAN ANNUAL PROGRESS REPORT (FILE NO. PADV24-001), WHICH INCLUDES THE

HOUSING ELEMENT ANNUAL PROGRESS REPORT, AND AUTHORIZING

STAFF TO SUBMIT THE REPORTS TO THE CALIFORNIA DEPARTMENT OF

HOUSING AND COMMUNITY DEVELOPMENT AND THE GOVERNOR'S OFFICE OF PLANNING AND RESEARCH.

7. AN AMENDMENT TO THE GENERAL SERVICES AGREEMENT WITH HUNTER CONSULTING INC. DBA HCI ENVIRONMENTAL AND ENGINEERING
The City Council authorized the City Manager, or his designee, to execute Amendment No. 3 to the General Services Agreement with Hunter Consulting Inc. dba HCI Environmental and Engineering Inc. (HCI), of Corona, California, to extend the current funding threshold and terms of services for cleaning and maintenance of the Ontario Police Department Firearms Training Facility and biohazard clean-up services for a total not-to-exceed contract amount of $253,377. 13 Ontario City Council/Ontario Housing Authority
Regular MeeƟng Minutes – March 19, 2024

8. THE DOWNTOWN ONTARIO IMPROVEMENT ASSOCIATION ANNUAL
REPORT FOR FISCAL YEAR 2023-24
The City Council adopted a Resolution approving the Downtown Ontario Improvement Association (DOIA) Annual Report for Fiscal Year 2023-24.

RESOLUTION 2024-011 A RESOLUTION OF THE CITY COUNCIL OF THE CITY

OF ONTARIO, CALIFORNIA, APPROVING THE ANNUAL REPORT SUBMITTED

BY THE DOWNTOWN ONTARIO IMPROVEMENT ASSOCIATION FOR THE DOWNTOWN ONTARIO COMMUNITY BENEFIT DISTRICT FOR FY 2023-24.

9. AN AMENDMENT TO THE DESIGN SERVICES AGREEMENT WITH THIRTIETH STREET ARCHITECTS, INC. FOR THE DOWNTOWN MOBILITY HUB PROJECT DESIGN
The City Council took the following actions:

A. Authorized the City Manager, or his designee, to execute Amendment No. 4 to the Design Services Agreement with Thirtieth Streets Architects, Inc., of Costa Mesa, California, for the Downtown Mobility Hub Project design, formerly the Fallis House, in the amount of $109,300 for a total not-to-exceed contract amount of $559,300; and
B. Authorized the City Manager, or his designee, to execute all documents required for the completion of the project including, but not limited to, contracts, agreements, assessments, easements, reduction of retention accounts, and filing a notice of completion at the conclusion of all construction related activities.

10. AN AMENDMENT TO THE DESIGN SERVICES AGREEMENT WITH HOLT ARCHITECTS, INC., FOR THE POLICE DEPARTMENT MEDIA ROOM DESIGN The City Council took the following actions:

A. Authorized the City Manager, or his designee, to execute Amendment No. 8 to the Design Services Agreement with Holt Architects, Inc., of Palm Desert, California, for the Ontario Police Department Media Room design in the amount of $273,918 for a total not-to- exceed contract amount of $1,328,984; and
B. Authorized the City Manager, or his designee, to execute all documents required for the completion of the project including, but not limited to, contracts, agreements, assessments, easements, reduction of retention accounts, and filing a notice of completion at the conclusion of all construction related activities.

11. AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT WITH

NJBSOFT LLC FOR COMPLIANCE WORKFLOW AUTOMATION SOFTWARE 14 Ontario City Council/Ontario Housing Authority
Regular MeeƟng Minutes – March 19, 2024

The City Council authorized the City Manager, or his designee, to execute Amendment No. 2 to Professional Services Agreement with NJBSoft LLC, of Phoenix, Arizona, for the use of SAMS Water, Cross Connection, and Industrial Pretreatment Program Compliance Software modules in the amount of $50,000 for Fiscal Year 2023-24, with the unilateral option to extend the Agreement for up to two successive one-year periods (FY2024-25 to FY2025-26); and authorized the annual cost of $50,000 per year, for a total not-to-exceed amount of $275,500 consistent with City Council approved budgets.

12. DOWNTOWN ONTARIO COMMUNITY BENEFIT DISTRICT MANAGEMENT AND

DISBURSEMENT AGREEMENT
The City Council approved a Management and Disbursement Agreement with the Downtown Ontario Improvement Association for the administration of the Downtown Ontario Community Benefit District.

13. AN AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT WITH

ADVANCED UTILITY SYSTEMS FOR SOFTWARE LICENSING, MAINTENANCE

AND SUPPORT SERVICES FOR THE CUSTOMER INFORMATION SYSTEM (CIS)
The City Council authorized the City Manager, or his designee, to execute Amendment No. 2 to Professional Services Agreement with Advanced Utility Systems, a subsidiary of Harris Computer Systems of Ottawa, Ontario, Canada for utility billing system software licensing, maintenance and support services in the amount of $1,707,215 for a three year period, with the option to extend the term for two successive one-year periods, for a new total not-to-exceed amount of $5,284,481 which includes the initial purchase and implementation.

14. ACCEPTANCE OF FUNDING FROM THE COUNTY OF SAN BERNARDINO

WHICH WILL BE PASSED THROUGH TO THE LEAVEN KIDS FOUNDATION

FOR EDUCATION RESOURCES AND PROGRAMS TO SUPPORT AT-RISK YOUTH
The City Council authorized the City Manager, or his designee, to execute all documents necessary to accept funding from the County of San Bernardino in the amount of $200,000 to be passed through to the Leaven Kids Foundation for education resources and programs to support at-risk youth.

PUBLIC HEARINGS

15. A PUBLIC HEARING TO CONSIDER 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.
15 Ontario City Council/Ontario Housing Authority
Regular MeeƟng Minutes – March 19, 2024

The City Council introduced and waived further reading of 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.

ORDINANCE NO. 3272 (FIRST READING) 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.

Notice of public hearing was duly given and affidavits of compliance are on file in the Records Management Department. There were no written communications.

Mayor Leon opened the public hearing and inquired if anyone was interested in speaking to the item.

Executive Director of Community Development Scott Murphy provided a presentation on the matter.

Mayor pro Tem Porada spoke in support of the project and thanked City staff for their efforts.

MOTION: Moved by Mayor pro Tem Porada, seconded by Council Member Bowman and carried by a unanimous vote 5-0, to introduce Ordinance No. 3272.

16. A PUBLIC HEARING TO CONSIDER ADOPTION OF 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
The City Council adopted a Resolution approving the use of an Addendum to The Ontario Plan 2050 Supplemental Environmental Impact Report, and introduced and waived further reading of an Ordinance approving the Watermarke Ontario Planned Unit Development (File No. PUD22-006).

RESOLUTION 2024-012 A RESOLUTION OF THE CITY COUNCIL OF THE CITY

OF ONTARIO, CALIFORNIA, APPROVING THE USE OF AN ADDENDUM TO THE ONTARIO PLAN 2050 SUPPLEMENTAL ENVIRONMENTAL IMPACT REPORT,

PURSUANT TO THE REQUIREMENTS OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT, AS AMENDED, FOR FILE NOS. PUD22-006 AND PDEV22-042. 16 Ontario City Council/Ontario Housing Authority
Regular MeeƟng Minutes – March 19, 2024

ORDINANCE NO. 3273 (FIRST READING) 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.

Notice of public hearing was duly given and affidavits of compliance are on file in the Records Management Department. There was one written public comment from Ruth Lewis in opposition to the project.

Mayor Leon opened the public hearing and inquired if anyone was interested in speaking to the item.

Mark Terzano, spoke in opposition to the project.

Executive Director of Community Development Scott Murphy provided a presentation on the matter.

City Council spoke in support of the project and thanked City Staff for their efforts.

Mayor Leon acknowledged the history of the project site and also spoke in support of the project.

MOTION: Moved by Mayor pro Tem Porada, seconded by Council Member Bowman and carried by a unanimous vote 5-0, to adopt Resolution 2024-012 and introduce Ordinance No. 3273.

STAFF MATTERS:

City Manager Ochoa made no announcements.

COUNCIL MATTERS:

Council Member Wapner brought awareness to colon cancer and urged the need to be screened for the disease when possible.

Council Member Valencia congratulated the Ontario Fire Department for their fundraising efforts benefitting the Ontario-Montclair School District.

Mayor Leon expressed his admiration towards Lorena Corona’s unwavering character.

ADJOURNMENT:

Mayor Leon adjourned the meetings of the Joint Agencies at 7:08 p.m. and announced the next regular meeting was scheduled for April 2, 2024. 17 Ontario City Council/Ontario Housing Authority
Regular MeeƟng Minutes – March 19, 2024

Respectfully submitted,
____________________________________

SHEILA MAUTZ, CITY CLERK/SECRETARY
APPROVED:
_____________________________________
PAUL S. LEON, MAYOR
18 Department: Financial Services
Prepared By: Cruz Torres
Staff Member Presenting: Armen Harkalyan,
Executive Director of Finance
Reviewed By: Claudia Hernandez, . .

Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 3
SUBJECT: ACCEPT WRITTEN PETITIONS TO CREATE A COMMUNITY FACILITIES DISTRICT;

ADOPT A RESOLUTION OF INTENTION TO ESTABLISH CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 65 (FALLONCREST) AND TO AUTHORIZE THE LEVY OF SPECIAL TAXES; AND ADOPT A RESOLUTION DECLARING IT

NECESSARY TO INCUR BONDED INDEBTEDNESS

CITY OF ONTARIO
Agenda Report
April 16, 2024
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council consider and:

A. Accept written petitions (on file with the Records Management Department) from Lennar Homes of California, LLC and KL LHB DSD AIV LLC ("Landowners"), to create a Community Facilities District ("CFD") and to waive certain procedural matters, under the Mello-Roos Community Facilities Act of 1982;
B. Adopt a Resolution of Intention to establish City of Ontario Community Facilities District No. 65 (Falloncrest), authorize the associated levy of special taxes therein; and set a public hearing for the formation of the CFD as part of the regularly scheduled City Council meeting on Tuesday, May 21, 2024; and
C. Adopt a Resolution Declaring It Necessary for the City of Ontario Facilities District No. 65 (Falloncrest) to Incur Bonded Indebtedness.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
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 use of Mello-Roos financing in the Falloncrest residential development is projected to generate approximately $430,266 per year, at build-out, to fund administrative fees and municipal services; and approximately $14.6 million in bond proceeds to be used to fund a portion of the public infrastructure improvements needed to serve the project. Mello-Roos bonds 19 are not a direct obligation of the City and are paid from special taxes levied on each taxable parcel in the District; therefore, there is no fiscal impact on the General Fund from the issuance of MelloRoos bonds. City Council approval will be required to process annual special tax levies in future years.

BACKGROUND & ANALYSIS: The Mello-Roos Community Facilities Act of 1982 provides local government, with the consent from a majority of the property owners, the authority to establish community facilities districts for the purpose of levying special taxes to finance various kinds of public infrastructure facilities and municipal services. Municipal services that may be funded by a community facilities district include: police protection services, fire protection and suppression services, ambulance and paramedic services, maintenance and lighting of parks, parkways, streets, roads, open space, flood and storm drain protection services, maintenance and operation of fiber optic telecommunication, wireless communication and public safety camera systems and maintenance and operation of any real property or tangible property with an estimated useful life of five or more years that is owned by the governmental entity. Under the Mello-Roos Act, the initial steps in the formation of a community facilities district to finance public improvements and City services are to adopt a Resolution declaring the intention to establish a community facilities district, authorize the levy of special tax and issue bonds.

In the First Amended and Restated Agreement for the Financing and Construction of Limited Infrastructure Improvements to Serve an Easterly Portion of the New Model Colony ("First Amended and Restated Construction Agreement") between the City of Ontario and NMC Builders, LLC, the City agreed to cooperate with the members of NMC Builders, LLC in the formation of community facilities districts to assist in the financing of the public improvements included in the agreement.

Lennar Homes and KL LHB DSD AIV LLC, have provided written petitions to the City requesting formation of a community facilities district, along with a deposit pursuant to a Deposit Agreement dated April 1, 2022, to be used to pay costs incurred in creating the Community Facilities District and the incurrence of bonded indebtedness, and provides for the repayment to Lennar from the proceeds from any bonded indebtedness by the Community Facilities District. The Falloncrest project addresses the development of approximately 22.65 gross acres located south of Ontario Ranch Road, north of Grand Park Street, west of Broadway Avenue, and east of Archibald Avenue.

As proposed, the project is anticipated to include 362 attached units at build-out.

Included, as part of the Resolution of Intention is the proposed Rate and Method of Apportionment of Special Tax for the District. Under the proposed Rate and Method of Apportionment, the portion of the maximum annual special tax rates which will be used to fund debt service payments on the bonds is fixed and will not increase over time. As proposed, the amount of bonds authorized for the District ($60 million) is set intentionally higher than the current estimated bond amount (approximately $14.6 million) in order to allow future City Councils the option, without increasing the amount of the annual special taxes, to issue additional bonds to replace and/or construct new public infrastructure improvements in the future, or to fund municipal services. The term and structure of the Rate and Method of Apportionment of Special Tax for the Falloncrest project is consistent with those of previously adopted Rates and Methods of Apportionment for Ontario Ranch community facilities districts. This ensures that the special tax rates levied on all residential property owners in community facilities districts in Ontario Ranch are developed in a consistent and equivalent manner. In addition, under the provisions of the Mello-Roos Act, to ensure that 20 home buyers are making an informed decision, all residential builders in the Ontario Ranch community facilities districts will be required to disclose the maximum annual special tax amount to each homeowner before entering into a sales contract.

List of Infrastructure to be financed:

Water and Recycled Water System Facilities
Sewer System Facilities
Storm Drain System Facilities
Streets and Traffic Circulation System Facilities
Fiber Optic System Facilities
City Staff has discussed the proposed Rate and Method of Apportionment of Special Tax with the landowner. As proposed, the Resolution of Intention to establish the District and to levy special taxes will set a public hearing date on the formation of the community facilities district for the regularly scheduled City Council meeting on Tuesday, May 21, 2024, to consider the matter. 21 4128-1201-7221.3
RESOLUTION NO. ________

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

CALIFORNIA, OF INTENTION TO ESTABLISH A COMMUNITY

FACILITIES DISTRICT PROPOSED TO BE NAMED CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 65 (FALLONCREST) AND TO

AUTHORIZE THE LEVY OF A SPECIAL TAX THEREIN
WHEREAS, Section 53318 of the Mello-Roos Community Facilities Act of 1982 (the “Act”) provides that proceedings for the establishment of a community facilities district shall be instituted by a legislative body of a local agency when a petition requesting the institution of the proceedings signed by the owners of not less than 10% of the area of land proposed to be included within the community facilities district and not proposed to be exempt from the special tax, describing the boundaries of the territory that is proposed for inclusion in the area and specifying the type or types of facilities and services to be financed by the community facilities district is filed with the clerk of the legislative body; and
WHEREAS, Section 53318 of the Act further provides that such a petition may not be acted upon until the payment of a fee in an amount that the legislative body determines, within 45 days of receiving such petition, is sufficient to compensate the legislative body for all costs incurred in conducting proceedings to create a community facilities district pursuant to the Act; and
WHEREAS, the City Council (the “City Council”) of the City of Ontario (the “City”) has received from each of Lennar Homes of California, LLC (“Lennar”) and KL LHB DSD AIV LLC (collectively, the “Landowners”) a written petition (together, the “Petitions”), requesting the City Council to institute proceedings pursuant to the Act to establish a community facilities district (the “Community Facilities District”) and to authorize the Community Facilities District to levy a special tax within the Community Facilities District, describing the boundaries of the territory that is proposed for inclusion in the Community Facilities District and specifying the types of facilities and services to be financed by the Community Facilities District; and
WHEREAS, in connection with such request to institute proceedings to establish the Community Facilities District, Lennar paid a fee in an amount that the City Council has determined is sufficient to compensate the City Council for all cost incurred in conducting proceedings to create the Community Facilities District pursuant to the Act; and WHEREAS, the Landowners have represented and warranted to the City Council that the Landowners are the owners of 100% of the area of land proposed to be included within the Community Facilities District and not proposed to be exempt from the special tax; and
WHEREAS, Section 53314.9 of the Act provides that, at any time either before or after the formation of a community facilities district, the legislative body may accept advances of funds from any source, including, but not limited to, private persons or 22 2
4128-1201-7221.3
private entities and may provide, by resolution, for the use of those funds for any authorized purpose, including, but not limited to, paying any cost incurred by the local agency in creating a community facilities district; and WHEREAS, Section 53314.9 of the Act further provides that the legislative body may enter into an agreement, by resolution, with the person or entity advancing the funds, to repay all or a portion of the funds advanced, as determined by the legislative body, with or without interest, under all the following conditions: (a) the proposal to repay the funds is included in both the resolution of intention to establish a community facilities district adopted pursuant to Section 53321 of the Act and in the resolution of formation to establish a community facilities district pursuant to Section 53325.1 of the Act, (b) any proposed special tax is approved by the qualified electors of the community facilities district pursuant to the Act, and (c) any agreement shall specify that if the qualified electors of the community facilities district do not approve the proposed special tax, the local agency shall return any funds which have not been committed for any authorized purpose by the time of the election to the person or entity advancing the funds; and WHEREAS, the City and Lennar have entered into the Deposit and Reimbursement Agreement, dated as of April 1, 2022 (the “Deposit Agreement”), which provides for the advancement of funds by Lennar to be used to pay costs incurred in creating the Community Facilities District and the incurrence of bonded indebtedness thereby, and provides for the repayment to Lennar of such funds advanced, without interest, from the proceeds of any such bonded indebtedness incurred by the Community Facilities District; and
WHEREAS, the City desires to include in this Resolution, in accordance with Section 53314.9 of the Act, the proposal to repay funds pursuant to the Deposit Agreement;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ontario as follows:

Section 1. The foregoing recitals are true and correct, and the City Council so finds and determines.

Section 2. The City Council hereby finds that the Petitions are signed by the landowners owning the requisite area of land proposed to be included within the Community Facilities District and not proposed to be exempt from the Special Tax.

Section 3. The City Council proposes to establish the Community Facilities District under the terms of the Act. The boundaries of the territory proposed for inclusion in the Community Facilities District are described in the map showing the proposed Community Facilities District (the “Boundary Map”) on file in the office of the City Clerk of the City (the “City Clerk”), a copy of which is attached hereto as Exhibit A, which boundaries are hereby preliminarily approved and to which map reference is hereby made for further particulars. The City Clerk is hereby directed to sign the original Boundary Map and record, or cause to be recorded, the Boundary Map with all proper 23 3
4128-1201-7221.3
endorsements thereon in the office of the San Bernardino County Recorder within 15 days of the date of adoption of this Resolution, all as required by Section 3111 of the California Streets and Highways Code.

Section 4. The name proposed for the Community Facilities District is “City of Ontario Community Facilities District No. 65 (Falloncrest).” Section 5. The public facilities (the “Facilities”) proposed to be financed by the Community Facilities District pursuant to the Act are described under the caption “Facilities” on Exhibit B hereto, which is by this reference incorporated herein. Those Facilities proposed to be purchased as completed public facilities are identified under the caption “Facilities to be Purchased” on Exhibit B hereto. The services (the “Services”) proposed to be financed by the Community Facilities District pursuant to the Act are described under the caption “Services” on Exhibit B hereto. The incidental expenses proposed to be incurred are identified under the caption “Incidental Expenses” on Exhibit B hereto. All or any portion of the Facilities may be financed through a financing plan, including, but not limited to, a lease, lease-purchase or installment-purchase arrangement.

Section 6. The City Council proposes that, except where funds are otherwise available, the Community Facilities District be authorized to annually levy within the Community Facilities District a special tax (the “Special Tax”) sufficient to pay for all Facilities and Services, secured by recordation of a continuing lien against all nonexempt real property in the Community Facilities District. The rate and method of apportionment of the Special Tax, in sufficient detail to allow each landowner or resident within the proposed Community Facilities District to estimate the maximum amount that he or she will have to pay, is specified in the Rate and Method of Apportionment of Special Tax (the “Rate and Method”) attached hereto as Exhibit C, which is by this reference incorporated herein. The conditions under which the obligation to pay the Special Tax to be levied to pay for Facilities may be prepaid and permanently satisfied are specified in the Rate and Method. The Special Tax will be collected in the same manner as ordinary ad valorem property taxes or in such other manner as the City Council shall determine, including direct billing of the affected property owners.

Section 7. The Special Tax may only finance the Services to the extent that they are in addition to those provided in the territory of the Community Facilities District before the Community Facilities District is created. The Services may not supplant services already available within that territory when the Community Facilities District is created.

Bonds of the Community Facilities District may not be issued to fund any of the Services.

Section 8. The tax year after which no further Special Tax to pay for Facilities shall be levied against any parcel used for private residential purposes is specified in the Rate and Method. Under no circumstances shall the Special Tax to pay for Facilities in any fiscal year against any parcel used for private residential purposes be increased as a consequence of delinquency or default by the owner or owners of any other parcel or parcels within the Community Facilities District by more than 10% above the amount that would have been levied in that fiscal year had there never been any such delinquencies 24 4
4128-1201-7221.3
or defaults. For purposes of this paragraph, a parcel shall be considered “used for private residential purposes” not later than the date on which an occupancy permit for private residential use is issued. The Special Tax to pay for Services will be levied in perpetuity, as provided in the Rate and Method.

Section 9. Pursuant to Section 53344.1 of the Act, the City Council hereby reserves to itself the right and authority to allow any interested owner of property within the Community Facilities District, subject to the provisions of said Section 53344.1 and to those conditions as it may impose, and any applicable prepayment penalties as prescribed in the bond indenture or comparable instrument or document, to tender to the Community Facilities District treasurer in full payment or part payment of any installment of the Special Tax or the interest or penalties thereon that may be due or delinquent, but for which a bill has been received, any bond or other obligation secured thereby, the bond or other obligation to be taken at par and credit to be given for the accrued interest shown thereby computed to the date of tender.

Section 10. The City Council hereby fixes Tuesday, May 21, 2024, at 6:30 p.m., or as soon thereafter as the City Council may reach the matter, at 303 East B Street, Ontario, California, as the time and place when and where the City Council will conduct a public hearing on the establishment of the Community Facilities District; provided, that, in the event the May 21, 2024 City Council meeting is held via teleconference and/or videoconference only, the means by which the public may observe such public hearing and offer public comment shall be prescribed in the notice and agenda for such City Council meeting.

Section 11. The City Clerk is hereby directed to publish, or cause to be published, a notice of said public hearing one time in a newspaper of general circulation published in the area of the proposed Community Facilities District. Publication of said notice shall be completed at least seven days prior to the date herein fixed for said public hearing. Said notice shall contain all of the information prescribed by Section 53322 of the Act.

Section 12. The authorization to levy the Special Tax shall be submitted to the qualified electors of the Community Facilities District at a special election. The proposed voting procedure shall be a vote by the landowners in the Community Facilities District conducted by mail or hand-delivered ballots, with each owner having one vote for each acre or portion of an acre such owner owns in the Community Facilities District.

Section 13. Each officer of the City who is or will be responsible for providing one or more of the proposed types of Facilities or Services is hereby directed to study, or cause to be studied, the proposed Community Facilities District and, at or before said public hearing, file a report with the City Council containing a brief description of the Facilities and Services by type that will in his or her opinion be required to adequately meet the needs of the Community Facilities District, and his or her estimate of the cost of providing the Facilities and Services. Such officers are hereby also directed to estimate the fair and reasonable cost of the Facilities proposed to be purchased as completed public facilities and of the incidental expenses proposed to be paid. Such report shall be made a part of the record of said public hearing.
25 5
4128-1201-7221.3
Section 14. Lennar has heretofore advanced certain funds, and may advance additional funds, that have been or may be used to pay costs incurred in connection with the creation of the Community Facilities District and the incurrence of bonded indebtedness thereby. The City Council proposes to repay all or a portion of such funds so advanced, without interest, solely from the proceeds of such bonded indebtedness, pursuant to the Deposit Agreement. The Deposit Agreement is hereby incorporated herein as though set forth in full herein.

Section 15. All actions heretofore taken by the officers, employees and agents of the City with respect to the establishment of the Community Facilities District, or in connection with or related to any of the matters referred to herein, are hereby approved, confirmed and ratified.

Section 16. The officers, employees and agents of the City are hereby authorized and directed to take all actions and do all things that they, or any of them, may deem necessary or desirable to accomplish the purposes of this Resolution and not inconsistent with the provisions hereof.

Section 17. This Resolution shall take effect immediately upon its adoption.

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

PASSED, APPROVED, AND ADOPTED this 16th day of April, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
26 6
4128-1201-7221.3

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 16, 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 16, 2024. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
27 A-1
4128-1201-7221.3

EXHIBIT A

BOUNDARY MAP
28 B-1
4128-1201-7221.3

EXHIBIT B

FACILITIES, SERVICES AND INCIDENTAL EXPENSES
Facilities
The types of public facilities to be financed by the Community Facilities District are street and bridge improvements, including grading, paving, curbs and gutters, sidewalks, street signalization and signage, street lights and parkway and landscaping related thereto, domestic and recycled water distribution facilities, sewer collection facilities, solid waste facilities, storm drainage facilities, park and recreation facilities and equipment, aquatic facilities and equipment, fire facilities and equipment, police facilities and equipment, library facilities and equipment, fiber optic telecommunication, wireless communication and public safety camera facilities and equipment, general governmental office, administrative and meeting facilities, and land, rights-of-way and easements necessary for any of such facilities.

Facilities to be Purchased
The types of public facilities to be purchased as completed facilities are street and bridge improvements, including grading, paving, curbs and gutters, sidewalks, street signalization and signage, street lights and parkway and landscaping related thereto, domestic and recycled water distribution facilities, sewer collection facilities, solid waste facilities, storm drainage facilities, and land, rights-of-way and easements necessary for any of such facilities.

Services
The types of City services to be financed by the Community Facilities District are police protection services, fire protection and suppression services, ambulance and paramedic services, maintenance and lighting of parks, parkways, streets, roads and open space, flood and storm protection services, maintenance and operation of fiber optic telecommunication, wireless communication and public safety camera systems and maintenance and operation of any real property or other tangible property with an estimated useful life of five or more years that is owned by the City.

Incidental Expenses
The incidental expenses proposed to be incurred include the following:
(a) the cost of planning and designing public facilities to be financed, including the cost of environmental evaluations of those facilities; (b) the costs associated with the creation of the Community Facilities District, issuance of bonds, determination of the amount of taxes, collection of taxes, payment of taxes, or costs otherwise incurred in order to carry out the authorized purposes of the Community Facilities District; and 29 - 2 -
4128-1201-7221.3
(c) any other expenses incidental to the construction, completion, and inspection of the authorized work.
30 4128-1201-7221.3

EXHIBIT C

RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX
31 City of Ontario Community Facilities
District No. 65 (Falloncrest)Assessor's Parcel Lot Line LEGEND
32 City of Ontario CFD No. 65 1 March 13, 2024

EXHIBIT C

CITY OF ONTARIO
COMMUNITY FACILITIES DISTRICT NO. 65
(FALLONCREST)

RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX
Special Taxes shall be levied on all Assessor’s Parcels in the City of Ontario Community Facilities District No. 65 (Falloncrest) (“CFD No. 65”) and collected each Fiscal Year, commencing in Fiscal Year 2024-25, in an amount determined by the City Council of the City of Ontario through the application of the Rate and Method of Apportionment, as described below.

All of the real property in CFD No. 65, unless exempted by law or by the provisions hereof, shall be taxed for the purposes, to the extent, and in the manner herein provided.

A. DEFINITIONS
The terms hereinafter set forth have the following meanings:
“Acre” or “Acreage” means the land area of an Assessor’s Parcel as shown on an Assessor’s Parcel Map, or if the land area is not shown on an Assessor’s Parcel Map, the land area shown on the applicable Final Subdivision Map, parcel map, condominium plan, or other recorded County map.
“Act” means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5 of Part 1 of Division 2 of Title 5 of the California Government Code. “Administrative Expenses” means the following actual or reasonably estimated costs directly related to the administration of CFD No. 65: the costs of computing the Special Taxes and preparing the annual Special Tax collection schedules (whether by the City or CFD No. 65 or both); the costs of collecting the Special Taxes (whether by the County or otherwise); the costs of remitting the Special Taxes to the Trustee; the costs of the Trustee (including its legal counsel) in the discharge of the duties required of it under the Indenture; the costs to the City or CFD No. 65 of complying with arbitrage rebate requirements; the costs to the City or CFD No. 65 of complying with City, CFD No. 65, or obligated persons disclosure requirements associated with applicable federal and state securities laws and of the Act; the costs associated with preparing Special Tax disclosure statements and responding to public inquiries regarding the Special Taxes; the costs of the City or CFD No. 65 related to the analysis and reduction, if any, of the Special Tax A on Single Family Property in accordance with Section C.1 herein; the costs of the City or CFD No. 65 related to an appeal of the Special Tax; the costs associated with the release of funds from any escrow account; the City’s administration fees and third party expenses; the costs of City staff time and reasonable overhead relating to CFD No. 65; and amounts estimated or advanced by the City or CFD No. 65 for any other 33 City of Ontario CFD No. 65 2 March 13, 2024
administrative purposes of the CFD, including attorney’s fees and other costs related to commencing and pursuing to completion any foreclosure of delinquent Special Taxes. “Assessor’s Parcel” means a lot or parcel shown in an Assessor’s Parcel Map with an assigned Assessor’s Parcel Number.
“Assessor’s Parcel Map” means an official map of the Assessor of the County designating parcels by Assessor’s Parcel Number.
“Assessor’s Parcel Number” means, with respect to an Assessor’s Parcel, that number assigned to such Assessor’s Parcel by the County for purposes of identification. “Assigned Special Tax A” means the Special Tax A for each Land Use Class of Developed Property, as determined in accordance with Section C.1.a.2 below. “Backup Special Tax A” means the Special Tax A for each Land Use Class of Developed Property, as determined in accordance with Section C.1.a.3 below. “Bonds” means any bonds or other debt (as defined in Section 53317(d) of the Act) issued by CFD No. 65 under the Act and payable from Special Tax A. “Buildable Lot” means an individual lot, within a Final Subdivision Map or an area expected by CFD No. 65 to become Final Mapped Property, such as the area within a Tentative Tract Map, for which a building permit may be issued without further subdivision of such lot.
“CFD Administrator” means an official of the City responsible for determining the Special Tax A Requirement and Special Tax B Requirement, providing for the levy and collection of the Special Taxes, and performing the other duties provided for herein. “CFD No. 65” means City of Ontario Community Facilities District No. 65 (Falloncrest). “City” means the City of Ontario, California.
“City Council” means the City Council of the City, acting as the legislative body of CFD No. 65.
“Contractual Impositions” means (a) a voluntary contractual assessment established and levied on an Assessor’s Parcel pursuant to Chapter 29 of Part 3 of Division 7 of the California Streets and Highways Code (commencing with Section 5898.10 et seq.), as amended from time to time, (b) a special tax established and levied on an Assessor’s Parcel pursuant to Section 53328.1 of the California Government Code and related provisions of the Act, as amended from time to time, and (c) any other fee, charge, tax, or assessment established and levied on an individual Assessor’s Parcel pursuant to a contractual agreement or other voluntary consent by the owner thereof (e.g., property owner association assessments).
34 City of Ontario CFD No. 65 3 March 13, 2024
“County” means the County of San Bernardino.
“Designated Buildable Lot” means a Buildable Lot for which a building permit has not been issued by the City as of the date of calculation of the Backup Special Tax A. “Developed Property” means for each Fiscal Year, all Taxable Property, exclusive of Final Mapped Property, Taxable Property Owner Association Property, and Taxable Public Property, for which a building permit or other applicable permit for new construction was issued after January 1, 2023, and before May 1 of the prior Fiscal Year. “Expected Residential Lot Count” means 362 Buildable Lots of Single Family Property or, as determined by the CFD Administrator, the number of Buildable Lots of Single Family Property based on the most recent Tentative Tract Map(s) or most recently recorded Final Subdivision Map(s) or modified Final Subdivision Map(s). “Facilities” means the public facilities authorized to be financed, in whole or in part, by CFD No. 65.
“Final Mapped Property” means, for each Fiscal Year, all Taxable Property, exclusive of Developed Property, Taxable Property Owner Association Property, and Taxable Public Property, which as of January 1 of the previous Fiscal Year was located within a Final Subdivision Map. The term Final Mapped Property shall include any parcel map or Final Subdivision Map, or portion thereof, that creates individual lots for which a building permit may be issued, including Parcels that are designated as a remainder Parcel (i.e., one where the size, location, etc., precludes any further subdivision or taxable use).
“Final Subdivision Map” means a final tract map, parcel map, or lot line adjustment approved by the City pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq.) or a condominium plan recorded pursuant to California Civil Code Section 4285 that, in either case, creates individual lots for which building permits may be issued without further subdivision.
“Fiscal Year” means the period starting July 1 and ending on the following June 30. “Gated Community Attached Dwelling Unit” means, with respect to Special Tax B, a Unit within any residential building containing two or more dwelling units (including attached condominiums, townhouses, duplexes, triplexes, and apartments) within a gated community that, within such community, is primarily served by private interior streets. “Indenture” means the indenture, fiscal agent agreement, resolution, or other instrument pursuant to which Bonds are issued, as modified, amended, and/or supplemented from time to time.
“Land Use Class” means any of the classes listed in Tables 1 and 2 below. “Lower Income Household Welfare Exemption Property” means, for each Fiscal Year, an Assessor’s Parcel within the boundaries of CFD No. 65 that is subject to a 35 City of Ontario CFD No. 65 4 March 13, 2024
welfare exemption under subdivision (g) of Section 214 of the California Revenue and Taxation Code (or any successor statute), as indicated in the most recent County assessor’s roll finalized prior to such Fiscal Year.
“Maximum Special Tax A” means, with respect to an Assessor’s Parcel of Taxable Property, the Maximum Special Tax A determined in accordance with Section C.1 below that can be levied in any Fiscal Year on such Assessor’s Parcel of Taxable Property. “Maximum Special Tax B” means, with respect to an Assessor’s Parcel of Taxable Property, the Maximum Special Tax B determined in accordance with Section C.2 below that can be levied in any Fiscal Year on such Assessor’s Parcel of Taxable Property. “Minimum Sale Price” means the minimum price at which Units of a given Land Use Class have sold or are expected to be sold in a normal marketing environment and shall not include prices for such Units that are sold at a discount to expected sales prices for the purpose of stimulating the initial sales activity with respect to such Land Use Class. “Multiple Family Dwelling Unit” means, with respect to Special Tax B, a Unit within any residential building containing two or more dwelling units, including attached condominiums, townhomes, duplexes, triplexes, and apartments, but excluding Gated Community Attached Dwelling Units.
“Non-Residential Property” means all Assessor’s Parcels of Developed Property for which a building permit was issued by the City permitting the construction of one or more non-residential structures or facilities.
“Other Residential Property” means, with respect to Special Tax A, all Assessor’s Parcels of Developed Property for which a building permit was issued by the City for purposes of constructing Units, excluding Single Family Attached Property and Single Family Detached Property.
“Outstanding Bonds” means all Bonds which are outstanding under and in accordance with the provisions of the Indenture.
“Price Point Consultant” means any consultant or firm of such consultants selected by CFD No. 65 that (a) has substantial experience in performing price point studies for residential units within community facilities districts established under the Act or otherwise estimating or confirming pricing for residential units in such community facilities districts, (b) has recognized expertise in analyzing economic and real estate data that relates to the pricing of residential units in such community facilities districts, (c) is in fact independent and not under the control of CFD No. 65 or the City, (d) does not have any substantial interest, direct or indirect, with or in (i) CFD No. 65, (ii) the City, (iii) any owner of real property in CFD No. 65, or (iv) any real property in CFD No. 65, and (e) is not connected with CFD No. 65 or the City as an officer or employee thereof, but who may be regularly retained to make reports to CFD No. 65 or the City. “Price Point Study” means a price point study or a letter or report updating a previous price point study prepared by the Price Point Consultant pursuant to Section C herein. 36 City of Ontario CFD No. 65 5 March 13, 2024
“Property Owner Association Property” means, for each Fiscal Year, any property within the boundaries of CFD No. 65 that was owned by a property owner association, including any master or sub-association, as of January 1 of the prior Fiscal Year. “Proportionately” means (a) for Developed Property in the first step of Section D.1 below, that the ratio of the actual Special Tax A levy to the Maximum Special Tax A is equal for all Assessor’s Parcels of Developed Property; however, for Developed Property in the fourth step of Section D.1 below, Proportionately means that the amount of the increase above the Assigned Special Tax A, if necessary, is equal for all Assessor’s Parcels of Developed Property, except that if the Backup Special Tax A limits the increase on any Assessor’s Parcel(s), then the amount of the increase shall be equal for the remaining Assessor’s Parcels; (b) with respect to Special Tax B, that the ratio of the actual Special Tax B levy to the Maximum Special Tax B is equal for all Assessor’s Parcels of Developed Property; (c) for Final Mapped Property, that the ratio of the actual Special Tax A levy to the Maximum Special Tax A is equal for all Assessor’s Parcels of Final Mapped Property; (d) for Undeveloped Property, that the ratio of the actual Special Tax A levy to the Maximum Special Tax A is equal for all Assessor's Parcels of Undeveloped Property; (e) for Taxable Property Owner Association Property, that the ratio of the actual Special Tax A levy to the Maximum Special Tax A is equal for all Assessor’s Parcels of Taxable Property Owner Association Property; and (f) for Taxable Public Property, that the ratio of the actual Special Tax A levy to the Maximum Special Tax A is equal for all Assessor’s Parcels of Taxable Public Property. “Public Property” means, for each Fiscal Year, property within the boundaries of CFD No. 65 that is (a) owned by, irrevocably offered to, or dedicated to the federal government, the State, the County, the City, or any local government or other public agency or (b) encumbered by an easement for purposes of public or utility right-of-way that makes impractical its use for any purpose other than that set forth in such easement; provided that any property leased by a public agency to a private entity and subject to taxation under Section 53340.1 of the Act shall be taxed and classified according to its use.
“Rate and Method of Apportionment” means this Rate and Method of Apportionment of Special Tax.
“Residential Floor Area” means all of the Square Footage of living area within the perimeter of a Unit, not including any carport, walkway, garage, overhang, patio, enclosed patio, or similar area. The determination of Residential Floor Area shall be as set forth in the building permit(s) issued for such Assessor’s Parcel, or as set forth in other official records maintained by the City’s Building Department or other appropriate means selected by CFD No. 65. The actual Square Footage shall be rounded up to the next whole square foot. Once such determination has been made for an Assessor’s Parcel, it shall remain fixed in all future Fiscal Years unless an appeal pursuant to Section F below is approved that results in a change in the actual Square Footage. 37 City of Ontario CFD No. 65 6 March 13, 2024
“Residential Property” means, for each Fiscal Year, an Assessor’s Parcel for which a building permit for new construction of one or more Units was issued after January 1, 2023, and before May 1 of the prior Fiscal Year.
“Services” means the services authorized to be financed, in whole or in part, by CFD No.

65. “Single Family Attached Property” means all Assessor’s Parcels of Developed Property for which a building permit or use permit was issued for construction of a residential structure consisting of two or more Units that share common walls, have separate Assessor’s Parcel Numbers assigned to them (except for a duplex unit, which may share an Assessor’s Parcel with another duplex unit), and may be purchased by individual homebuyers (which shall still be the case even if the Units are purchased and subsequently offered for rent by the owner of the Unit), including such residential structures within a condominium project as defined in Civil Code Section 4125. “Single Family Detached Property” means all Assessor’s Parcels of Developed Property for which a building permit was issued for construction of a Unit, on one legal lot, that does not share a common wall with another Unit. “Single Family Detached Dwelling Unit” means a Unit of Single Family Detached Property.
“Single Family Property” means all Assessor’s Parcels of Single Family Attached Property and Single Family Detached Property.
“Special Taxes” means, collectively, Special Tax A and Special Tax B. “Special Tax A” means the special tax authorized by the qualified electors of CFD No. 65 to be levied within the boundaries of CFD No. 65 to pay for Facilities and Services. “Special Tax A Requirement” means for any Fiscal Year that amount required, after taking into account available amounts held in the funds and accounts established under the Indenture, for CFD No. 65 to: (i) pay debt service on all Outstanding Bonds which is due in the calendar year that commences in such Fiscal Year; (ii) pay periodic costs on the Bonds, including, but not limited to, credit enhancement and rebate payments on the Bonds; (iii) pay a pro rata share of Administrative Expenses; (iv) provide any amounts required to establish or replenish any reserve fund for the Bonds; (v) pay directly for acquisition or construction of Facilities, or the cost of Services, to the extent that the inclusion of such amounts does not increase the Special Tax A levy on Final Mapped Property or Undeveloped Property; and (vi) provide an amount equal to Special Tax A delinquencies based on the historical delinquency rate for Special Tax A as determined by the CFD Administrator.
“Special Tax B” means the special tax authorized by the qualified electors of CFD No. 65 to be levied within the boundaries of CFD No. 65 to pay for Services. 38 City of Ontario CFD No. 65 7 March 13, 2024
“Special Tax B Requirement” means for any Fiscal Year that amount required, after taking into account available amounts in any funds and accounts established to pay for Services, to pay the cost of Services, a pro rata share of Administrative Expenses, and an amount equal to Special Tax B delinquencies based on the historical delinquency rate for Special Tax B as determined by the CFD Administrator.
“Square Footage” or “Sq. Ft.” means the floor area square footage reflected on the original construction building permit, or as set forth in other official records maintained by the City’s Building Department or other appropriate means selected by CFD No. 65, issued for construction of Residential Property or Non-Residential Property, plus any square footage subsequently added to a building of Non-Residential Property after issuance of a building permit for expansion or renovation of such building. “State” means the State of California.
“Taxable Property” means, for each Fiscal Year, all of the Assessor’s Parcels within the boundaries of CFD No. 65 that are not exempt from the Special Taxes pursuant to law or Section E below.
“Taxable Property Owner Association Property” means, for each Fiscal Year, all Assessor’s Parcels of Property Owner Association Property that are not exempt from the Special Taxes pursuant to Section E below.
“Taxable Public Property” means, for each Fiscal Year, all Assessor’s Parcels of Public Property that are not exempt from the Special Taxes pursuant to law or Section E below. “Tentative Tract Map” means a map: (i) showing a proposed subdivision of an Assessor’s Parcel(s) and the conditions pertaining thereto; (ii) that may or may not be based on a detailed survey; and (iii) that is not recorded by the County to create legal lots. “Total Tax Burden” means, for a Unit within a Land Use Class, for the Fiscal Year in which the Total Tax Burden is being calculated, the sum of (a) the Assigned Special Tax A for such Land Use Class for such Fiscal Year, plus (b) the Special Tax B for such Land Use Class for such Fiscal Year, plus (c) the ad valorem property taxes, special assessments, special taxes for any overlapping community facilities districts, and any other governmental fees, charges (other than fees or charges for services such as sewer and trash), taxes, and assessments (which do not include Contractual Impositions) collected by the County on ad valorem tax bills, plus (d) property owner association assessments (but excluding the refuse collection portion of such assessments), and that the CFD Administrator estimates would be levied or imposed on such Unit in such Fiscal Year if the residential dwelling unit thereon or therein had been completed and sold, and was subject to such fees, charges, taxes, and assessments in such Fiscal Year.
“Trustee” means the trustee or fiscal agent under the Indenture. 39 City of Ontario CFD No. 65 8 March 13, 2024
“TTM 20399” means Tentative Tract Map No. 20399, the area of which is located within CFD No. 65.
“Undeveloped Property” means, for each Fiscal Year, all Taxable Property not classified as Developed Property, Final Mapped Property, Taxable Public Property, or Taxable Property Owner Association Property.
“Unit” means an individual single-family detached or attached home, townhome, condominium, apartment, or other residential dwelling unit, including each separate living area within a half-plex, duplex, triplex, fourplex, or other residential structure.

B. ASSIGNMENT TO LAND USE CATEGORIES
Each Fiscal Year, beginning with Fiscal Year 2024-25, all Taxable Property within CFD No. 65 shall be classified as Developed Property, Final Mapped Property, Taxable Public Property, Taxable Property Owner Association Property, or Undeveloped Property, and shall be subject to Special Taxes in accordance with the Rate and Method of Apportionment as determined pursuant to Sections C and D below.

Assessor’s Parcels of Developed Property shall be further classified as: Single Family Property (and further classified as Single Family Attached Property or Single Family Detached Property, as needed) or Other Residential Property (for Special Tax A); Single Family Detached Dwelling Unit, Multiple Family Dwelling Unit, or Gated Community Attached Dwelling Unit (for Special Tax B); or Non-Residential Property. For Special Tax A, Assessor’s Parcels of Single Family Property shall be assigned to Land Use Classes 1 through 8, as listed in Table 1 below based on the Residential Floor Area of the Units on such Assessor’s Parcels. Also for Special Tax A, Other Residential Property and Non-Residential Property shall be assigned to Land Use Classes 9 and 10, respectively.

C. MAXIMUM SPECIAL TAX

1. Special Tax A
At least 30 days prior to the issuance of Bonds, the Assigned Special Tax A on Developed Property (set forth in Table 1 below) shall be analyzed in accordance with and subject to the conditions set forth in this Section C. At such time, CFD No. 65 shall select and engage a Price Point Consultant and the CFD Administrator shall request the Price Point Consultant to prepare a Price Point Study setting forth the Minimum Sale Price of Units within each Land Use Class.

If based upon such Price Point Study the CFD Administrator calculates that the Total Tax Burden, excluding property owner association assessments, applicable to Units within one or more Land Use Classes of Single Family Property to be constructed within CFD No. 65 exceeds 1.95% of the Minimum Sale Price of such Units, the Assigned Special Tax A shall be reduced to the extent necessary to cause the Total Tax Burden, excluding property owner association assessments, 40 City of Ontario CFD No. 65 9 March 13, 2024
that shall apply to Units within such Land Use Class(es) not to exceed 1.95% of the Minimum Sale Price of such Units.

Each Assigned Special Tax A reduction for a Land Use Class shall be calculated by the CFD Administrator separately, and it shall not be required that such reduction be proportionate among Land Use Classes. In connection with any reduction in the Assigned Special Tax A, the Backup Special Tax A shall also be reduced by the CFD Administrator based on the percentage reduction in Maximum Special Tax A revenues within the Tentative Tract Map area(s) where the Assigned Special Tax A reductions occurred. Upon determining the reductions, if any, in the Assigned Special Tax A and Backup Special Tax A required pursuant to this Section C, the CFD Administrator shall complete the Certificate of Modification of Special Tax substantially in the form attached hereto as Exhibit A (the “Certificate of Modification”), shall execute such completed Certificate of Modification, and shall deliver such executed Certificate of Modification to CFD No. 65. Upon receipt thereof, if in satisfactory form, CFD No. 65 shall execute such Certificate of Modification. The reduced Assigned Special Tax A and Backup Special Tax A specified in such Certificate of Modification shall become effective upon the execution of such Certificate of Modification by CFD No. 65.

The Special Tax A reductions required pursuant to this section shall be reflected in an amended notice of Special Tax lien, which CFD No. 65 shall cause to be recorded with the County Recorder as soon as practicable after execution of the Certificate of Modification by CFD No. 65. The reductions in this section apply to Single Family Property, but not to Other Residential Property or NonResidential Property. a. Developed Property
1) Maximum Special Tax A
The Maximum Special Tax A that may be levied in any Fiscal Year for each Assessor’s Parcel classified as Developed Property shall be the greater of (i) the amount derived by application of the Assigned Special Tax A or (ii) the amount derived by application of the Backup Special Tax A. The Maximum Special Tax A shall not increase in future years, other than as calculated pursuant to Section C.1.a.3 below.
2) Assigned Special Tax A
The Assigned Special Tax A that may be levied in any Fiscal Year for each Land Use Class is shown below in Table 1.
41 City of Ontario CFD No. 65 10 March 13, 2024
TABLE 1
ASSIGNED SPECIAL TAX A – DEVELOPED PROPERTY
3) Backup Special Tax A
The Backup Special Tax A shall be $3,701 per Unit for Single Family Property in CFD No. 65. However, if the Expected Residential Lot Count of Single Family Property does not equal 362, and the City has not issued Bonds, then the Backup Special Tax A for Designated Buildable Lots of Single Family Property in CFD No. 65 shall be calculated according to the following formulas:

Backup Special Tax A = $1,339,902  Expected Residential Lot Count for Single Family Property
If any portion of a Final Subdivision Map, or any area expected by CFD No. 65 to become Final Mapped Property – such as the area within TTM 20399, or any other Tentative Tract Map – changes any time after the City has issued Bonds, causing an adjustment to the number of Designated Buildable Lots, then the Backup Special Tax A for all Designated Buildable Lots of Single Family Property subject to the change shall be calculated according to the following steps:

Step 1: Determine the total Backup Special Tax A that
could have been collected from Designated
Buildable Lots of Single Family Property, prior to
Land
Use
Class
Description
Residential
Floor Area
(Square
Footage)
Assigned
Special Tax A
1 Single Family Property < 801 $2,718 per Unit
2 Single Family Property 801 – 1,000 $2,875 per Unit
3 Single Family Property 1,001 – 1,200 $3,188 per Unit
4 Single Family Property 1,201 – 1,400 $3,580 per Unit
5 Single Family Property 1,401 – 1,600 $3,822 per Unit
6 Single Family Property 1,601 – 1,800 $3,909 per Unit
7 Single Family Property 1,801 – 2,000 $4,135 per Unit
8 Single Family Property > 2,000 $4,226 per Unit
9 Other Residential Property $95,803 per Acre
10 Non-Residential Property $95,803 per Acre
42 City of Ontario CFD No. 65 11 March 13, 2024
the Final Subdivision Map or expected Final
Mapped Property change.

Step 2: Divide the amount determined in Step 1 by the
number of Designated Buildable Lots of Single
Family Property that exists after the Final
Subdivision Map or expected Final Mapped
Property change.

Step 3: Apply the amount determined in Step 2 as the
Backup Special Tax A per Unit for Single Family
Property.

The Backup Special Tax A for an Assessor’s Parcel shall not change once an Assessor’s Parcel is classified as Developed Property.
b. Final Mapped Property, Taxable Public Property, Taxable Property Owner Association Property, and Undeveloped Property
The Maximum Special Tax A for Final Mapped Property, Taxable Public Property, Taxable Property Owner Association Property, and Undeveloped Property shall be $95,803 per Acre, and shall not be subject to increase or reduction and, therefore, shall remain the same in every Fiscal Year.

2. Special Tax B
The Maximum Special Tax B for each Assessor’s Parcel classified as Developed Property shall be determined by reference to Table 2 below.

TABLE 2
MAXIMUM SPECIAL TAX B – DEVELOPED PROPERTY
Land Use Class Maximum Special Tax B
Fiscal Year 2024-25
Residential Property
Single Family Detached Dwelling Unit $1,501.46 per Unit Multiple Family Dwelling Unit $1,301.51 per Unit
Gated Community Attached Dwelling Unit $1,091.38 per Unit Non-Residential Property $0.273800 per Sq. Ft.
43 City of Ontario CFD No. 65 12 March 13, 2024
On January 1 of each Fiscal Year, commencing January 1, 2025, the Maximum Special Tax B to be applied in the next Fiscal Year shall be subject to an automatic increase at a rate equal to 4.0% of the amount in effect for the prior Fiscal Year.

3. Multiple Land Use Classes on an Assessor’s Parcel
In some instances an Assessor’s Parcel of Developed Property may contain more than one Land Use Class. The Maximum Special Tax A levied on such Assessor’s Parcel shall be the sum of the Maximum Special Tax A for all Units of Single Family Property and Acres of Other Residential Property and NonResidential Property (based on the pro rata share of Square Footage between Other Residential Property and Non-Residential Property, according to the applicable building permits, Final Subdivision Map, parcel map, condominium plan, or other recorded County map) located on that Assessor’s Parcel. The Maximum Special Tax B levied on such Assessor’s Parcel shall be the sum of the Maximum Special Tax B for all Units of Residential Property and all Square Footage of Non-Residential Property (based on the applicable building permits, Final Subdivision Map, parcel map, condominium plan, or other recorded County map) located on that Assessor’s Parcel.

4. Developed Property Special Tax Obligation
Once an Assessor’s Parcel has been taxed in any Fiscal Year as Developed Property, the Assessor’s Parcel shall continue to be taxed as Developed Property regardless of changes to or expiration of the original building permit, and regardless of revisions to or destruction of the structure that was, or was expected to be, constructed pursuant to the original building permit.

D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX

1. Special Tax A
Each Fiscal Year, beginning with Fiscal Year 2024-25, the CFD Administrator shall determine the Special Tax A Requirement for such Fiscal Year. The Special Tax A shall then be levied as follows:

First: If needed to satisfy the Special Tax A Requirement, Special Tax A shall be levied Proportionately on each Assessor’s Parcel of Developed Property up to 100% of the applicable Assigned Special Tax A;
Second: If additional monies are needed to satisfy the Special Tax A Requirement after the first step has been completed, then Special Tax A shall be levied Proportionately on each Assessor’s Parcel of Final Mapped Property up to 100% of the Maximum Special Tax A for Final Mapped Property;
44 City of Ontario CFD No. 65 13 March 13, 2024
Third: If additional monies are needed to satisfy the Special Tax A Requirement after the first two steps have been completed, then Special Tax A shall be levied Proportionately on each Assessor’s Parcel of Undeveloped Property up to 100% of the Maximum Special Tax A for Undeveloped Property;
Fourth: If additional monies are needed to satisfy the Special Tax A Requirement after the first three steps have been completed, then the levy of Special Tax A on each Assessor’s Parcel of Developed Property whose Maximum Special Tax A is determined through the application of the Backup Special Tax A shall be increased Proportionately from the Assigned Special Tax A up to the Maximum Special Tax A for each such Assessor’s Parcel;
Fifth: If additional monies are needed to satisfy the Special Tax A Requirement after the first four steps have been completed, then Special Tax A shall be levied Proportionately on each Assessor’s Parcel of Taxable Property Owner Association Property up to the Maximum Special Tax A for Taxable Property Owner Association Property; Sixth: If additional monies are needed to satisfy the Special Tax A Requirement after the first five steps have been completed, then Special Tax A shall be levied Proportionately on each Assessor’s Parcel of Taxable Public Property up to the Maximum Special Tax A for Taxable Public Property.

Notwithstanding the above, under no circumstances shall Special Tax A levied in any Fiscal Year on any Assessor’s Parcel of Single Family Property or Other Residential Property for which an occupancy permit for private residential use has been issued be increased as a result of delinquency or default by the owner or owners of any other Assessor’s Parcel or Assessor’s Parcels within CFD No. 65 by more than ten percent above the amount that would have been levied in that Fiscal Year had there never been any such delinquencies or defaults.

2. Special Tax B
Each Fiscal Year, beginning with Fiscal Year 2024-25, the CFD Administrator shall determine the Special Tax B Requirement. The Special Tax B shall then be levied Proportionately on each Assessor’s Parcel of Developed Property up to 100% of the applicable Maximum Special Tax B for such Assessor’s Parcel, until the Special Tax B Requirement is satisfied. However, the Special Tax B levied in any Fiscal Year shall not increase by more than 4.0% of the amount of the Special Tax B levied in the prior Fiscal Year.

E. EXEMPTIONS
No Special Tax shall be levied on up to 7.11 Acres of Property Owner Association Property. Tax-exempt status will be assigned by the CFD Administrator in the chronological order in which property becomes Property Owner Association Property.

Property Owner Association Property or Public Property that is not exempt from the Special Tax A under this section shall be subject to the levy of Special Tax A and shall be 45 City of Ontario CFD No. 65 14 March 13, 2024
taxed Proportionately as part of the fifth or sixth step, respectively, in Section D above, up to 100% of the applicable Maximum Special Tax A for Taxable Property Owner Association Property and Taxable Public Property. No Special Tax A shall be levied in any Fiscal Year on Assessor’s Parcels that have fully prepaid the Special Tax A obligation pursuant to the formula set forth in Section H.

No Special Tax shall be levied on Lower Income Household Welfare Exemption Property; provided, however, that if, in any Fiscal Year, applicable law does not require that Lower Income Household Welfare Exemption Property be exempt from some portion, or all, of the Special Tax, such portion, or all, of the Special Tax shall be levied on such property in accordance with this Rate and Method of Apportionment based on the Land Use Class to which the Assessor’s Parcel is assigned.

F. APPEALS
Any property owner may file a written appeal of the Special Tax with CFD No. 65 claiming that the amount or application of the Special Tax is not correct. The appeal must be filed not later than one calendar year after having paid the Special Tax that is disputed, and the appellant must be current in all payments of Special Taxes. In addition, during the term of the appeal process, all Special Taxes levied must be paid on or before the payment date established when the levy was made.

The appeal must specify the reasons why the appellant claims the Special Tax is in error.

The CFD Administrator shall review the appeal, meet with the appellant if the CFD Administrator deems necessary, and advise the appellant of its determination.

If the property owner disagrees with the CFD Administrator’s decision relative to the appeal, the owner may then file a written appeal with the City Council whose subsequent decision shall be final and binding on all interested parties. If the decision of the CFD Administrator or subsequent decision by the City Council requires the Special Tax to be modified or changed in favor of the property owner, then the CFD Administrator shall determine if sufficient Special Tax revenue is available to make a cash refund. If a cash refund cannot be made, then an adjustment shall be made to credit future Special Tax levy(ies).

This procedure shall be exclusive and its exhaustion by any property owner shall be a condition precedent to filing any legal action by such owner.

G. MANNER OF COLLECTION
The Special Taxes shall be collected in the same manner and at the same time as ordinary ad valorem property taxes; provided, however, that the Special Taxes may be collected in such other manner as the City Council shall determine, including direct billing of affected property owners.
46 City of Ontario CFD No. 65 15 March 13, 2024
H. PREPAYMENT OF SPECIAL TAX A
The following definitions apply to this Section H:
“CFD Public Facilities” means $16,259,000 for each Prepayment Period, or such lower number as determined by the City Council to be sufficient to fund the Facilities and Services to be provided by CFD No. 65.
“Expenditures Fund” means funds or accounts, regardless of their names, that are established to hold moneys that are available to acquire or construct Facilities and to fund Services.
“Future Facilities Costs” means the CFD Public Facilities minus (i) Facilities and Services costs previously paid from the Expenditures Fund during the Prepayment Period in which the prepayment is being made, (ii) moneys currently on deposit in the Expenditures Fund from deposits made during the Prepayment Period in which the prepayment is being made, and (iii) moneys currently on deposit in an escrow fund that are expected to be available to finance Facilities costs. In no event shall the amount of Future Facilities Costs be less than zero.
“Prepayment Period” means one of three periods of time during which a Special Tax prepayment may be made.
“Prepayment Period 1” means July 1, 2024, through June 30, 2058. “Prepayment Period 2” means July 1, 2058, through June 30, 2091. “Prepayment Period 3” means July 1, 2091, through June 30, 2125.

Only Special Tax A may be prepaid; Special Tax B shall continue to be levied on an annual basis on all Developed Property in CFD No. 65.

1. Prepayment in Full
The obligation of an Assessor's Parcel to pay the Special Tax A may be prepaid as described herein, provided that a prepayment may be made only for Assessor’s Parcels for which a building permit for new construction was issued after January 1, 2023, and only if there are no delinquent Special Taxes with respect to such Assessor's Parcel at the time of prepayment. An owner of an Assessor's Parcel intending to prepay the Special Tax A obligation shall provide the CFD Administrator with written notice of intent to prepay. Within 30 days of receipt of such written notice, the CFD Administrator shall notify such owner of the prepayment amount for such Assessor's Parcel. The CFD Administrator may charge a fee for providing this service. Prepayment in any six month period must be made not less than 45 days prior to the next occurring date that notice of redemption of Bonds from the proceeds of such prepayment may be given to the Trustee pursuant to the Indenture.
47 City of Ontario CFD No. 65 16 March 13, 2024
The Special Tax A Prepayment Amount (defined below) shall be calculated as summarized below (capitalized terms as defined below):

Bond Redemption Amount
plus Redemption Premium
plus Future Facilities Amount
plus Defeasance Amount
plus Administrative Fees and Expenses
less Reserve Fund Credit
Total Prepayment Amount
As of the proposed date of prepayment, the Special Tax A Prepayment Amount (defined below) shall be calculated by the CFD Administrator as follows:

Paragraph No.

1. Confirm that no Special Tax delinquencies apply to such Assessor’s Parcel, and determine the Prepayment Period for the proposed prepayment.

2. Compute the Assigned Special Tax A and Backup Special Tax A for the Assessor’s Parcel to be prepaid based on the Developed Property Special Tax A which is, or could be, charged in the current Fiscal Year. For Assessor’s Parcels of Final Mapped Property (for which a building permit has been issued but which is not yet classified as Developed Property) to be prepaid, compute the Assigned Special Tax A and Backup Special Tax A for that Assessor’s Parcel as though it was already designated as Developed Property, based upon the building permit which has already been issued for that Assessor’s Parcel.

3. (a) Divide the Assigned Special Tax A computed pursuant to Paragraph 2 by the total estimated Assigned Special Tax A for CFD No. 65 based on the Developed Property Special Tax A which could be charged in the current Fiscal Year on all expected development through buildout of CFD No. 65, excluding any Assessor’s Parcels which have been prepaid, and
(b) Divide the Backup Special Tax A computed pursuant to Paragraph 2 by the estimated total Backup Special Tax A at buildout of CFD No. 65, excluding any Assessor’s Parcels which have been prepaid.

4. Multiply the larger quotient computed pursuant to Paragraph 3(a) or 3(b) by the Outstanding Bonds to compute the amount of Outstanding Bonds to be retired and prepaid (the “Bond Redemption Amount”).

5. Multiply the Bond Redemption Amount computed pursuant to Paragraph 4 by the applicable redemption premium (e.g., the redemption price minus 100%), if any, on the Outstanding Bonds to be redeemed (the “Redemption Premium”).

6. Compute the Future Facilities Costs for the applicable Prepayment Period. 48 City of Ontario CFD No. 65 17 March 13, 2024

7. Multiply the larger quotient computed pursuant to Paragraph 3(a) or 3(b) by the amount determined pursuant to Paragraph 6 to compute the amount of Future Facilities Costs to be prepaid (the “Future Facilities Amount”).

8. Compute the amount needed to pay interest on the Bond Redemption Amount from the first bond interest and/or principal payment date following the current Fiscal Year until the earliest redemption date for the Outstanding Bonds.

9. Determine the Special Tax A levied on the Assessor’s Parcel in the current Fiscal Year which has not yet been paid.

10. Add the amounts computed pursuant to Paragraphs 8 and 9 to determine the “Defeasance Amount”.

11. Verify the administrative fees and expenses of CFD No. 65, including the costs to compute the prepayment, the costs to invest the prepayment proceeds, the costs to redeem Bonds, and the costs to record any notices to evidence the prepayment and the redemption (the “Administrative Fees and Expenses”).

12. If reserve funds for the Outstanding Bonds, if any, are at or above 100% of the reserve requirement (as defined in the Indenture) on the prepayment date, a reserve fund credit shall be calculated as a reduction in the applicable reserve fund for the Outstanding Bonds to be redeemed pursuant to the prepayment (the “Reserve Fund Credit”). No Reserve Fund Credit shall be granted if reserve funds are below 100% of the reserve requirement on the prepayment date or the redemption date.

13. The Special Tax A prepayment is equal to the sum of the amounts computed pursuant to Paragraphs 4, 5, 7, 10, and 11, less the amount computed pursuant to Paragraph 12 (the “Prepayment Amount”).

14. From the Prepayment Amount, the amounts computed pursuant to Paragraphs 4, 5, 10, and 12 shall be deposited into the appropriate fund as established under the Indenture and be used to retire Outstanding Bonds or make debt service payments. The amount computed pursuant to Paragraph 7 shall be deposited into the Expenditures Fund. The amount computed pursuant to Paragraph 11 shall be retained by CFD No. 65.

The Special Tax A Prepayment Amount may be sufficient to redeem other than a $5,000 increment of Bonds. In such cases, the increment above $5,000, or integral multiple thereof, will be retained in the appropriate fund established under the Indenture to be used with the next prepayment of Bonds or to make debt service payments.

As a result of the payment of the current Fiscal Year’s Special Tax A levy as determined under Paragraph 9 (above), the CFD Administrator shall remove the current Fiscal Year’s Special Tax A levy for such Assessor’s Parcel from the County tax rolls. With respect to any Assessor's Parcel that is prepaid during Prepayment Period 3, the CFD Administrator shall cause a suitable notice to be recorded in compliance with the Act to indicate that 49 City of Ontario CFD No. 65 18 March 13, 2024
Special Tax A has been prepaid and that the obligation of such Assessor's Parcel to pay Special Tax A shall cease.

With respect to Special Tax A for any Assessor’s Parcel that is prepaid during Prepayment Period 1 or Prepayment Period 2, the obligation of such Assessor’s Parcel to pay Special Tax A shall be tolled, or suspended, through the end of such Prepayment Period, but shall resume in the first Fiscal Year of the subsequent Prepayment Period.

The CFD Administrator shall cause a suitable notice to be recorded in compliance with the Act to indicate that Special Tax A has been satisfied for the remainder of the applicable Prepayment Period but has not been permanently satisfied and the obligation to pay Special Tax A will resume in the first Fiscal Year of the Prepayment Period following the Prepayment Period in which the prepayment was made. Once the obligation of an Assessor’s Parcel to pay Special Tax A resumes, Special Tax A for the then applicable Prepayment Period may be prepaid.

Notwithstanding the foregoing, no Special Tax A prepayment shall be allowed unless the amount of Maximum Special Tax A that may be levied on Taxable Property within CFD No. 65 (after excluding 1.86 Acres of Public Property and 3.58 Acres of Property Owner Association Property) both prior to and after the proposed prepayment is at least 1.1 times the maximum annual debt service on all Outstanding Bonds.

2. Prepayment in Part
The Special Tax A on an Assessor’s Parcel for which a building permit for new construction was issued after January 1, 2023, may be partially prepaid. The amount of the prepayment shall be calculated as in Section H.1, except that a partial prepayment shall be calculated by the CFD Administrator according to the following formula:

PP = (PF – AE) x % + AE.

The terms above have the following meaning:

PP = the partial prepayment
PF = the Prepayment Amount (full prepayment) for Special Tax A calculated according to Section H.1
AE = the Administrative Fees and Expenses determined pursuant to paragraph 11 above % = the percentage by which the owner of the Assessor’s Parcel(s) is partially prepaying Special Tax A
The Special Tax A partial prepayment amount must be sufficient to redeem at least a $5,000 increment of Bonds.

The owner of any Assessor’s Parcel who desires such prepayment shall notify the CFD Administrator of such owner’s intent to partially prepay Special Tax A and the percentage by which Special Tax A shall be prepaid. The CFD Administrator shall provide the owner with a statement of the amount required for the partial prepayment of Special Tax A for an Assessor’s Parcel within thirty (30) days of the request and may charge a fee for providing this service. With respect to any Assessor’s Parcel that is 50 City of Ontario CFD No. 65 19 March 13, 2024
partially prepaid, the CFD Administrator shall (i) distribute the remitted prepayment funds according to Section H.1, and (ii) indicate in the records of CFD No. 65 that there has been a partial prepayment of Special Tax A and that a portion of Special Tax A with respect to such Assessor’s Parcel, equal to the outstanding percentage (100% - “%”, as defined above) of the Maximum Special Tax A, shall continue to be levied on such Assessor’s Parcel pursuant to Section D during the Prepayment Period in which the partial prepayment is made.

For partial prepayments made during Prepayment Period 1 or Prepayment Period 2, the full amount of Special Tax A shall resume in the first Fiscal Year of the Prepayment Period following the Prepayment Period in which the partial prepayment was made.

Once the obligation of an Assessor’s Parcel to pay Special Tax A resumes, Special Tax A for the then applicable Prepayment Period may be prepaid.

I. TERM OF SPECIAL TAX
The Fiscal Year after which no further Special Tax A shall be levied or collected is Fiscal Year 2124-2125, except that Special Tax A that was lawfully levied in or before such Fiscal Year and that remains delinquent may be collected in subsequent years. Special Tax B shall continue to be levied indefinitely on an annual basis on all Developed Property in CFD No. 65.
51 EXHIBIT A

CERTIFICATE OF MODIFICATION OF SPECIAL TAX A
(PAGE 1 OF 2)
CITY OF ONTARIO AND CFD NO. 65 CERTIFICATE

1. Pursuant to Section C.1 of the Rate and Method of Apportionment of Special Tax (the “Rate and Method”) for City of Ontario Community Facilities District No. 65 (Falloncrest) (“CFD No. 65”), the Assigned Special Tax A and the Backup Special Tax A for Developed Property within CFD No. 65 has been modified. a. The information in Table 1 relating to Assigned Special Tax A for Developed Property within CFD No. 65, as stated in Section C.1.a.2 of the Rate and Method of Apportionment, has been modified as follows:

TABLE 1
ASSIGNED SPECIAL TAX A – DEVELOPED PROPERTY
Land
Use
Class
Description
Residential
Floor Area
(Square
Footage)
Assigned
Special Tax A
1 Single Family Property < 801 $[ ] per Unit
2 Single Family Property 801 – 1,000 $[ ] per Unit
3 Single Family Property 1,001 – 1,200 $[ ] per Unit
4 Single Family Property 1,201 – 1,400 $[ ] per Unit
5 Single Family Property 1,401 – 1,600 $[ ] per Unit
6 Single Family Property 1,601 – 1,800 $[ ] per Unit
7 Single Family Property 1,801 – 2,000 $[ ] per Unit
8 Single Family Property > 2,000 $[ ] per Unit
9 Other Residential Property $[ ] per Acre
10 Non-Residential Property $[ ] per Acre
52 EXHIBIT A

CERTIFICATE OF MODIFICATION OF SPECIAL TAX A
(PAGE 2 OF 2)
b. The Backup Special Tax for Developed Property, as stated in Section C.1.a.3, shall be modified as follows:

The Backup Special Tax A shall be $[___] per Unit for Single Family Property. However, if the Expected Residential Lot Count of Single Family Property does not equal 362, and the City has not issued Bonds, then the Backup Special Tax A for Designated Buildable Lots of Single Family Property in CFD No. 65 shall be calculated according to the following formulas:

Backup Special Tax A = $[_____]  Expected Residential Lot Count for Single Family Property

2. The Special Tax A for Developed Property may only be modified prior to the first issuance of CFD No. 65 Bonds.

3. Upon execution of this certificate by CFD No. 65, CFD No. 65 shall cause an amended notice of Special Tax lien for CFD No. 65 to be recorded reflecting the modifications set forth herein.

Capitalized undefined terms used herein have the meanings ascribed thereto in the Rate and Method. The modifications set forth in this Certificate have been calculated by the CFD Administrator in accordance with the Rate and Method.

GOODWIN CONSULTING GROUP, INC.

CFD ADMINISTRATOR
By:_________________________________ Date:______________________

The undersigned acknowledges receipt of this Certificate and of the modification of the Assigned Special Tax A and Backup Special Tax A for Developed Property as set forth in this Certificate.

CITY OF ONTARIO
COMMUNITY FACILITIES DISTRICT NO. 65
(FALLONCREST)
By:_________________________________ Date:______________________ 53 4137-0107-8597.3
RESOLUTION NO. ________

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

CALIFORNIA, DECLARING IT NECESSARY FOR CITY OF ONTARIO
COMMUNITY FACILITIES DISTRICT NO. 65 (FALLONCREST) TO

INCUR BONDED INDEBTEDNESS
WHEREAS, the City Council (the “City Council”) of the City of Ontario (the “City”), pursuant to the Mello-Roos Community Facilities Act of 1982 (the “Act”), has this date adopted a resolution entitled “A Resolution of the City Council of the City of Ontario, California, of Intention to Establish a Community Facilities District Proposed to be Named City of Ontario Community Facilities District No. 65 (Falloncrest) and to Authorize the Levy of a Special Tax Therein,” stating its intention to establish City of Ontario Community Facilities District No. 65 (Falloncrest) (the “Community Facilities District”) and to authorize the Community Facilities District to levy a special tax within the Community Facilities District for the purpose of financing certain public facilities (the “Facilities”) and services; and
WHEREAS, the City Council deems it necessary for the Community Facilities District to incur bonded indebtedness;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ontario as follows:

Section 1. The foregoing recitals are true and correct, and the City Council so finds and determines.

Section 2. The City Council declares it necessary for the Community Facilities District to incur bonded indebtedness.

Section 3. The proposed debt will be incurred for the purpose of financing the costs of the Facilities, including all costs and estimated costs incidental to, or connected with, the accomplishment of said purpose, including, but not limited to, such costs and estimated costs as are described in Section 53345.3 of the Act.

Section 4. The maximum amount of the proposed debt is $60,000,000.

Section 5. The City Council hereby fixes Tuesday, May 21, 2024, at 6:30 p.m., or as soon thereafter as the City Council may reach the matter, at 303 East B Street, Ontario, California, as the time and place when and where the City Council will conduct a public hearing on the proposed debt authorization; provided, that, in the event the May 21, 2024 City Council meeting is held via teleconference and/or videoconference only, the means by which the public may observe such public hearing and offer public comment shall be prescribed in the notice and agenda for such City Council meeting.

Section 6. The City Clerk of the City is hereby directed to publish, or cause to be published, a notice of said public hearing one time in a newspaper of general circulation 54 published in the area of the proposed Community Facilities District. Publication of said notice shall be completed at least seven days prior to the date herein fixed for said public hearing. Said notice shall contain all of the information prescribed by Section 53346 of the Act.

Section 7. All actions heretofore taken by the officers, employees and agents of the City with respect to the incurrence of bonded indebtedness by the Community Facilities District, or in connection with or related to any of the matters referred to herein, are hereby approved, confirmed and ratified.

Section 8. The officers, employees and agents of the City are hereby authorized and directed to take all actions and do all things that they, or any of them, may deem necessary or desirable to accomplish the purposes of this Resolution and not inconsistent with the provisions hereof.

Section 9. This Resolution shall take effect immediately upon its adoption.

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

PASSED, APPROVED, AND ADOPTED this 16th day of April, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
55 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 16, 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 16, 2024. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
56 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 APPROVING AN IMPROVEMENT AGREEMENT, IMPROVEMENT SECURITY AND FINAL TRACT MAP NO. 20530, LOCATED SOUTH OF CHINO AVENUE BETWEEN HAVEN AVENUE AND MILL CREEK AVENUE WITHIN THE RICHHAVEN SPECIFIC PLAN

CITY OF ONTARIO
Agenda Report
April 16, 2024
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council adopt a Resolution approving an Improvement Agreement, Improvement Security and Final Tract Map No. 20530, located south of Chino Avenue between Haven Avenue and Mill Creek Avenue within the Rich-Haven Specific Plan.

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. All public infrastructure improvements required for this project will be constructed by the Developer at its sole cost.

BACKGROUND & ANALYSIS: Final Tract Map No. 20530, consisting of 19 residential lots on approximately 9 acres of land, as shown on Exhibit A, has been submitted by the Developer, Landsea Homes. Tentative Tract Map No. 20530 was approved by the Planning Commission on November 22, 2022.

Improvements will include streets, storm drain, sewer main, water main, fiber optic conduits, and parkway landscaping with irrigation. All landscape improvements will be consistent with current City approved drought measures.

The Developer has entered into an Improvement Agreement with the City for Final Tract Map No. 20530 and posted adequate security to ensure construction of the required improvements. This 57 map meets all conditions of the Subdivision Map Act and the Ontario Municipal Code and has been reviewed and approved by the City Engineer.
58 59
RESOLUTION NO. ______

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

CALIFORNIA, APPROVING AN IMPROVEMENT AGREEMENT,
IMPROVEMENT SECURITY AND FINAL TRACT MAP NO. 20530

LOCATED SOUTH OF CHINO AVENUE BETWEEN HAVEN AVENUE
AND MILL CREEK AVENUE WITHIN THE RICH-HAVEN SPECIFIC PLAN.

WHEREAS, Tentative Tract Map No. 20530, submitted for approval by Landsea Homes, was approved by the Planning Commission of the City of Ontario on November 22, 2022; and
WHEREAS, Tentative Tract Map No. 20530 consists of 4 numbered lots and 15 lettered lots, in the City of Ontario, County of San Bernardino, State of California, being a portion of the South half of the Southwest Quarter of Section 12, Township 2 South, Range 7 West, San Bernardino Meridian; and
WHEREAS, to meet the requirements established as prerequisite to final approval of Tract Map No. 20530, Landsea Homes has offered the Improvement Agreement together with good and sufficient improvement security, in conformance with the City Attorney’s approved format, for approval and execution by the City; and WHEREAS, the requirement for the preparation of Covenants, Conditions and Restriction (CC&R’s), approved by the City Attorney’s Office, to ensure the right to mutual ingress and egress and continued maintenance of common facilities by the commonly affected property owners has been deferred to a date that coincides with the recordation of the subject Tract Map; and
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Ontario, California, as follows:

1. That said Improvement Agreement be, and the same is, approved and the City Manager is authorized to execute same on behalf of said City, and the City Clerk is authorized to attest thereto; and

2. That said Improvement Security is accepted as good and sufficient, subject to approval as to form and content thereof by the City Attorney.

3. That Final Tract Map No. 20530 be approved and that the City Clerk be authorized to execute the statement thereon on behalf of said City.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.
60 PASSED, APPROVED, AND ADOPTED this 16th day of April, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
61 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 16, 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 16, 2024. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
62 Department: Economic Development
Prepared By: Karla Tavera
Staff Member Presenting: Jennifer McLain
Hiramoto, Economic Development Director
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 5
SUBJECT: A LEASE AGREEMENT WITH FLETCHER JONES MERCEDES BENZ OF ONTARIO

CITY OF ONTARIO
Agenda Report
April 16, 2024
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council authorize City Manager or his designee to execute a Lease Agreement between the City and Fletcher Jones Mercedes Benz of Ontario ("Fletcher Jones") related to upgrades to their existing LED sign.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
Focus Resources in Ontario's Commercial and Residential Neighborhoods FISCAL IMPACT: The City will pay Fletcher Jones 50% of the total cost of sign upgrades, which will be a not-to-exceed amount of $248,656. Appropriations in the General Fund for the sign upgrades will be included in the Fiscal Year 2024-25 Proposed Budget.

BACKGROUND & ANALYSIS: Mercedes-Benz of Ontario, a Fletcher Jones Company, located at 3787 E. Guasti Road, is looking to upgrade its existing LED Digital Sign. The upgrades will include new paint and replacement of internal illumination with new LED's, along with maintenance of the signs pole covers. Staff recommends that the City of Ontario (City) participate in covering half of the cost of the sign upgrade by executing a Lease Agreement (Agreement). In return, the City will have the right to use 15% of the sign's operating time each hour for City messaging and content, such as events and announcements, and 20% during times of emergency.

The Agreement will be valid for 10 years, and the total cost to the City would amount to no more than $248,656. The City's participation in this Agreement may result in increased auto sales, an important element to the City's General Fund, as well as provide a public service by granting the City the right to advertise on the sign along the I-10 Freeway, which sees 270,000 vehicles daily. 63 SALE AGREEMENT

THIS SALE AGREEMENT (the "Agreement") dated this 27th day of February 2024 by and between Electra-Media, Inc. of 4737 W. 156th Street Lawndale, CA 90260 (the "Seller") AND Fletcher Jones Mercedes Benz of Ontario 1031 Central Ave., 3787 E. Guasti Rd., Ontario, CA 91761 (the "Buyer"). IN CONSIDERATION OF THE COVENANTS and agreements contained in this Sale Agreement the parties to this Agreement agree as follows:

1. Sale of Goods: The Seller will sell and deliver to the Buyer the following goods, and perform the below services (the "Goods"):
a. Digital Sign Upgrade as depicted in Exhibit A and attached and incorporated hereto. Includes entitlement and permit facilitation (see permits below) and project management services. Includes five (5) year Daktronics factory warranty on parts for 10mm, 11,000 Nits, LED displays. Includes new paint, replacing internal illumination of ID cabinet with new white LEDs, and power- wash alucabond pole covers.

2. Purchase Price: The Buyer will accept the Goods and pay for the Goods with the sum of $497,312.00 (the "Purchase Price"), as according to the payment terms as follows:
a. A Down Payment of $248,656.00 upon building permit from Fletcher Jones Mercedes Benz of Ontario b. A Balance Payment of $248,656.00 upon turn on of LED Displays from City of Ontario (Prevailing Wage: Price Includes prevailing wages on on-site labor)

3. Delivery & Completion: Estimated at 90 to 120 days from date of down payment and permit approval.

4. Maintenance Contract: $765.00 per month. Includes all labor and crane labor for monthly service to change out LED modules, power supplies, interface cards, line drivers, DVI cards, transformers, fuses, rectifier boards, modem, controller, software, etc., along with preventative maintenance calls once per month over and above emergency weekday calls.

5. Programming Service Agreement: $310.00 per month. which includes daily updates, unlimited changes, graphic design of frames with proofs, Internet downloads, e-mail confirmations, holiday graphics, and weekly frame reviews. All monitoring, scheduling, and programming of city PSA messages.

6. Permits: Advance permit fee of $10,000 to be paid to EMI upon signing. Actual cost of City application fees, planning and building permit fees are to be billed separately if they exceed $10,000. Any remaining money not spent to be refunded.

7. Exclusions: Buyer to supply sufficient electrical to base of sign and Seller shall connect new electronic components to provided electrical. Seller to provide all power requirements to Buyer (Note: Existing power should be sufficient and will be confirmed by Seller).

8. Terms & Conditions: Terms and conditions for this Agreement can be found at https://www.emisigns.com/terms-conditions and are incorporated herein.

9. Loan Option: 0 Down, 84 months at 7.9% interest rate, $7,726/month (After 50% City Funding $3,863/month).

10. Contingency: Agreement contingent upon EMI obtaining City Funding for 50% of total cost. Following City Funding approval, buyer to approve final terms, conditions, and overall cost.

IN WITNESS WHEREOF the parties have executed this Sales Agreement on this 27th day of February 2024. 64 FLETCHER JONES

MERCEDES
3787 E. Guasti Rd.

Ontario, CA 91761
Note: The colors depicted on this rendering
may not match actual colors used on the
finished display. Please refer to the detail
drawing for the approved color specifications.

Note: The cost of providing electrical wiring
to the sign area, all required permits and all
special inspections are not included in this
sign proposal.

Note: The proportion of signs shown on
building and landscape area photos is an
approximate representation.

Note: This sign is intended to be installed in
accordance with the requirements of Article
600 of the National Electrical Code and/or
other applicable local codes. This includes
proper grounding and bonding of the sign.

SHEET:
1 KA 03/08/24
Adjust call-outs and rendering
DESIGNER: DATE:

LEVEL 2
ART R1 OPY-50679
DESIGN NUMBER:

ACCOUNT EXECUTIVE:

DESIGNER: DATE:

DAVE JONES
K. ALCANTARA 02/28/24
REVISIONS:
10235 Bellegrave Avenue
Jurupa Valley, CA 91752
(866) 959-3726

LOS ANGELES
California Region
CALIFORNIA CONTRACTOR LICENSE NO. 980698
PROJECT NAME / LOCATION:
© YESCO LLC This drawing was created to assist in
visualizing our proposal. The original ideas herein are the property of YESCO LLC. Permission to copy or revise this drawing can only be obtained through a written agreement with YESCO LLC. See your sales representative or call the nearest office of YESCO LLC. EMI ELECTRA-MEDIA, INC.

LAWNDALE - CALIFORNIA
(310) 725-0816
CV
65 66

FLETCHER JONES

MERCEDES
3787 E. Guasti Rd.

Ontario, CA 91761
Note: The colors depicted on this rendering
may not match actual colors used on the
finished display. Please refer to the detail
drawing for the approved color specifications.

Note: The cost of providing electrical wiring
to the sign area, all required permits and all
special inspections are not included in this
sign proposal.

Note: The proportion of signs shown on
building and landscape area photos is an
approximate representation.

Note: This sign is intended to be installed in
accordance with the requirements of Article
600 of the National Electrical Code and/or
other applicable local codes. This includes
proper grounding and bonding of the sign.

SHEET:
1 KA 03/08/24
Adjust call-outs and rendering
DESIGNER: DATE:

LEVEL 2
ART R1 OPY-50679
DESIGN NUMBER:

ACCOUNT EXECUTIVE:

DESIGNER: DATE:

DAVE JONES
K. ALCANTARA 02/28/24
REVISIONS:
10235 Bellegrave Avenue
Jurupa Valley, CA 91752
(866) 959-3726

LOS ANGELES
California Region
CALIFORNIA CONTRACTOR LICENSE NO. 980698
PROJECT NAME / LOCATION:
© YESCO LLC This drawing was created to assist in
visualizing our proposal. The original ideas herein are the property of YESCO LLC. Permission to copy or revise this drawing can only be obtained through a written agreement with YESCO LLC. See your sales representative or call the nearest office of YESCO LLC. EMI ELECTRA-MEDIA, INC.

LAWNDALE - CALIFORNIA
(310) 725-0816

2.0 67
46700.00320\42142585.1
1 LEASE AGREEMENT
This LEASE AGREEMENT ("Agreement") is dated as of the _____ day of April, 2024 ("Effective Date") by and between the CITY OF ONTARIO, a California municipal corporation ("City") and FLETCHER JONES MERCEDES BENZ OF ONTARIO, operating at 3787 E. Guasti Road, Ontario, CA 91761 ("Auto Center") (each individually a “Party”, and collectively the “Parties”), and is made with reference to the following facts:

RECITALS
A. Auto Center owns and operates one electronic LED sign (“LED Sign”) on certain real property located at 3787 E. Guasti Road, Ontario, CA 91761 (“Property”), which Property is further described in Exhibit “A” attached to this Agreement and incorporated herein by this reference.

B. Auto Center desires, and City agrees, for Auto Center to refurbish the LED Sign on the Property, which refurbishing will include installation of new LED sign panels and other related work, as further described in Exhibit “B” attached to this Agreement and incorporated herein by this reference.

C. Auto Center anticipates the costs to refurbish the LED Sign is approximately FOUR

HUNDRED NINETY-SEVEN THOUSAND THREE HUNDRED TWELVE DOLLARS ($497,312).

D. Auto Center and City each desire to pay a portion of the cost to refurbish the LED Sign, upon completion and in consideration for City’s payment of an amount not to exceed TWO

HUNDRED FORTY-EIGHT THOUSAND SIX HUNDRED FIFTY-SIX DOLLARS ($248,656) or one-half of the Actual Cost (as defined below) to refurbish the LED Sign, whichever is less, City will obtain a leasehold interest to display certain messages as provided for hereunder on the LED Sign. The City shall not be responsible for any applicable permit fees or on-going charges such as maintenance contract charges, programming service agreement charges, or any financing charges incurred by Auto Center.

AGREEMENT

NOW, THEREFORE, IN CONSIDERATION OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, CITY AND AUTO CENTER AGREE, AS FOLLOWS:

1. Recitals. The Recitals above are true and correct and are hereby incorporated as part of this Agreement.

2. Lease. For a period of ten (10) years from the filing of a Notice of Completion for the refurbishment of the LED Sign (the "Term"), Auto Center hereby leases to the City, and City hereby leases from Auto Center, fifteen percent (15%) of the LED Sign’s operating time each hour ("City Operating Time") for purposes of displaying the City’s Permitted Messages (as defined in Section 4 below) prepared by City, which message content shall not be subject to edit or 68 46700.00320\42142585.1
2 modification by Auto Center (“Lease”). Additionally, the City has the option to increase City’s Lease usage by five percent (5%) (“Emergency Operating Time”) for a total of twenty percent (20%) for each hour in the event of and for the duration of an emergency pursuant to Section 2.1 below. Upon the expiration of the Term, unless extended by mutual written agreement of the Parties, this Agreement shall automatically terminate and no additional instrument, consent or action by either Party shall be required to terminate this Agreement. Upon the termination of this Agreement, the City shall execute any document and take any action as may be reasonably necessary to evidence such termination.

2.1 EDIS Service Messages. In addition to City Operating Time the City may elect to initiate Emergency Operating Time for an additional five percent (5%) of the LED Signs operating time each hour to publish messages from the State of California's Emergency Digital Information Service ("EDIS") and/or local emergencies as may be declared by the City Council. The Emergency Operating Time is separate and in addition to City Operating Time and in no event shall be deducted from City Operating Time. Auto Center agrees to work cooperatively and in good faith with the City by providing reasonable technical assistance in the event that the City desires to publish EDIS messages and/or City messages during the Emergency Operating Time.

3. Consideration. In consideration for the Lease, and subject to the City's confirmation that the LED Sign is in conformance with (i) the sign panel as described in the attached proposal; (ii) all Regulations, as defined herein below, City shall pay to the Auto Center the lesser amount of onehalf of the Actual Costs to refurbish the LED Sign or TWO HUNDRED FORTY-EIGHT THOUSAND SIX HUNDRED FIFTY-SIX DOLLARS ($248,656) (“City Payment”), which shall be paid in one lump sum no later than forty-five (45) days after filing of the Notice of Completion. “Actual Costs” shall mean the direct cost to refurbish the LED Sign, including, without limitation, any payments to a third party licensed contractor to refurbish the LED Sign, but excluding Auto Center overhead and/or profit, and any applicable permit fees or on-going charges such as maintenance contract charges, programming service agreement charges, or any financing charges incurred by Auto Center.

4. City Use of LED Sign. The LED Sign shall be operative 5 am to Midnight every calendar day of each year during the Term, except when inoperative due to mechanical or electrical failure and/or required maintenance. The City shall be responsible for providing notice of the City's desired message content for the LED Sign to Auto Center or its designee at least seven (7) business days in advance of the date and time for publication ("Notice of Content"), except in the case of an emergency; provided, however, that the City’s message content shall only pertain to (i) City sponsored events, (ii) events held at City facilities, (iii) City recreation programs, or (iv) public service announcements (including EDIS messages) as determined at the City’s sole discretion; and provided further that no City message content shall relate to any auto sales, auto services or auto products (the message content permitted hereunder is referred to herein as “Permitted Messages”).

If the Notice of Content is timely provided by City, Auto Center shall endeavor to provide timely publication of the Permitted Messages at the City designated date, time and period of publication ("Publication Time"), subject to (i) Auto Center's consent to the Publication Time, which shall not be unreasonably withheld in light of the City's targeted audience and purposes for publication, and (ii) Auto Center’s determination that the message content contained in the Notice of Content are Permitted Messages. In the event that Auto Center does not consent to the City's proposed Publication Time or the message content, Auto Center shall provide written notice to the City, stating the reasons for withholding consent ("Notice of Refusal"), within three (3) business days of receiving the City's Notice of Content.
69 46700.00320\42142585.1
3 5. Maintenance and Repair. Auto Center shall maintain the LED Sign in good and operable condition during the Term and any authorized extension thereto. City shall have no obligation to maintain and/or repair, or cause the maintenance and/or repair of, the LED Sign. Any period during which the LED Sign is inoperative, including any inoperative periods during maintenance and/or repair, shall not be considered as City Operating Time.

6. Installation, Construction and Removal. City shall bear no responsibility for installation, construction, and/or removal of the LED Sign. Auto Center shall be responsible for obtaining and/or complying with all regulations, approvals and/or permits required by any government agency having jurisdiction therefore ("Required Approvals"), including any permits and/or regulations required by the Outdoor Advertising Act (California Business and Professions Code sections 5200-5231). Auto Center understands and agrees that the City's approval of this Agreement shall not constitute a Required Approval and Auto Center's failure to obtain all Required Approvals shall constitute a default hereunder.

7. Costs and Expenses. Auto Center shall be responsible for installing and/or providing all utility services for operation of the LED Sign in accordance with this Agreement. Except for the City Payment, City shall not be responsible for any costs or expenses associated with the LED Sign or the surrounding property including, without limitation, installing and/or providing utility services for operation of the LED Sign and any and all real or personal property taxes and other charges (including any increase caused by a change in the tax rate or by a change in assessed valuation) of any description levied or assessed on or against the Properties or the LED Sign.

8. Content. Except for the Content granted to the City in Section 4, Content on LED Sign shall be limited to on premise advertising of Auto Center auto dealers, and their products and services located at 3787 E. Guasti Road, Ontario, CA 91761.

9. Assignment.

9.1 Assignment by Auto Center. Auto Center shall not assign any rights under this Agreement to any individual, partnership, limited partnership, trust, estate, association, corporation, limited liability company, or other entity, domestic or foreign (collectively, “Person”) without the prior written consent of the City or authorized designee. In the event that Auto Center is permitted to assign this Agreement (or any portion hereof), the City may require the assignee to enter into an assignment and assumption agreement.

9.2 Assignment by City. City shall not assign, license, lease, sell, or otherwise transfer any rights under this Agreement to any Person. Without limiting the generality of the forgoing, this section 9.2 shall be deemed to prohibit City from, in any manner, (i) assigning, licensing, leasing, selling or otherwise transferring the City Operating Time, and any portion thereof, to any Person; and (ii) including in any Notice of Content any message content prepared or requested by any Person other than the Parties to this Agreement or for which the City will receive any consideration of any kind whatsoever from any Person other than the Parties to this Agreement.

10. Indemnification.

10.1 Auto Center shall defend, indemnify and hold harmless (collectively, "Indemnify") the City and its officers, employees, contractors, representatives, and agents (collectively, "City Indemnitees") from and against all claims, liability, loss, damage, costs or expenses (including attorney’s fees and court costs) (collectively, "Claims") arising from the acts or omissions of Auto 70 46700.00320\42142585.1
4 Center, its officers, employees, contractors, representatives, and agents (collectively, "Auto Center Indemnitors") in connection with the Auto Center’s use, repair, maintenance, and refurbishing of the LED Sign; provided, however, that Auto Center shall have no duty to Indemnify the City Indemnitees against any Claims arising from any act or omission of the City Indemnities.

10.2 Auto Center’s insurance or indemnification obligations under this Agreement are independent of each other and shall not in any way satisfy restrict, limit or modify the other obligation.

10.3 The obligation of Auto Center to Indemnify the City pursuant to this Agreement shall survive the termination of this Agreement, until any and all actual or prospective claims regarding any matter subject to such obligation to Indemnify the City pursuant to this Agreement are fully, finally, absolutely and completely barred by applicable statutes of limitations.

11. Insurance. During the Term, and without diminishing its responsibilities to Indemnify the City Indemnitees, Auto Center shall obtain and maintain the following insurance coverage:

11.1 Liability Insurance. Commercial general liability insurance insuring against claims for bodily injury, personal injury, death or property damage occurring upon, on or about the LED Sign at least as broad as Insurance Services Office Occurrence Form CG0001, with a minimum liability limit of Two Million Dollars ($2,000,000) for any one occurrence and Four Million Dollars ($4,000,000) aggregate.

11.2 Property Insurance. Insurance providing coverage for the LED Sign insuring against loss, damage, or destruction by fire or other hazards encompassed under the broadest form of property insurance coverage then customarily used for like properties in San Bernardino County, in an amount equal to one hundred percent (100%) of the replacement value (without deduction for depreciation) of the LED Sign (excluding excavations and foundations) and in any event sufficient to avoid coinsurance and with no co-insurance penalty provision, with “ordinance or law” coverage. To the extent customary for like properties in San Bernardino County at the time, such insurance shall include an “increased cost of construction” endorsement and an endorsement covering demolition and cost of debris removal.

11.3 Auto Center may provide any insurance required hereunder through a “blanket” or “umbrella” insurance policy. All insurance obtained and maintained by Auto Center in satisfaction of the requirements of this Agreement shall be fully paid for and non-assessable. The Property Insurance policy shall name City as a “loss payee.” The Liability Insurance policy shall name the City Indemnities as “additional insured.” The coverage afforded to the City Indemnities shall be at least as broad as that afforded to Auto Center and may not contain any terms, conditions, exclusions, or limitations applicable to the City Indemnities that do not apply to Auto Center. Any insurance or selfinsurance maintained by the City Indemnities shall be excess of all insurance required to be maintained by Auto Center under this Agreement and shall not contribute with any insurance required to be maintained by Auto Center under this Agreement. Auto Center shall furnish, or cause to be furnished, to the City evidence of the insurance required to be maintained by Auto Center under this Agreement.

12. Compliance with Law. Auto Center shall erect, re-erect, construct, enlarge, alter, repair, move, improve, convert, equip, use, operate, and/or maintain the LED Sign in compliance with all applicable laws, rules and regulations, including, but not limited to, all applicable federal and state labor laws (collectively, "Regulations"). Auto Center hereby expressly acknowledges and agrees 71 46700.00320\42142585.1
5 that City has never previously affirmatively represented to Auto Center or its contractor for the LED Sign, in writing or otherwise, in a call for bids or otherwise, that the work to be covered by the bid or contract for installation of the LED Sign is not a "public work," as defined in Section 1720 of the Labor Code. Auto Center hereby agrees that Auto Center shall have the obligation to provide any and all disclosures, representations, statements, rebidding, and/or identifications which may be required by Labor Code Sections 1726 and 1781, as the same may be enacted, adopted or amended from time to time, or any other provision of law. Auto Center hereby agrees that Auto Center shall have the obligation to provide and maintain any and all bonds to secure the payment of contractors (including the payment of wages to workers performing any public work) which may be required by Labor Code Section 1781 as the same may be enacted, adopted or amended from time to time, or any other provision of law. Auto Center shall defend, hold harmless and indemnify the City and its respective officials, officers, employees, contractors and agents, from and against any and all loss, liability, damage, claim, cost, expense, and/or "increased costs" (including labor costs, penalties, reasonable attorney’s fees, court and litigation costs, and fees of expert witnesses) which, in connection with the refurbishing of the LED Sign, including, without limitation, any and all public works (as defined by applicable law), results or arises in any way from any of the following: (l) the noncompliance by Auto Center of any applicable local, state and/or federal law, including, without limitation, any applicable federal and/or state labor laws (including, without limitation, if applicable, the requirement to pay state prevailing wages); (2) the implementation of Sections 1726 and 1781 of the Labor Code, as the same may be enacted, adopted or amended from time to time, or any other similar law; (3) failure by Auto Center to provide any required disclosure representation, statement, rebidding and/or identification which may be required by Labor Code Sections 1726 and 1781, as the same may be enacted, adopted or amended from time to time, or any other provision of law; and/or (4) failure by Auto Center to provide and maintain any and all bonds to secure the payment of contractors (including the payment of wages to workers performing any public work) which may be required by Labor Code Section 1781, as the same may be enacted, adopted or amended from time to time, or any other provision of law. It is agreed by the Parties that, in connection with the refurbishing of the LED Sign, including, without limitation, any public work (as defined by applicable law), Auto Center shall bear all risk of payment or non-payment of state prevailing wages and/or the implementation of Labor Code Sections 1726 and 1781, as the same may be enacted, adopted or amended from time to time, and/or any other provision of law. "Increased costs" as used in this Section shall have the meaning ascribed to it in Labor Code Section 1781, as the same may be enacted, adopted or amended from time to time.

13. No Encumbrances. Auto Center shall pay any and all mechanics', materialmen's, contractors' or subcontractors' liens or any claim for damage arising from Auto Center's use of the LED Signs.

14. Notices. Any notice to be given or other document to be delivered by either Party to the other may be delivered in person or may be deposited in the United States mail, with first class postage prepaid, and addressed as follows:

Auto Center: Fletcher Jones Mercedes Benz of Ontario
3787 E. Guasti Road
Ontario, CA 91761
Attn: Keith May
72 46700.00320\42142585.1
6 With a Copy to: Fletcher Jones Management Group
7300 West Sahara Avenue
Las Vegas, NV 89117
Attn: Shawn Dettrey, CFO
City: City of Ontario
City Hall
303 East “B” Street
Ontario, CA 91764
Attn: Scott Ochoa, City Manager
With a Copy to: Best Best & Krieger LLP
2855 E. Guasti Road, Suite 400
Ontario, CA 91761
Attn: Ruben Duran, City Attorney

15. City Default. Failure or delay by City to perform or comply with any term or provision of this Agreement constitutes a default under this Agreement. In the event of any failure or delay by City to make payment when due, Auto Center may immediately seek any available remedy. With respect to any other default, the following shall apply: Auto Center shall give written notice of default to the City in the event of such default by City, specifying the default complained of by Auto Center; If the default is reasonably capable of being cured within thirty (30) days after such notice is received or deemed received, City shall have such period to effect a cure prior to exercise of remedies by Auto Center; If the default is such that it is not reasonably capable of being cured within thirty (30) days, and City (a) initiates corrective action within said 30-day period, and (b) diligently, continually, and in good faith works to effect a cure as soon as possible, then City shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by Auto Center; provided, however, in no event shall Auto Center be precluded from exercising remedies if the event of default is not cured within ninety (90) days or Auto Center's rights under this Agreement or otherwise become or are about to become materially jeopardized by any failure to cure a default. In the event that City fails to cure a default (other than any failure or delay by City to make payment when due) in accordance with the provisions of this Section 15, Auto Center may exercise any or all of the following remedies: (i) institute a legal action to seek specific performance of City’s obligations under this Agreement; or (ii) terminate this Agreement.

16. Auto Center Default. Failure or delay by Auto Center to perform or comply with any term or provision of this Agreement constitutes a default under this Agreement. City shall give written notice of default to Auto Center, specifying the default complained of by City. If the default is reasonably capable of being cured within thirty (30) days after such notice is received or deemed received, Auto Center shall have such period to effect a cure prior to exercise of remedies by the City. If the default is such that it is not reasonably capable of being cured within thirty (30) days, and Auto Center (a) initiates corrective action within said 30-day period, and (b) diligently, continually, and in good faith works to effect a cure as soon as possible, then Auto Center shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by City; provided, however, in no event shall City be precluded from exercising remedies if the event of default is not cured within ninety (90) days or City's rights under this Agreement or otherwise 73 46700.00320\42142585.1
7 become or are about to become materially jeopardized by any failure to cure a default. In the event that Auto Center fails to cure a default in accordance with the provisions of this Section 16, City may exercise any or all of the following remedies: (i) institute a legal action to seek specific performance of Auto Center’s obligations under this Agreement; or (ii) terminate this Agreement. Such remedies shall be in addition all other applicable legal and equitable remedies available to the City.

17. Waiver of Certain Damages. The Parties hereby agree to waive the right to lost profits, speculative, consequential, special and punitive damages.

18. Auto Center's Duty of Restoration. Auto Center shall be responsible for the restoration of the LED Sign in accordance with the damage and destruction clauses in this Section 18.

18.1 In case of any damage to or destruction of the LED Sign, or any part thereof, Auto Center shall commence the restoration, replacement or rebuilding of the LED Sign with such alterations and additions as may be approved by the City Manager (such restoration, replacement, rebuilding alterations and additions, together with any temporary repairs and property protection pending completion of the work being herein called "Restoration") within thirty (30) days of such damage or destruction or such longer time as may be reasonably approved, in writing, by the City Manager, plus any additional period reasonably determined by the City Manager to be required to obtain any Net Insurance Proceeds, as hereinafter defined, to be used to pay all or a portion of the cost of such Restoration, and shall complete such Restoration within a reasonable period of time thereafter. As used herein, the term "Net Insurance Proceeds" means the gross insurance proceeds paid by an insurer to Auto Center for loss or damage to the LED Sign, less any and all costs and expenses (including, but not limited to reasonable attorney’s fees) incurred to recover said proceeds.

Auto Center agrees to promptly commence and prosecute to completion the settlement of insurance proceeds with respect to any event of damage or destruction of the LED Sign.

18.2 Auto Center agrees that notwithstanding any other provision of this Agreement, upon any event of damage to or destruction of the LED Sign, Auto Center shall, at its sole cost and expense, immediately take or cause to be taken such actions and to complete such work as is necessary to reasonably minimize further damage to the LED Sign pending the ultimate disposition of the LED Sign.

18.3 Insurance proceeds which are received on account of any damage to or destruction of the LED Sign, or any portion thereof (less the costs, fees and expenses incurred in the collection thereof, including without limitation attorney's fees and expenses) shall be applied as follows:

1. Within a reasonable time and in any event within 180 days after the damage to or destruction of the LED Sign, Auto Center shall furnish, or cause to be furnished to City evidence reasonably satisfactory to City (a) of the total cost of Restoration of the damaged or destroyed LED Sign and (b) that the total amount of money available will, when added to the Net Insurance Proceeds received and available to pay for the Restoration, be sufficient to pay the cost of such Restoration.

2. Net Insurance Proceeds received on account of any damage to or destruction of the LED Sign, or any part thereof, shall be paid to Auto Center or as Auto Center may 74 46700.00320\42142585.1
8 direct from time to time, as Restoration progresses, solely to pay or reimburse Auto Center for the cost of Restoration.

19. City Contract Administration and Implementation. City shall implement this Agreement through its City Manager. The City Manager is hereby authorized by the City to enter into agreements and sign documents referenced in this Agreement or reasonably required to implement this Agreement on behalf of the City Council, issue approvals, interpretations or waivers and enter into amendments to this Agreement on behalf of City. All other actions shall require the consideration and approval of the City Council, unless expressly provided otherwise by action of the City Council.

20. Further Documents. The Parties hereby agree to execute such other documents and to take such other action as may be reasonably necessary to further the purposes of this Agreement.

21. Time of the Essence. Time is of the essence in this Agreement.

22. Governing Law and Venue. This Agreement shall be governed by, interpreted under, and construed and enforced in accordance with the laws of the State of California. The Parties each acknowledge and agree that this Agreement is entered into and is to be fully performed in the City of Ontario, County of San Bernardino, State of California, and that all legal actions arising from this Agreement shall be filed in the Superior Court of the State of California in and for the County of San Bernardino, California, or the United States District Court with jurisdiction in the County of San Bernardino, California.

23. No Limitation on City Authority. Nothing in this Agreement shall be deemed to limit, modify or abridge the governmental police power or other legal authority (whether direct or delegated) of City regarding the Property, the LED Sign, or the Auto Center.

24. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.

25. Third Party Beneficiaries. The Parties to this Agreement acknowledge and agree that the provisions of this Agreement are for the sole benefit of City and Auto Center, and not for the benefit, directly or indirectly, of any other person or entity.

26. Severance. If any provision of this Agreement is determined by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision will be deemed to be severed and deleted from this Agreement as a whole and neither such provision, nor its severance and deletion shall in any way affect the validity of the remaining provisions of this Agreement.

27. Counterparts. This Agreement may be executed in counterparts and when so executed, each such counterpart will constitute an original document and such counterparts will constitute one and the same agreement.
75 46700.00320\42142585.1
9 [SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the City and Auto Center have executed and entered into this Agreement as of the date first written above.

CITY:

CITY OF ONTARIO,
a California municipal corporation
By:

Scott Ochoa
City Manager
Attest:

By:

City Clerk
Approved as to form:

Best Best & Krieger LLP
By:

City Attorney
AUTO CENTER:

FLETCHER JONES MERCEDES BENZ OF

ONTARIO
By:

Name:

Title:

By:

Name:

Title:
76 46700.00320\42142585.1
10 EXHIBIT “A”
TO

LEASE AGREEMENT
(Auto Center)
Property Description
77 46700.00320\42142585.1
11 EXHIBIT “B”
TO

LEASE AGREEMENT
(Auto Center)
Sign Proposal
78 Department: Community Improvement
Prepared By: Douglas J Sorel
Staff Member Presenting: Scott Murphy,
Executive Director Community Development
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 6
SUBJECT: A RESOLUTION FOR PLACEMENT OF SPECIAL ASSESSMENTS ON THE SAN

BERNARDINO COUNTY TAX ROLLS

CITY OF ONTARIO
Agenda Report
April 16, 2024
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council adopt a Resolution for recovery of fees and costs incurred in abating property and dangerous building violations, as well as administrative citations and civil penalties associated with property maintenance violations and placing assessments on the San Bernardino County Tax Rolls.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Focus Resources in Ontario's Commercial and Residential Neighborhoods FISCAL IMPACT: The levy of special assessments will result in the recovery of $95,264 in costs that the City has expended for inspection or abatement of property violations, as well as the collection of $115,910 associated with civil penalties and/or fines for continued violations, for a total of $211,174 related to 110 parcels. When received, these reimbursements will be deposited into the General Fund. The special assessment revenue is included in the Fiscal Year 2023-24 Adopted Budget.

BACKGROUND & ANALYSIS: As a result of Community Improvement activities, the costs for abatement of property and dangerous building violations are included in the Fiscal Year 2023-24 Adopted Budget. Additionally, the City has established administrative citations and fines for property maintenance violations and fees and penalties associated with the Systematic Health and Safety Inspection Program, Abandoned and Distressed Property Program, and Weed and Refuse Abatement Program. These costs, fines, fees, and penalties are recovered through placement of special tax assessments upon the properties. The placement of special assessments and collection of revenue is done under Ordinance 3046, Property Appearance (Title 5, Chapter 22 of the Ontario Municipal Code); Chapter 9 of the Uniform Code for the Abatement of Dangerous Buildings; and Ordinance 2920 for civil penalties for continued violations of the Ontario Municipal Code and fines associated with administrative citations (Title 1, Chapters 2 and 5 of the Ontario Municipal Code).

The City and County currently have a contractual agreement regarding the implementation of special assessments; however, a Resolution authorizing the placement of the specific assessments is required. During this assessment cycle, the Community Improvement Department has billed 79 property owners for: the abatement of violations; the issuance of fines associated with administrative citation; the issuance of fees and penalties associated with the Systematic Health and Safety Inspection Program; the issuance of registration fees and civil penalties associated with the Abandoned and Distressed Property Program; the issuance of notice and re-inspection fees; and, civil penalties for the Weed and Refuse Abatement Program on 206 parcels. Of these, there are remaining amounts due on 110 parcels. Attached are itemized accounts of: 1) costs associated with inspection or abatement as shown in Exhibit A of the Resolution; 2) civil penalties and/or fines for continued violations as shown in Exhibit B of the Resolution; and 3) total amounts per parcel as shown in Exhibit C of the Resolution. All affected property owners were given notice of the imposition of special assessments via certified mail as provided in Ontario Municipal Code Section 1-4.05(a) and have either not requested an appeal or have exhausted the appellate procedure in Ontario Municipal Code Section 1-4.05(b).
80 RESOLUTION NO. ________

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

CALIFORNIA, ADOPTING A REPORT REQUESTING THE PLACEMENT

OF SPECIAL ASSESSMENTS ON PROPERTY TAX BILLS FOR CIVIL

PENALTIES OR RECOVERY OF COSTS INCURRED FOR ABATEMENT
OF VIOLATIONS OF CITY CODES AND ORDINANCES.

WHEREAS, Ordinance No. 3046, Property Appearance (Title 5, Chapter 22, of the Ontario Municipal Code) and Chapter 9 of the Uniform Code for the Abatement of Dangerous Buildings provide for the abatement of property nuisances by repair, rehabilitation, demolition or removal; and
WHEREAS, under Resolution No. 94-112, Resolution No. ORA-499, and the Cooperation and Reimbursement Agreement entered into on the 15th day of November, 1994, by the City of Ontario and the Ontario Redevelopment Agency, the Ontario Redevelopment Agency made a one-time advance to the City of One Hundred Fifty Thousand Dollars ($150,000) to repair or abate dangerous buildings and properties throughout the City; and
WHEREAS, under a first amendment to the Cooperation and Reimbursement Agreement entered into on the 16th day of July 1996, by the City of Ontario and the Ontario Redevelopment Agency, the Ontario Redevelopment Agency made an additional advance to the City of One Hundred Thousand Dollars ($100,000) to continue to repair or abate dangerous buildings and properties throughout the City; and WHEREAS, under Resolution No. 94-113, Resolution No. ORA-500, and the Cooperation and Reimbursement Agreement entered into on the 15th day of November 1994, by the City of Ontario and the Ontario Redevelopment Agency, the Ontario Redevelopment Agency made a one-time advance to the City of Thirty Thousand Dollars ($30,000) to repair or abate dangerous buildings and properties in the 6th and Grove area; and
WHEREAS, under Resolution No. 94-12, Resolution No. ORA-464, and the Cooperation and Reimbursement Agreement entered into on the 22nd day of February 1994, by the City of Ontario and the Ontario Redevelopment Agency, the Ontario Redevelopment Agency made a one-time advance to the City of One Hundred Fifty Thousand Dollars ($150,000) to repair or demolish dangerous buildings throughout the City; and
WHEREAS, Ordinance No. 2894, Systematic Health and Safety Inspection Program (Title 8, Chapter 17, of the Ontario Municipal Code), provides for the collection of unpaid service fees, plus any penalties and accrued interest by Special Assessment; and WHEREAS, Ordinance No. 2920, provides for the assessment of civil penalties for continued violations of the Ontario Municipal Code (Title 1, Chapter 2 of the Ontario Municipal Code), and for fines associated with administrative citations to be collected by 81 Special Assessment (Title 1, Chapter 5 of the Ontario Municipal Code), and establishes a uniform procedure before imposing such Special Assessments (Title 1, Chapter 4 of the Ontario Municipal Code); and
WHEREAS, the above said ordinances, resolutions and agreements provide for recovery of costs incurred in the abatement of violations by means of a Special Assessment placed on the tax rolls; and
WHEREAS, the City has incurred costs involved in the abatement of violations under the Ontario Municipal Code and Uniform Code for the Abatement of Dangerous Buildings, issuing Notices of Violation, and administering the Systematic Health and Safety Program and wishes to recover said costs; and
WHEREAS, the owners of all parcels listed in Exhibit A, B, and C were given notice of imposition of such Special Assessment as provided in Ontario Municipal Code Section 1-4.05(a), and either have not requested an appeal, or have exhausted the appellate procedure provided in Ontario Municipal Code Section 1-4.05(b); and WHEREAS, the City has an executed contract with the San Bernardino County Board of Supervisors for collection of said assessments; NOW, THEREFORE, BE IT RESOLVED that the City Council:

1. Confirmed the costs associated with inspection or abatement on the properties as set forth in the report in Exhibit A; and

2. Confirmed the civil penalties and/or fines for continued violations on the properties as set forth in the report in Exhibit B; and

3. Confirmed that Exhibit C contains the total amount assessed for both confirmed costs and confirmed civil penalties and/or fines for each of the properties; and

4. Found and determined that the report, and Exhibits contained therein are true and accurate; and

5. Adopts the above said report and finds that the costs of inspection or abatement on the properties listed are the costs set forth in Exhibit A, the civil penalties and/or fines for continued violations are the penalties and/or fines as set forth in Exhibit B, and the same are hereby charged and placed as special assessments upon the respective properties; and

6. Directs Exhibit C shall be sent to the Auditor-Controller of San Bernardino County and shall be collected on the County tax roll.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.
82 PASSED, APPROVED, AND ADOPTED this 16th day of April, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
83 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 16, 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 16, 2024. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
84 City of Ontario
Community Improvement Department
2024/2025 Tax Roll Year Special Assessments
Exhibit A - Costs Associated with Inspection or Abatement Parcel Number Address Amount Due
0108-303-21 1383 E BONNIE BRAE ST, Ontario, CA 62.76
0110-013-19 1213 E D ST, Ontario, CA 2,156.08
0110-042-37 1438 E ELMA CT, Unit:A, Ontario, CA 184.05
0110-061-01 1375 E HOLT BL, Ontario, CA 148.00
0110-071-07 1381 E HOLT BL, Ontario, CA 148.00
0110-161-19 903 N CALAVERAS AV, Ontario, CA 179.00
0110-301-21 1841 E FOURTH ST, Ontario, CA 91.00
0110-301-21 1843 E FOURTH ST, Ontario, CA 375.29
0110-301-21 1845 E FOURTH ST, Ontario, CA 375.29
0110-301-21 1857 E FOURTH ST, Ontario, CA 375.29
0110-301-21 1871 E FOURTH ST, Ontario, CA 376.19
0110-321-29 2626 E INLAND EMPIRE BL, Ontario, CA 91.00
0110-321-74 2350 E INLAND EMPIRE BL, Ontario, CA 91.00
0110-321-75 0 E INLAND EMPIRE BL, Ontario, CA 91.00
0110-321-76 0 E INLAND EMPIRE BL, Ontario, CA 91.00
0110-321-77 2630 E INLAND EMPIRE BL, Ontario, CA 91.00
0110-322-28 2503 E GUASTI RD, Ontario, CA 91.00
0110-391-26 1551 E FOURTH ST, Ontario, CA 91.00
0113-286-10 2336 S VINEYARD AV, Ontario, CA 775.67
0209-351-39 1920 E HIGHLAND CT, Ontario, CA 62.03
0210-182-60 0 N HAVEN AV, Ontario, CA 5,483.95
0210-204-04 3519 E CONCOURS ST, Ontario, CA 4,805.00
0211-222-37 4189 E SANTA ANA ST, Unit:A, Ontario, CA 928.47 0216-081-26 2359 S GROVE AV, Ontario, CA 20.00
0216-491-50 1419 E RIVERSIDE DR, Ontario, CA 375.90
0218-111-04 0 S ONTARIO AV, Ontario, CA 3,112.39
0218-111-45 13213 S ONTARIO AV, Ontario, CA 439.70
0218-202-03 3071 E SILVER SKY DR, Ontario, CA 4,409.00
0218-402-45 3480 E ONTARIO RANCH RD, Ontario, CA 4,404.31 0218-614-18 3131 E YOSEMITE DR, Ontario, CA 1,267.00
0218-911-01 2943 E THOROUGHBRED ST, Ontario, CA 267.00
0238-012-30 5060 E FOURTH ST, Ontario, CA 91.00
0238-152-02 0 E SCE EASEMENT, Ontario, CA 4,518.50
1008-571-34 1550 W HARVARD PL, Ontario, CA 25.00
1008-572-24 1504 W FOURTH ST, Ontario, CA 22,268.30
1010-121-33 1112 W I ST, Ontario, CA 91.00
1010-151-14 914 W ROSEWOOD CT, Ontario, CA 198.00
1010-182-07 1029 W EL MORADO CT, Ontario, CA 124.06
1010-191-04 924 W GRANADA CT, Ontario, CA 2,471.97
1010-191-30 1025 W I ST, Ontario, CA 418.24
1010-521-30 151 N MOUNTAIN AV, Ontario, CA 2,071.00
1011-141-31 905 W BROOKS ST, Ontario, CA 327.00
1011-382-09 803 S MOUNTAIN AV, Ontario, CA 91.00
1014-152-17 1411 S GRANITE AV, Ontario, CA 91.00

City of Ontario
Community Improvement Department
2024/2025 Tax Roll Year Special Assessments
Exhibit A - Costs Associated with Inspection or Abatement 1014-181-13 1710 S BRIAR AV, Ontario, CA 18,561.65
1014-441-25 1387 W FRANCIS ST, Ontario, CA 107.00
1047-143-01 1235 E EIGHTH ST, Ontario, CA 239.00
1047-251-02 1521 N EUCLID AV, Ontario, CA 91.00
1048-052-23 1042 N LAUREL AV, Ontario, CA 71.00
1048-091-01 1050 N SULTANA AV, Ontario, CA 107.00
1048-211-20 859 E GRANADA CT, Ontario, CA 554.00
1048-211-31 807 E GRANADA CT, Ontario, CA 367.00
1048-394-33 666 E E ST, Ontario, CA 91.00
1048-471-14 1117 E HOLT BL, Ontario, CA 91.00
1048-512-15 831 E HOLT BL, Ontario, CA 20.00
1048-566-06 313 N EUCLID AV, Ontario, CA 1,043.31
1048-566-07 303 N EUCLID AV, Ontario, CA 874.00
1048-604-15 750 W HOLT BL, Ontario, CA 91.00
1049-093-01 618 E HOLT BL, Ontario, CA 1,459.62
1049-094-02 654 E HOLT BL, Ontario, CA 91.00
1049-201-07 439 S CAMPUS AV, Ontario, CA 1,247.00
1049-204-05 840 E ONTARIO BL, Ontario, CA 91.00
1049-204-06 840 E ONTARIO BL, Ontario, CA 91.00
1049-204-07 842 E ONTARIO BL, Ontario, CA 91.00
1049-204-08 844 E ONTARIO BL, Ontario, CA 91.00
1049-231-13 0 E S.P.R.R., Ontario, CA 91.00
1049-232-20 560 E PARK ST, Ontario, CA 694.00
1049-245-01 302 E STATE ST, Ontario, CA 239.00
1049-312-16 754 W CARLTON ST, Ontario, CA 639.55
1049-333-04 209 W CARLTON ST, Unit:A, Ontario, CA 147.00 1050-311-28 717 W BUCCANEER CT, Ontario, CA 91.00
1050-624-15 2115 S SAN ANTONIO AV, Ontario, CA 671.88
1050-651-10 1459 S EUCLID AV, Unit:30, Ontario, CA 153.03 1051-051-72 2238 S EUCLID AV, Unit:E, Ontario, CA 1,576.57 1051-171-42 2410 S GROVE AV, Ontario, CA 91.00
1051-321-51 2528 S GROVE AV, Ontario, CA 937.21
1051-401-26 2743 S MALCOLM AV, Ontario, CA 127.00
1073-171-07 10869 E EUCALYPTUS AV, Ontario, CA 91.00
95,263.26

City of Ontario
Community Improvement Department
2024/2025 Tax Roll Year Special Assessments
Exhibit B - Civil Penalties and/or Fines for Continued Violations Parcel Number Address Amount Due
0108-301-02 1357 N AMADOR AV, Ontario, CA 220.00
0108-534-10 1679 E BONNIE BRAE CT, Ontario, CA 220.00
0110-022-22 1816 E ELMA ST, Ontario, CA 420.00
0110-061-01 1375 E HOLT BL, Ontario, CA 500.00
0110-071-07 1381 E HOLT BL, Ontario, CA 500.00
0110-321-80 0 E INLAND EMPIRE BL, Ontario, CA 120.00
0113-283-15 2947 S VINEYARD AV, Ontario, CA 120.00
0113-351-15 1261 S GROVE AV, Ontario, CA 120.00
0210-182-60 0 N HAVEN AV, Ontario, CA 500.00
0210-211-43 735 N MILLIKEN AV, Unit:A, Ontario, CA 120.00 0210-501-29 4150 E CONCOURS ST, Unit:100, Ontario, CA 240.00 0211-222-43 401 S DOUBLEDAY AV, Ontario, CA 340.00
0216-411-33 2458 S VINEYARD AV, Ontario, CA 240.00
0218-043-39 2937 E GRAFTON ST, Ontario, CA 220.00
0218-141-27 3065 S ARCHIBALD AV, Unit:B, Ontario, CA 340.00 0218-211-37 4222 E ONTARIO RANCH RD, Ontario, CA 220.00 0238-014-07 880 N ROCHESTER AV, Unit:A, Ontario, CA 120.00 0238-152-25 2060 S WINEVILLE AV, Unit:A, Ontario, CA 760.00 1010-121-33 1112 W I ST, Ontario, CA 420.00
1010-445-22 455 N CAMELLIA AV, Ontario, CA 220.00
1010-482-05 839 W F ST, Unit:A, Ontario, CA 220.00
1010-491-03 830 W HOLT BL, Ontario, CA 120.00
1047-143-01 1235 E EIGHTH ST, Ontario, CA 500.00
1047-241-09 1524 N EUCLID AV, Ontario, CA 320.00
1047-302-01 767 W LA DENEY DR, Ontario, CA 120.00
1047-452-01 1245 N GROVE AV, Ontario, CA 340.00
1048-411-16 760 E G ST, Ontario, CA 120.00
1048-491-42 951 E ELMA ST, Ontario, CA 170.00
1048-522-11 503 E HOLT BL, Ontario, CA 640.00
1048-564-02 119 W B ST, Ontario, CA 520.00
1048-604-15 750 W HOLT BL, Ontario, CA 120.00
1049-095-06 0 E S.P.R.R., Ontario, CA 120.00
1049-204-05 840 E ONTARIO BL, Ontario, CA 220.00
1049-204-06 840 E ONTARIO BL, Ontario, CA 220.00
1049-204-07 842 E ONTARIO BL, Ontario, CA 220.00
1049-204-08 844 E ONTARIO BL, Ontario, CA 220.00
1049-245-01 302 E STATE ST, Ontario, CA 500.00
1049-502-10 656 E MAITLAND ST, Ontario, CA 120.00
1050-081-19 1431 S EUCLID AV, Ontario, CA 120.00

City of Ontario
Community Improvement Department
2024/2025 Tax Roll Year Special Assessments
Exhibit B - Civil Penalties and/or Fines for Continued Violations Parcel Number Address Amount Due
1050-553-03 614 E BIRCH CT, Ontario, CA 340.00
1051-071-02 2315 S EUCLID AV, Ontario, CA 340.00
1051-171-42 2404 S GROVE AV, Ontario, CA 340.00
1073-051-06 5048 S KENSINGTON AV, Ontario, CA 104,000.00 115,910.00

City of Ontario
Community Improvement Department
2024/2025 Tax Roll Year Special Assessments
Exhibit C - Total Amounts per Parcel
Parcel Number Address Amount Due
0108-301-02 1357 N AMADOR AV, Ontario, CA 220.00
0108-303-21 1383 E BONNIE BRAE ST, Ontario, CA 62.76
0108-534-10 1679 E BONNIE BRAE CT, Ontario, CA 220.00
0110-013-19 1213 E D ST, Ontario, CA 2,156.08
0110-022-22 1816 E ELMA ST, Ontario, CA 420.00
0110-042-37 1438 E ELMA CT, Unit:A, Ontario, CA 184.05
0110-061-01 1375 E HOLT BL, Ontario, CA 648.00
0110-071-07 1381 E HOLT BL, Ontario, CA 648.00
0110-161-19 903 N CALAVERAS AV, Ontario, CA 179.00
0110-301-21 1841 E FOURTH ST, Ontario, CA 91.00
0110-301-21 1843 E FOURTH ST, Ontario, CA 375.29
0110-301-21 1845 E FOURTH ST, Ontario, CA 375.29
0110-301-21 1857 E FOURTH ST, Ontario, CA 375.29
0110-301-21 1871 E FOURTH ST, Ontario, CA 376.19
0110-321-29 2626 E INLAND EMPIRE BL, Ontario, CA 91.00
0110-321-74 2350 E INLAND EMPIRE BL, Ontario, CA 91.00
0110-321-75 0 E INLAND EMPIRE BL, Ontario, CA 91.00
0110-321-76 0 E INLAND EMPIRE BL, Ontario, CA 91.00
0110-321-77 2630 E INLAND EMPIRE BL, Ontario, CA 91.00
0110-321-80 0 E INLAND EMPIRE BL, Ontario, CA 120.00
0110-322-28 2503 E GUASTI RD, Ontario, CA 91.00
0110-391-26 1551 E FOURTH ST, Ontario, CA 91.00
0113-283-15 2947 S VINEYARD AV, Ontario, CA 120.00
0113-286-10 2336 S VINEYARD AV, Ontario, CA 775.67
0113-351-15 1261 S GROVE AV, Ontario, CA 120.00
0209-351-39 1920 E HIGHLAND CT, Ontario, CA 62.03
0210-182-60 0 N HAVEN AV, Ontario, CA 5,983.95
0210-204-04 3519 E CONCOURS ST, Ontario, CA 4,805.00
0210-211-43 735 N MILLIKEN AV, Unit:A, Ontario, CA 120.00 0210-501-29 4150 E CONCOURS ST, Unit:100, Ontario, CA 240.00 0211-222-37 4189 E SANTA ANA ST, Unit:A, Ontario, CA 928.47 0211-222-43 401 S DOUBLEDAY AV, Ontario, CA 340.00
0216-081-26 2359 S GROVE AV, Ontario, CA 20.00
0216-411-33 2458 S VINEYARD AV, Ontario, CA 240.00
0216-491-50 1419 E RIVERSIDE DR, Ontario, CA 375.90
0218-043-39 2937 E GRAFTON ST, Ontario, CA 220.00
0218-111-04 0 S ONTARIO AV, Ontario, CA 3,112.39
0218-111-45 13213 S ONTARIO AV, Ontario, CA 439.70
0218-141-27 3065 S ARCHIBALD AV, Unit:B, Ontario, CA 340.00 0218-202-03 3071 E SILVER SKY DR, Ontario, CA 4,409.00
0218-211-37 4222 E ONTARIO RANCH RD, Ontario, CA 220.00 0218-402-45 3480 E ONTARIO RANCH RD, Ontario, CA 4,404.31 0218-614-18 3131 E YOSEMITE DR, Ontario, CA 1,267.00
0218-911-01 2943 E THOROUGHBRED ST, Ontario, CA 267.00

City of Ontario
Community Improvement Department
2024/2025 Tax Roll Year Special Assessments
Exhibit C - Total Amounts per Parcel
Parcel Number Address Amount Due
0238-012-30 5060 E FOURTH ST, Ontario, CA 91.00
0238-014-07 880 N ROCHESTER AV, Unit:A, Ontario, CA 120.00 0238-152-02 0 E SCE EASEMENT, Ontario, CA 4,518.50
0238-152-25 2060 S WINEVILLE AV, Unit:A, Ontario, CA 760.00 1008-571-34 1550 W HARVARD PL, Ontario, CA 25.00
1008-572-24 1504 W FOURTH ST, Ontario, CA 22,268.30
1010-121-33 1112 W I ST, Ontario, CA 511.00
1010-151-14 914 W ROSEWOOD CT, Ontario, CA 198.00
1010-182-07 1029 W EL MORADO CT, Ontario, CA 124.06
1010-191-04 924 W GRANADA CT, Ontario, CA 2,471.97
1010-191-30 1025 W I ST, Ontario, CA 418.24
1010-445-22 455 N CAMELLIA AV, Ontario, CA 220.00
1010-482-05 839 W F ST, Unit:A, Ontario, CA 220.00
1010-491-03 830 W HOLT BL, Ontario, CA 120.00
1010-521-30 151 N MOUNTAIN AV, Ontario, CA 2,071.00
1011-141-31 905 W BROOKS ST, Ontario, CA 327.00
1011-382-09 803 S MOUNTAIN AV, Ontario, CA 91.00
1014-152-17 1411 S GRANITE AV, Ontario, CA 91.00
1014-181-13 1710 S BRIAR AV, Ontario, CA 18,561.65
1014-441-25 1387 W FRANCIS ST, Ontario, CA 107.00
1047-143-01 1235 E EIGHTH ST, Ontario, CA 739.00
1047-241-09 1524 N EUCLID AV, Ontario, CA 320.00
1047-251-02 1521 N EUCLID AV, Ontario, CA 91.00
1047-302-01 767 W LA DENEY DR, Ontario, CA 120.00
1047-452-01 1245 N GROVE AV, Ontario, CA 340.00
1048-052-23 1042 N LAUREL AV, Ontario, CA 71.00
1048-091-01 1050 N SULTANA AV, Ontario, CA 107.00
1048-211-20 859 E GRANADA CT, Ontario, CA 554.00
1048-211-31 807 E GRANADA CT, Ontario, CA 367.00
1048-394-33 666 E E ST, Ontario, CA 91.00
1048-411-16 760 E G ST, Ontario, CA 120.00
1048-471-14 1117 E HOLT BL, Ontario, CA 91.00
1048-491-42 951 E ELMA ST, Ontario, CA 170.00
1048-512-15 831 E HOLT BL, Ontario, CA 20.00
1048-522-11 503 E HOLT BL, Ontario, CA 640.00
1048-564-02 119 W B ST, Ontario, CA 520.00
1048-566-06 313 N EUCLID AV, Ontario, CA 1,043.31
1048-566-07 303 N EUCLID AV, Ontario, CA 874.00
1048-604-15 750 W HOLT BL, Ontario, CA 211.00
1049-093-01 618 E HOLT BL, Ontario, CA 1,459.62
1049-094-02 654 E HOLT BL, Ontario, CA 91.00
1049-095-06 0 E S.P.R.R., Ontario, CA 120.00
1049-201-07 439 S CAMPUS AV, Ontario, CA 1,247.00
1049-204-05 840 E ONTARIO BL, Ontario, CA 311.00

City of Ontario
Community Improvement Department
2024/2025 Tax Roll Year Special Assessments
Exhibit C - Total Amounts per Parcel
Parcel Number Address Amount Due
1049-204-06 840 E ONTARIO BL, Ontario, CA 311.00
1049-204-07 842 E ONTARIO BL, Ontario, CA 311.00
1049-204-08 844 E ONTARIO BL, Ontario, CA 311.00
1049-231-13 0 E S.P.R.R., Ontario, CA 91.00
1049-232-20 560 E PARK ST, Ontario, CA 694.00
1049-245-01 302 E STATE ST, Ontario, CA 739.00
1049-312-16 754 W CARLTON ST, Ontario, CA 639.55
1049-333-04 209 W CARLTON ST, Unit:A, Ontario, CA 147.00 1049-502-10 656 E MAITLAND ST, Ontario, CA 120.00
1050-081-19 1431 S EUCLID AV, Ontario, CA 120.00
1050-311-28 717 W BUCCANEER CT, Ontario, CA 91.00
1050-553-03 614 E BIRCH CT, Ontario, CA 340.00
1050-624-15 2115 S SAN ANTONIO AV, Ontario, CA 671.88
1050-651-10 1459 S EUCLID AV, Unit:30, Ontario, CA 153.03 1051-051-72 2238 S EUCLID AV, Unit:E, Ontario, CA 1,576.57 1051-071-02 2315 S EUCLID AV, Ontario, CA 340.00
1051-171-42 2404 S GROVE AV, Ontario, CA 340.00
1051-171-42 2410 S GROVE AV, Ontario, CA 91.00
1051-321-51 2528 S GROVE AV, Ontario, CA 937.21
1051-401-26 2743 S MALCOLM AV, Ontario, CA 127.00
1073-051-06 5048 S KENSINGTON AV, Ontario, CA 104,000.00 1073-171-07 10869 E EUCALYPTUS AV, Ontario, CA 91.00
110 211,173.26

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: 7
SUBJECT: A RESOLUTION OF INTENT TO DESIGNATE PORTIONS OF D STREET, PLUM

AVENUE, CHERRY AVENUE, AND SULTANA AVENUE AS A RESIDENTIAL PERMIT

PARKING ZONE FOR THE BENEFIT OF ADJACENT RESIDENCES

CITY OF ONTARIO
Agenda Report
April 16, 2024
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council adopt a Resolution declaring the intent to designate portions of D Street, Plum Avenue, Cherry Avenue, and Sultana Avenue as a residential permit parking zone for the benefit of adjacent residences and to set the date, time, and place for a public hearing to consider the matter.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Focus Resources in Ontario's Commercial and Residential Neighborhoods FISCAL IMPACT: There is not a direct fiscal impact associated with this action.

BACKGROUND & ANALYSIS: Residents in the neighborhood near D Street and Sultana Avenue contacted City Staff with concerns regarding non-resident vehicles parking within their neighborhood. Residents have stated that they have difficulty finding parking in front of their homes and observed litter in the parkway adjacent to non-resident vehicles. Because of the safety and quality of life concerns, Staff evaluated the proposed permit parking zone and observed most of the non-resident vehicle's parking in the neighborhood coming from the University of La Verne.

Municipal Code Section 4-6.1305 states that permit parking zones can be considered if the vehicles causing on-street parking concerns are non-resident vehicles.

The proposed permit parking zone is shown in Exhibit "A". Following adoption of the Resolution declaring intent, City Staff will notify residents in the vicinity of the proposed permit parking zone.

Residents will also have an opportunity to comment at a public hearing on this item.

If approved by the City Council, the date and time for a public hearing shall be fixed as Tuesday, May 7, 2024, at 6:30 p.m. in the City Council Chambers, to consider this request. 92 93
RESOLUTION NO. ________

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

CALIFORNIA, PERTAINING TO DESIGNATING PORTIONS OF D

STREET, PLUM AVENUE, CHERRY AVENUE, AND SULTANA AVENUE

AS A RESIDENTIAL PERMIT PARKING ZONE AND TO SET THE DATE, TIME, AND PLACE FOR A PUBLIC HEARING.

WHEREAS, the City Council of the City of Ontario, California, declares its intention to designate portions of D Street, Plum Avenue, Cherry Avenue, and Sultana Avenue as a residential permit parking zone; and
WHEREAS, Section 4-6.1305 of the City of Ontario Municipal Code authorizes the City Council to establish certain residential streets, or portions thereof as a permit parking zone for the benefit of the adjacent residences; and WHEREAS, the City Council must find:

1. That such zone is necessary to provide reasonably available and convenient parking for the benefit of the adjacent residences;

2. That the proposed zone is desirable to encourage the use of carpooling;

3. That the proposed zone is desirable to enhance or protect the quality of life in the area of the proposed zone;

4. That the proposed zone will tend to encourage nonresident vehicles to park in off-street parking facilities; and
WHEREAS, the City Council must consider:

1. Whether nonresident vehicles do or may substantially and regularly interfere with the use by or for the benefit of adjacent residences of a majority of available public street parking spaces in the proposed permit parking zone, and whether such interference occurs at regular and significant intervals;

2. Whether nonresident vehicles driven or parked in the proposed permit parking zone are a source of unreasonable litter, noise, traffic hazards, environmental pollution, or devaluation of real property in the area of the proposed permit parking zone;

3. Whether the occupants of adjacent residences in the proposed permit parking zone desire its establishment;

4. Whether a shortage of residential-related parking spaces exists in the area of the proposed permit parking zone;
94 5. Whether an alternative solution is feasible or practical; and WHEREAS, D Street, Plum Avenue, Cherry Avenue, and Sultana Avenue are residential streets impacted by the nonresident vehicles associated with the University of La Verne; and
WHEREAS, notice is hereby given that on Tuesday, the 7th day of May, 2024, at the hour of 6:30 p.m., in the City Council Chambers of the City Hall of the City of Ontario, California, is the time and place fixed for hearing all persons interested in, or objected to, the proposed permit parking zone.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Ontario, California, authorizes the commencement of determination of establishing a residential permit parking zone in portions of D Street, Plum Avenue, Cherry Avenue, and Sultana Avenue.

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

PASSED, APPROVED, AND ADOPTED this 16th day of April, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
95 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 16, 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 16, 2024. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
96 Department: Public Works
Prepared By: Daniel P Beers
Staff Member Presenting: Tito Haes, Executive
Director Public Works
Reviewed By: Bonnie Tam, Andrea Ampig
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 8
SUBJECT: AN AMENDMENT TO THE DESIGN SERVICES AGREEMENT WITH RJM DESIGN GROUP, INC. FOR LANDSCAPE ARCHITECTURAL SERVICES FOR THE ONTARIO

SPORTS COMPLEX PROJECT AND AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT WITH TILDEN-COIL CONSTRUCTORS, INC. FOR

CONSTRUCTION MANAGEMENT MULTI-PRIME SERVICES FOR THE ONTARIO

SPORTS COMPLEX PROJECT

CITY OF ONTARIO
Agenda Report
April 16, 2024
SECTION:

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

A. Authorize the City Manager or his designee to execute Amendment No. 6 to the Design Services Agreement for Contract No. PM 1819-1 with RJM Design Group, Inc., of San Juan Capistrano, California, to provide landscape architectural services for the Ontario Sports Complex Project in the amount of $6,552,590 for a total not-to-exceed contract amount of $7,079,690;
B. Authorize the City Manager or his designee to execute Amendment No. 3 to the Professional Services Agreement with Tilden-Coil Constructors, Inc., of Riverside, California, to provide Construction Management Multi-Prime Services for the Sports Complex in the amount of $11,691,003 for a total not-to-exceed contract amount of $30,043,947 and extend the term of the contract to October 27, 2028; and
C. Authorize the City Manager or his designee to execute all documents required for the completion of the project including, but not limited to, contracts, agreements, assessments, easements, reduction of retention accounts, and filing a notice of completion at the conclusion of all construction related activities.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

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
Invest in the Growth and Evolution of the City's Economy 97 FISCAL IMPACT: The recommended Amendment No. 6 for RJM Design Group, Inc. is in an amount of $6,552,590 for a new total not-to-exceed contract amount of $7,079,690. The recommended Amendment No. 3 for Tilden-Coil Constructors, Inc. increases the authorized contract amount by $11,691,003, for a new total not-to-exceed contract amount of $30,043,947. The combined total cost of all recommended actions is $18,243,593. If approved, additional appropriations in the Capital Projects-Measure Q Fund will be requested at a future quarterly budget update.

BACKGROUND & ANALYSIS: On September 19, 2023, the City Council authorized Amendment No. 4 to the Design Services Agreement with RJM Design Group to provide planning consultation for the Ontario Sports Complex Project. On November 21, 2023, the City Council authorized Amendment No. 5 for Landscape Architectural Services for the Ontario Mills Landscape Design Project. If proposed Amendment No. 6 is approved, RJM Design Group will design the athletic fields portion of the Ontario Sports Complex Project. This will include design documents, construction documents and services through the construction of the Sports Complex. This phase of the Sports Complex Project will include areas for soccer fields, baseball tournament areas, softball tournament areas, football fields, tennis/pickleball courts, full and half-court basketball courts, restroom facilities, concession areas, and maintenance buildings.

On March 5, 2024, City Council authorized Amendment No. 2 to the Professional Services Agreement with Tilden-Coil Constructors, Inc. for Construction Management Multi-Prime Services for the Proposed Minor League Baseball Stadium and Parking Structure. Proposed Amendment No. 3 will incorporate Construction Management Multi-Prime Services for the additional design work that RJM Design Group is performing for the Ontario Sports Complex. The proposal for Construction Management Multi-Prime Services from Tilden-Coil Constructors, Inc. includes review of schematic plans, construction plans and specifications, cost estimates, bidding support, and construction management oversight for the sports complex. 98 46700.00100\33287662.1

BB&K 2020
AMENDMENT NO. 6

TO THE DESIGN SERVICES AGREEMENT FOR
ON-CALL LANDSCAPE ARCHITECT SERVICES PW1819-1

BETWEEN THE CITY OF ONTARIO AND
RJM DESIGN GROUP, INC.

1. Parties and Date.

This Amendment No. 6 to the Agreement (as defined herein) is made and entered as of ____________, by and between the City of Ontario (“City”) and RJM Design Group, Inc. a corporation with its principal place of business at 31691 Camino Capistrano, San Juan Capistrano CA 92676 (“Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.”

2. Recitals.

2.1 Agreement. The City and Consultant have entered into an agreement entitled “Design Services Agreement for On-Call Landscape Architectural Services PW 1819-1” dated July 2, 2019 (“Agreement”).

2.2 Amendment Purpose. The City and Consultant desire to amend the Agreement for professional design services to Ontario Sports Complex – 166 Acre Project adding Six Million Five Hundred Fifty-Two Thousand Five Hundred Ninety Dollars ($6,552,590) for a total compensation of Seven Million Seventy-Nine Thousand Six Hundred Ninety Dollars ($7,079,690).

This will also extend the contract until the end of the project, October 27, 2027. The Parties have heretofore entered into Amendment No. 4 dated September 19, 2023, Amendment No. 3 dated February 7, 2023, Amendment No. 2 dated July 16, 2022, and Amendment No. 1 dated November 4, 2022.

2.3 Amendment Authority. This Amendment No. 6 is authorized pursuant to Section

3.10.1 of the Agreement.

3. Terms.

3.1 Amendment. Section 3.10.1 of the Agreement is hereby amended in its entirety to read as follows:
99 46700.00100\33287662.1

BB&K 2020
"3.10.1 Consultant’s Compensation for Basic Services. City shall pay to Consultant, for the performance of all Services rendered under this Agreement, the total not to exceed amount of Seven Million Seventy-Nine Thousand Six Hundred Ninety Dollars ($7,079,690) (“Total Compensation”). This Total Compensation amount shall be based upon, and may be adjusted according to, the fee schedule and related terms and conditions attached hereto as Exhibit “A” and incorporated herein by reference. The Total Compensation, as may be adjusted upon mutual agreement, shall constitute complete and adequate payment for Services under this Agreement.”
Exhibit “A” is hereby deleted in its entirety and replaced with Attachment A attached hereto and incorporated herein by reference.

3.2 Continuing Effect of Agreement. Except as amended by this Amendment No. 6, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 6. From and after the date of this Amendment No. 6, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 6.

3.3 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 6.

3.4 Severability. If any portion of this Amendment No. 6 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

3.6 Integration. This Amendment represents the entirety of the Parties’ understanding relating to the subject of this Amendment, including written or verbal communications between the Parties, which shall have no relevance unless expressly incorporated herein. This is an integrated amendment.
[SIGNATURES ON FOLLOWING PAGE]
100
46700.00100\33287662.1

BB&K 2020
SIGNATURE PAGE FOR AMENDMENT NO. 6 TO THE DESIGN SERVICES AGREEMENT FOR ON-CALL LANDSCAPE ARCHITECTURAL SERVICES PW1819-1

BETWEEN THE CITY OF ONTARIO
AND RJM DESIGN GROUP, INC.

IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 6 as of the day and year first above written.

CITY OF ONTARIO RJM DESIGN GROUP, 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
101
March 27, 2024
Mr. Tito Haes, Director of Public Works
City of Ontario - Public Works Agency
1333 S. Bon View Ave.

Ontario, CA 91761
Re: Ontario Sports Complex-110 Acre Project
Design Services - Schematic through Construction Administration Dear Mr. Haes:

RJM Design Group, Inc. is pleased to submit our “refined” proposal for Design Services for the Ontario Sports Complex project. We are excited about the opportunity to assist you in bringing this exciting project to reality for the City of Ontario and its residents.

With RJM’s extensive experience in the master planning and development of dozens of successful sports and aquatic facilities we have the proven experience, skills and knowledge necessary to work with the City’s stakeholders to design and execute the vision for this project successfully.

RJM Design Group is proud to celebrate our 37th year in business. The key to our stability and success is our many clients with whom we have developed long-term relationships. We are committed to continuing our close working relationship with the City of Ontario staff to ensure the project development processes run smoothly and efficiently.

Thank you for providing us this exciting opportunity to assist you and your team with the development of this exciting project. If you have any questions or comments after reviewing this proposal, please do not hesitate to contact us.

Sincerely,
RJM Design Group, Inc.

Larry P. Ryan ASLA
Principal Landscape Architect
"ATTACHMENT A"
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24-005 City of Ontario – Ontario Sports Complex-SD-CA Page 2 of 12

CITY OF ONTARIO
Ontario Sports Complex
SCOPE OF WORK – DESIGN SERVICES
The following scope of services outlines the various tasks associated with the preliminary design of the +/- 110acre Ontario Sports Complex project. The tasks and methodology below are based upon our extensive experience with similar projects. The processses described below are flexible and can be modified to better meet the needs of the City of Ontario.

In collaboration with the City Project Manager, the project Construction Manager (Tilden Coil), our Design Team shall review, elaborate upon, and clarify the overall objectives for the development of the Ontario Sports Complex. We shall also verify the expected goals and criteria to be met within each phase of our services. During this review, we shall determine appropriate procedures to promote efficient working relationships and communication among all participants who need to interact with the Design Team.

PHASE I – SCHEMATIC DESIGN

1.1 Review updated utility and base information, Populous current stadium site plan, HMC Community Center Plan, Ardura offsite and onsite street plans.

1.2 Review Geotechnical Soils Report, and available hydrology studies.

1.3 Coordination with City and Geotech regarding supplemental infiltration testing locations.

1.4 Prepare for and attend weekly scheduling/review meetings conducted by Tilden Coil.

1.5 Review “Draft” Pro Forma document and previously prepared refinements prepared on the Alternative 6 plan based on updated base information for the Populous Stadium and parking structure and Ardurra Street plans.

1.6 Meet with City and selected operators to discuss desired plan components and confirm a summary of program elements. Such items shall include; A. Operator Facility (size, location, parking, etc.)
B. Site access-open versus gated/controlled access
C. Relationship to Baseball Stadium area- open versus gated/controlled access D. Number and sizes of fields
E. Pedestrian Promenade-suitable for vendor booths, food trucks, etc.

F. Restroom/Concession Buildings (Food warming only-Not Commercial food prep) G. Maintenance area-size, features, relationship to field areas, access for deliveries and access to fields, Office and Equipment storage, covered trash bins, material bins, etc.

H. Parking structures and on grade parking areas
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1.7 Coordinate with parking structure consultant, under contract with the City, to locate structure footprint off Vineyard Avenue. We anticipate a 3 story structure with +/- 208 stalls per level. Depending on need it could be a +/-624 stall structure (3) level or +/- 830 stall structure (4) level.

1.8 Based on the summary of program elements and City direction, prepare a refined schematic plan. Plan shall include proposed site amenities including vehicular and pedestrian access, refined field sizes and locations, building components, internal circulation, parking areas, parking structure, picnic areas, playgrounds, water quality/treatment areas, Maintenance yard/Building, and pedestrian linkages to adjacent Stadium and Indoor Facility areas.

1.9 Based on a refined schematic plan commence preparation of refined “Rough magnatude of costs” estimate for the sports complex area.

1.10 Prepare for and attend review meeting with City staff and operator consultant to discuss refined plan, field locations/sizes, building locations (Control Building with Food Prep Kitchen/Restrooms, and Satellite Restroom/Concession Bldg) and discuss suggested refinements.

1.11 Based on review comments and City direction, prepare refinements to the schematic plan.

1.12 Commence preparation of Building Floor Plans:

A. Control Building +/- 2900 sf (Commercial Food Prep, Restrooms, meeting room) B. Restroom/Concession Building +/- 2000 sf (Pre packaged food, restrooms, storage)
C. Maintenance Building +/- 2600 sf (Equip storage, shop area, staff area, restrooms)

1.13 Commence preparation of a draft grading plan that indicates pedestrian concourse areas, spectator viewing areas, preferred field grading (direction and slope percentage), linkages to adjacent development areas, and transitions to adjacent perimeter R.O.W. areas.

1.14 Prepare enlargement plan areas with sections to illustrate the proposed concepts, grade transition.

1.15 Coordinate with the Ardurra team regarding streetscape treatments for the Sports Complex adjacent streets including: Chino Ave, Vineyard Avenue, Riverside Drive, and Street ‘A’ . RJM shall be responsible for the landscape treatment from the back of walk/sidewalk through the R.O.W. onto the Sports complex site area.

1.16 Meet with the City staff to review the refined schematic plan, desired program elements/requirements for the site, enlargement plan areas, diagrammatic grading plan, and discuss suggested refinements.

1.17 Refine schematic plan per City comments and direction. 104
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1.18 Refine draft grading plan per City requested refinements to the schematic plan. The draft grading plan shall confirm major site relationships, preferred field grading, slope area transitions, and water treatment areas.

1.19 Meet with City staff and operator to review the refined schematic plan, enlargement plan areas, draft grading plan, and discuss desired refinements.

1.20 Refine schematic plan and draft grading plan per City comments and direction.

1.21 Provide plans to City for submittal/review by Ontario Fire Department to obtain their input on emergency vehicle access requirements, and fire hydrant locations.

1.22 Prepare preliminary utility layout plan (sewer, water, and electrical) Note: Site Cable/Fiber, Security Camera, and IT infrastructure layout and design shall be provided by the City of Ontario.

1.23 Commence preparation of preliminary construction cost estimate.

1.24 Provide “refined” schematic grading plan to KPFF for incorporation onto the final draft grading plan.

1.25 Prepare digital presentation of schematic design plans for use in public presentations.

1.26 Submit refined Schematic Plan, Building Floor plans, Draft Grading Plans, Preliminary Construction Cost Estimate and support documents to City for review and use.

1.27 Prepare for and attend (2) public presentations of the schematic design package.

MEETINGS: (4) - City Staff review meetings.
(13) Coordination/Scheduling meetings(weekly)
(2) Public Presentations (Commission/City Council)
PRODUCTS: Summary of program elements, schematic plan alternatives, draft grading plan, “refined” schematic plan, rough order of magnitude costs, Enlargement Plan areas, Preliminary Building Floor Plans, Preliminary Utility plans, Preliminary Construction Cost Estimate and Digital Presentation.

PHASE II – DESIGN DEVELOPMENT
The design development phase of our services shall include the advancement of the City approved Schematic Plan package. Refined plans, exhibits and cost estimates shall be prepared to fix and describe the scope and character of the entire Sports Complex project, including landscape architectural, architectural, civil, structural, mechanical, electrical systems, and materials/finishes. Consideration shall be given to creating a safe environment for park users, selection of durable materials, maintenance practices and access requirements, and energy conservation. Selection of materials, finishes, textures, and colors shall be determined during this phase.
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2.1 Prepare design development plans relative to the site development (access, fencing control, site furniture, shade canopies/structures, ball containment netting, play equipment, lighting, Building/Structure elements- floor plans, exterior building elevations, building cross sections, (architectural, structural, mechanical, electrical, plumbing), civil (grading, drainage, water quality treatment).

2.2 Prepare preliminary utility exhibits including storm drainage, sewer, water, gas, electrical utilities, and utility coordination. Note it is our understanding that all desired/necessary utilities shall be provided “on-site” by Ardurra’s utility consultants.

2.3 Provide image boards indicating color, texture and finish of materials and samples.

2.4 Prepare preliminary estimate of probable construction costs.

2.5 Prepare for and attend review meeting with City staff to design features, materials, colors, etc.

2.6 Refine design development plans, exhibits, material selections based on City review, comments and direction.

2.7 Coordinate review meeting with the desired attendees to assist in developing owners Commissioning project document as required by code for buildings less than 10,000sf.

A. Develop mechanical, plumbing, and electrical basis of design narrative (BOD).

B. Complete the title 24 building commission forms for the submissions.

Note: This excludes the development of a commissioning plan and functional performance testing, (on site testing), which is not required for building sizes less than 10,000sf.

2.8 Initiate discussions with City, Sports Facilities Group, and Tilden-Coil regarding the option/benefit to direct purchase materials, insure availability, savings, quality installation, etc.

2.9 Commence preparation of design development preliminary construction cost estimate.

3.0 Prepare digital presentation of design development plans for use in public presentations.

3.1 Attend review meeting with City staff to review and approve final design features, materials, colors, etc. prior to initiating final construction drawings.

MEETINGS: City staff meetings (Anticipate 2-3 meetings) PRODUCTS: Design development plans, building floor plans, elevations and sections, refined cost analysis, defined mechanical and electrical systems, Commissioning project document, color palettes and 106
24-005 City of Ontario – Ontario Sports Complex-SD-CA Page 6 of 12 materials board, direct procurement summary, outline specifications of dominant materials for the building, and cost estimate.

PHASE III- CONSTRUCTION DOCUMENTS
The final Construction Document Phase of the project consists of the preparation of the construction documents to include final drawings, specifications, calculations, and final opinion of probable cost.

Our proposal includes complete landscape, architectural and engineering services required to execute the project. Specifically, we have included the following disciplines.

Landscape Architectural/Site Development

1. Landscape Construction
(Parking Lots, Pedestrian Promenade, Plaza Areas, Spectator Concourse areas, Shade Canopies, Ballfield Improvements (synthetic turf, fencing, dugouts, spectator seating, ball containment), maintenance areas, playground areas, specialty event areas, site monumentation, perimeter fencing, access control/gates.

2. Landscape Planting Plan (onsite within perimeter street R.O.W.’s)

3. Landscape Irrigation Plan (onsite within perimeter street R.O.W.’s) Irrigation layout and design, Irrigation POC, equipment list, estimated water use, Irrigation plan, notes, legend, installation details, controller run charts, specifications and cost estimate

4. Landscape and Irrigation Details/Specifications

5. Statement of Probable Construction Costs
Architectural
Current Building Program
- Building ‘A’: Site Built Restroom/Concession/Control Building with Commercial Food Preparation Kitchen & 2nd Floor Observation Deck (2 Locations)(approx. 6,000 sq. ft. each)
- Building ‘B’: Site Built Restroom/Concession Building with Kitchen for Prepackaged Food Only,(4 locations)(approx. 2,000 sq. ft. each) - Large Maintenance Building: Site Built Office/Restroom/Lunch Room, Umpire Locker Room with Restroom(s), and a pull-thru garage/storage bay, (1 locations)(approx. 2,520 sq. ft.) - Small Maintenance Building: Prefab/Site Built One garage/storage bay only (1 locations)(approx. 900 sq. ft.)

1. Title Sheet, Index and General Notes

2. Architectural Site Plan

3. Building Floor Plan at ¼” = 1’0” scale

4. Reflected Ceiling Plan

5. Exterior Elevations

6. Roof Plan

7. Building Sections

8. Door and Finish Schedules

9. Interior elevations of selected fixtures, walls and rooms

10. Architectural Details
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24-005 City of Ontario – Ontario Sports Complex-SD-CA Page 7 of 12 Civil Engineering

1. Demolition Plan

2. Title Sheet/Details/Quantities

3. Precise Grading Plan

3. Fire Underground Plan

4. Field Survey Verification

5. Hydrology Study

6. Horizontal Control Plan

7. Erosion Control Plan

8. Water and Sewer Plans

9. Water Quality Management Plan
Structural Engineering

1. Structural Calculations

2. Foundation Plans

3. Roof Framing Plans

4. Structural Details
Mechanical Engineering

1. Heating/Cooling Plan

2. Heating/Cooling details and schedules

3. Title 24 calculations
Plumbing

1. Plumbing Floor Plans

2. Plumbing Fixture Schedules, Details and Specifications Electrical Engineering

1. Electrical Power Plans (Ballfields, spectator areas, pedestrian areas, parking lot areas, maintenance areas, monument walls)

2. Lighting Plans

3. Panel Schedules, Notes and Details

4. Title 24 energy calculations
During this phase, the Contract Documents are prepared setting forth in detail the requirements for the construction of the project. General conditions, instructions to bidders, and all special requirements will be provided by the City/CM, and when combined with the various trade specifications, a complete project specification will be produced. Construction drawings will be submitted at 75% complete for review, revised and submitted again at 100% complete construction drawings will be submitted for City review and approval. At each step of construction drawing submittal, a revised cost estimate will also be submitted.

Upon approval of construction drawings, the consultant will provide the City with digital PDF files of the approved construction drawings.

Note: Specifications shall be book format Special Provisions as part of the drawings for the materials connected with this project. Instructions to bidders, general conditions etc. will be part of the specifications provided by the City/CM. Insertion of City specification sections shall be included within this document.

MEETINGS: 3 Construction Document Review Meetings
PRODUCTS: Construction Plans, Specifications, Cost Estimates 108
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PHASE IV- BIDDING
It is our understanding that the City’s CM shall be responsible for the bidding of the project to multiple prime GC’s. The Consultant shall assist the CM with the Bidding Phase of the project. Questions, clarifications, or conflicts arising out of the bidding process will be resolved by addenda prepared by the Consultant team. Addenda to the contract for construction shall be prepared in writing to document any clarification or modification made to the contract documents. In addition, the consultant shall attend a pre-bid conference and assist the CM/City in reviewing the bid submittals.

PHASE V- CONSTRUCTION OBSERVATION/ADMINISTRATION
The Consultant Team anticipates an 18-month construction period. We shall attend weekly (seventy-eight -78) job site meetings for the duration of the construction period to generally review and evaluate the construction schedule, monitor weekly performance, review quality control standards, and provide assistance for any clarification needed. Shop drawings and related submittals shall be reviewed and returned to the CM for appropriate action. The Contractor’s requests for information, proposal requests, and related communications shall be attended to on a regular basis. Consultant shall review the contractor’s requests for change orders and issue recommendations to CM for action. Contractor’s pay requests shall be reviewed by the CM and Consultant on a monthly basis in accordance with the amount of work completed and in accordance with the contract documents. At every job site meeting, minutes shall be prepared, published and distributed by the CM to all parties concerned, specifically noting current action items and related responsibilities.

Upon completion of the Construction Phase the Consultant shall organize and conduct a final walk-through and review. A final punch list of all required corrections and remaining work shall be prepared.

During the Construction Phase of the project, the following services shall be furnished:

5.1 A pre-construction conference shall be organized and conducted to brief all parties concerned with general and special requirements of the contract for construction.

Procedural matters, routing of information, and project representatives shall be defined. Attendees shall include representatives from the City staff, the Consultant, the Contractor, and all major subcontractors.

5.2 Job site meetings (anticipate seventy-eight (78) meetings) shall be scheduled and attended by the Consultant for the same day of the week and time throughout the duration of the project. Scheduling, coordination, requests for information, and changes to the contract for construction are routinely monitored. The consultant shall prepare a “draft” field report for each job site meeting, documenting the progress of construction and specifically noting current and delinquent action items.

This “draft” field report shall be provided to the CM for refinement and distribution.

5.3 Review and respond to required shop drawings, submittals, RFI’s, and bulletins. We are anticipating: 500 Submittals, 250 RFI’s, and 50 Bulletins.

5.4 At the completion of the Construction Phase a final job site meeting and review of the entire facility shall be conducted. A final punch list will be prepared and provided 109
24-005 City of Ontario – Ontario Sports Complex-SD-CA Page 9 of 12 to the project CM for distribution to all parties concerned, specifically noting required corrections, non-conforming work, and work remaining to be completed. A second walk-through shall be conducted when all punch list items have been corrected, at which time a Final Notice of Completion shall be filed by the City.

5.5 Consultant will review contractor submitted Record Drawings for contract conformance and completeness based upon field observations made during the construction observation/administration task and the original contract documents.

Consultant shall not be held responsible for inaccuracies of the contractor provided record drawings. Any site visits required to verify information contained on the contractor’s as-built drawings will be provided on an hourly basis.

Per City request we shall provide supplemental “Geotechnical” Field Inspections and Materials Testing for the sports field synthetic turf installations as an additional service. This additional service shall include:

Field Inspections, Baseball Fields 1-8, & Soccer Fields 1-11 Subgrade Preparation:
o GMU will perform periodic observation and compaction testing for the following:
• Ballfield Field subgrade following completed rough grading activities. • Soccer Field subgrade following completed rough grading activities. o GMU will observe the installation of the geotextile liner to be placed above the sports field subgrade and beneath the synthetic turf permeable base materials and drains.

No. 57 Stone & No. 89 Stone Pipe Zone Materials
o GMU will perform periodic observation and compaction testing, (if required), of the ballfield drain aggregates.

Drain Placement
o GMU will observe installation of perforated perimeter collector pipe and installation of flat drains.

Synthetic Turf Base Course, (Permeable Base Materials)
o GMU will perform periodic observation and compaction testing of permeable base zone materials within the sports field areas.

Drain Connection Backfill
o GMU will perform periodic observation and compaction testing of backfill placed over drainpipes at locations of connection to the existing drainage system.

Lab Testing, Baseball Fields 1-8, & Soccer Fields 1-11:

Subgrade Soils
o GMU will perform laboratory testing on the ballfield subgrade materials to support construction operations. Laboratory testing will consist of maximum density and optimum moisture, and expansion index testing, (as required).

No. 57 stone and No. 89 Stone Pipe Zone Materials
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24-005 City of Ontario – Ontario Sports Complex-SD-CA Page 10 of 12 o GMU will complete lab testing as required by project specifications – for the ASTM No. 57 Stone (Aggregate Material for Pipe Bedding), and the ASTM No. 89 Stone (Pipe Planarity Layer).
• Lab testing will consist of the following:
• Sieve Analysis - (ASTM C136)
• Sulfate Soundness - (ASTM C88)
• LA Abrasion - (ASTM C131)
Synthetic Turf Base Course, (Permeable Base Materials)
o GMU will complete lab testing as required by project specifications. • Lab testing will consist of the following:
• Sieve Analysis - (ASTM C136), Samples collected from source, & samples collected from the site upon delivery.
• (1) Sulfate Soundness - (ASTM C88)
• (1) LA Abrasion - (ASTM C131)
Initial Samples will be collected from the source, (coordination with contractor is required) and subsequent sampling will take place as materials are delivered to the site.

In-Situ Infiltration Testing of Synthetic Turf Permeable Base Materials, Baseball Fields 1-8, & Soccer Fields 1-11
o GMU will complete in-situ infiltration testing of the permeable base materials for the sports fields after the permeable base materials have been graded and compacted to project specifications.
• In-situ drainage testing will be completed per, and results will be compared against project specifications.
• Test method, ASTM D3385, “Standard Test Method for Infiltration Rate of Soils Using Double-Ring Infiltrometer” will be conducted only if specifically requested by the client. GMU is of the opinion that this method is not applicable to compacted base materials. Our field infiltration budget estimate below assumes only flood test method for field infiltration rate determination.
• Per assumed project specifications, test method ASTM F2989 “Standard Test Method for Permeability of Synthetic Turf Sports Field Base Stone and Surface System by Non-Confined Area Flood Test Method” shall be conducted in three randomly selected locations in each sports field. Our budget estimate below assumes (1) day of infiltration testing per sports field. Additional testing due to failing infiltration rates may result in additional fees.

Office / Field Engineering, Management, & Final Report
o GMU’s field and lab services will be managed by a registered professional engineer who will perform the following:
• Provide field technician office and field support.
• Review material submittals.
• Prepare correspondence as necessary, attend project pre-construction meeting, and coordinate field inspections.
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24-005 City of Ontario – Ontario Sports Complex-SD-CA Page 11 of 12 • Review field memorandums, field daily reports, lab test results, and field density test results.
• Oversee the project from a quality assurance standpoint. o GMU will prepare a final report that will summarize all our field inspections and lab and field testing related to the construction of the proposed improvements.

Note: Consideration of this additional Geotechnical service is highly recommended due to our teams experience and prior working relationship together on (+/- 20) previous synthetic sports field installations. They are very familiar with the processes involved as well as the associated materials testing and certifications.
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CITY OF ONTARIO
Ontario Sports Complex

FEE PROPOSAL
It is the objective of our Design Team to provide the most comprehensive, yet efficient, approach to the Ontario Sports Park Project (110 acres), with an estimated construction budget of $156 million. The fee includes all costs to be incurred by RJM Design Group, Inc. and an allowance for reimbursable expenses. All work shall be billed for on an hourly basis as a percentage of task completed.

TASKS FEE ESTIMATE
PHASE I- SCHEMATIC DESIGN $703,355
PHASE II- DESIGN DEVELOPMENT $1,219,740
PHASE III- CONSTRUCTION DOCUMENTS $3,071,945
PHASE IV- BIDDING $206,600
PHASE V- CONSTRUCTION ADMINISTRATION $889,450
Base Fee Total $6,091,090
Reimbursable Expenses (Allowance) $150,000
Contingency Allowance (City requested changes) $311,500 TOTAL*: $6,552,590
*Note: This fee summary represents our current understanding of the project scope and complexity associated with providing schematic design through construction administration services for a Sports Complex of this nature. Should the scope of work and associated construction budget increase by 5% or more, RJM Design Group, Inc. reserves the right to renegotiate fees for all disciplines affected.

REIMBURSABLE EXPENSES (Estimated Allowance $150,000)
When incurred, the following project expenses will be billed at cost plus 15% administrative fee in addition to the above professional services fee:
• Printing, plotting, copying, scanning, photography, graphic expenses • Delivery, shipping, and handling of documents
• City authorized additional services to respond to unforeseen conditions or needs • Soils testing

PAYMENTS
Payments are due and payable on a monthly basis following the completion of any substantial phase of work. Carrying charges for overdue accounts beyond 30 days of billing date are charged at 1½% of the amount due, compounded monthly. 113
24-005 City of Ontario – Ontario Sports Complex-SD-CA Page 13 of 12

ADDITIONAL SERVICES
Professional services not specifically identified in the scope of work will be considered additional services and may be performed at Client’s request, reimbursable at Consultant’s standard hourly rates. Additional services may include, but are not limited to:
• Geotechnical Field Inspection and Materials Testing for the Sports Fields synthetic turf subgrade, base material installation-(estimated at $250k-275k). Final scope and fees shall be determined by synthetic field construction sequence, duration/timing). • Additional meetings, presentations, or site visits beyond those identified. • Off-site utility infrastructure coordination
• On-site wayfinding signage/monumentation
• Revisions to documents required as a result of changes in Client’s direction, site plan/R.O.W. refinements and/or subsequent to Client’s approval, or changes in governmental regulations.
• Design of improvements beyond the designated project site, or due to changes in project phasing schedule.

HOURLY RATES
Compensation for additional services will be billed hourly at our standard rates* below:

RJM DESIGN GROUP, INC.

PRINCIPAL LANDSCAPE ARCHITECT $220 per hour
ASSOCIATE LANDSCAPE ARCHITECT $195 per hour
LANDSCAPE ARCHITECT / PROJECT MANAGER $180 per hour
JOB CAPTAIN / LANDSCAPE DESIGNER $165 per hour
CADD TECHNICIAN / GRAPHICS $150 per hour
ADMINISTRATIVE STAFF $105 per hour
CIVTEC (Civil Engineer)
PRINCIPAL $225 per hour
PROJECT MANAGER $175 per hour
PROJECT ENGINEER $150 per hour
PROJECT SURVEYOR $175 per hour
DESIGN ENGINEER $125 per hour
DRAFTSPERSON $ 95 per hour
PROJECT ASSISTANT $ 80 per hour
2-PERSON SURVEY CREW $350 per hour
3-PERSON SURVEY CREW $525 per hour

CRANE ARCHITECTURAL GROUP
PRINCIPAL ARCHITECT $220 per hour
ASSOCIATE ARCHITECT $195 per hour
PROJECT ARCHITECT $180 per hour
PROJECT MANAGER $165 per hour
CADD OPERATOR / DRAFTER $150 per hour
CLERICAL $105 per ho
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24-005 City of Ontario – Ontario Sports Complex-SD-CA Page 14 of 12 HOURLY RATES (continued)

FBA ENGINEERING
PRINCIPAL / PROJECT DIRECTOR $210 per hour
V.P. / SENIOR ASSOCIATE $160 per hour
ASSOCIATE / PROJECT MANAGER $160 per hour
CONSTRUCTION SUPPORT $135 per hour
ELECTRICAL DESIGNER $110 per hour
CAD / BIM DESIGNER $ 90 per hour
TECHNICAL TYPIST $ 50 per hour

GLASIR DESIGN
ON-SITE CONSULTING $145 per hour
IRRIGATION DESIGNER $120 per hour
PLAN CHECK $120 per hour
GMU
PRINCIPAL / DIRECTOR $290 per hour
ASSOCIATE ENGINEER OR GEOLOGIST $267 per hour
SENIOR ENGINEER OR GEOLOGIST $248 per hour
PROJECT ENGINEER OR GEOLOGIST $212 per hour
SENIOR STAFF ENGINEER OR GEOLOGIST $188 per hour
STAFF ENGINEER OR GEOLOGIST $170 per hour
CAD / GIS DESIGN ENGINEER $128 per hour
DOCUMENT PREPARATION AND PROJECT SERVICES $110 per hour MURROW
PRINCIPAL / PROJECT DIRECTOR $220 per hour
V.P. / SENIOR ASSOCIATE $160 per hour
ASSOCIATE / PROJECT MANAGER $160 per hour
CONSTRUCTION SUPPORT $135 per hour
ELECTRICAL DESIGNER $110 per hour
CAD / BIM DESIGNER $ 90 per hour
TECHNICAL TYPIST $ 50 per hour
*charges for subconsultant services are billed at cost plus a 15% coordination fee.

Billings for all time and materials and contract extension work shall be in accordance with the level of work performed based on the categories listed above.

Hourly rates will be escalated each August 1st in accordance with any increase in the Consumer Price Index or other mutually agreed upon cost index, beginning with August 1, 2025.

Provisions for fee escalation pertain to all contract extensions and additional work.

Thank you for selecting us to prepare this proposal. We appreciate the opportunity to continue our long-term relationship with the City of Ontario.
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AMENDMENT NO. 3 TO THE PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO AND
TILDEN-COIL CONSTRUCTORS, INC.

1. Parties and Date.

This Amendment No. 3 to the Agreement (as defined herein) is made and entered as of ____________, by and between the City of Ontario (“City”) and Tilden-Coil Constructors, Inc., a CORPORATION, (“CONSULTANT”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.”

2. Recitals.

2.1 Agreement. The City and Consultant have entered into an agreement entitled “PROFESSIONAL SERVICES AGREEMENT” dated April 4, 2023. (“Agreement”).

2.2 Amendment Purpose. The City and Consultant desire to amend the Agreement to revise the scope of services for The Minor League Baseball Stadium to include Mass Grading for the entire site, Construction Management for the Offsite Infrastructure Construction and the extended scope for the Baseball Stadium and Parking Structure and increase the not to exceed compensation amount by Eleven Million Six Hundred Ninety-One Thousand and Three Dollars ($11,691,003) for a total not to exceed amount of Thirty Million Forty-Three Thousand Nine Hundred Forty-Seven Dollars ($30,043,947) and to extend the term of the contract until October 27, 2028. The Parties have heretofore entered into that Amendment No. 1 dated August 15, 2023 and Amendment No. 2 dated March 5, 2024.

2.3 Amendment Authority. This Amendment No. 3 is authorized pursuant to Section

3.10.1 of the Agreement.

3. Terms.

3.1 Amendment. Section 3.10.1 of the Agreement is hereby amended in its entirety to 116
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read as follows:
“Section 3.10.1 Consultant’s Compensation for Basic Services.

City shall pay to Consultant for the performance of all Services rendered under this Agreement, with the total not to exceed amount of Thirty Million Forty-Three Thousand Nine Hundred FortySeven Dollars ($30,043,947) (“Total Compensation”). This total compensation amount shall be based upon, and may be adjusted according to the fee schedule and related terms and conditions attached hereto as “Exhibit A” and incorporated herein by reference.

The total compensation, as may be adjusted upon mutual
agreement, shall constitute complete and adequate payment for Services under this Agreement.”
Exhibit A is hereby deleted in its entirety and replaced with Attachment A attached hereto and incorporated herein by reference.

3.2 Continuing Effect of Agreement. Except as amended by this Amendment No. 3, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 3. From and after the date of this Amendment No. 3, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No 3.

3.3 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 3.

3.4 Severability. If any portion of this Amendment No. 3 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

3.5 Integration. This Amendment represents the entirety of the Parties’ understanding relating to the subject of this Amendment, including written or verbal communications between the Parties, which shall have no relevance unless expressly incorporated herein. This is an integrated amendment.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR AMENDMENT NO. 3 TO PROFESSIONAL SERVICES

AGREEMENT BETWEEN THE CITY OF ONTARIO
AND TILDEN-COIL CONSTRUCTORS, INC.

IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 3 as of the day and year first above written.

CITY OF ONTARIO TILDEN-COIL CONSTRUCTORS, 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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February 7, 2024
Tito Haes, Executive Director Public Works
City of Ontario
1333 S. Bon View
Ontario, CA 91761
Re: REVISED PROPOAL for CM Multi-Prime Services for the City of Ontario Sports Complex Dear Tito,
We are pleased to present our fee proposal to provide CM Multi-Prime services for the new Ontario Sports Complex. It is exciting to anticipate the impact this new project will have on the community.

Our Fee structure, outlined below, is in alignment with on-call rates submitted in February 2023. Our understanding of the scope of the project is as follows:

Sports Complex Fields. The project includes new soccer fields, baseball fields and softball fields and is designed by RJM. This project excludes parking structures that will support the sports complex. The preliminary construction budget for the project is $198,083,837 which includes sum of primes, design contingency, escalation, and trade allowances. The preliminary construction duration is 18 months with an anticipated construction start of July 2025. CM Compensation includes:

Construction Budget: $198,083,837

1. Preconstruction: $294,256 $205,979 (volume discount/savings)

2. CM Fee (3.85%): $7,626,228

3. General Conditions: $3,858,796

4. Total (1-3) $11,691,003
Preconstruction Services
Preconstructions Services is based on a design/preconstruction duration identified in the attachment to this proposal. The preconstruction services amount shall be billed in equal monthly installments throughout the preconstruction phase. Preconstruction Services include the following for each phase of work/separate project:
• Management Oversight and Support, Meetings, Design Coordination • Estimating (Schematic Design, Design Development, Construction Documents) • Prepare Trade Scope Packages
• Bidding Support Services
• Value Engineering
• Constructability Review
• Scheduling & Logistics Planning
• Building Information Modeling (Clash Detection, Utility Modeling) "ATTACHMENT A"
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CM Fee
CM Fee shall be calculated on the anticipated cost of construction and shall be adjusted based upon the actual cost of construction using the fee percentage of 3.85%. Fifteen Percent (15%) of the CM Fee shall be paid during the design/preconstruction phase of the project and Eighty-Five Percent (85%) shall be paid during the construction phase of the project.

Construction General Conditions
Construction general conditions include CM labor and an allowance for General Requirements. General Requirements allowance includes project support costs such as CM trailer, temporary fencing, temporary restrooms, surveying, safety measures, safety supplies, office supplies, computers/software, fuel, and printing.

General conditions expenses shall be reimbursable and provided to the city without fee markup by the CM. The billable hourly rates attached include escalation through July of 2028 and based upon the attached schedule. The billable rates are subject to increase should the schedule be extended.

The general conditions budget is based upon the preliminary durations and start dates above and include savings due to the planned concurrency and shared staffing. General conditions shall be adjusted based upon the final construction schedules developed prior to the bidding phase of the projects and the general conditions monthly rates shall be utilized for any increase/decrease in the general conditions budgets.

We look forward to continuing our relationship with the City of Ontario. Please do not hesitate to contact me with any questions.

Sincerely
Jason Howarth
Project Executive
Tilden-Coil Constructors
Building with Integrity Since 1938
P: 951.684.5901 Ext. 209
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Tilden-Coil Constructors, Inc.

Billable Rates Ontario Sports Complex
Rates include escalation through July 2028 and shall be subject to adjustment annually in alignment with the consumer price index for the area.

Position Hourly Rate
Project Executive $187.00
Production Director $187.00
Safety Officer $139.00
Sr. Project Manager $156.00
Sr. Superintendent $156.00
Project Manager $139.00
Assistant Project Manager $129.00
Superintendent $139.00
Area/Assistant Superintendent $127.00
Scheduler $158.00
BIM Manager $175.00
BIM Specialist $151.00
BIM Technician $135.00
TCC Survey $151.00
Preconstruction Manager $136.00
Sr. Project Engineer $124.00
Project Engineer $113.00
Estimator $106.00
Preconstruction Coordinator $64.00
Labor Compliance Coordinator $72.00
Accountant $108.00
Sr. Project Administrator $79.00
Project Administrator $70.00
Project Engineer Intern $43.00
Field Labor $103.00
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Conceptual Estimate
Items Description Unit Costs Costs
Site Improvements
Prime Contractor Costs, Subtotal: $137,500,000
Design Contingency 15.00% $20,625,000
Escalation 13.90% $21,951,216
Construction Contingency / Scope Allowance 10.00% $18,007,622 Prime Contractor Costs, Total: $198,083,837

SPORTS COMPLEX
Quantity
Sports Complex - Soccer, Baseball and Softball
Fields
110 acre $1,250,000 $137,500,000
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Department: Public Works
Prepared By: Philip Marino
Staff Member Presenting: Tito Haes, Executive
Director Public Works
Reviewed By: Gina Gomez, Andrea Ampig
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 9
SUBJECT: MAINTENANCE SERVICES AGREEMENTS WITH PRIORITY LANDSCAPE SERVICES, LLC. AND RPW SERVICES, INC. FOR LANDSCAPE MAINTENANCE SERVICES IN THE

ONTARIO PARKWAY MAINTENANCE ASSESSMENT DISTRICTS AND CITYWIDE

WEED ABATEMENT SERVICES

CITY OF ONTARIO
Agenda Report
April 16, 2024
SECTION:

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

A. Authorize the City Manager or his designee to execute a Maintenance Services Agreement for Contract No. PM 2425-02 Ontario Parkway Maintenance Assessment Districts Landscape Maintenance Services with Priority Landscape Services, LLC., of Anaheim, California, for a total contract amount not-to-exceed $2,368,361 for up to five (5) years; and B. Authorize the City Manager or his designee to execute a Maintenance Services Agreement for Contract No. PM 2425-01 Citywide Weed Abatement Services with RPW Services, Inc., of Orange, California, for a total contract amount not-to-exceed $394,680 for up to five (5) years.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

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:

Ontario Parkway Maintenance Assessment Districts
The recommended contract award to Priority Landscape Services, LLC. is for $1,326,600 plus urgency services in an amount of $53,955 for a total not-to-exceed contract amount of $1,380,555 over the three-year term. Two (2) one-year extensions may be exercised at the City’s sole discretion for an additional contract amount of $951,836 plus urgency services in an amount of $35,970 for a total contract amount not-to-exceed $2,368,361. If approved, appropriations will be included in future Annual Budgets to City Council for approval as needed for Landscape Maintenance Services for the Ontario Parkway Maintenance Assessment Districts, which include Districts No. 1, 2, 3 and 4. 123
Citywide Weed Abatement Services
The recommended contract award to RPW Services, Inc. is for $222,300 plus urgency services in an amount of $10,296 for a total not-to-exceed contract amount of $232,596 over the three-year term.

Two (2) one-year extensions may be exercised at the City’s sole discretion for an additional contract amount of $155,220 plus urgency services in an amount of $6,864 for a total contract amount notto-exceed $394,680. If approved, appropriations will be included in future Annual Budgets to City Council for approval as needed for Landscape Maintenance Services for Citywide Weed Abatement Services.

BACKGROUND & ANALYSIS: Ontario Parkway Maintenance Assessment Districts In February 2024, the City solicited proposals for Bid No. 1745, Landscape Maintenance Services for the Ontario Parkway Maintenance Assessment Districts. The four (4) proposals received met the bid criteria and standards necessary to perform this work.

Vendor Location
Greentech Landscape, Inc. Whittier, CA
Mariposa Landscapes, Inc. Irwindale, CA
Merchants Landscape Services, Inc. Rancho Cucamonga, CA Priority Landscape Services, LLC Anaheim, CA
Priority Landscape Services, LLC. of Anaheim, California, submitted a proposal that met all the required specifications with a total contract cost of $1,380,555 over a three-year term. Based on their proposal, credentials, pricing, and favorable reference checks, Staff recommends awarding the Maintenance Services Agreement to Priority Landscape Services, LLC.

Citywide Weed Abatement Services
In February 2024, the City solicited proposals for Bid No. 1743, Landscape Maintenance Services for Citywide Weed Abatement Services. The five (5) proposals received met the bid criteria and standards necessary to perform this work.

Vendor Location
DeAngelo Contracting Services Hazleton, PA
Merchants Landscape Services, Inc. Rancho Cucamonga, CA Pest Options, Inc. Fullerton, CA
Priority Landscape Services, LLC Anaheim, CA
RPW Services, Inc. Orange, CA
RPW Services, Inc. of Orange, California, submitted a proposal that met all the required specifications with a total contract cost of $232,596 over a three-year term. Based on their proposal, credentials, pricing, and favorable reference checks, Staff recommends awarding the Maintenance Services Agreement to RPW Services, Inc.
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46700.00100\33865500.1

CITY OF ONTARIO

MAINTENANCE SERVICES AGREEMENT

1. PARTIES AND DATE.

This Agreement is made and entered as of ____________, by and between the City of Ontario, a municipal corporation organized under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764-4196, County of San Bernardino, State of California ("City") and Priority Landscape Services, LLC., a CORPORATION, LIMITED LIABILITY COMPANY, with its principal place of business at 1524 West Mable Street, Anaheim, CA 92802 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."

2. RECITALS.

2.1 Contractor.

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

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

2.2 Project.

City desires to engage Contractor to render such services for the Landscape Maintenance Services for the Ontario Parkway Maintenance Assessment Districts PM 2425-02 project (“Project”) as set forth in this Agreement.

3. TERMS.

3.1 Scope of Services and Term.

3.1.1 General Scope of Services. Contractor promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the maintenance services necessary for the Project (“Services”). The Services are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.

3.1.2 Term. The term of this Agreement shall be from July 1, 2024 to June 30, 2027, unless earlier terminated as provided herein. Contractor shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The 125
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Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.

3.2 Compensation.

3.2.1 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “C” attached hereto and incorporated herein by reference. The total compensation shall not exceed One Million Three Hundred Twenty-Six Thousand and Six Hundred Dollars ($1,326,600) without written approval of City’s City Manager. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.

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

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

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

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

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

3.3 Responsibilities of Contractor.

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

Contractor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Contractor shall also not be employees of City and shall at all times be under Contractor’s exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations 126
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respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.

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

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

3.3.4 City’s Representative. The City hereby designates Philip Marino, Urban Forestry 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 Agreement except for increasing compensation. Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.

3.3.5 Contractor’s Representative. Contractor hereby designates Michael Rocha, Regional Manager, or his or her designee, to act as its representative for the performance of this Agreement (“Contractor’s Representative”). Contractor’s Representative shall have full authority to represent and act on behalf of the Contractor for all purposes under this Agreement.

The Contractor’s Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.

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

3.3.7 Standard of Care; Performance of Employees. Contractor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Services. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Contractor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Contractor’s failure to comply with the standard of care provided for herein. Any employee of the Contractor or its sub-contractors who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to 127
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the City, shall be promptly removed from the Project by the Contractor and shall not be re-employed to perform any of the Services or to work on the Project.

3.3.8 Period of Performance.

3.3.8.1 Contractor shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Contractor shall perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be provided separately in writing to the Contractor. Contractor agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such completion schedule or Project milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage. Pursuant to Government Code Section 53069.85, Contractor shall pay to the City as fixed and liquidated damages, and not as a penalty, the sum of Six Hundred and Six Dollars ($606) per day for each and every calendar day of delay beyond the Performance Time or beyond any completion schedule or Project milestones established pursuant to this Agreement.

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

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

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

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

3.3.10 Laws and Regulations; Employee/Labor Certifications. 128
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3.3.10.1 Compliance with Laws. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with Services. If the Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Contractor shall be solely responsible for all costs arising therefrom. City is a public entity of the State of California subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Agreement to the same extent as though set forth herein and will be complied with. These include but are not limited to the payment of prevailing wages, the stipulation that eight (8) hours’ labor shall constitute a legal day’s work and that no worker shall be permitted to work in excess of eight (8) hours during any one calendar day except as permitted by law. Contractor shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.

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

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

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

3.3.10.4 Employment Eligibility; Failure to Comply. Each person executing this Agreement on behalf of Contractor verifies that they are a duly authorized officer of Contractor, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Contractor or its subcontractors, sub-subcontractors or consultants to meet any of the requirements provided for in Sections 3.3.10.1 or 3.3.10.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Contractor under Section 3.3.10.2); or (3) failure to 129
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immediately remove from the Project any person found not to be in compliance with such requirements.

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

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

3.3.10.7 Water Quality.
(A) To the extent applicable, Contractor’s Services must account for, and fully comply with, all local, state and federal laws, rules and regulations that may impact water quality compliance, including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); laws, rules and regulations of the Environmental Protection Agency, the State Water Resources Control Board and the Colorado River Regional Water Quality Control Board; the City’s ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State. (B) Liability for Non-Compliance. Failure to comply with the laws, regulations and policies described in this Section is a violation of law that may subject Contractor or City to penalties, fines, or additional regulatory requirements. Contractor shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from and against any and all fines, penalties, claims or other regulatory requirements imposed as a result of Contractor’s non-compliance with the laws, regulations and policies described in this Section, unless such non-compliance is the result of the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers. (C) Training. In addition to any other standard of care requirements set forth in this Agreement, Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them without impacting water quality in violation of the laws, regulations and policies described in this Section. Contractor further warrants that it, its employees and subcontractors will receive adequate training, as determined by City, regarding the requirements of the laws, regulations and 130
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policies described in this Section as they may relate to the Services provided under this Agreement. Upon request, City will provide Contractor with a list of training programs that meet the requirements of this paragraph.

3.3.11 Insurance.

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

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

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

Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. The policy shall not contain any exclusion contrary to the Agreement, including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 29); or (2) cross liability for claims or suits by one insured against another. (B) Minimum Limits of Insurance. Contractor shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used including, but not limited to, form CG 2503, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $2,000,000 per accident for bodily injury and property damage; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Liability limits of $1,000,000 per accident for bodily injury or disease. Defense costs shall be paid in addition to the limits.
(C) Notices; Cancellation or Reduction of Coverage. At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or materially reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be 131
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promptly reimbursed by Contractor or the City may withhold amounts sufficient to pay premium from Contractor payments. In the alternative, the City may suspend or terminate this Agreement. (D) Additional Insured. The City, its directors, officials, officers, employees, agents, and volunteers shall be named as additional insureds on Contractor’s and its subcontractors’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.

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

The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents, and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Contractor. 132
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(D) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days (10 days for nonpayment of premium) prior written notice by certified mail, return receipt requested, has been given to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents, and volunteers.

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

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

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

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

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

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

3.3.11.8 Verification of Coverage. Contractor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 133
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3.3.11.9 Reporting of Claims. Contractor shall report to the City, in addition to Contractor’s insurer, any and all insurance claims submitted by Contractor in connection with the Services under this Agreement.

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

3.3.13 Bonds.

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

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

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

3.3.13.4 Surety Qualifications. Only bonds executed by an admitted surety insurer, as defined in Code of Civil Procedure Section 995.120, shall be accepted. The 134
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surety must be a California-admitted surety with a current A.M. Best’s rating no less than A:VIII and satisfactory to the City. If a California-admitted surety insurer issuing bonds does not meet these requirements, the insurer will be considered qualified if it is in conformance with Section 995.660 of the California Code of Civil Procedure, and proof of such is provided to the City.

3.3.14 Work Site.

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

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

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

3.3.16 Warranty. Contractor warrants all Services under the Contract (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year (or the period of time specified elsewhere in the Contract or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by the City of any defect in the Services or non-conformance of the Services to the Contract, commence and prosecute with due diligence all Services necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act sooner as requested by the City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the work (or work of other contractors) damaged by its defective Services or which becomes damaged in the course of repairing or replacing defective work. For any work so corrected, Contractor’s obligation hereunder to correct defective work shall be reinstated for an additional one year period, commencing with the date of acceptance of such corrected work. Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of the Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any portion of the work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the City, regardless of whether or not such warranties and guarantees have been 135
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transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Contract, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non-conforming work and any work damaged by such work or the replacement or correction thereof at Contractor's sole expense. Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand.

3.4 Labor Code Requirements.

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

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

3.4.3 Registration/DIR Compliance. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor’s performance of Services, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor. 136
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3.4.4 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.

3.5 Termination of Agreement.

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

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

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

3.6 Indemnification.

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

3.6.2 Additional Indemnity Obligations. Contractor shall defend, with counsel of City’s choosing and at Contractor’s own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against City or its officials, employees, agents and volunteers. In addition, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Contractor shall also reimburse City for the cost of any settlement paid by City or its officials, employees, agents and volunteers as part of any such 137
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claim, suit, action or other proceeding. Such reimbursement shall include payment for City’s attorney’s fees and costs, including expert witness fees. Contractor shall reimburse City and its officials, employees, agents and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor’s obligation to indemnify shall survive expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by the City, its officials, employees, agents and volunteers.

3.7 General Provisions.

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

3.7.2 Independent Contractors and Subcontracting.

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

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

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

Contractor:

Priority Landscape Services, LLC.
1524 West Mable Street
Anaheim, CA 92802
Attn: Michael Rocha, Regional Manager
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City:

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

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

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

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

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

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

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

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

3.7.10 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Contractor include all personnel, employees, agents, and subcontractors of Contractor, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease 139
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of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement.

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

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

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

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

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

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

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

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

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

BETWEEN THE CITY OF ONTARIO
AND PRIORITY LANDSCAPE SERVICES, LLC.

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

CITY OF ONTARIO Priority Landscape Services, LLC.

By:

Its:

Printed Name:

By:

Its:

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

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

City Clerk
[If Corporation, TWO SIGNATURES,
President OR Vice President AND
Secretary OR Treasurer REQUIRED]
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46700.00100\33865500.1
Exhibit “C”
Compensation
NTE 1,326,600
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PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:

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

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

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

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

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

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

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

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

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

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

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

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

WITNESS my hand and official seal.

Signature of Notary Public

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

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

Signer is representing:

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

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

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

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

It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement herein above described, nor by any rescission or 148
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attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or City and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Section 9100 of the Civil Code, and has not been paid the full amount of his claim and that Surety does hereby waive notice of any such change, extension of time, addition, alteration or modification herein mentioned and the provisions of sections 2819 and 2845 of the California Civil Code.

IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__.
(Corporate Seal)
Contractor/ Principal
By
Title
(Corporate Seal) Surety
By
Attorney-in-Fact
Title
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached. A Power-of-Attorney authorizing the person signing on behalf of the Surety to do so much be attached hereto.

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

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

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

WITNESS my hand and official seal.

Signature of Notary Public

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

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

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
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CITY OF ONTARIO

MAINTENANCE SERVICES AGREEMENT

1. PARTIES AND DATE.

This Agreement is made and entered as of ____________, by and between the City of Ontario, a municipal corporation organized under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764-4196, County of San Bernardino, State of California ("City") and RPW Services, Inc., a CORPORATION, with its principal place of business at P.O. Box 5217, Orange, CA 92863 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."

2. RECITALS.

2.1 Contractor.

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

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

2.2 Project.

City desires to engage Contractor to render such services for Citywide Weed Abatement Services PM 2425-01 project (“Project”) as set forth in this Agreement.

3. TERMS.

3.1 Scope of Services and Term.

3.1.1 General Scope of Services. Contractor promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the maintenance services necessary for the Project (“Services”). The Services are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.

3.1.2 Term. The term of this Agreement shall be from July 1, 2024 to June 30, 2027, unless earlier terminated as provided herein. Contractor shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.
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3.2 Compensation.

3.2.1 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “C” attached hereto and incorporated herein by reference. The total compensation shall not exceed Two Hundred Twenty-Two Thousand and Three Hundred Dollars ($222,300) without written approval of City’s City Manager. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.

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

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

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

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

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

3.3 Responsibilities of Contractor.

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

Contractor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Contractor shall also not be employees of City and shall at all times be under Contractor’s exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
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3.3.2 Schedule of Services. Contractor shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit “B” attached hereto and incorporated herein by reference. Contractor represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Contractor’s conformance with the Schedule, City shall respond to Contractor’s submittals in a timely manner. Upon request of City, Contractor shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.

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

3.3.4 City’s Representative. The City hereby designates Philip Marino, Urban Forestry 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 Agreement except for increasing compensation. Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.

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

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

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

3.3.8 Period of Performance.
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3.3.8.1 Contractor shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Contractor shall perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be provided separately in writing to the Contractor. Contractor agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such completion schedule or Project milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage. Pursuant to Government Code Section 53069.85, Contractor shall pay to the City as fixed and liquidated damages, and not as a penalty, the sum of One Hundred Two Dollars ($102) per day for each and every calendar day of delay beyond the Performance Time or beyond any completion schedule or Project milestones established pursuant to this Agreement.

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

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

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

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

3.3.10 Laws and Regulations; Employee/Labor Certifications.

3.3.10.1 Compliance with Laws. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with Services. If the Contractor performs any work 154
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knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Contractor shall be solely responsible for all costs arising therefrom. City is a public entity of the State of California subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Agreement to the same extent as though set forth herein and will be complied with. These include but are not limited to the payment of prevailing wages, the stipulation that eight (8) hours’ labor shall constitute a legal day’s work and that no worker shall be permitted to work in excess of eight (8) hours during any one calendar day except as permitted by law. Contractor shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.

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

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

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

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

3.3.10.5 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, 155
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sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Contractor shall also comply with all relevant provisions of City’s Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.

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

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

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

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

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

Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. The policy shall not contain any exclusion contrary to the Agreement, including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 29); or (2) cross liability for claims or suits by one insured against another. (B) Minimum Limits of Insurance. Contractor shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used including, but not limited to, form CG 2503, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $2,000,000 per accident for bodily injury and property damage; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Liability limits of $1,000,000 per accident for bodily injury or disease. Defense costs shall be paid in addition to the limits.
(C) Notices; Cancellation or Reduction of Coverage. At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or materially reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be promptly reimbursed by Contractor or the City may withhold amounts sufficient to pay premium from Contractor payments. In the alternative, the City may suspend or terminate this Agreement. (D) Additional Insured. The City, its directors, officials, officers, employees, agents, and volunteers shall be named as additional insureds on Contractor’s and its subcontractors’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents. 157
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3.3.11.3 Insurance Endorsements. The insurance policies shall contain the following provisions, or Contractor shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies:
(A) General Liability. The general liability policy shall include or be endorsed (amended) to state that: (1) using ISO CG forms 20 10 and 20 37, or endorsements providing the exact same coverage, the City of Ontario, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insured with respect to the Services or ongoing and complete operations performed by or on behalf of the Contractor, including materials, parts or equipment furnished in connection with such work; and (2) using ISO form 20 01, or endorsements providing the exact same coverage, the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor’s scheduled underlying coverage. Any excess insurance shall contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of the City, before the City’s own primary insurance, deductible, or self-insurance shall be called upon to protect it as a named insured. Any insurance, deductible, or self-insurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Contractor’s insurance and shall not be called upon to contribute with it in any way. Notwithstanding the minimum limits set forth in Section 3.3.11.2(B), any available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional insureds pursuant to this Section 3.3.11.3(A).
(B) Automobile Liability. The automobile liability policy shall include or be endorsed (amended) to state that: (1) the City, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Contractor or for which the Contractor is responsible; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor’s scheduled underlying coverage. Any insurance, deductible, or selfinsurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Contractor’s insurance and shall not be called upon to contribute with it in any way. Policy shall contain or be endorsed to contain such provisions. Notwithstanding the minimum limits set forth in Section 3.3.11.2(B), any available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional insureds pursuant to this Section 3.3.11.3(B). (C) Workers’ Compensation and Employer’s Liability Coverage.

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

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warranties shall not affect coverage provided to the City, its officials, officers, employees, agents and volunteers, or any other additional insureds.

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

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

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

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

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

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

3.3.11.9 Reporting of Claims. Contractor shall report to the City, in addition to Contractor’s insurer, any and all insurance claims submitted by Contractor in connection with the Services under this Agreement.

3.3.12 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Contractor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall 159
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exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and lifesaving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.

3.3.13 Bonds.

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

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

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

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

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

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

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

3.3.16 Warranty. Contractor warrants all Services under the Contract (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year (or the period of time specified elsewhere in the Contract or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by the City of any defect in the Services or non-conformance of the Services to the Contract, commence and prosecute with due diligence all Services necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act sooner as requested by the City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the work (or work of other contractors) damaged by its defective Services or which becomes damaged in the course of repairing or replacing defective work. For any work so corrected, Contractor’s obligation hereunder to correct defective work shall be reinstated for an additional one year period, commencing with the date of acceptance of such corrected work. Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of the Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any portion of the work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the City, regardless of whether or not such warranties and guarantees have been transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Contract, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non-conforming work and any work damaged by such work or the replacement or correction thereof at Contractor's sole expense. Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand. 161
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3.4 Labor Code Requirements.

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

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

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

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

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

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

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

3.6 Indemnification.

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

3.6.2 Additional Indemnity Obligations. Contractor shall defend, with counsel of City’s choosing and at Contractor’s own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against City or its officials, employees, agents and volunteers. In addition, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Contractor shall also reimburse City for the cost of any settlement paid by City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for City’s attorney’s fees and costs, including expert witness fees. Contractor shall reimburse City and its officials, employees, agents and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor’s obligation to indemnify shall survive expiration or termination of this Agreement, and shall not be 163
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restricted to insurance proceeds, if any, received by the City, its officials, employees, agents and volunteers.

3.7 General Provisions.

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

3.7.2 Independent Contractors and Subcontracting.

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

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

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

Contractor:

RPW Services, Inc.

P.O. Box 5217
Orange, CA 92863
Attn: Paul Webb, President
City:

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

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

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

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

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

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

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

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

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

3.7.11 Amendment; Modification. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 165
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3.7.12 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise.

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

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

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

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

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

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

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

SIGNATURES NEXT PAGE
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SIGNATURE PAGE FOR MAINTENANCE SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO
AND RPW SERVICES, INC.

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

CITY OF ONTARIO RPW Services, Inc.

By:

Its:

Printed Name:

By:

Its:

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

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

City Clerk
[If Corporation, TWO SIGNATURES,
President OR Vice President AND
Secretary OR Treasurer REQUIRED]
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Exhibit “C”
Compensation
NTE $222,300
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Department: Public Works
Prepared By: Philip Marino
Staff Member Presenting: Tito Haes, Executive
Director Public Works
Reviewed By: Gina Gomez, Andrea Ampig
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 10
SUBJECT: MAINTENANCE SERVICES AGREEMENTS WITH BRIGHTVIEW LANDSCAPE SERVICES, INC. AND MERCHANTS LANDSCAPE SERVICES, INC. FOR LANDSCAPE

MAINTENANCE SERVICES AT THE ONTARIO SOCCER PARK, THE ONTARIO TOWN

SQUARE AND VARIOUS CITY PARKS

CITY OF ONTARIO
Agenda Report
April 16, 2024
SECTION:

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

A. Authorize the City Manager or his designee to execute a Maintenance Services Agreement for Ontario Soccer Park with BrightView Landscape Services, Inc., of Upland, California, for a total contract amount not-to-exceed $1,413,113 for up to five (5) years, and B. Authorize the City Manager or his designee to execute a Maintenance Services Agreement for Ontario Town Square with BrightView Landscape Services, Inc., of Upland, California, for a total contract amount not-to-exceed $558,147 for up to five (5) years; and C. Authorize the City Manager or his designee to execute a Maintenance Services Agreement for Various City Parks with Merchants Landscape Services, Inc., of Rancho Cucamonga, California, for a total contract amount not-to-exceed $4,108,498 for up to five (5) years.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

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:

Ontario Soccer Park
The recommended contract award to BrightView Landscape Services, Inc. is for $773,532 plus urgency services in an amount of $54,822 for a total not-to-exceed contract amount of $828,354 over the three-year term. Two (2) one-year extensions may be exercised at the City’s sole discretion for an additional contract amount of $548,211 plus urgency services in an amount of $36,548 for a total contract amount not-to-exceed $1,413,113. If approved, appropriations will be included in 169
future Annual Budgets to City Council for approval as needed for Landscape Maintenance Services for Ontario Soccer Park.

Ontario Town Square
The recommended contract award to BrightView Landscape Services, Inc. is for $287,130 plus urgency services in an amount of $39,000 for a total not-to-exceed contract amount of $326,130 over the three-year term. Two (2) one-year extensions may be exercised at the City’s sole discretion for an additional contract amount of $206,017 plus urgency services in an amount of $26,000 for a total contract amount not-to-exceed $558,147. If approved, appropriations will be included in future Annual Budgets to City Council for approval as needed for Landscape Maintenance Services for Ontario Town Square.

Various City Parks
The recommended contract award to Merchants Landscape Services, Inc. is for $2,331,972 plus urgency services of $90,726 for a total not-to-exceed contract amount of $2,422,698 over the threeyear term. Two (2) one-year extensions may be exercised at the City’s sole discretion for an additional contract amount of $1,625,316 plus urgency services in an amount of $60,484 for a total contract amount not-to-exceed $4,108,498. If approved, appropriations will be included in future Annual Budgets to City Council for approval as needed for Landscape Maintenance Services for twenty-two City parks.

BACKGROUND & ANALYSIS:

Ontario Soccer Park
In December 2023, the City solicited proposals for Bid No. 1737, Landscape Maintenance Services for the Ontario Soccer Park. The four (4) proposals received met the bid criteria and standards necessary to perform this work.

Vendor Location
BrightView Landscape Services, Inc. Upland, CA
Priority Landscape Services, LLC Anaheim, CA
Mariposa Landscapes, Inc. Irwindale, CA
Four Seasons Landscaping Van Nuys, CA
BrightView Landscape Services, Inc., of Upland, California, submitted a proposal that met all the required specifications with a total contract cost of $828,354 over a three-year term. Based on their proposal, credentials, pricing, and favorable reference checks, Staff recommends awarding the Maintenance Services Agreement to BrightView Landscape Services, Inc.

Ontario Town Square
In December 2023, the City solicited proposals for Bid No. 1738, Landscape Maintenance Services for the Ontario Town Square. The four (4) proposals received met the bid criteria and standards necessary to perform this work.
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Vendor Location
BrightView Landscape Services, Inc. Upland, CA
Priority Landscape Services, LLC Anaheim, CA
Four Seasons Landscaping Van Nuys, CA
Mariposa Landscapes, Inc. Irwindale, CA
BrightView Landscape Services, Inc., of Upland, California, submitted a proposal that met all the required specifications with a total contract cost of $326,130 over a three-year term. Based on their proposal, credentials, pricing, and favorable reference checks, Staff recommends awarding the Maintenance Services Agreement to BrightView Landscape Services, Inc.

Various City Parks
In January 2024, the City solicited proposals for Bid No 1744, Landscape Maintenance Services for twenty-two City Parks. The six (6) proposals received met the bid criteria and standards necessary to perform this work.

Vendor Location
Merchants Landscape Services, Inc. Rancho Cucamonga, CA Parkwood Landscape Maintenance, Inc. Van Nuys, CA
Mariposa Landscapes, Inc. Irwindale, CA
Four Seasons Landscaping Van Nuys, CA
RP Landscape and Irrigation San Bernardino, CA
Priority Landscape Services, LLC Anaheim, CA
Merchants Landscape Services, Inc., of Rancho Cucamonga, California, submitted a proposal that met all the required specifications with a base cost, three-year total of $2,422,698. Based on their proposal, credentials, pricing, and favorable reference checks, Staff recommends awarding the Maintenance Services Agreement to Merchants Landscape Services, Inc. 171
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CITY OF ONTARIO

MAINTENANCE SERVICES AGREEMENT

1. PARTIES AND DATE.

This Agreement is made and entered as of ____________, by and between the City of Ontario, a municipal corporation organized under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764-4196, County of San Bernardino, State of California ("City") and Merchants Landscape Services, Inc., a CORPORATION with its principal place of business at 8748 Industrial Lane, Rancho Cucamonga, CA 91730 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."

2. RECITALS.

2.1 Contractor.

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

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

2.2 Project.

City desires to engage Contractor to render such services for the Landscape Maintenance Services for Various City Maintained Parks PM 2425-11 project (“Project”) as set forth in this Agreement.

3. TERMS.

3.1 Scope of Services and Term.

3.1.1 General Scope of Services. Contractor promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the maintenance services necessary for the Project (“Services”). The Services are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.

3.1.2 Term. The term of this Agreement shall be from July 1, 2024 to June 30, 2027, unless earlier terminated as provided herein Contractor shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The 172
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Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.

3.2 Compensation.

3.2.1 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “C” attached hereto and incorporated herein by reference. The total compensation shall not exceed Two Million Three Hundred Thirty-One Thousand Nine Hundred Seventy-Two Dollars ($2,331,972) without written approval of City’s City Manager. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.

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

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

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

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

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

3.3 Responsibilities of Contractor.

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

Contractor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Contractor shall also not be employees of City and shall at all times be under Contractor’s exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations 173
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respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.

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

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

3.3.4 City’s Representative. The City hereby designates Philip Marino, Urban Forestry 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 Agreement except for increasing compensation. Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.

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

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

3.3.7 Standard of Care; Performance of Employees. Contractor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Services. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Contractor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Contractor’s failure to comply with the standard of care provided for herein. Any employee of the Contractor or its sub-contractors who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to 174
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the City, shall be promptly removed from the Project by the Contractor and shall not be re-employed to perform any of the Services or to work on the Project.

3.3.8 Period of Performance.

3.3.8.1 Contractor shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Contractor shall perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be provided separately in writing to the Contractor. Contractor agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such completion schedule or Project milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage. Pursuant to Government Code Section 53069.85, Contractor shall pay to the City as fixed and liquidated damages, and not as a penalty, the sum of One Thousand Sixty-Five Dollars ($1065) per day for each and every calendar day of delay beyond the Performance Time or beyond any completion schedule or Project milestones established pursuant to this Agreement.

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

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

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

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

3.3.10 Laws and Regulations; Employee/Labor Certifications. 175
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3.3.10.1 Compliance with Laws. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with Services. If the Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Contractor shall be solely responsible for all costs arising therefrom. City is a public entity of the State of California subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Agreement to the same extent as though set forth herein and will be complied with. These include but are not limited to the payment of prevailing wages, the stipulation that eight (8) hours’ labor shall constitute a legal day’s work and that no worker shall be permitted to work in excess of eight (8) hours during any one calendar day except as permitted by law. Contractor shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.

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

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

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

3.3.10.4 Employment Eligibility; Failure to Comply. Each person executing this Agreement on behalf of Contractor verifies that they are a duly authorized officer of Contractor, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Contractor or its subcontractors, sub-subcontractors or consultants to meet any of the requirements provided for in Sections 3.3.10.1 or 3.3.10.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Contractor under Section 3.3.10.2); or (3) failure to 176
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immediately remove from the Project any person found not to be in compliance with such requirements.

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

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

3.3.10.7 Water Quality.
(A) To the extent applicable, Contractor’s Services must account for, and fully comply with, all local, state and federal laws, rules and regulations that may impact water quality compliance, including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); laws, rules and regulations of the Environmental Protection Agency, the State Water Resources Control Board and the Colorado River Regional Water Quality Control Board; the City’s ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State. (B) Liability for Non-Compliance. Failure to comply with the laws, regulations and policies described in this Section is a violation of law that may subject Contractor or City to penalties, fines, or additional regulatory requirements. Contractor shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from and against any and all fines, penalties, claims or other regulatory requirements imposed as a result of Contractor’s non-compliance with the laws, regulations and policies described in this Section, unless such non-compliance is the result of the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers. (C) Training. In addition to any other standard of care requirements set forth in this Agreement, Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them without impacting water quality in violation of the laws, regulations and policies described in this Section. Contractor further warrants that it, its employees and subcontractors will receive adequate training, as determined by City, regarding the requirements of the laws, regulations and 177
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policies described in this Section as they may relate to the Services provided under this Agreement. Upon request, City will provide Contractor with a list of training programs that meet the requirements of this paragraph.

3.3.11 Insurance.

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

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

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

Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. The policy shall not contain any exclusion contrary to the Agreement, including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 29); or (2) cross liability for claims or suits by one insured against another. (B) Minimum Limits of Insurance. Contractor shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used including, but not limited to, form CG 2503, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $2,000,000 per accident for bodily injury and property damage; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Liability limits of $1,000,000 per accident for bodily injury or disease. Defense costs shall be paid in addition to the limits.
(C) Notices; Cancellation or Reduction of Coverage. At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or materially reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be 178
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promptly reimbursed by Contractor or the City may withhold amounts sufficient to pay premium from Contractor payments. In the alternative, the City may suspend or terminate this Agreement. (D) Additional Insured. The City, its directors, officials, officers, employees, agents, and volunteers shall be named as additional insureds on Contractor’s and its subcontractors’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.

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

The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents, and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Contractor. 179
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(D) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days (10 days for nonpayment of premium) prior written notice by certified mail, return receipt requested, has been given to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents, and volunteers.

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

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

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

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

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

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

3.3.11.8 Verification of Coverage. Contractor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 180
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3.3.11.9 Reporting of Claims. Contractor shall report to the City, in addition to Contractor’s insurer, any and all insurance claims submitted by Contractor in connection with the Services under this Agreement.

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

3.3.13 Bonds.

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

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

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

3.3.13.4 Surety Qualifications. Only bonds executed by an admitted surety insurer, as defined in Code of Civil Procedure Section 995.120, shall be accepted. The 181
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surety must be a California-admitted surety with a current A.M. Best’s rating no less than A:VIII and satisfactory to the City. If a California-admitted surety insurer issuing bonds does not meet these requirements, the insurer will be considered qualified if it is in conformance with Section 995.660 of the California Code of Civil Procedure, and proof of such is provided to the City.

3.3.14 Work Site.

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

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

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

3.3.16 Warranty. Contractor warrants all Services under the Contract (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year (or the period of time specified elsewhere in the Contract or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by the City of any defect in the Services or non-conformance of the Services to the Contract, commence and prosecute with due diligence all Services necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act sooner as requested by the City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the work (or work of other contractors) damaged by its defective Services or which becomes damaged in the course of repairing or replacing defective work. For any work so corrected, Contractor’s obligation hereunder to correct defective work shall be reinstated for an additional one year period, commencing with the date of acceptance of such corrected work. Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of the Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any portion of the work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the City, regardless of whether or not such warranties and guarantees have been 182
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transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Contract, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non-conforming work and any work damaged by such work or the replacement or correction thereof at Contractor's sole expense. Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand.

3.4 Labor Code Requirements.

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

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

3.4.3 Registration/DIR Compliance. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor’s performance of Services, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor. 183
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3.4.4 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.

3.5 Termination of Agreement.

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

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

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

3.6 Indemnification.

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

3.6.2 Additional Indemnity Obligations. Contractor shall defend, with counsel of City’s choosing and at Contractor’s own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against City or its officials, employees, agents and volunteers. In addition, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Contractor shall also reimburse City for the cost of any settlement paid by City or its officials, employees, agents and volunteers as part of any such 184
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claim, suit, action or other proceeding. Such reimbursement shall include payment for City’s attorney’s fees and costs, including expert witness fees. Contractor shall reimburse City and its officials, employees, agents and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor’s obligation to indemnify shall survive expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by the City, its officials, employees, agents and volunteers.

3.7 General Provisions.

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

3.7.2 Independent Contractors and Subcontracting.

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

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

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

Contractor:

Merchants Landscape Services, Inc.
8748 Industrial Ln.

Rancho Cucamonga, CA 91730
Attn: Mark Bower, President
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City:

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

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

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

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

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

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

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

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

3.7.10 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Contractor include all personnel, employees, agents, and subcontractors of Contractor, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease 186
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of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement.

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

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

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

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

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

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

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

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

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

BETWEEN THE CITY OF ONTARIO
AND MERCHANTS LANDSCAPE SERVICES, INC.

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

CITY OF ONTARIO Merchants Landscape Services, Inc.

By:

Its:

Printed Name:

By:

Its:

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

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

City Clerk
[If Corporation, TWO SIGNATURES,
President OR Vice President AND
Secretary OR Treasurer REQUIRED]
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Exhibit “C”
Compensation
NTE 2,331,972
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46700.00100\33865500.1

CITY OF ONTARIO

MAINTENANCE SERVICES AGREEMENT

1. PARTIES AND DATE.

This Agreement is made and entered as of ____________, by and between the City of Ontario, a municipal corporation organized under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764-4196, County of San Bernardino, State of California ("City") and Brightview Landscape Services, Inc., a CORPORATION, with its principal place of business at 1659 West 9th Street, Upland, CA 91786 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."

2. RECITALS.

2.1 Contractor.

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

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

2.2 Project.

City desires to engage Contractor to render such services for Landscape Maintenance Services for the Ontario Town Square PM 2324-10 project (“Project”) as set forth in this Agreement.

3. TERMS.

3.1 Scope of Services and Term.

3.1.1 General Scope of Services. Contractor promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the maintenance services necessary for the Project 191
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(“Services”). The Services are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.

3.1.2 Term. The term of this Agreement shall be from July 1, 2024 to June 30, 2027 unless earlier terminated as provided herein. Contractor shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.

3.2 Compensation.

3.2.1 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “C” attached hereto and incorporated herein by reference. The total compensation shall not exceed Two Hundred Eighty-Seven Thousand and One Hundred Thirty Dollars ($287,130) without written approval of City’s City Manager. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.

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

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

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

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

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

3.3 Responsibilities of Contractor.

3.3.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Contractor or under its supervision. Contractor will determine the 192
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means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Contractor on an independent contractor basis and not as an employee.

Contractor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Contractor shall also not be employees of City and shall at all times be under Contractor’s exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.

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

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

3.3.4 City’s Representative. The City hereby designates Philip Marino, Urban Forestry 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 Agreement except for increasing compensation. Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.

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

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

3.3.7 Standard of Care; Performance of Employees. Contractor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Services. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, 193
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including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Contractor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Contractor’s failure to comply with the standard of care provided for herein. Any employee of the Contractor or its sub-contractors who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Contractor and shall not be re-employed to perform any of the Services or to work on the Project.

3.3.8 Period of Performance.

3.3.8.1 Contractor shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Contractor shall perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be provided separately in writing to the Contractor. Contractor agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such completion schedule or Project milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage. Pursuant to Government Code Section 53069.85, Contractor shall pay to the City as fixed and liquidated damages, and not as a penalty, the sum of One Hundred Thirty-Two Dollars ($132) per day for each and every calendar day of delay beyond the Performance Time or beyond any completion schedule or Project milestones established pursuant to this Agreement.

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

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

Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement. 194
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3.3.9 Disputes. Should any dispute arise respecting the true value of any work done, of any work omitted, or of any extra work which Contractor may be required to do, or respecting the size of any payment to Contractor during the performance of this Contract, Contractor shall continue to perform the Work while said dispute is decided by the City. If Contractor disputes the City’s decision, Contractor shall have such remedies as may be provided by law.

3.3.10 Laws and Regulations; Employee/Labor Certifications.

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

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

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

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

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

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

3.3.10.7 Water Quality.
(A) To the extent applicable, Contractor’s Services must account for, and fully comply with, all local, state and federal laws, rules and regulations that may impact water quality compliance, including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); laws, rules and regulations of the Environmental Protection Agency, the State Water Resources Control Board and the Colorado River Regional Water Quality Control Board; the City’s ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State. (B) Liability for Non-Compliance. Failure to comply with the laws, regulations and policies described in this Section is a violation of law that may subject Contractor or City to penalties, fines, or additional regulatory requirements. Contractor shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from and against any and all fines, penalties, claims or other regulatory requirements imposed as a result of Contractor’s non-compliance with the laws, regulations and policies described in this Section, unless such non-compliance is the result of the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers. 196
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(C) Training. In addition to any other standard of care requirements set forth in this Agreement, Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them without impacting water quality in violation of the laws, regulations and policies described in this Section. Contractor further warrants that it, its employees and subcontractors will receive adequate training, as determined by City, regarding the requirements of the laws, regulations and policies described in this Section as they may relate to the Services provided under this Agreement. Upon request, City will provide Contractor with a list of training programs that meet the requirements of this paragraph.

3.3.11 Insurance.

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

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

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

Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. The policy shall not contain any exclusion contrary to the Agreement, including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 29); or (2) cross liability for claims or suits by one insured against another. (B) Minimum Limits of Insurance. Contractor shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used including, but not limited to, form CG 2503, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $2,000,000 per accident for bodily injury and property damage; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Liability limits of $1,000,000 per accident for bodily injury or disease. Defense costs shall be paid in addition to the limits.
(C) Notices; Cancellation or Reduction of Coverage. At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or materially reduced, Contractor shall, within ten (10) days after receipt of written notice of such 197
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cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be promptly reimbursed by Contractor or the City may withhold amounts sufficient to pay premium from Contractor payments. In the alternative, the City may suspend or terminate this Agreement. (D) Additional Insured. The City, its directors, officials, officers, employees, agents, and volunteers shall be named as additional insureds on Contractor’s and its subcontractors’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.

3.3.11.3 Insurance Endorsements. The insurance policies shall contain the following provisions, or Contractor shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies:
(A) General Liability. The general liability policy shall include or be endorsed (amended) to state that: (1) using ISO CG forms 20 10 and 20 37, or endorsements providing the exact same coverage, the City of Ontario, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insured with respect to the Services or ongoing and complete operations performed by or on behalf of the Contractor, including materials, parts or equipment furnished in connection with such work; and (2) using ISO form 20 01, or endorsements providing the exact same coverage, the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor’s scheduled underlying coverage. Any excess insurance shall contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of the City, before the City’s own primary insurance, deductible, or self-insurance shall be called upon to protect it as a named insured. Any insurance, deductible, or self-insurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Contractor’s insurance and shall not be called upon to contribute with it in any way. Notwithstanding the minimum limits set forth in Section 3.3.11.2(B), any available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional insureds pursuant to this Section 3.3.11.3(A).
(B) Automobile Liability. The automobile liability policy shall include or be endorsed (amended) to state that: (1) the City, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Contractor or for which the Contractor is responsible; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor’s scheduled underlying coverage. Any insurance, deductible, or selfinsurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Contractor’s insurance and shall not be called upon to contribute with it in any way. Policy shall contain or be endorsed to contain such provisions. Notwithstanding the minimum limits set forth in Section 3.3.11.2(B), any available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional insureds pursuant to this Section 3.3.11.3(B). 198
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(C) Workers’ Compensation and Employer’s Liability Coverage.

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

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

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

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

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

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

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

3.3.11.8 Verification of Coverage. Contractor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy 199
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shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.

3.3.11.9 Reporting of Claims. Contractor shall report to the City, in addition to Contractor’s insurer, any and all insurance claims submitted by Contractor in connection with the Services under this Agreement.

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

3.3.13 Bonds.

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

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

3.3.13.3 Bond Provisions. Should, in City’s sole opinion, any bond become insufficient or any surety be found to be unsatisfactory, Contractor shall renew or replace the affected bond within 10 days of receiving notice from City. In the event the surety or Contractor intends to reduce or cancel any required bond, at least thirty (30) days prior written notice shall be given to the City, and Contractor shall post acceptable replacement bonds at least ten (10) days prior to expiration of the original bonds. No further payments shall be deemed due or will be made under this Agreement until any replacement bonds required by this Section are accepted by the City. To the extent, if any, that the total compensation is increased in accordance with the Agreement, the Contractor shall, upon request of the City, cause the amount of the bonds to be increased accordingly and shall promptly deliver satisfactory evidence of such increase to the City. To the extent available, the bonds shall further provide that no change or alteration of the Agreement (including, without limitation, an increase in the total compensation, as referred to above), extensions of time, or modifications of the time, terms, or conditions of payment to the 200
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Contractor, will release the surety. If the Contractor fails to furnish any required bond, the City may terminate this Agreement for cause.

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

3.3.14 Work Site.

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

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

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

3.3.16 Warranty. Contractor warrants all Services under the Contract (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year (or the period of time specified elsewhere in the Contract or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by the City of any defect in the Services or non-conformance of the Services to the Contract, commence and prosecute with due diligence all Services necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act sooner as requested by the City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the work (or work of other contractors) damaged by its defective Services or which becomes damaged in the course of repairing or replacing defective work. For any work so corrected, Contractor’s obligation hereunder to correct defective work shall be reinstated for an additional one year period, commencing with the date of acceptance of such corrected work. Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. All costs associated with such 201
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corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of the Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any portion of the work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the City, regardless of whether or not such warranties and guarantees have been transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Contract, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non-conforming work and any work damaged by such work or the replacement or correction thereof at Contractor's sole expense. Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand.

3.4 Labor Code Requirements.

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

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

3.4.3 Registration/DIR Compliance. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor’s performance of Services, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such 202
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stop orders shall be considered Contractor caused delay and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor.

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

3.5 Termination of Agreement.

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

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

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

3.6 Indemnification.

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

3.6.2 Additional Indemnity Obligations. Contractor shall defend, with counsel of City’s choosing and at Contractor’s own cost, expense and risk, any and all Claims covered by 203
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this section that may be brought or instituted against City or its officials, employees, agents and volunteers. In addition, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Contractor shall also reimburse City for the cost of any settlement paid by City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for City’s attorney’s fees and costs, including expert witness fees. Contractor shall reimburse City and its officials, employees, agents and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor’s obligation to indemnify shall survive expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by the City, its officials, employees, agents and volunteers.

3.7 General Provisions.

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

3.7.2 Independent Contractors and Subcontracting.

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

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

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

Contractor:

Brightview Landscape Services, Inc.
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1659 West 9th Street
Upland, CA 91786
Attn: David Moo, Business Development Executive
City:

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

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

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

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

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

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

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

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

3.7.10 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work 205
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days. All references to Contractor include all personnel, employees, agents, and subcontractors of Contractor, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement.

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

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

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

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

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

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

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

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

3.7.19 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, 206
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understandings or agreements. This Agreement may only be modified by a writing signed by both parties.

SIGNATURES NEXT PAGE
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SIGNATURE PAGE FOR MAINTENANCE SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO
AND BRIGHTVIEW LANDSCAPE SERVICES, INC.

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

CITY OF ONTARIO Brightview Landscape Services, Inc.

By:

Its:

Printed Name:

By:

Its:

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

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

City Clerk
[If Corporation, TWO SIGNATURES,
President OR Vice President AND
Secretary OR Treasurer REQUIRED]
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Exhibit “C”
Compensation
NTE $287,130
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CITY OF ONTARIO

MAINTENANCE SERVICES AGREEMENT

1. PARTIES AND DATE.

This Agreement is made and entered as of ____________, by and between the City of Ontario, a municipal corporation organized under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764-4196, County of San Bernardino, State of California ("City") and Brightview Landscape Services, Inc., a CORPORATION, with its principal place of business at 1659 West 9th Street, Upland, CA 91786 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."

2. RECITALS.

2.1 Contractor.

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

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

2.2 Project.

City desires to engage Contractor to render such services for Landscape Maintenance Services for the Ontario Soccer Park PM 2425-14 project (“Project”) as set forth in this Agreement.

3. TERMS.

3.1 Scope of Services and Term.

3.1.1 General Scope of Services. Contractor promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the maintenance services necessary for the Project (“Services”). The Services are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.

3.1.2 Term. The term of this Agreement shall be from July 1, 2024 to June 30, 2027, unless earlier terminated as provided herein. Contractor shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The 210
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Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.

3.2 Compensation.

3.2.1 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “C” attached hereto and incorporated herein by reference. The total compensation shall not exceed Seven Hundred Seventy-Three Thousand and Five Hundred Thirty-Two Dollars ($773,532) without written approval of City’s City Manager. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.

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

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

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

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

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

3.3 Responsibilities of Contractor.

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

Contractor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Contractor shall also not be employees of City and shall at all times be under Contractor’s exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations 211
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respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.

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

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

3.3.4 City’s Representative. The City hereby designates Philip Marino, Urban Forestry 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 Agreement except for increasing compensation. Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.

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

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

3.3.7 Standard of Care; Performance of Employees. Contractor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Services. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Contractor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Contractor’s failure to comply with the standard of care provided for herein. Any employee of the Contractor or its sub-contractors who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to 212
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the City, shall be promptly removed from the Project by the Contractor and shall not be re-employed to perform any of the Services or to work on the Project.

3.3.8 Period of Performance.

3.3.8.1 Contractor shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Contractor shall perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be provided separately in writing to the Contractor. Contractor agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such completion schedule or Project milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage. Pursuant to Government Code Section 53069.85, Contractor shall pay to the City as fixed and liquidated damages, and not as a penalty, the sum of Three Hundred Fifty-Three Dollars ($353) per day for each and every calendar day of delay beyond the Performance Time or beyond any completion schedule or Project milestones established pursuant to this Agreement.

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

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

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

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

3.3.10 Laws and Regulations; Employee/Labor Certifications. 213
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3.3.10.1 Compliance with Laws. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with Services. If the Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Contractor shall be solely responsible for all costs arising therefrom. City is a public entity of the State of California subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Agreement to the same extent as though set forth herein and will be complied with. These include but are not limited to the payment of prevailing wages, the stipulation that eight (8) hours’ labor shall constitute a legal day’s work and that no worker shall be permitted to work in excess of eight (8) hours during any one calendar day except as permitted by law. Contractor shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.

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

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

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

3.3.10.4 Employment Eligibility; Failure to Comply. Each person executing this Agreement on behalf of Contractor verifies that they are a duly authorized officer of Contractor, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Contractor or its subcontractors, sub-subcontractors or consultants to meet any of the requirements provided for in Sections 3.3.10.1 or 3.3.10.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Contractor under Section 3.3.10.2); or (3) failure to 214
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immediately remove from the Project any person found not to be in compliance with such requirements.

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

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

3.3.10.7 Water Quality.
(A) To the extent applicable, Contractor’s Services must account for, and fully comply with, all local, state and federal laws, rules and regulations that may impact water quality compliance, including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); laws, rules and regulations of the Environmental Protection Agency, the State Water Resources Control Board and the Colorado River Regional Water Quality Control Board; the City’s ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State. (B) Liability for Non-Compliance. Failure to comply with the laws, regulations and policies described in this Section is a violation of law that may subject Contractor or City to penalties, fines, or additional regulatory requirements. Contractor shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from and against any and all fines, penalties, claims or other regulatory requirements imposed as a result of Contractor’s non-compliance with the laws, regulations and policies described in this Section, unless such non-compliance is the result of the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers. (C) Training. In addition to any other standard of care requirements set forth in this Agreement, Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them without impacting water quality in violation of the laws, regulations and policies described in this Section. Contractor further warrants that it, its employees and subcontractors will receive adequate training, as determined by City, regarding the requirements of the laws, regulations and 215
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policies described in this Section as they may relate to the Services provided under this Agreement. Upon request, City will provide Contractor with a list of training programs that meet the requirements of this paragraph.

3.3.11 Insurance.

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

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

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

Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. The policy shall not contain any exclusion contrary to the Agreement, including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 29); or (2) cross liability for claims or suits by one insured against another. (B) Minimum Limits of Insurance. Contractor shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used including, but not limited to, form CG 2503, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $2,000,000 per accident for bodily injury and property damage; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Liability limits of $1,000,000 per accident for bodily injury or disease. Defense costs shall be paid in addition to the limits.
(C) Notices; Cancellation or Reduction of Coverage. At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or materially reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be 216
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promptly reimbursed by Contractor or the City may withhold amounts sufficient to pay premium from Contractor payments. In the alternative, the City may suspend or terminate this Agreement. (D) Additional Insured. The City, its directors, officials, officers, employees, agents, and volunteers shall be named as additional insureds on Contractor’s and its subcontractors’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.

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

The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents, and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Contractor. 217
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(D) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days (10 days for nonpayment of premium) prior written notice by certified mail, return receipt requested, has been given to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents, and volunteers.

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

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

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

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

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

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

3.3.11.8 Verification of Coverage. Contractor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 218
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3.3.11.9 Reporting of Claims. Contractor shall report to the City, in addition to Contractor’s insurer, any and all insurance claims submitted by Contractor in connection with the Services under this Agreement.

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

3.3.13 Bonds.

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

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

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

3.3.13.4 Surety Qualifications. Only bonds executed by an admitted surety insurer, as defined in Code of Civil Procedure Section 995.120, shall be accepted. The 219
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surety must be a California-admitted surety with a current A.M. Best’s rating no less than A:VIII and satisfactory to the City. If a California-admitted surety insurer issuing bonds does not meet these requirements, the insurer will be considered qualified if it is in conformance with Section 995.660 of the California Code of Civil Procedure, and proof of such is provided to the City.

3.3.14 Work Site.

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

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

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

3.3.16 Warranty. Contractor warrants all Services under the Contract (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year (or the period of time specified elsewhere in the Contract or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by the City of any defect in the Services or non-conformance of the Services to the Contract, commence and prosecute with due diligence all Services necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act sooner as requested by the City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the work (or work of other contractors) damaged by its defective Services or which becomes damaged in the course of repairing or replacing defective work. For any work so corrected, Contractor’s obligation hereunder to correct defective work shall be reinstated for an additional one year period, commencing with the date of acceptance of such corrected work. Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of the Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any portion of the work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the City, regardless of whether or not such warranties and guarantees have been 220
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transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Contract, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non-conforming work and any work damaged by such work or the replacement or correction thereof at Contractor's sole expense. Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand.

3.4 Labor Code Requirements.

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

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

3.4.3 Registration/DIR Compliance. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor’s performance of Services, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor. 221
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3.4.4 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.

3.5 Termination of Agreement.

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

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

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

3.6 Indemnification.

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

3.6.2 Additional Indemnity Obligations. Contractor shall defend, with counsel of City’s choosing and at Contractor’s own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against City or its officials, employees, agents and volunteers. In addition, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Contractor shall also reimburse City for the cost of any settlement paid by City or its officials, employees, agents and volunteers as part of any such 222
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claim, suit, action or other proceeding. Such reimbursement shall include payment for City’s attorney’s fees and costs, including expert witness fees. Contractor shall reimburse City and its officials, employees, agents and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor’s obligation to indemnify shall survive expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by the City, its officials, employees, agents and volunteers.

3.7 General Provisions.

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

3.7.2 Independent Contractors and Subcontracting.

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

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

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

Contractor:

Brightview Landscape Services, Inc.
1659 W. 9th Street
Upland, CA 91786
Attn: David Moo, Business Development Executive
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City:

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

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

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

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

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

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

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

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

3.7.10 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Contractor include all personnel, employees, agents, and subcontractors of Contractor, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease 224
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of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement.

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

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

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

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

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

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

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

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

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

BETWEEN THE CITY OF ONTARIO
AND BRIGHTVIEW LANDSCAPE SERVICES, INC.

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

CITY OF ONTARIO Brightview Landscape Services, Inc.

By:

Its:

Printed Name:

By:

Its:

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

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

City Clerk
[If Corporation, TWO SIGNATURES,
President OR Vice President AND
Secretary OR Treasurer REQUIRED]
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Exhibit “C”
Compensation
NTE $773,532
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Department: Public Works
Prepared By: Philip Marino
Staff Member Presenting: Tito Haes, Executive
Director Public Works
Reviewed By: Gina Gomez, Andrea Ampig
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 11
SUBJECT: MAINTENANCE SERVICES AGREEMENTS WITH GREENTECH LANDSCAPE, INC. AND MERCHANTS LANDSCAPE SERVICES, INC. FOR LANDSCAPE MAINTENANCE

SERVICES IN THE NORTHEAST, NORTHWEST, SOUTHEAST, AND SOUTHWEST

QUADRANTS OF ONTARIO RANCH

CITY OF ONTARIO
Agenda Report
April 16, 2024
SECTION:

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

A. Authorize the City Manager or his designee to execute a Maintenance Services Agreement for Northeast Quadrant of Ontario Ranch Landscape Maintenance Services with Greentech Landscape Inc., of Whittier, California, for a total contract amount not-to-exceed $2,315,439 for up to five (5) years, and
B. Authorize the City Manager or his designee to execute a Maintenance Services Agreement for Northwest Quadrant of Ontario Ranch Landscape Maintenance Services with Merchants Landscape Services, Inc., of Rancho Cucamonga, California, for a total contract amount notto-exceed $427,492 for up to five (5) years, and C. Authorize the City Manager or his designee to execute a Maintenance Services Agreement for Southeast Quadrant of Ontario Ranch Landscape Maintenance Services with Merchants Landscape Services, Inc., of Rancho Cucamonga, California, for a total contract amount notto-exceed $1,546,460 for up to five (5) years; and D. Authorize the City Manager or his designee to execute a Maintenance Services Agreement for Southwest Quadrant of Ontario Ranch Landscape Maintenance Services with Merchants Landscape Services, Inc., of Rancho Cucamonga, California, for a total contract amount notto-exceed $1,491,488 for up to five (5) years.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

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
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FISCAL IMPACT:

Northeast Quadrant of Ontario Ranch
The recommended contract award to Greentech Landscape, Inc. is for $1,250,244 plus urgency services in an amount of $39,000 for a total not-to-exceed contract amount of $1,289,244 over the three-year term. Two (2) one-year extensions may be exercised at the City’s sole discretion for an additional contract amount of $1,000,195 plus urgency services in an amount of $26,000 for a total contract amount not-to-exceed $2,315,439. If approved, appropriations will be included in future Annual Budgets to City Council for approval as needed for the Northeast Quadrant of Ontario Ranch, from Hamner Avenue to Archibald Avenue and from Riverside Drive to Ontario Ranch Road.

Northwest Quadrant of Ontario Ranch
The recommended contract award to Merchants Landscape Services, Inc. is for $234,000 plus urgency services in an amount of $18,240 for a total not-to-exceed contract amount of $252,240 over the three-year term. Two (2) one-year extensions may be exercised at the City’s sole discretion for an additional contract amount of $163,092 plus urgency services in an amount of $12,160 for a total contract amount not-to-exceed $427,492. If approved, appropriations will be included in future Annual Budgets to City Council for approval as needed for Landscape Maintenance Services for the Northwest Quadrant of Ontario Ranch, from Archibald Avenue to Cucamonga Creek channel and from Riverside Drive to Chino Avenue.

Southeast Quadrant of Ontario Ranch
The recommended contract award to Merchants Landscape Services, Inc. is for $873,000 plus urgency services of $39,000 for a total not-to-exceed contract amount of $912,000 over the threeyear term. Two (2) one-year extensions may be exercised at the City’s sole discretion for an additional contract amount of $608,460 plus urgency services in an amount of $26,000 for a total contract amount not-to-exceed $1,546,460. If approved, appropriations will be included in future Annual Budgets to City Council for approval as needed for Landscape Maintenance Services for the Southeast Quadrant of Ontario Ranch, from Hamner Avenue to Archibald Avenue and from Ontario Ranch Road to Bellegrave Avenue.

Southwest Quadrant of Ontario Ranch
The recommended contract award to Merchants Landscape Services, Inc. is for $840,600 plus urgency services of $39,000 for a total not-to-exceed contract amount of $879,600 over the threeyear term. Two (2) one-year extensions may be exercised at the City’s sole discretion for an additional contract amount of $585,888 plus urgency services in an amount of $26,000 for a total contract amount not-to-exceed $1,491,488. If approved, appropriations will be included in future Annual Budgets to City Council for approval as needed for Landscape Maintenance Services for the Southwest Quadrant of Ontario Ranch, from Archibald Avenue to Carpenter Avenue and from Ontario Ranch Road to south City limits.

BACKGROUND & ANALYSIS:
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Northeast Quadrant of Ontario Ranch
In January 2024, the City solicited proposals for Bid No. 1748, Landscape Maintenance Services for the Northeast Quadrant of Ontario Ranch. The three (3) proposals received met the bid criteria and standards necessary to perform this work.

Vendor Location
Greentech Landscape, Inc. Whittier, CA
Mariposa Landscapes, Inc. Irwindale, CA
Merchants Landscape Services, Inc. Rancho Cucamonga, CA Greentech Landscape, Inc., of Whittier, California, submitted a proposal that met all the required specifications with a total contract cost of $1,289,244 over a three-year term. Based on their proposal, credentials, pricing, and favorable reference checks, Staff recommends awarding the Maintenance Services Agreement to Greentech Landscape Inc.

Northwest Quadrant of Ontario Ranch
In January 2024, the City solicited proposals for Bid No. 1749, Landscape Maintenance Services for the Northwest Quadrant of Ontario Ranch. The three (3) proposals received met the bid criteria and standards necessary to perform this work.

Vendor Location
Greentech Landscape, Inc. Whittier, CA
Mariposa Landscapes, Inc. Irwindale, CA
Merchants Landscape Services, Inc. Rancho Cucamonga, CA Merchants Landscape Services, Inc., of Rancho Cucamonga, California, submitted a proposal that met all the required specifications with a total contract cost of $252,240 over a three-year term.

Based on their proposal, credentials, pricing, and favorable reference checks, Staff recommends awarding the Maintenance Service Agreement to Merchants Landscape Services, Inc.

Southeast Quadrant of Ontario Ranch
In January 2024, the City solicited proposals for Bid No. 1750, Landscape Maintenance Services for the Southeast Quadrant of Ontario Ranch The three (3) proposals received met the bid criteria and standards necessary to perform this work.

Vendor Location
Greentech Landscape, Inc. Whittier, CA
Mariposa Landscapes, Inc. Irwindale, CA
Merchants Landscape Services, Inc. Rancho Cucamonga, CA Merchants Landscape Services, Inc., of Rancho Cucamonga, California, submitted a proposal that met all the required specifications with a total contract cost of $912,000 over a three-year term.

Based on their proposal, credentials, pricing, and favorable reference checks, Staff recommends 231
awarding the Maintenance Service Agreement to Merchants Landscape Services, Inc.

Southwest Quadrant of Ontario Ranch
In January 2024, the City solicited proposals for Bid No. 1751, Landscape Maintenance Services for the Southwest Quadrant of Ontario Ranch The three (3) proposals received met the bid criteria and standards necessary to perform this work.

Vendor Location
Greentech Landscape, Inc. Whittier, CA
Mariposa Landscapes, Inc. Irwindale, CA
Merchants Landscape Services, Inc. Rancho Cucamonga, CA Merchants Landscape Services, Inc., of Rancho Cucamonga, California, submitted a proposal that met all the required specifications with a total contract cost of $879,600 over a three-year term.

Based on their proposal, credentials, pricing, and favorable reference checks, Staff recommends awarding the Maintenance Services Agreement to Merchants Landscape Services, Inc. 232
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CITY OF ONTARIO

MAINTENANCE SERVICES AGREEMENT

1. PARTIES AND DATE.

This Agreement is made and entered as of ____________, by and between the City of Ontario, a municipal corporation organized under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764-4196, County of San Bernardino, State of California ("City") and Greentech Landscape, Inc., a CORPORATION with its principal place of business at 13560 E. Telegraph Rd., Whittier, CA 90605 ("Consultant").

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

2. RECITALS.

2.1 Contractor.

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

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

2.2 Project.

City desires to engage Contractor to render such services for the Landscape Services for the Northeast Quadrant of Ontario Ranch PM 2324-05 project (“Project”) as set forth in this Agreement.

3. TERMS.

3.1 Scope of Services and Term.

3.1.1 General Scope of Services. Contractor promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the maintenance services necessary for the Project (“Services”). The Services are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 233
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3.1.2 Term. The term of this Agreement shall be from July 1, 2024 to June 30, 2027, unless earlier terminated as provided herein. Contractor shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.

3.2 Compensation.

3.2.1 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “C” attached hereto and incorporated herein by reference. The total compensation shall not exceed One Million Two Hundred Fifty Thousand and Two Hundred Forty-Four Dollars ($1,250,244) without written approval of City’s City Manager. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.

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

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

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

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

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

3.3 Responsibilities of Contractor.

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

Contractor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Contractor shall also not be employees of City and shall at all times be under 234
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Contractor’s exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.

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

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

3.3.4 City’s Representative. The City hereby designates Philip Marino, Urban Forestry 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 Agreement except for increasing compensation. Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.

3.3.5 Contractor’s Representative. Contractor hereby designates Abel Cohetzaltitla, Account Manager/Business Development , or his or her designee, to act as its representative for the performance of this Agreement (“Contractor’s Representative”).

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

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

3.3.7 Standard of Care; Performance of Employees. Contractor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Services. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Contractor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Contractor’s failure to comply with the standard of care provided for herein. Any employee of the 235
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Contractor or its sub-contractors who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Contractor and shall not be re-employed to perform any of the Services or to work on the Project.

3.3.8 Period of Performance.

3.3.8.1 Contractor shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Contractor shall perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be provided separately in writing to the Contractor. Contractor agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such completion schedule or Project milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damagePursuant to Government Code Section 53069.85, Contractor shall pay to the City as fixed and liquidated damages, and not as a penalty, the sum of Five Hundred Seventy-One Dollars ($571) per day for each and every calendar day of delay beyond the Performance Time or beyond any completion schedule or Project milestones established pursuant to this Agreement.

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