BB&K 2020
AMENDMENT NO. 2 TO THE ARCHITECTURAL DESIGN SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO
AND PBK ARCHITECTS, INC.
1. Parties and Date.
This Amendment No. 2 to the Agreement (as defined herein) is made and entered as of ____________, by and between the City of Ontario (“City”) and PBK Architects, 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 “Architectural Design Services Agreement” dated July 21, 2020 (“Agreement”).
2.2 Amendment Purpose. The City and Consultant desire to amend the Agreement for new end date June 30, 2026, and revise the scope of services by adding design services to the D&C21-001 New Fire Station 01 and Fire Administration Building project increasing the agreement amount by $70,720 for a new total not to exceed amount of $3,759,720. The Parties have heretofore entered into Amendment No. 1 dated February 16, 2021.
2.3 Amendment Authority. This Amendment No. 2 is authorized pursuant to Section
3.37 of the Agreement.
3. Terms.
3.1 Amendment. Section 3.1.2, 3.8.2 and 3.10.1 of the Agreement is hereby amended in its entirety to read as follows:
“3.1.2 Term. The term of this Agreement shall be from June 30, 2023, to June 30, 2026, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines.”
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“3. 8.2 Definition. As used herein, “Additional Services" mean: ( 1) any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary for the Consultant to perform at the execution of this Agreement; or (2) any work listed as Additional Services in Attachment “A” attached hereto. Consultant shall not perform, nor be compensated for, Additional Services without prior written authorization from City and without an agreement between the City and Consultant as to the compensation to be paid for such services. City shall pay Consultant for any approved Additional Services, pursuant to the compensation ,provisions herein, so long as such services are not made necessary through the fault of Consultant pursuant to the indemnification provision of this Agreement.
“3. 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 Three Million Seven Hundred Fifty-Nine Thousand and Seven Hundred Twenty Dollars ($3,759,720) (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 " B" 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 B 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. 2, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 2. From and after the date of this Amendment No. 2, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 2.
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. 2.
3.4 Severability. If any portion of this Amendment No. 2 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.
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[SIGNATURES ON FOLLOWING PAGE]
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BB&K 2020
SIGNATURE PAGE FOR AMENDMENT NO. 2 TO THE ARCHITECTURAL DESIGN
SERVICES AGREEMENT BETWEEN THE CITY OF ONTARIO
AND PBK ARCHITECTS, INC.
IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 2 as of the day and year first above written.
CITY OF ONTARIO PBK ARCHITECTS, 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
394
May 21, 2024
Mr. Dan Beers
Design and Construction Project Manager
City of Ontario
1333 South Bon View Avenue
Ontario, CA 91761
Re: Request for Additional Services – Unforeseen Design Services Ontario Fire Station 1 and Administration Building
Project 2011700.06
Dear Dan:
Per your request, the following is a breakdown of the additional services requested for unforeseen design services:
PROJECT FEE
Fire Station 1 $ 5,000.00
Fire Administration Building $ 5,000.00
TOTAL FEE $ 10,000.00
Dan, If you should have any questions regarding this request, please feel free to contact me at any time.
Very truly yours,
KELLEY NEEDHAM, AIA
Managing Senior Principal
KN:hb/P02011700x8-ltr
cc: Cynthia Heredia-Torres, Engineer, City of Ontario
Stephanie Quintero, Director of Accounting, Senior Associate, PBK Rowel Zafra, Project Manager, PBK
Exhibit "A"
395
May 21, 2024
Mr. Dan Beers
Design and Construction Project Manager
City of Ontario
1333 South Bon View Avenue
Ontario, CA 91761
Re: Request for Additional Services – South Perimeter Site Wall Ontario Fire Station 1
Project 2011700.06
Dear Dan:
As you are aware, the improvements scheduled along the south property line will need to be revised to work with the new parking structure. A breakdown of the additional fees are as follows:
FIRM FEE
MSL Engineering $ 6,000.00
Miyamoto International $ 2,000.00
PBK 3,000.00
TOTAL FEE $ 11,000.00
Once completed, the revised drawings will be submitted to Building and Safety for review and approval. Please let me know how you would like to proceed in regard to this matter.
If you should have any questions regarding this request, please feel free to contact me at any time.
Very truly yours,
KELLEY NEEDHAM, AIA
Managing Senior Principal
KN:hb/P02011700x9-ltr
cc: Cynthia Heredia-Torres, Engineer, City of Ontario
Stephanie Quintero, Director of Accounting, Senior Associate, PBK Rowel Zafra, Project Manager, PBK
396
May 21, 2024
Mr. Dan Beers
Design and Construction Project Manager
City of Ontario
1333 South Bon View Avenue
Ontario, CA 91761
Re: Request for Additional Services – New Site Wall Area Ontario Fire Station 1
Project 2011700.06
Dear Dan:
As you are aware, a new site wall, one additional flagpole and walkway are to be added at the northeast corner of the Fire Station, see attached Site Wall Drawing. A breakdown of the additional fees are as follows:
FIRM FEE
MSL Engineering $ 4,000.00
Miyamoto International 1,500.00
Cornerstone Studios 1,300.00
A&F Engineering 1,200.00
PBK 2,800.00
TOTAL FEE $ 10,800.00
Once completed, the revised drawings will be submitted to Building and Safety for review and approval. Please let me know how you would like to proceed in regard to this matter.
If you should have any questions regarding this request, please feel free to contact me at any time.
Very truly yours,
KELLEY NEEDHAM, AIA
Managing Senior Principal
KN:hb/P0201170010-ltr
Attachment: Site Wall Drawing
cc: Cynthia Heredia-Torres, Engineer, City of Ontario
Stephanie Quintero, Director of Accounting, Senior Associate, PBK Rowel Zafra, Project Manager, PBK
397
LANDSCAPE
LANDSCAPE WITHDECORATIVE POLISHEDGRAVEL
LANDSCAPE
FLAG POLE. TYP. OF 2
4' WIDE WALKWAY
2' WIDE LANDSCAPEWITH DECORATIVEPOLISHED GRAVELAND UP-LIGHTS 6' LENGTH x 5' HIGH x 8"THK CAST IN PLACECONC. 3 SEGMENTS 6" CURB
LANDSCAPE
ASI #5 - SITE WALLFINAL DESIGN APPROVED BY THE FIRE DEPT. THISWILL BE SUBMITTED TO BUILDING DEPT. ANDREQUIRES CLOUD AND DELTA 7 - SITE WALL. 398
Department: Public Works
Prepared By: Tim Masot
Staff Member Presenting: Tito Haes, Executive
Director Public Works
Reviewed By: Bonnie Tam, Andrea Ampig
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 15
SUBJECT: A MAINTENANCE SERVICES AGREEMENT WITH CMAX COMMERCIAL MAINTENANCE, INC. FOR CITYWIDE STREET SWEEPING SERVICES
CITY OF ONTARIO
Agenda Report
June 4, 2024
SECTION:
CONSENT CALENDAR
RECOMMENDATION: That the City Council authorize the City Manager, or his designee, to execute a Maintenance Services Agreement for Citywide Street Sweeping Services with CMAX Commercial Maintenance, Inc. (CMAX), of Ontario, California, for a total contract amount not-to-exceed $66,412,963 for up to 15 years.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT: The recommended contract award to CMAX is in an annual amount of $3,486,444 plus $104,593 for urgency services for a total contract amount of $3,591,037. With the 3% Consumer Price Index (CPI) increase each year, the total contract amount is $18,510,002 plus urgency services of $522,965, for a total not-to-exceed contract amount of $19,032,969 over a fiveyear term. At the City’s discretion, two (2) additional five-year extensions may be exercised. Should the City exercise the two (2) five-year extensions, the total contract amount over 15 years would be $64,844,063 plus urgency services of $1,568,900 for a total contract amount not-to-exceed $66,412,963. Contracting for the five-year period allows the City to limit the potential for yearly increases to the bid amounts, avoid the cost of re-bidding the contract annually, provide services continuity, and project future cost. If approved, appropriations will be included in future Annual Budgets to City Council for approval as needed for Citywide Street Sweeping Services.
BACKGROUND & ANALYSIS: The City of Ontario has a total of 64,852 curb miles swept annually and is projected to grow due to the development in the Ontario Ranch area. The goal of the street sweeping program is to provide economical services that sustain and restore City streets to maintain a clean and safe environment. Street sweeping is an essential service that removes debris from streets and gutters, keeping pollutants from entering the City’s storm drains which can cause water contamination and flooding during heavy rains. Street sweeping is a requirement of the state and federal National Pollutant Discharge Elimination System (NPDES) and the City's Municipal Separate Storm Sewer System (MS4) permit.
399
Ontario Municipal Code Section 2-6.14 (a) states Maintenance Services Agreements may be awarded based on a best value selection. In March 2024, the City solicited quotes for Citywide Street Sweeping Services. Two (2) quotes were received that met the criteria and standards necessary to perform this work. CMAX, of Ontario, California, submitted the lowest responsible quote with $53.76 per curb mile. The agreement will require CMAX to adhere to all laws pertaining to the street sweeping services including labor laws as established by the California Division of Occupational Safety and Heath (Cal/OSHA), California Labor Code, California Code of Regulations, and more specifically, labor laws as established by the Department of Industrial Relations pertaining to Prevailing Wage.
After a thorough evaluation process, CMAX and City Staff have agreed to several key contract terms including the curb mile rate, number of street sweeper vehicles servicing the City, method of street sweeping debris disposal, and having a full-time Operations Supervisor. Services in the proposed agreement include weekly street sweeping services on residential and industrial areas, alleyways, and various city parking lots and facilities.
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CITY OF ONTARIO
MAINTENANCE SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered as of ____________, by and between the City of Ontario, a municipal corporation organized under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764-4196, County of San Bernardino, State of California ("City") and CMAX Commercial Maintenance, Inc., a CORPORATION with its principal place of business at 316 N. Corona Ave., Ontario, CA 91764 ("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 Street Sweeping Services 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 Citywide Street Sweeping Services project (“Project”) as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Contractor promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the maintenance services necessary for the Project (“Services”). The Services are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 401
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3.1.2 Term. The term of this Agreement shall be from July 1, 2024, to June 30, 2029, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than Two Additional FiveYear Terms. Contractor shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.
3.2 Compensation.
3.2.1 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “C” attached hereto and incorporated herein by reference. The total compensation shall not exceed Eighteen Million Five Hundred Ten Thousand and Two Dollars ($18,510,002) 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 402
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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 Tim Masot, Parks and Maintenance 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 Frank Gutierrez, 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 403
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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 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 Five Hundred Seven Dollars ($507) 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.
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3.3.10 Laws and Regulations; Employee/Labor Certifications.
3.3.10.1 Compliance with Laws. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with Services. If the Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Contractor shall be solely responsible for all costs arising therefrom. City is a public entity of the State of California subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Agreement to the same extent as though set forth herein and will be complied with. These include but are not limited to the payment of prevailing wages, the stipulation that eight (8) hours’ labor shall constitute a legal day’s work and that no worker shall be permitted to work in excess of eight (8) hours during any one calendar day except as permitted by law. Contractor shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.
3.3.10.2 Employment Eligibility; Contractor. By executing this Agreement, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such requirements and restrictions include, but are not limited to, examination and retention of documentation confirming the identity and immigration status of each employee of the Contractor.
Contractor also verifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement. Contractor shall avoid any violation of any such law during the term of this Agreement by participating in an electronic verification of work authorization program operated by the United States Department of Homeland Security, by participating in an equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, or by some other legally acceptable method. Contractor shall maintain records of each such verification, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses related to Contractor’s compliance with the requirements provided for in Section 3.3.10 or any of its subsections.
3.3.10.3 Employment Eligibility; Subcontractors, Sub-subcontractors and Consultants. To the same extent and under the same conditions as Contractor, Contractor shall require all of its subcontractors, sub-subcontractors and consultants performing any work relating to the Project or this Agreement to make the same verifications and comply with all requirements and restrictions provided for in Section 3.3.10.1.
3.3.10.4 Employment Eligibility; Failure to Comply. Each person executing this Agreement on behalf of Contractor verifies that they are a duly authorized officer of Contractor, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Contractor or its subcontractors, sub-subcontractors or consultants to meet any of the requirements provided for in Sections 3.3.10.1 or 3.3.10.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including 405
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in those verifications provided to the Contractor under Section 3.3.10.2); or (3) failure to immediately remove from the Project any person found not to be in compliance with such requirements.
3.3.10.5 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Contractor shall also comply with all relevant provisions of City’s Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.3.10.6 Air Quality. Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (CARB). Contractor shall specifically be aware of the CARB limits and requirements’ application to “portable equipment”, which definition is considered by CARB to include any item of equipment with a fuel-powered engine. Contractor shall indemnify City against any fines or penalties imposed by CARB or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Contractor, its subcontractors, or others for whom Contractor is responsible under its indemnity obligations provided for in this Agreement.
3.3.10.7 Water Quality.
(A) To the extent applicable, Contractor’s Services must account for, and fully comply with, all local, state and federal laws, rules and regulations that may impact water quality compliance, including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); laws, rules and regulations of the Environmental Protection Agency, the State Water Resources Control Board and the Colorado River Regional Water Quality Control Board; the City’s ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State. (B) Liability for Non-Compliance. Failure to comply with the laws, regulations and policies described in this Section is a violation of law that may subject Contractor or City to penalties, fines, or additional regulatory requirements. Contractor shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from and against any and all fines, penalties, claims or other regulatory requirements imposed as a result of Contractor’s non-compliance with the laws, regulations and policies described in this Section, unless such non-compliance is the result of the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers. (C) Training. In addition to any other standard of care requirements set forth in this Agreement, Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them without impacting water quality in violation of the laws, regulations and policies described in this Section. Contractor further warrants that it, its employees and subcontractors will receive 406
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adequate training, as determined by City, regarding the requirements of the laws, regulations and policies described in this Section as they may relate to the Services provided under this Agreement. Upon request, City will provide Contractor with a list of training programs that meet the requirements of this paragraph.
3.3.11 Insurance.
3.3.11.1 Time for Compliance. Contractor shall not commence Services under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this Section. In addition, Contractor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this Section.
3.3.11.2 Minimum Requirements. Contractor shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Contractor, its agents, representatives, employees or subcontractors.
Contractor shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage:
(A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability:
Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. The policy shall not contain any exclusion contrary to the Agreement, including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 29); or (2) cross liability for claims or suits by one insured against another. (B) Minimum Limits of Insurance. Contractor shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used including, but not limited to, form CG 2503, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $2,000,000 per accident for bodily injury and property damage; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Liability limits of $1,000,000 per accident for bodily injury or disease. Defense costs shall be paid in addition to the limits.
(C) Notices; Cancellation or Reduction of Coverage. At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or materially reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be 407
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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. 408
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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. 409
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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 410
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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 411
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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. 412
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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 413
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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:
CMAX Commercial Maintenance, Inc.
316 N. Corona Ave.
Ontario, CA 91764
Frank Gutierrez, President
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City:
City of Ontario
303 East “B” Street
Ontario, CA 91764
Attn: Tim Masot, Parks and Maintenance 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 415
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of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement.
3.7.11 Amendment; Modification. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.7.12 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise.
3.7.13 No Third Party Beneficiaries. Except to the extent expressly provided for in Section 3.5.7, there are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.7.14 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.7.15 Prohibited Interests. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Agreement. Further, Contractor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Contractor further agrees to file, or shall cause its employees or subcontractors to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.7.16 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
3.7.17 Authority to Enter Agreement. Contractor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
3.7.18 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
3.7.19 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties.
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SIGNATURES NEXT PAGE
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SIGNATURE PAGE FOR MAINTENANCE SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO
AND CMAX COMMERCIAL MAINTENANCE, INC.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
CITY OF ONTARIO CMAX Commercial Maintenance, Inc.
By:
Its:
Printed Name:
By:
Its:
Printed Name:
____________________________________
Contractor’s License Number and
Classification
____________________________________
DIR Registration Number
Approved By:
Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:
City Clerk
[If Corporation, TWO SIGNATURES,
President OR Vice President AND
Secretary OR Treasurer REQUIRED]
418
RECIPIENT:
City of Ontario
1425 S. Bon View Ave.
1425 S. Bon View Ave. Ontario, CA 91761
SERVICE ADDRESS:
1425 S. Bon View Ave.
Ontario, CA 91761
Ontario, CA 91761
Quote #2559
Sent on Apr 04, 2024
Total $3,486,443.52
1 of 3 pages
CMAX Commercial Maintenance, Inc
316 North Corona Avenue
Ontario, California 91764
909-268-7944
[email protected] | CMAXCo.com
Exhibit "A"
419
Product/Service Description Qty. Unit Price Total
Street Sweeping Prevailing Wages and With Street Sweeping parking restrictions in place.
Residential 784 Miles Weekly
Industrial 189 Miles Weekly
Alleyways 122 Miles Weekly
Parking Lots 60 Miles Weekly
Euclid Avenue (Downtown) 6 Miles Weekly (3 x
week)
Euclid Avenue (Holt –Riverside) - Fall 24 Miles
Weekly (2x week) - 17 Weeks
Euclid Avenue (Holt –Riverside) 12 Miles
Weekly – 35 Weeks
Euclid Avenue (G – I-10) – Fall 9 Miles Weekly
(2x Week) -17 Weeks
Euclid Avenue (Holt –Riverside) 4.5 Miles Weekly
- 35 Weeks
Airport Entrance (Vineyard, Archibald, 26 Miles
Weekly (2x week)
Haven from Airport to I-10 and Airport Rd. from
Vineyard to Haven) 22 Miles
Weekly (2X week)
Ontario Police Dept. 5 Miles Weekly
Ontario Soccer Park 2 Miles Weekly
Metro link parking 3 Miles Weekly
Civic Center 4 Miles Weekly
(City Hall, Library and Annex
“B” from Euclid to Sultana
“D” from Euclid to Sultana
Lemon from “B” to “D”
Civic Center Alleys)
Whispering Lakes Golf Course 3 Miles Weekly
Annual miles 64,852
5+5+5 year agreement with a 3% annual increase
per year
Includes Dumping and disposal fees
Curb Broom Sweep all indicated Streets
Sweep Curb and Gutter where applicable
Apply water mister to control dust
Dump debris in indicated landfill/transfer station
Report and provide gps tracking as needed
Pictures of any obstacles if needed
Projected 6-7 truck operation completing 35-50
CM per day will vary per day as needed
Prevailing Wage Pricing - Operator 4 wage scale
----------
1-Assumes disposal dump rate $55.74
2-Assumes 6500 ton cap on annual disposal
3-Assumes dumping at WVMRF
4-Assumes performance bond cost is based on
annual project cost and not total project price.
64852 $53.76 $3,486,443.52
2 of 3 pages
CMAX Commercial Maintenance, Inc
316 North Corona Avenue
Ontario, California 91764
909-268-7944
[email protected] | CMAXCo.com
420
This quote is valid for the next 30 days, after which values may be subject to change.
Total $3,486,443.52
3 of 3 pages
CMAX Commercial Maintenance, Inc
316 North Corona Avenue
Ontario, California 91764
909-268-7944
[email protected] | CMAXCo.com
421
46700.00100\40935194.1
BB&K (2023) Exhibit B-1 MAINTENANCE SERVICES AGREEMENT
EXHIBIT “B”
SCHEDULE OF SERVICES
JULY 1, 2024, TO JUNE 30, 2029
PLUS TWO OPTIONAL 5-YEAR EXTENSIONS
422
EXHIBIT “C”
COMPENSATION
ANNUAL BASE OF $3,486,444 WITH 3% CPI INCREASE PER YEAR.
TERMS ANNUAL COST
Year # 1 $3,486,443.52
Year # 2, 3% Increase $3,591,036.83
Year # 3, 3% Increase $3,698,767.93
Year # 4, 3% Increase $3,809,730.97
Year # 5, 3% Increase $3,924,022.90
Year # 6, 3% Increase $4,041,743.58
Year # 7, 3% Increase $4,162,995.89
Year # 8, 3% Increase $4,287,885.77
Year # 9, 3% Increase $4,416,522.34
Year # 10, 3%
Increase $4,549,018.01
Year # 11, 3%
Increase $4,685,488.55
Year # 12, 3%
Increase $4,826,053.21
Year # 13, 3%
Increase $4,970,834.81
Year # 14, 3%
Increase $5,119,959.85
Year # 15, 3%
Increase $5,273,558.64
15 Year Annual Cost $64,844,062.80
423
PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:
THAT WHEREAS, the City of Ontario (hereinafter referred to as “City”) has awarded to ____________________, (hereinafter referred to as the “Contractor”) _______________________ an agreement for ______________________________ (hereinafter referred to as the “Project”).
WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated ________________, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and
WHEREAS, the Contractor is required by said Contract Documents to perform the terms thereof and to furnish a bond for the faithful performance of said Contract Documents.
NOW, THEREFORE, we, _______________, the undersigned Contractor and _____________________________________________ as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto the City in the sum of ___________________________ DOLLARS, ($____________), 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:
424
(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.
425
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.
426
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
427
PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS That
WHEREAS, the City of Ontario (hereinafter designated as the “City”), has awarded to ________________ hereinafter designated as the “Principal,” a contract for the work described as follows:
_____________________________________________________ (the “Project”); and WHEREAS, the work to be performed by the Principal is more particularly set forth in the Contract Documents for the Project dated __________________ (“Contract Documents”), the terms and conditions of which are expressly incorporated by reference; and WHEREAS, said Principal is required to furnish a bond in connection with said contract; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth.
NOW THEREFORE, we, the Principal and __________________________ as Surety, are held and firmly bound unto the City in the penal sum of ______________ Dollars ($___________) lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in Section 9100 of the Civil Code, fail to pay for any materials, provisions or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to Section 18663 of the Revenue and Taxation Code, with respect to such work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified.
This bond shall inure to the benefit of any of the persons named in Section 9100 of the Civil Code so as to give a right of action to such persons or their assigns in any suit brought upon this bond.
It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement herein above described, nor by any rescission or 428
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.
429
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
430
Department: Fire Department
Prepared By: Nereida Medrano
Staff Member Presenting: Mike Gerken, Fire
Chief
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 16
SUBJECT: AUTHORIZE THE PURCHASE OF A LIVE FIRE SIMULATOR PROP WITH DRAEGER, INC. FOR THE ONTARIO FIRE DEPARTMENT
CITY OF ONTARIO
Agenda Report
June 4, 2024
SECTION:
CONSENT CALENDAR
RECOMMENDATION: That the City Council authorize the City Manager or his designee to execute the purchase of a live fire simulation prop from Draeger, Inc., of Telford, PA, in an amount not-toexceed $728,262.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Maintain the Current High Level of Public Safety
FISCAL IMPACT: The agreement for the purchase of the live fire simulation prop is for $662,056, plus a 10% contingency of $66,206 for a total not-to-exceed $728,262. Appropriations for the live fire simulation prop will be included in the Fiscal Year 2024-25 Proposed Budget.
BACKGROUND & ANALYSIS: The Ontario Fire Department is dedicated to providing an exceptionally high level of customer service, a direct result of consistent high-quality training of its personnel. This commitment to training has been instrumental in making the Department one of the most competent and capable Departments in the state. In 2012, the Ontario Fire Department assembled a Fire Control Team to become subject matter experts and deliver such training in accordance with National Fire Protection Association (NFPA) 1403: Standard on Live Fire Training Evolutions. While the construction of the training tower at the Fire Training Center has addressed some of the facility needs, its masonry construction has temperature limitations which prohibits the Fire Control Team from training Staff under realistic conditions.
Due to the age and condition of the current live fire simulation prop from years of training and outdated capacity, it is no longer capable of delivering the required training without sustaining irreparable damage. Therefore, Staff recommends the purchase of new props to replace the current prop and position the Department for successful training under current industry standards.
Because this is a very specific form of training equipment not typically manufactured in mass production, Staff consulted with other fire departments in the region of similar size and capability to source potential vendors to construct the desired product. As a result, Draeger, Inc. of Telford, PA, was determined to be the vendor of choice, specifically delivering the Draeger Swede Survival 431
Phase 5 system. This structural training prop is capable of creating and repeating a live fire training environment which most accurately represents modern structure firefighting challenges.
Additionally, the Phase 5 system provides realistic live fire training environments for Staff to meet the NFPA 1403 requirement including attic fire attacks, basement fire attacks, and simulating fire attacks which require varying venting strategies. Due to structural limitations of the existing prop, these tactics cannot be adequately trained for by staff. Ultimately, the realistic environments created in this prop will best prepare Ontario firefighters for what they may encounter on the job.
After reviewing the proposal received from Draeger, Inc. of Telford, PA, Staff recommends the sole source purchase of the Live Fire Simulation Prop (Swede Survival Phase V and Training System) from Draeger, Inc. in the amount of $662,056, plus a 10% contingency of $66,206 for a total not-toexceed of $728,262, which is inclusive of construction, installation, and initial training at the Ontario Fire Department Training Center.
432
46700.00100\40935206.1
(BB&K 2023) - 1 - Goods and Services Agreement
CITY OF ONTARIO
GOODS & SERVICES AGREEMENT
This Agreement is made and entered into 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 Draeger, Inc., a Corporation with its principal place of business at 3135 Quarry Road Telford, PA 18969 (“Vendor”). City and Vendor are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.
RECITALS
A. Vendor desires to perform and assume responsibility for the provision of certain services and goods required by the City on the terms and conditions set forth in this Agreement.
Vendor represents that it is experienced in providing similar services and goods 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 and understands the needs of City.
B. City desires to engage Vendor to sell to City the materials and/or equipment and/or render such services as more particularly described in this Agreement.
TERMS
1. SCOPE OF SERVICES.
1.1 General Scope of Services. Vendor 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 Purchase and Delivery of Live Fire Simulator Prop services (“Services”) which 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.
1.2 Goods. Vendor agrees to sell to City and City agrees to purchase the materials and/or equipment (“Goods”) as specified and per the specifications attached hereto and 433
46700.00100\40935206.1
(BB&K 2023) - 2 - Goods and Services Agreement
incorporated herein as Exhibit “A.” Unless specifically stated otherwise, the Goods shall be new and unused and of the current production year.
2. TERM.
2.1 The term of this Agreement shall be from April 5, 2024 to July 31, 2025, unless earlier terminated as provided herein. Vendor shall provide all Goods and 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 work.
3. FEES AND PAYMENTS.
3.1 Compensation. Vendor shall receive compensation, including authorized reimbursements, for all Goods provided and Services rendered under this Agreement at the rates set forth in Exhibit “A” attached hereto and incorporated herein by reference. The total compensation shall not exceed Six Hundred Sixty-Two Thousand Fifty-Six Dollars ($662,056) 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 Payment of Compensation. Vendor shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Vendor and Goods provided. The statement shall describe the amount of Services and Goods 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 non-disputed and approved charges thereon.
3.3 Reimbursement for Expenses. Vendor shall not be reimbursed for any expenses unless authorized in writing by City.
3.4 Extra Work. At any time during the term of this Agreement, City may request that Vendor 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 Goods and Services, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Vendor shall not perform, nor be compensated for, Extra Work without written authorization from City’s Representative.
4. RESPONSIBILITIES OF VENDOR.
4.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Vendor or under its supervision. Vendor will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Vendor on an independent contractor basis and not as an employee. Vendor 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 Vendor shall also not be employees of City and shall at all times be under Vendor’s exclusive direction and control. Neither City, or any of its officials, officers, directors, employees or agents shall have control over the conduct of Vendor or any of Vendor’s officers, employees or agents, except as set forth in this Agreement. Vendor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of providing Goods and Services under this Agreement and as required by law. Vendor shall be responsible for all reports and obligations respecting such 434
46700.00100\40935206.1
(BB&K 2023) - 3 - Goods and Services Agreement
additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
4.2 Schedule of Services.
4.2.1 Vendor shall perform the Services and provide Goods expeditiously, within the term of this Agreement, and in accordance with the Schedule of Goods and Services set forth in Exhibit “A” attached hereto and incorporated herein by reference (“Performance time”). Upon request of City, Vendor shall provide a more detailed schedule of anticipated performance to meet the Schedule of Goods and Services. Vendor agrees that if the Goods are not provided and/or the Services are not completed within the Performance Time, it is understood, acknowledged and agreed that the City will suffer damage.
4.2.2 Neither City nor Vendor shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the nonperforming 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 Vendor and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this Section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the Agreement.
4.2.3 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 Vendor 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.
4.3 Conformance to Applicable Requirements. All work prepared by Vendor shall be subject to the approval of City.
4.4 Acceptance. The Goods shall be received subject to City’s inspection and right of rejection. The Goods shall not be considered accepted until inspection, testing and/or use of the Goods is found to be in accordance with the City’s specifications. Final inspection of the Goods shall be at the location specified herein, unless otherwise agreed in writing. If the Goods are found at any time to be defective in material or workmanship, or otherwise not in conformance with specifications, City shall have the right, in addition to any other rights which it may have under warranties or otherwise, to reject such Goods in whole or in part. Rejected Goods shall be held at Vendor’s risk for a reasonable time thereafter and shall be returned or disposed of at Vendor’s expense. No rejected Goods shall be replaced by Vendor without written instruction or authorization from City.
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46700.00100\40935206.1
(BB&K 2023) - 4 - Goods and Services Agreement
4.5 Coordination of Services. Vendor 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.
4.6 Standard of Care; Performance of Employees. Vendor 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.
Vendor represents and maintains that it is skilled in the professional calling necessary to perform the Services. Vendor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Vendor 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, Vendor 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 Vendor’s failure to comply with the standard of care provided for herein. Any employee of the Vendor or its sub-Vendors who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Services, 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 by the Vendor and shall not be re-employed to perform any of the Services provided under this Agreement.
4.7 Warranty. In addition to all warranties which may be provided by law, Vendor warrants that the Goods delivered hereunder shall, (a) be free from defect of material or workmanship and conform strictly to the specifications, drawings, or sample specified or furnished; (b) conform to drawings, plans, specifications, samples or other descriptions furnished, specified, accepted or approved by City; and (c) be merchantable and fit for the purposes intended. The warranty shall be for a period of one (1) year, or such longer period as provided by a manufacturer’s warranty or as agreed to by Vendor and City, from the date of final written acceptance of the Goods by City. This warranty shall survive any inspection, delivery, acceptance, or payment by City of the Goods. Vendor, at its own expense, shall repair or replace, at the option of City, any defective Goods within two (2) business days after receipt of notice from City or within four (4) hours in case of emergency, as determined by City. Vendor also warrants that the Goods are free and clear of all liens and encumbrances whatsoever, that Vendor is conveying good and marketable title to same, and that Vendor owns or has a valid license for all of the proprietary technology and intellectual property incorporated within the Goods. Vendor agrees to indemnify, defend and hold City harmless against any and all third party claims resulting from the breach or inaccuracy of any of the foregoing warranties.
4.8 Reserved.
4.9 Disputes. Should any dispute arise respecting the true value of any work done, of any work omitted, or of any extra work which Vendor may be required to do, or respecting the size of any payment to Vendor during the performance of this Contract, Vendor shall continue to perform the Work while said dispute is decided by the City. If Vendor disputes the City’s decision, Vendor shall have such remedies as may be provided by law.
4.10 Laws and Regulations; Employee/Labor Certifications. Vendor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting its performance under this Agreement, including all Cal/OSHA 436
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(BB&K 2023) - 5 - Goods and Services Agreement
requirements, and shall give all notices required by law. Vendor shall be liable for all violations of such laws and regulations in connection with this Agreement. If the Vendor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Vendor 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. Vendor 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.
4.10.1 Employment Eligibility; Vendor. By executing this Agreement, Vendor 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 Vendor. Vendor 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. Vendor 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. Vendor 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 Vendor’s compliance with the requirements provided for in Section 4.10 or any of its sub-sections.
4.10.2 Employment Eligibility; Subcontractors, and Consultants. To the same extent and under the same conditions as Vendor, Vendor shall require all of its subcontractors, and consultants performing any work relating to this Agreement to make the same verifications and comply with all requirements and restrictions provided for herein.
4.10.3 Employment Eligibility; Failure to Comply. Each person executing this Agreement on behalf of Vendor verifies that they are a duly authorized officer of Vendor, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Vendor or its subcontractors, or consultants to meet any of the requirements provided for in Sections 4.10.1 or 4.10.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Vendor under Section 4.10.2); or (3) failure to immediately remove from this contract any person found not to be in compliance with such requirements.
4.10.4 Labor Certification. By its signature hereunder, Vendor 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 Workers’ Compensation or to undertake self-insurance 437
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in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
4.10.5 Equal Opportunity Employment. Vendor 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. Vendor 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.
4.10.6 Air Quality. Vendor 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). Vendor 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. Vendor 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 Vendor, its subcontractors, or others for whom Vendor is responsible under its indemnity obligations provided for in this Agreement.
4.10.7 Water Quality.
4.10.7.1 Management and Compliance. To the extent applicable, Vendor’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 Santa Ana 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.
4.10.7.2 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 Vendor or City to penalties, fines, or additional regulatory requirements. Vendor 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 Vendor’s noncompliance with the laws, regulations and policies described in this Section, unless such noncompliance is the result of the sole negligence or willful misconduct of the City, its officials, officers, agents, employees or authorized volunteers.
4.10.7.3 Training. In addition to any other standard of care requirements set forth in this Agreement, Vendor 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. Vendor 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 438
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as they may relate to the Services provided under this Agreement. Upon request, City will provide Vendor with a list of training programs that meet the requirements of this paragraph.
5. PROJECT MANAGEMENT
5.1 City’s Representative. The City hereby designates Brian McFarlane, Deputy Fire Chief, 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. Vendor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.
5.2 Vendor’s Representative. Vendor hereby designates Matt Luchetta, Engineered Solutions Product Specialist, or his or her designee, to act as its representative for the performance of this Agreement (“Vendor’s Representative”). Vendor’s Representative shall have full authority to represent and act on behalf of the Vendor for all purposes under this Agreement.
The Vendor’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 work required under this Agreement.
6. INSURANCE.
6.1 Time for Compliance. Vendor shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this Section. In addition, Vendor 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.
6.2 Minimum Requirements. Vendor 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 Vendor, its agents, representatives, employees or subcontractors. Vendor 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:
6.2.1 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.
6.2.2 Minimum Limits of Insurance. Vendor shall maintain limits no less than: (1) General Liability: $2,000,000 MINIMUM 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 MINIMUM per accident for bodily injury and property damage; and (3) Workers’ Compensation and Employer’s Liability: Workers’ 439
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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.
6.2.3 Manufacturer of Goods. If Vendor is also the manufacturer of any equipment included in the Goods, Vendor shall carry Product Liability and/or Errors and Omissions Insurance which covers said equipment with limits of not less than $1,000,000.
6.2.4 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, Vendor 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 Vendor or the City may withhold amounts sufficient to pay premium from Vendor payments. In the alternative, the City may suspend or terminate this Agreement.
6.2.5 Additional Insured. The City of Ontario, its directors, officials, officers, employees, agents, and volunteers shall be named as additional insureds on Vendor’s and its subcontractors’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.
6.3 Insurance Endorsements. The insurance policies shall contain the following provisions, or Vendor shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies:
6.3.1 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 Vendor, 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 Vendor’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 Vendor’s insurance and shall not be called upon to contribute with it in any way. Notwithstanding the minimum limits set forth in Section 6.2.2, 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 6.3.1.
6.3.2 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, 440
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maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Vendor or for which the Vendor 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 Vendor’s scheduled underlying coverage. Any insurance, deductible, or self-insurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Vendor’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
6.2.2, 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 6.3.2.
6.3.3 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 Vendor.
6.3.4 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.
6.4 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 Vendor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Vendor 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.
6.5 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. Vendor 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 Vendor shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.
6.6 Subcontractor Insurance Requirements. Vendor 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 441
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required under this Section. If requested by Vendor, the City may approve different scopes or minimum limits of insurance for particular subcontractors. The Vendor 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.
6.7 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.
6.8 Verification of Coverage. Vendor 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.
6.9 Reporting of Claims. Vendor shall report to the City, in addition to Vendor’s insurer, any and all insurance claims submitted by Vendor in connection with the Services under this Agreement.
7. INDEMNIFICATION.
7.1 Scope of Indemnity. To the fullest extent permitted by law, Vendor 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 Vendor, its officials, officers, employees, subcontractors, consultants or agents arising out of or in connection with the Services, the Goods 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, Vendor’s indemnity obligation shall not apply to such loss or damage which is caused by the sole negligence or willful misconduct of the City.
7.2 Additional Indemnity Obligations. Vendor shall defend, with counsel of City’s choosing and at Vendor’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, Vendor 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. Vendor 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. Vendor 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. Vendor’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. 442
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8. CALIFORNIA LABOR CODE
8.1 Prevailing Wages. Vendor 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, Vendor agrees to fully comply with such Prevailing Wage Laws. City shall provide Vendor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Vendor 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 Vendor’s principal place of business and at the project site. Vendor 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 is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Vendor shall therefore comply with such Labor Code sections to the fullest extent required by law.
8.2 Registration. If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Vendor and all subcontractors must be registered with the Department of Industrial Relations.
Vendor shall maintain registration for the duration of this Agreement and require the same of any subcontractor. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.
8.3 Compliance Monitoring. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Vendor’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Vendor or any subcontractor that affect Vendor’s performance of Services, including any delay, shall be Vendor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Vendor caused delay and shall not be compensable by the City. Vendor 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 Vendor or any subcontractor.
9. SAFETY.
Vendor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its services, the Vendor 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 life saving 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 443
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or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.
10. ACCOUNTING RECORDS.
Vendor shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Vendor 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. Vendor 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.
11. TERMINATION OF AGREEMENT.
11.1 Grounds for Termination. City may, by written notice to Vendor, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Vendor of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Vendor shall be compensated only for those Services and Goods which have been adequately rendered to City, and Vendor shall be entitled to no further compensation. If terminated for cause because the Vendor refused or failed to deliver the Goods, the City may obtain Goods by whatever method it may deem expedient. If City’s cost of obtaining the Goods, including compensation for additional managerial and administrative services, will exceed the unpaid balance of the Goods, Vendor will be liable for and will pay the difference to City. Vendor 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.
11.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Vendor to provide all finished or unfinished documents and data and other information of any kind prepared by Vendor in connection with the performance of the Services under this Agreement. Vendor shall be required to provide such document and other information within fifteen (15) days of the request.
11.3 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, goods and services similar to those terminated.
12. GENERAL PROVISIONS.
12.1 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:
Vendor:
Draeger, Inc.
Attn: Matt Luchetta, Engineered Solutions Product Specialist 3135 Quarry Road
Telford, PA 18969
City:
444
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City of Ontario
303 East “B” Street
Ontario, CA 91764-4196
Attn: Deputy Chief McFarlane
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.
12.2 Subcontracting. Vendor shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City.
Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
12.3 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, Vendor 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 Vendor. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Vendor shall be barred from bringing and maintaining a valid lawsuit against the City.
12.4 Time of Essence. Time is of the essence for each and every provision of this Agreement.
12.5 City’s Right to Employ Other Vendors. City reserves right to employ other Vendors in connection with the Goods and Services provided under this Agreement.
12.6 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
12.7 Assignment or Transfer. Vendor 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.
12.8 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 Vendor include all personnel, employees, agents, and subcontractors of Vendor, 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 445
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of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement.
12.9 Amendment; Modification. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
12.10 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.
12.11 No Third Party Beneficiaries. Except to the extent expressly provided for in Section
12.7, there are no intended third party beneficiaries of any right or obligation assumed by the Parties.
12.12 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.
12.13 Prohibited Interests. Vendor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Vendor, to solicit or secure this Agreement. Further, Vendor 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 Vendor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Vendor 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.
12.14 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.
12.15 Authority to Enter Agreement. Vendor 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.
12.16 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
12.17 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. 446
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SIGNATURES ON NEXT PAGE
447
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SIGNATURE PAGE FOR GOODS & SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO
AND DRAEGER, INC.
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the day and year first above written.
CITY OF ONTARIO DRAEGER, 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:
Assistant City Clerk
448
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(BB&K 2023) Exhibit A-1 Goods and Services Agreement
EXHIBIT “A”
SCOPE OF SERVICES
PURCHASE AND DELIVERY OF LIVE FIRE SIMULATOR PROP
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Department: Public Works
Prepared By: Philip Marino
Staff Member Presenting: Tito Haes, Executive
Director Public Works
Reviewed By: Bonnie Tam, Gina Gomez
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 17
SUBJECT: MAINTENANCE SERVICES AGREEMENTS WITH PRIORITY LANDSCAPE SERVICES, LLC., MERCHANTS LANDSCAPE SERVICES, INC., AND BRIGHTVIEW LANDSCAPE SERVICES, INC., FOR LANDSCAPE MAINTENANCE SERVICES FOR FORMER
REDEVELOPMENT SITES, HOUSING AND GAS TAX FUNDED SITES, WATER WELL
SITES, AND CERTAIN PARKWAYS, FIRE STATIONS, AND LANDSCAPE MEDIANS IN
THE OLD MODEL COLONY
CITY OF ONTARIO
Agenda Report
June 4, 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 2425-03 Former Redevelopment Sites for Landscape Maintenance Services with Priority Landscape Services, LLC., of Anaheim, California, for a total contract amount notto-exceed $1,066,454 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 2425-04 Housing and Gas Tax Funded Sites for Landscape Maintenance Services with Priority Landscape Services, LLC., of Anaheim, California, for a total contract amount not-to-exceed $357,671 for up to five (5) years, and C. Authorize the City Manager or his designee to execute a Maintenance Services Agreement for Contract No. PM 2425-16 Water Well Sites for Landscape Maintenance Services with BrightView Landscape Services, Inc., of Upland, California, for a total contract amount not-toexceed $1,280,338 for up to five (5) years; and D. Authorize the City Manager or his designee to execute a Maintenance Services Agreement for Contract No. PM 2425-12 Certain Parkways, Fire Stations, and Landscape Medians in the Old Model Colony for Landscape Maintenance Services with Merchants, Inc., of Rancho Cucamonga, California, for a total contract amount not-to-exceed $1,782,972 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)
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FISCAL IMPACT:
Former Redevelopment Sites
The recommended contract award to Priority Landscape Services, LLC., is for $197,400 per year, for a total of $592,200 plus urgency services in the amount of $29,610, for a total not-to-exceed contract amount of $621,810 over three years. Two (2) one-year extensions may be exercised at the City’s sole discretion for an additional contract amount of $212,452 per year, for a total of $424,904 plus urgency services in the amount of $19,740 for a total contract amount not-to-exceed $1,066,454.
Housing and Gas Tax Funded Sites
The recommended contract award to Priority Landscape Services, LLC., is for $65,833 per year, for a total of $175,500 plus urgency services in an amount of $33,750, for a total not-to-exceed contract amount of $209,250 over three years. Two (2) one-year extensions may be exercised at the City’s sole discretion for an additional contract amount of $62,961 per year, for a total of $125,921 plus urgency services in an amount of $22,500 for a total contract amount not-to-exceed $357,671.
Water Well Sites
The recommended contract award to BrightView Landscape Services, Inc., is for $231,624 per year, for a total of $694,872 plus urgency services in an amount of $52,137, for a total not-to-exceed contract amount of $747,009 over three years. Two (2) one-year extensions may be exercised at the City’s sole discretion for an additional contract amount of $249,286 per year, for a total of $498,571 plus urgency services in an amount of $34,758 for a total contract amount not-to-exceed $1,280,338.
Certain Parkways, Fire Stations, and Landscape Medians in the Old Model Colony The recommended contract award to Merchants Landscape Services, Inc., is for $334,800 per year, for a total of $1,004,400 plus urgency services in an amount of $50,220, for a total not-to-exceed contract amount of $1,054,620 over three years. Two (2) one-year extensions may be exercised at the City’s sole discretion for an additional contract amount of $347,436 per year, for a total of $694,872 plus urgency services in an amount of $33,480 for a total contract amount not-to-exceed $1,782,972.
If approved, appropriations will be included in future Annual Budgets to the City Council for approval as needed for landscape maintenance services within funds: General Fund, Ontario Housing Authority, Gas Tax, and Water Operating.
BACKGROUND & ANALYSIS: Former Redevelopment Sites
In April 2024, the City solicited proposals for Bid No. 1746, Landscape Maintenance Services for the Former Redevelopment Sites. The two (2) proposals received met the bid criteria and standards necessary to perform this work.
Vendor Location
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BrightView Landscape Services, Inc. Upland, 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 $621,810 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.
Housing and Gas Tax Funded Sites
In April 2024, the City solicited proposals for Bid No. 1747, Landscape Maintenance Services for the Housing and Gas Tax Funded Sites. The four (4) proposals received met the bid criteria and standards necessary to perform this work.
Vendor Location
BrightView Landscape Services, Inc. Upland, CA
J. Orozco Enterprises, Inc. Pomona, 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 $209,250 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.
Water Well Sites
In April 2024, the City solicited proposals for Bid No. 1753, Landscape Maintenance Services for the Water Well Sites. The three (3) proposals received met the bid criteria and standards necessary to perform this work.
Vendor Location
BrightView Landscape Services, Inc. Upland, CA
J. Orozco Enterprises Inc. Pomona, CA
Priority Landscape Services, LLC. Anaheim, CA
BrightView Landscape Services, Inc., of Upland, California, submitted a proposal that met all the required specifications with a total contract cost of $747,009 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.
Certain Parkways, Fire Stations, and Landscape Medians in the Old Model Colony In April 2024, the City solicited proposals for Bid No. 1752, Landscape Maintenance Services for the Certain Parkways, Fire Stations, and Landscape Medians in the Old Model Colony. The four (4) proposals received met the bid criteria and standards necessary to perform this work. 461
Vendor Location
BrightView Landscape Services, Inc. Upland, CA
J. Orozco Enterprises, Inc. Pomona, CA
Merchants Landscape Services, Inc. Rancho Cucamonga, 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 total contract cost of $1,054,620 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. 462
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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 W. 9th St., 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 Citywide Water Well Sites 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 Citywide Water Well Sites PM 2425-16 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 463
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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 Six Hundred Ninety-Four Thousand Eight Hundred Seventy-Two Dollars ($694,872) 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 464
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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, 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 465
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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 Three Hundred Seventeen Dollars with Zero Cents ($317) 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. 466
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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 467
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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 468
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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 469
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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. 470
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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. 471
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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 472
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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 473
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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. 474
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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 475
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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 St.
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 477
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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, 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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Ex. A - 1 (BB&K 2020)
EXHIBIT “A”
SCOPE OF SERVICES
1. SCOPE OF WORK
A. The intent of this Agreement is to secure a contractor(s) who shall provide Landscape Maintenance Services for the Ontario Well Sites PM 2425-16.
B. The Contractor shall furnish all labor, tools, materials, and equipment to provide the landscape maintenance and repairs as set forth in this Agreement.
C. All Work shall be done in a professional, thorough, and workman like manner to the satisfaction of the Parks and Maintenance Director, or his/her authorized agent, and comply with all legal construction and landscape maintenance practices. The premises shall always be maintained at the level of service provided for in these specifications. The Contractor shall have the duty to provide complete landscape maintenance of all the project areas, including, but not limited to, the following: Fertilize, under-trim trees and shape shrubs, trim ground cover areas, mow, and edge turf grass areas. Consistently maintain the project areas with horticulturally acceptable growth and color. Consistently maintain the project areas to be devoid of weeds.
Consistently maintain the project areas to be devoid of weeds five (5) feet out into the curb, gutter, and street. Consistently maintain the project areas to be devoid of diseases, rodents, gutter and pests. Consistently maintain the project areas to be devoid of litter. Consistently maintain the project areas to be devoid of safety hazards. Consistently maintain the project areas to be devoid of unsafe walkways. Consistently maintain the project areas to be devoid of blocked drainage systems. Consistently maintain the project areas to be devoid of malfunctioning irrigation systems. Consistently maintain the project areas to be devoid of graffiti and paper like signs. Program, monitor, adjust and maintain all irrigation system clocks, and perform extra work as directed and approved.
E. The Contractor shall be available twenty-four (24) hours a day, seven (7) days a week to respond to all emergencies within two (2) hours of notification. Emergencies that involve maintenance work included in these general conditions shall not be compensated.
F. The Contractor shall perform a weekly maintenance inspection, during daylight hours, of all areas. Such inspection shall be both visual and operational. It shall include, but not be limited 481
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to, the operation of all irrigation and/or other mechanical systems to check for proper condition and reliability.
2. WORK SITE
Work sites may include parks, medians, trails, weed abatement areas, and parkways.
The City reserves the right to make additions or deletions under this contract with written notice to the Contractor. The monthly compensation shall be adjusted by the monthly unit cost per square foot if any changes result in an increase or reduction in square footage maintained.
Compensation shall be based on a-per unit cost (bid schedule form submitted) of work completed.
3. LENGTH OF CONTRACT
This PRIMARY contract shall begin July 1, 2024, and shall terminate on June 30, 2027.
The FIRST optional extension may be granted for a term of TWELVE (12) MONTHS, from July 1, 2027, through June 30, 2028, and any proposed increase shall be no greater than the CPI (Consumer Price Index) for the Ontario area, measured performance of the contractor and funding renewal.
The SECOND optional extension may be granted for a term of TWELVE (12) MONTHS, from July 1, 2028, through June 30, 2029, and any proposed increase shall be no greater than the CPI (Consumer Price Index) for the Ontario area, measured performance of the contractor and funding renewal.
All optional extensions of the contract are subject to approval by the City Manager, or his authorized agent, and are contingent upon funding and performance by the Contractor.
4. DEFINITIONS
Where "as directed", "as required", "as permitted", "approved", "acceptance", or words of similar importance are used, it shall be understood that the direction, requirement, permission, approval or acceptance of the Parks and Maintenance Director, or his authorized agent, is intended unless otherwise stated.
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Ex. A - 3 (BB&K 2020)
The use of the word "Contractor" shall be held to mean the Contractor and/or any person employed by the City of Ontario, Parks and Maintenance Director, or his/her authorized agent and working under this contract.
The use of the words "shall" and "may" shall be held to mean "mandatory" and "permissive" respectively.
The use of the words "his" or "him" shall be construed to mean either gender, as appropriate.
The use of the words " Parks and Maintenance Director " shall be construed to mean either the Parks and Maintenance Director or his authorized agent(s).
The words "City working day" refers to Monday-Friday, 6:30 a.m. to 4:00 p.m.
5. VANDALISM/THEFT/DAMAGE
Contractor shall be responsible for performing maintenance, repairs, and replacement of existing landscaped areas which are maintained under this contract and damaged or altered in any way as a result of theft, vandalism or mysterious damages that do not result from the performance of the Contractor.
In the case of vandalism to the maintained areas (Damage by Unknown Circumstances), Contractor shall notify the City within 24 hours using the free myOntario App. Graffiti will be entered under the “graffiti “Tab. All other Vandalism will be entered under the “Parks” Tab. In addition, EXCEPT in the case of graffiti, a text or email must be sent to the City’s Representative within 24 Hours detailing the Vandalism.
The use of red "Danger" tape shall be used when an area is unsafe for the public by the end of the workday.
The repairs shall be made within 24 hours of receiving a notice to proceed by text or email. At no time shall damage by unknown sources remain unrepaired for a period exceeding 72 hours.
Additional compensation will be provided only for costs that are directly related to the theft and/or vandalism.
The following conditions shall be met prior to the Contractor being reimbursed for "Damage by Unknown Circumstances".
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Ex. A - 4 (BB&K 2020)
6. VANDALISM/THEFT/DAMAGE BIDS
Contractor shall submit an itemized EWA (Extra Work Authorization) within 24 hours to the City’s Representative. Contractor shall secure written authorization for the repairs by the Parks and Maintenance Director, or his authorized agent within twenty-four (24) hours by e-mail or text. For emergencies regarding public safety, a verbal or text approval by the Parks and Maintenance Director, or his authorized agents, may be obtained.
7. COMPLETION OF PROPOSED VANDALISM/THEFT/DAMAGE WORK
A. Work is to commence within twenty-four (24) hours after receiving City approval.
B. The work shall be inspected and released as complete by the City representative, and then invoiced as specified in section (8). ·
8. INVOICING OF PROPOSED VANDALISM/THEFT/DAMAGE WORK
A. Contractor shall submit on business letterhead, a photocopy of the original EWA describing individual material costs and an invoice with line items for material costs, labor costs and administrative costs. The cost estimate for additional work shall consist of the following elements: Base cost of labor plus Fifteen percent (15%) for overhead and profit. Actual cost of materials plus fifteen percent (15%) for overhead and profit. City reserves the right to ask for payroll records and vendor invoice if discrepancies on the bid exist. Materials may be provided by the City of Ontario.
B. Contractor shall submit a copy of a report filed with the City of Ontario Police Department, which relates to the specific incident if required by the Parks and Maintenance Director or his authorized agent.
9. ADDITIONAL (EXTRA) WORK (EXTRA WORK AUTHORIZATION or EWA) A. The Parks and Maintenance Director, or his authorized agent, may, at his discretion, authorize the Contractors to perform additional work. Additional work (work not related to "Damages by Unknown Circumstances") shall be defined as work not included in this Agreement.
B. Prior to the Contractor performing any additional work, the Contractor shall prepare and submit a written description of why the additional work is required, what type of work is proposed, and a cost estimate for the additional work as stated. No work shall commence 484
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Ex. A - 5 (BB&K 2020)
without written authorization from the Parks and Maintenance Director, or his authorized agent.
Notwithstanding the above authorization, when a condition exists where there is imminent danger of injury to the public or damage to property, the Parks and Maintenance Director, or his authorized agent may verbally authorize the work to be performed upon receiving a verbal estimate from the Contractor. However, within twenty-four (24) hours after receiving a verbal authorization, the Contractor shall submit a written estimate to the Parks and Maintenance Director, or his authorized agent, for approval.
C. The cost estimate for additional work shall consist of the following elements:
Base cost of labor plus fifteen percent (15%) for overhead and profit.
Actual cost of materials plus fifteen percent (15%) for overhead and profit (invoice from vendor shall be attached to each invoice turned in for payment).
City reserves the right to ask for payroll records. Materials may be provided by the City of Ontario.
D. Written authorization from the Parks and Maintenance Director, or his authorized agent, shall be by the issuance of a change order or signed bid. This change order or signed bid shall be considered an amendment to this Agreement and approved by the Parks and Maintenance Director, or his authorized agent, and Contractor.
E. All additional work shall commence on the agreed date and shall diligently proceed until completion. Contractor could use the labor force assigned to the contractual maintenance tasks to perform additional work if prior approval has been granted by the City representative.
F. Upon completion of the additional work, the Parks and Maintenance Director, or his authorized agent, shall be notified so that the work may be verified.
G. The Contractor shall submit an invoice for compensation with attached photocopies of original invoices for materials and a copy of signed bid. Compensation shall not exceed the written estimate. The Contractor's invoice shall be subject to audit and review by the City prior to payment.
H. The City of Ontario reserves the right to repair or contract with a third Party to perform such additional work (if bids are not received within 72 hours of official request and or if the proposed costs do not concur with contractor's labor rates and cost of materials) 485
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Ex. A - 6 (BB&K 2020)
10. CONTRACTOR LIABILITY
A. All damage to existing improvements located within areas and adjacent to areas under construction, which in the opinion of the Parks and Maintenance Director, or his authorized agent, are due to the Contractor's operation, shall be repaired or replaced at the Contractor's expense with exact (existing) materials and in an approved manner.
B. Such repairs or replacements shall be performed by the Contractor at no cost to the City and shall be accomplished as directed by the Parks and Maintenance Director or his/her authorized agent. Repairs shall be made immediately after damage or alteration occurs.
Deductions shall be made from the Contractor's payments in the amount necessary to compensate the City for such repairs in the event such repair work is done by City forces, or another source.
C. Irrigation damage shall be repaired or replaced within the following time limits: Irrigation entities such as, but not limited to, (risers, heads, backflow device and cages, controllers, basket strainers, pressure regulators, irrigation wires and valves, valve boxes, irrigation pumps, ET gauges, rain buckets, antennas, flow sensors, and landscape lighting equipment) that are damaged during regular routine maintenance and become non-functional or non-efficient shall be replaced immediately. Mainline irrigation brakes shall be repaired within two (2) hours of being notified. All other irrigation repairs and/or replacement shall be completed within 24 hours of being notified. (In the event that the mainline repairs require specialized parts and or materials, the contractor shall be responsible to request from the City additional time to complete the repair/s)
D. All damage to turf grass, groundcover, shrubs, or trees, shall be repaired or replaced within three (3) working days of being notified. Damage to turf shall be repaired by replacement with the appropriate variety of bermudagrass sod or seeded with warm season seed and topper added. Damage to groundcover shall be repaired by replacement with the appropriate variety of plant material. Size and spacing shall be determined by the Parks and Maintenance Director, or his authorized agent. Damage to shrubs may be corrected by appropriate pruning; however, if in the opinion of the Parks and Maintenance Director, or his authorized agent, the damage is severe, the shrub (in its entirety) shall be removed and replaced with a similar variety and size. 486
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Ex. A - 7 (BB&K 2020)
E. Damage to trees shall be repaired in the following manner:
Minor damage, such as bark lost from mechanical equipment shall be remedied by a certified Arborist. If the damage results in the loss of the tree, or, if in the opinion of the Parks and Maintenance Director or his authorized agent, the damage is severe, the damaged tree shall be removed and replaced with a similar variety and size. All damage resulting from chemical application and/or operation, either by spray-drift, improper application, lateral leaching, or other means shall be corrected in accordance with the previous provisions and the soil conditioned to ensure its ability to support plant life. All work shall be inspected, verified, and completed to the satisfaction of the Parks and Maintenance Director, or his authorized agent.
11. INSPECTION/DRIVE
The City and an appointed representative of the Contractor shall conduct a once-a-month walkthrough to inspect each individual work area. It is the responsibility of the Contractor to set up the inspection time(s) five (5) working days prior to the walkthrough/inspection. It is a requirement that a six to twelve (6-12) month master calendar be set up within 30 days of the award of the contract to insure coordinated dates of inspection. This inspection is to ensure adequacy of maintenance, methods of performing the work are in compliance with the contract and allow all deficiencies to be corrected prior to invoice submission and payment. However, this shall not be construed to relieve the Contractor of the duty to provide continuous inspection of individual work areas. Discrepancies and deficiencies in the Contractor's work shall be brought to the attention of the Contractor and corrected in a manner prior to invoicing and payment.
12. HAZARDOUS CONDITIONS
It shall be the Contractor's responsibility to inspect, and identify, any condition(s) that renders any areas within this Agreement unsafe, as well as any unsafe practices occurring thereon. The Parks and Maintenance Director, or his authorized agent, shall be notified immediately using the myOntario App, as well as text or phone call, of any unsafe condition that requires major correction.
The Contractor shall be responsible for making minor corrections including, but not limited to, filling holes in landscaped areas, diverting water sheet flow, using barricades, danger tape or traffic cones to alert persons of the existence of hazards and replacing valve box covers so as to protect all persons from injury.
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Ex. A - 8 (BB&K 2020)
The Contractor shall inspect all work sites for hazards, or potential hazards in the contractual areas daily.
During the required inspection of all work sites for hazards, or potential hazards, the Contractor shall immediately contact the City representative (either e-mail or text) indicating the condition, date, and the area that was inspected and a work order should be created using the myOntario App.
The Contractor shall cooperate fully with the City of Ontario in the investigation of any accidental injury or death occurring on the premises, including the submission of a complete written report thereof to the Parks and Maintenance Director within three (3) days following the occurrence.
13. REMOVING OBSTRUCTION AND MAINTENANCE OF EXISTING IMPROVEMENTS Where the work is to be constructed in, or adjacent to, areas which have been improved by lawns, trees, shrubs, or gardens, the Contractor shall remove such trees or plants as may be necessary for the prosecution of the work and give them proper care and attention until the work has been satisfactorily completed, after which the Contractor shall replace them in as nearly the original condition and location as is reasonably possible. Where it is necessary to deposit the excavated materials on lawns during the process of construction, the Contractor shall first lay burlap or canvas on the lawn to prevent contact between the excavated material and turf grass.
Unless otherwise indicated in the contract documents, all utility lines, conduits, wires, or structures shall be maintained by the Contractor and shall not be disturbed, disconnected or damaged by them during the progress of the work, provided, that should the Contractor in the performance of the work disturb, disconnect, or damage any of the above, all expense, arising from such disturbance, or in the replacement or repair thereof, shall be borne by the Contractor.
However, in accordance with Section 4215 of the California Government Code, the Contractor shall be compensated 1) for the cost of locating and repairing damage to main or trunk line utility facilities located on the job site, not due to the failure of the Contractor or exercise reasonable care; 2) for costs of removing or relocating such utility facilities not indicated in the contract documents with reasonable accuracy; and 3) for the operation cost for equipment on the project necessarily idled such work.
At least two (2) working days prior to commencing any excavation pursuant to this Contract, the Contractor shall contact Underground Service Alert at (800) 422-4133 or other appropriate regional notification center if the excavation will be conducted in an area which is known, or reasonably should be known, to contain subsurface installations. 488
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Ex. A - 9 (BB&K 2020)
14. CONTRACTOR STAFF
The contractor shall provide the manpower as a minimum staffing requirement to comply with the performance of the landscape/irrigation maintenance specifications and requirements of the site.
The Contractor shall furnish one (1) supervisor with a minimum of 5 years of landscape and irrigation maintenance experience and sufficient supervisory and working personnel capable of promptly accomplishing all tasks on schedule, to the satisfaction of the Parks and Maintenance Director, or his authorized agent, all work required under this contract during the prescribed hours (6:30 AM to 4:00 pm). Staffing shall be as needed plus any additional workforce to complete the maintenance/construction tasks required on the frequency page. Payment will be based upon completed, acceptable work, Irrigation technician and spray technician to be provided as needed (personnel needs do not address the alternates per bid forms). Incomplete or unacceptable work will result in a delay or reduction of billing payment.
The Contractor shall have a competent supervisor, who is capable of communicate effectively both in written and oral English and discuss matters pertaining to this contract. The supervisor must be able to demonstrate to the satisfaction of the Parks and Maintenance Director, or his authorized agent, that they possess an adequate technical background. Adequate and competent supervision shall be provided for all work done by the Contractor's employees to ensure accomplishment of high-quality work, which will be acceptable to the Parks and Maintenance Director or his authorized agent.
Any order or communication given to the supervisor shall be deemed as delivered to the Contractor. The contractor shall use the free myOntario App. The use of a Smart phone will be required.
The contractor shall provide the minimum staffing requirements to comply with the performance of the landscape maintenance specifications and requirements of the site. Personnel shall be on site ready to work no later than 6:30am.
The Contractor, and their employees, shall always conduct themselves in a proper and efficient manner and shall cause the least possible annoyance to the public. The Parks and Maintenance Director or his authorized agent, may require a Contractor to remove from the work site any employee(s) deemed careless, incompetent, or otherwise objectionable, whose continued employment on the job is considered to be contrary to the best interest of the City of Ontario. 489
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Ex. A - 10 (BB&K 2020)
The Contractor shall require each of his employees to wear basic public works working attire.
These are basically proper shoes, and other gear required by State Safety Regulation, and proper wearing of the clothing. Shirts shall be worn and always buttoned; safety vests "Type II" are required when indicated by the Work Area Traffic Control Handbook, the Parks and Maintenance Director or his authorized agent.
The Contractor shall establish an identification system for personnel assigned to the maintenance/construction site, which clearly indicates to the public the name of the Contractor and individual responsible for the construction/maintenance work. The identification system shall be furnished at the Contractor's expense and may include appropriate attire and name badges.
The contractor shall be responsible for traffic control (where needed) and shall be done per "WATCH" standards. Failure to comply with proper "WATCH" standards shall result in stoppage of all work until the proper traffic control is set up and could result in a fine. 1st violation $500.00, 2nd. Violation $ 1000.00, 3rd. violation and thereafter $ 3000.00 and/or possible cancellation of contract.
Inclement Weather
During inclement weather, (rainstorms, windstorms etc.) the contractor shall be required to contact the City representative prior to 7:00 am to receive clear directions of their assignments for the day. A minimum of two staff members shall be at the disposition of the City.
15. LOCAL OFFICE
A. The Contractor shall maintain an office with a telephone and provide at all times the following:
A responsible person(s), employed by the Contractor, shall have the ability to take necessary action regarding all inquiries and/or complaints received from the Parks and Maintenance Director, or his authorized agent. This person(s) shall be accessible twenty-four (24) hours per day and seven (7) days per week. An answering service shall be considered an acceptable substitute to full-time coverage, outside of prescribed working hours, provided the Contractor is notified of any communication within one (1) hour after receipt of said communication. The telephone number(s) of the Contractor or responsible person(s) of the Contractor shall be a tollfree number for the City of Ontario. 490
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Ex. A - 11 (BB&K 2020)
B. During normal working hours, the Contractor's supervisors, who are responsible for providing contractual services, shall be available for notification through a landline or cellular telephone communication. This will allow the city to access the contractor at any time during City working hours.
16. STORAGE FACILITIES
The City of Ontario will not be providing storage facilities throughout the duration of this contract.
A. SIGNS
The contractor shall not post signs or advertising matter upon the areas under maintenance or improvements thereon, unless prior written approval is obtained from the Parks and Maintenance Director, or his authorized agent.
The contractor shall, always, remove all unauthorized signs and advertising matter such as, but not limited to, garage sale signs, yard sale signs, campaign signs and personal business signs in the area under maintenance.
17. LOCK AND KEYS
A. Where City of Ontario locks and keys are required as part of this contract, the Contractor shall:
Not duplicate any coded City key furnished by the city.
Surrender all keys furnished by the Parks and Maintenance Director or his authorized agent promptly at the end of the contract period, or at any time-deemed necessary by the Parks and Maintenance Director, or his authorized agent, to prevent loss to the City of Ontario.
Protect the security of City property by keeping controller cabinets and enclosure doors always locked.
Contact the City immediately if a security lock is non-functional and needs repair. Refrain from using premises behind locked doors for storage of materials, supplies or tools except as approved by the Parks and Maintenance Director or his authorized agent. In the event that the contractor staff who has been assigned keys to the facilities resigns from his position, it is the 491
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Ex. A - 12 (BB&K 2020)
sole responsibility of the contractor to retrieve the keys assigned to such staff member and return to the City.
18. UTILITIES
The City of Ontario shall pay for the maintenance related to water and electrical utilities.
When needed, water usage shall not exceed the budgeted amount to comply with the City Water Conservation efforts. A water budget may be provided by the City and shall be reviewed and adhered to by the Contractor. The water budget shall be approved by the Parks and Maintenance Director, or his authorized agent.
The Contractor may be charged for all excessive utility usage (using the current utility rate) due to the contractor's failure to manage and or monitor irrigation system malfunctions or unauthorized increases in water usage. The excess cost will be determined by comparing the current utility usage with historical usage data for the same period.
The excess cost factor shall be deducted from payments to the Contractor. However, the Contractor will be allowed three (3) working days, upon receiving notice, to explain in written documentation the cause of the increase in utility usage in question. A final determination (after review of Contractor's explanation) of the deduction will be assessed by the Parks and Maintenance Director or his authorized agent.
19. NON-INTERFERENCE
The Contractor shall not interfere with the public use of the premises and shall conduct their operations to offer the least possible obstruction and inconvenience to the public, nor disrupt the peace and quiet of the area within which the services are performed.
20. PARKING
A. The Contractor shall park their vehicles and equipment within designated parking areas or in such a location to ensure normal vehicular traffic.
B. The Contractor's vehicles and equipment shall not be parked or set in such a manner that they block pedestrian access or vehicular right-of-way except as required to comply with all safety standards of OSHA or CAL-OSHA. Failure to perform proper traffic control will result in a formal warning (first time), a deduction of $500.00 per instance after formal warning has been given and contractor fails to comply.
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Ex. A - 13 (BB&K 2020)
21. EMERGENCY CALLS
A. The Contractor shall have the capability to receive and respond immediately to calls of an emergency nature during normal working hours and outside of normal working hours. Calls of an emergency nature received by the Parks and Maintenance Director or his authorized agent, shall be referred to the worksite Contractor for immediate disposition. If the work site Contractor cannot be reached within two (2) hours, the City will deduct from the monthly billing the cost of City forces, or other sources, used to repair the emergency. The Contractor shall not receive additional compensation for responding to emergencies for work included in these general conditions at contract work sites.
22. EXTRAORDINARY SERVICES
A. The Contractor shall be responsible for providing extraordinary maintenance and/or repairs to existing landscape and new landscape areas outside of their contract areas.
Extraordinary services shall be defined as work not included in these general conditions or work required at a site for which there is no contract. Extraordinary maintenance shall include answering emergency calls as required. Contractors shall respond to an emergency call within two (2) hours. Contractors shall maintain a 24-hour per day, seven days per week, on-call service for emergency calls. The Contractor shall notify the Parks and Maintenance Director, or his authorized agent, by telephone within 24 hours of any emergency extraordinary work that is performed. Non-emergency extraordinary work requires written approval before the work is performed. Submission of an EWA and approval by the Parks and Maintenance Director, or his authorized agent will be necessary. The Contractor shall be compensated for extraordinary work as defined in Section 9.
B. In situations involving emergency repair work after normal work hours, Contractors shall dispatch qualified personnel and equipment to reach the site within two (2) hours. The Contractor's vehicle shall carry sufficient equipment to effect safe control of traffic. When the work site Contractor arrives at the site, the Contractor shall set up traffic warning and control devices, if deemed necessary and proceed to repair on a temporary/permanent basis.
C. If a City Representative is still at the site when the worksite contractor arrives, the Contractor shall quickly evaluate the situation and discuss it with the City Representative. If the repair takes only a few minutes, the City Representative may continue to direct traffic while the Contractor makes the repairs. If the repair takes longer than the City Representative can wait, 493
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Ex. A - 14 (BB&K 2020)
the Contractor shall immediately set up temporary traffic control devices and all other necessary warning devices and relieve the City Representative.
D. An emergency may be called by the following individuals or agencies at any time for extraordinary services involving repair work:
1. City Manager
2. Police Department
3. Fire Department
4. Parks and Maintenance Director
E. The following emergency phone numbers are listed for the convenience of the Contractors:
Fire Department (Dispatch) - (909) 983-5911
Fire Department (Emergency) - 911
Police Department (Dispatch) - (909) 986-6711
Police Department (Emergency) - 911
Southern California Edison - (800) 655-4555
Southern California Gas - (800) 427-2200
Dig Alert - (800) 422-4133
23. REPORTING DAMAGE OR MALFUNCTION
Any damage to, or malfunction of, any facility not specifically stated in this Agreement shall be promptly reported to the Parks and Maintenance Director, or his authorized agent.
24. COMPENSATION FOR ROUTINE MAINTENANCE
The City shall compensate Contractors based upon the total dollar amount of a bid or the total dollar amount of a combination of bids, if applicable, in monthly installments beginning 30 days after the commencement of work. Billing adjustments may be made where authorized by this Agreement.
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Ex. A - 15 (BB&K 2020)
25. ADDITION OR DELETION OF LANDSCAPE AREAS
The Contractors shall maintain, at a unit price comparable to other existing landscape areas and subject to the Parks and Maintenance Director approval or his authorized agent's approval, additional landscape areas that the city adds to this contract. If notification is made of a new installation other than at the beginning of a monthly period, the unit cost negotiated and agreed upon by the parties shall be prorated from the day the Contractor is notified to start maintenance. The City may elect to delete work sites, or portions thereof, within this Agreement at a unit price comparable to the bid price of said work sites.
26. DISCREPANCIES OR OMISSIONS
Should a bidder find discrepancies or omissions in the specifications or other documents, or be in doubt as to their true meaning, he may request a written interpretation from the Parks and Maintenance Director, or his authorized agent. Any interpretation, or change in the proposed documents, will be made only by addendum issued to each person to whom bid forms have been issued and shall become a part of the bid.
27. MINOR MODIFICATION
The Parks and Maintenance Director, or his authorized agent, may modify these specifications with the joint approval of the Contractor.
28. CONTRACTOR NON-COMPLIANCE
If the Parks and Maintenance Director, or his authorized agent, determines that there are deficiencies in the performance of this Agreement, the Parks and Maintenance Director, or his authorized agent, will provide a written inspection notice to the Contractor stating the deficiencies and specifying a time frame to correct the specified deficiencies. This time frame shall be reasonable, as determined by the Parks and Maintenance Director, or his authorized agent, to correct the specified deficiencies but not to exceed five 5 working days from the day of the inspection punch list. If the site(s) show obvious signs of non-performance, the Parks and Maintenance Director, or his authorized agent shall have the ability to immediately enforce partial or full deduction for the site in question. Should the Contractor fail to correct all deficiencies within the stated time frame, the Parks and Maintenance Director, or his authorized agent, may exercise the following measures:
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Ex. A - 16 (BB&K 2020)
A. Deduct from the Contractor's payment the amount necessary to correct the deficiency, including City overhead and impose a deficiency deduction.
B. Withhold the entire or partial payment.
C. Utilize City forces, or an alternate source, to correct the deficiency and deduct from the Contractor's payment the total cost, including City overhead. The Parks and Maintenance Director, or his authorized agent, shall decide all questions which arise as to the manner of performance and completion per schedule, acceptable fulfillment of the contract by the Contractor, interpretation of the specifications, and compensation to include completion of work by alternate sources. In addition to the provisions of Section 3.3, Contract Documents and Section 28 (B), in the event of a failure to correct a deficiency, or for any other breach of this Agreement by the Contractor, the City of Ontario may immediately terminate this Agreement. If the contractor requires extra time to complete the deficiency list due to materials/parts shortage, the contractor shall request in writing only the time needed to be added and the reasons why.
The City representative will review the request and shall respond to the contractor in writing of the decision made. Contractor shall present the request for extension within the first five (5) working days of the deficiency list.
29. PAYMENTS WITHHELD
The city may withhold entire or partial payment for reasons as follows:
A. Work required in the specifications, which is defective, incomplete, or not performed. Claims filed or reasonable evidence indicating probable filing of claims.
B. Failure of the Contractor to make payments properly to subcontractors, or for materials and/or labor. A reasonable doubt that the contract cannot be completed for the remaining balance.
C. Reports, logs, or other contractual written documentation required of the Contractor to be delivered to the Parks and Maintenance Director, or his authorized agent, which is/are incomplete or not performed.
30. WITHHELD CONTRACT FUNDS
The Contractors may, at his sole cost and expense, substitute securities equivalent to any monies withheld by the City to insure performance under the contract. Such securities shall be deposited with the City or with a State or Federally Chartered Bank as escrow agent who shall pay such monies to the Contractors upon satisfactory completion of the contract. The Contractor 496
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Ex. A - 17 (BB&K 2020)
shall be the beneficial owner of any securities substituted for monies withheld and shall receive any interest thereon. Securities eligible for investment under this section shall include those listed in Public Contract Code Section 22300. One definition of just cause for immediate contract termination is, if in the opinion of the Parks and Maintenance Director, or his authorized agent, the contract cannot or will not be completed by the Contractor in its entirety. In the event of such termination, the bonds required shall remain in effect for six (6) months after the date of termination to provide surety that any remedial work required at the time of termination will be completed.
If the Contractor fails to meet the specifications of this contract for any fifteen (15) consecutive or non-consecutive days, the Parks and Maintenance Director, or his authorized agent, may at his option terminate the balance of this contract by written notice of termination to the Contractor. Notice of such termination shall take effect three (3) days after such notice is mailed.
31. COMPLAINTS FROM CITY
The Contractor shall maintain an on-the-job a written log of all complaints which includes the date and time received and the action taken or the reason for non-action. The on-the-job log of complaints shall be available upon request from the City Representative. All complaints shall be abated as soon as possible after notification; but in all cases within 24 hours, to the satisfaction of the Parks and Maintenance Director, or his authorized agent. If any complaint is not abated within 24 hours, the Parks and Maintenance Director, or his authorized agent, shall be notified immediately of the reason for not abating the complaint, followed by a written report to the Parks and Maintenance Director or his authorized agent, within four (4) City working days.
If the complaints are not abated within the time specified, or to the satisfaction of the Parks and Maintenance Director or his authorized agent, the Parks and Maintenance Director, or his authorized agent, may correct the specific complaint and the total cost incurred by the City of Ontario shall be deducted and forfeited from the payments owing to the Contractor from the City of Ontario.
32. CONTRACTOR IS AN INDEPENDENT CONTRACTOR, INDEMNIFICATION Contractor shall act under the contract as an Independent Contractor thorough the City of Ontario and will not be an agent, or employee of the City. The contractor shall not represent or otherwise hold out itself, or any of its subcontractors, directors, officers, partners, employees, or 497
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agents, to be an agent or employee of the City. Contractors shall indemnify and otherwise hold harmless the City, its officials, officers, directors, employees, agents and other representatives, from all liability, loss, or damage, including reasonable attorney's fees and other costs of defense resulting from damage or injury to persons or property caused, or claimed to have been caused, by acts or omissions of the Contractor, or of any of its subcontractors, directors, officers, partners, employees, or agents in the course of, or in connection with the Contractor's performance under the contract. The Parties agree to cooperate fully in the resolution of any claims for such liability, loss, or damage.
33. SUBCONTRACTOR/ASSIGNMENT OF CONTRACT
Reference is hereby made to the provisions of The Subletting and Subcontracting Fair Practices Act (Government Code Sections 4100, et. seq.), which are incorporated herein and made a part hereof by this reference.
A copy of each subcontract, if in writing, or if not in writing, then a written statement signed by the Contractor, giving the name of the subcontractor, and the terms and conditions of such subcontract, shall be filed with the City before the subcontractor begins work. Each subcontract shall contain a reference to this agreement between the City and the Contractor, and the terms of that agreement between the City and the Contractor and all parts thereof shall be made a part of such subcontract insofar as applicable to the work covered thereby. Each subcontractor shall provide for its annulment by the Contractor at the order of the City, if, in the City's opinion, the subcontractor fails to comply with the requirements of the principal contract insofar as the same may be applicable to his work. Nothing herein contained shall create any contractual relation between any subcontractor and the City or relieve the Contractor of any liability or obligation hereunder.
The contractor shall not assign, transfer, convey or otherwise dispose of this contract, or of his rights of interests in or to the same or any part hereof, without the previous consent in writing of the Parks and Maintenance Director, or his authorized agent. If the Contractor, without such previous written consent assigns, transfers, conveys, or otherwise disposes of the contract, or of his rights or interests therein, the contract may, at the option of the City, be terminated and revoked, and the City shall there upon be relieved and discharged from all liability and obligations arising out of the same to the Contractor, and to his assignee or transferee. No right under the contract, nor any right to any money to become due hereunder, shall be asserted against the City in law or equity by reason of any so-called assignment of the contract, or any 498
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part thereof unless authorized by the written consent of the Parks and Maintenance Director, or his authorized agent.
34. COMPLIANCE WITH THE LAW
Contractor agrees that their performance under this contract shall comply with all applicable laws of the United States of America, the State of California, the county of San Bernardino, the City of Ontario and any other political entity having jurisdiction over the activities of the Contractors. The Contractor State License Board for the State of California has administratively determined in writing that a C-27 Contractor License is required to provide the service as set forth in the contract and specifications. Therefore, each bidder will be required to hold a valid C27 Contractor License.
35. PAYROLL
Section 1776, Chapter 1 of Division 2, from the California Labor Code requires that each Contractor and Subcontractor keep an accurate payroll record, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and each week, and the actual per diem wages paid each journeyman, apprentice or worker employed by him.
The employee's own payroll records shall be available for inspection, and a copy shall be made available to the employee or his authorized representative, the Division of Labor Standards Enforcement, and the Division of Apprenticeship Standard.
Pursuant to Labor Code Section 1778.8, the Contractor agrees to pay travel and subsistence payments to each workman needed to execute the work in accordance with the applicable collective bargaining agreements filed with the Department of Industrial Relations.
36. LABOR STRIKE
It shall be the responsibility of each contractor to provide continuous contractual services, without any interruption.
In case of any labor strikes, the Contractor shall provide other means, as its own cost, to provide a comparable continuous contractual service as if there were no strike.
Failing to do so will cause the Parks and Maintenance Director, or his authorized agent, to take whatever action is deemed necessary to provide such a service and the cost will be borne by the Contractor.
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Ex. A - 20 (BB&K 2020)
37. TURF GRASS CARE
A. Turf grass Mowing:
The Contractor shall mow all turf grass with adequately sharpened rotary type mowers as to provide a smooth and even cut without tearing turf grass blades.
The blade adjustment shall provide a uniform, level cut without ridges, depressions, or scalping.
All cool season turf grasses shall be cut with a power-driven rotary mower at a two inch (2") height from November to February and at two and half inches (2 1/2'.') from March to October.
Turf grass mowing heights may be adjusted by the Parks and Maintenance Director, or his authorized agent, during periods of turf grass renovation.
Care shall be exercised to avoid depressions in the established grade from mowing when the soil is saturated.
The Contractor shall submit, in writing, a mowing schedule within ten (10) days after the start of the maintenance contract. This mowing schedule shall be approved by the Parks and Maintenance Director, or his authorized agent. Any alteration of the approved mowing schedule shall be submitted in writing to the Parks and Maintenance Director or his authorized agent, for approval prior to implementation.
B. Turf Grass Edging and Trimming:
Turf grass edging and trimming shall be performed per frequency schedule at the time of mowing.
Edging of turf grass shall be performed with a power edger containing a steel blade, the use of string trimmers (weed eater) to edge turf areas is not a practice acceptable to the City. The use of a stick edger is acceptable.
All turf grass adjacent to sidewalks, curbs, mowing strips, shrub beds, and where no improved surface exists, shall be edged in a neat uniform line.
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Ex. A - 21 (BB&K 2020)
Where facilities include a softball or baseball field, the infield radius shall be edged regularly to keep radius clearly defined. Grass and weeds shall not encroach into the infield and shall be treated/removed immediately.
Trimming of turf grass shall be performed along walls, and around valve boxes, water meter boxes, backflow devices, trees, shrubs, or any structures located within the turf grass area.
Tree trunk protectors shall be provided and installed, at no additional cost to the City, when string trimmers are utilized for trimming around the base of trees. The City may allow a sixteeninch (16") diameter mulch ring around trees to eliminate continual string trimming.
A four-inch (4") barren strip shall be provided, and maintained, between turf grass areas and adjacent ground cover. Edging of turf grass and ground cover shall provide uniform delineation adjacent to this barren strip.
Trimming of plant material may be required around sprinklers to provide maximum irrigation coverage.
All clippings and trimmings shall be removed from the work site the same day work is performed and prior to the contractor vacating the work site.
After mowing and edging is completed, all adjacent walkways and gutters shall be swept or blown clean.
Blowing and disposing of grass clippings into the City storm drain system and/or streets shall not be permitted. If found contractor will face liquidating damages as follows; 1st violation$ 1000.00, 2nd violation $ 2000.00, 3rd violation and thereafter $ 3000.00.
C. Turf grass Fertilization
The turf grass shall be continually fertilized a minimum of 3 x per year with additional application if needed, to provide a healthy and vigorously growing turf grass with horticultural acceptable growth and color, as determined by the Parks and Maintenance Director, or his authorized agent.
1. Fertilization shall be performed with a balanced fertilizer, consisting of a 3-1-2 ratio, at a rate of one (1) pound of actual Nitrogen per 1,000 square feet of area. Any change in the 501
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Ex. A - 22 (BB&K 2020)
fertilizer ratio and/or rate shall be submitted in writing and approved by the Parks and Maintenance Director, or his authorized agent, prior to usage.
2. The Contractor shall notify the Parks and Maintenance Director, or his authorized agent, in writing, five (5) working days prior to any fertilizer application. This written document shall include the following:
• Location and exact date the fertilizer application will be performed. • Type of fertilizer and method of application to be used.
3. The Contractor shall immediately irrigate (staff shall be present when irrigating during the day) after each fertilizer application and repair with sod (Dwarf Fescue) any damaged areas due to fertilizer/chemical burn.
4. All fertilizer applications shall be performed with properly calibrated equipment to provide a uniform application.
D. Turf grass Renovation
1. Renovation shall consist of aerating, Verti cutting, thatch removal, over-seeding and top dressing (a minimum of l/8").
2. The Contractor shall notify the Parks and Maintenance Director, or his authorized agent, in writing, five (5) working days prior to any renovation operation. This written document shall include the location and exact date the renovation will be performed and the type of equipment and materials to be used.
3. Contractors shall remove all renovation-generated debris from the work site the day of the renovation operation and prior to vacating the work site.
4. Light Verti cutting, and thatch removal of warm season turf grass (where present) shall be performed between September 30th and October 15th or as directed by the City Representative.
5. Over-seeding shall be performed within two (2) days after Verti cutting with properly calibrated seeders. Warm season turf grass shall be over-seeded at a rate of ten (10) pounds of seed per 1,000 square feet. A 3-way dwarf type Bermuda grass seed shall be used. Seed tags 502
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Ex. A - 23 (BB&K 2020)
shall be provided to the Parks and Maintenance Director, or his authorized agent. Additional over-seeding shall be performed if less than 80% germination occurs within the first month.
6. Top dressing shall be performed using a properly calibrated top-dressing machine and seed shall be topped with one-eight inch (1/8") of weed free topper. The topper must be approved by the Parks and Maintenance Director or his authorized agent and shall not contain steer manure (City reserves the right to provide the topper needed if available and in stock).
7. Reseeding of bare spots shall be performed continually throughout the year to reestablish turf to an acceptable quality. If quality does not meet the City acceptance contractor shall replace with sod (Bermuda grass, Dwarf Fescue or equal).
The Parks and Maintenance Director or his authorized agent, will require the use of sod as a replacement material when deemed necessary. The Contractors shall be entitled to the wholesale cost of the sod only, provided the loss of turf grass was not due to the negligence of the Contractor. Sod shall be Bermuda grass or Dwarf Fescue.
E. Aeration
All turf grass shall be aerated four (2) times per year, once every quarter, starting July 1st.
Aeration shall be performed with a ride on or a walk behind an aerator machine which has onehalf inch (1/2") to one inch (1") in diameter coring tines spaced no more than six inches (6") apart. The machine shall remove cores from the turf to a depth of 4-6”. Dragging or pulverizing of cores is acceptable.
F. Turf grass Irrigation
All turf grass shall be adequately irrigated to maintain a healthy and attractive appearance.
Irrigation runoff and overspray shall be minimized. Where possible, the turf grass irrigation shall be on a separate program from other plant material irrigation. Turf grass shall be irrigated in a method which promotes deep root growth.
At facilities with softball and baseball infields, Irrigation shall be adjusted so as not to overlap into the infield mix. Any reports of saturated infield mix from irrigation shall be addressed immediately.
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Ex. A - 24 (BB&K 2020)
38. SHRUB CARE
A. Pruning of Shrubs
Shrubs shall be pruned with sharp pruning tools.
Shrubs shall be continually pruned, as necessary, to prevent encroachment of passageways, walks, streets, and view of signs. Shrubs shall be tapered to provide irrigation coverage and an aesthetically pleasing landscape.
All pruning cuts shall be one-quarter inch (1/4") above a node (bud). No projections or stubs shall be allowed to remain.
After pruning is completed, all adjacent walkways and gutters shall be left clean. Blowing and disposing of any debris into the Storm Drain system and/or streets shall not be permitted. If found, Contractor will face liquidating damages as follows; 1st violation $ 500.00, 2nd. violation $1000.00, 3rd. violation and thereafter $3000.00 and/or possible cancellation of contracts.
During blooming season, vines shall be trimmed minimally so as not to remove floral display areas.
Pruning shall be done to maintain a well-groomed, natural growth habit, and encourage air movement through shrubs.
The Contractor shall remove all clippings the same day shrubbery is pruned and prior to vacating the work site.
Pruning of roses (except for trailing roses) shall be accomplished using the best horticultural practices. The use of hedge shears to prune roses will not be permitted. Roses shall be deadheaded as needed and shall be heavily pruned once per year.
New plantings, once approved by the City Representative, shall take place within a week from the date reported.
B. Shrub Fertilization
Shrubs (including roses) shall be fertilized a minimum of 3x per year or as directed by the Parks and Maintenance Director his authorized agent with a balanced fertilizer specific for the type of plants. Roses shall be fertilized once following heavy pruning and one additional time per year. 504
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Ex. A - 25 (BB&K 2020)
Foliar fertilization may be performed when appropriate and will require the approval of the City Representative.
C. Shrub Irrigation
All shrubs shall be adequately irrigated to maintain a healthy and attractive appearance.
Irrigation runoff and overspray shall be minimized. Shrubs shall be irrigated in a method which promotes deep root growth.
D. Shrub Replacement
All damaged, diseased (untreatable) or dead shrubs shall be replaced with the same species plant material that existed (unless a disease situation is discovered affecting the species).
Shrubs shall be replaced within 7 days after being identified by the contractor or authorized agent. The size of the replacement plant material is to be determined by the authorized agent.
The Contractor shall be responsible for the complete removal and replacement of shrubs lost due to the Contractor's faulty maintenance or negligence, as determined by the Parks and Maintenance Director, or his authorized agent.
Substitutions or any plant materials must have prior written approval by the Parks and Maintenance Director, or his authorized agent.
Original plans and specifications may be consulted to determine the correct identification of species.
All shrubs shall be guaranteed to live and remain in a healthy condition for the duration of the contract from the date of installation, inspection and verification by the Parks and Maintenance Director, or his authorized agent.
**Soil build-up around the crown of shrubs shall be continuously removed** E. Vine Maintenance
Vines shall be trimmed as needed to promote upright growth and shall be kept attached and contained on the structure.
All vines shall be trimmed on a as needed basis by the contractor, the standard of the City is to trim vines one block below the top of the wall, the City understands that its vines in some sites are mature and have grown over the top of the wall, the contractor shall only be responsible to 505
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Ex. A - 26 (BB&K 2020)
trim the vines that are solicited by our residents and will have to adhere to the standards herby mentioned. No vines will be allowed to grow in newly installed wood fences or wood fence extensions (above the top of the fence or block wall). Vines shall be trimmed tight and follow horticultural standards.
39. GROUNDCOVER CARE
Groundcovers are low growing plants that grow in colonies to form a solid mat over the surface of the ground. The plants give a flat or two-dimensional effect to the landscape, such as, but not limited to, Honeysuckle, Myoporum, Senecio, Rosemary, Lantana, Ivy (spp.) Salvia (spp.)
A. Edging and Trimming of Groundcover
Edging of groundcover areas shall be performed monthly or as needed.
All groundcover adjacent to sidewalks, curbs, mowing strips, or where no improved surface exists, shall be edged in a neat, uniform line.
All groundcovers shall be continually trimmed at the drip line of all shrubs.
All groundcovers shall be continually trimmed along walls, valve boxes, water meter boxes, backflow devices, or other structures located within the groundcover area as determined by the Parks and Maintenance Director, or his authorized agent. Thinning of groundcovers may be required around sprinklers to provide maximum irrigation coverage.
All clippings and trimmings shall be removed from the work site in a legal manner the same day work is performed and prior to the Contractor vacating the work site.
After edging or trimming, the Contractor shall clean all adjacent sidewalks or gutters.
B. Renovation of Groundcover Areas
Groundcover planting shall be thinned and pruned for the health of the planting and the appearance of the site, or as required by the Parks and Maintenance Director, or his authorized agent.
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Ex. A - 27 (BB&K 2020)
C. Replanting of Groundcover Areas
Replanting shall be required to maintain the continuity of the groundcover areas that die back after awarding the contract.
Labor and replacement material costs shall be incurred by the Contractor.
D. Groundcover Irrigation
All groundcover areas shall be adequately irrigated to maintain a healthy and attractive appearance.
Irrigation runoff and overspray shall be minimized.
E. Groundcover Fertilization
The groundcover shall be fertilized during growing season, minimum lx per year, to provide a healthy and vigorously growing ground cover with horticultural acceptable growth and appearance, as determined by the Parks and Maintenance Director, or his authorized agent.
Fertilizing shall be performed with a balanced fertilizer, consisting of a 1-1-1 ratio, at a rate of one pound (1 lb.) of actual Nitrogen per 1,000 square feet. Any change in the fertilizer ratio and/or rate shall be submitted in writing and approved by the Parks and Maintenance Director, or his authorized agent, prior to usage.
The Contractor shall immediately irrigate after each fertilizer application.
All fertilizer applications shall be performed with properly calibrated equipment to provide a uniform application.
The Contractor shall notify the Parks and Maintenance Director, or his authorized agent, in writing, five (5) working days prior to any fertilizer application. This written document shall include the location and exact date the fertilizer application will be performed, type of fertilizer and method of application to be used.
40. METHOD OF IRRIGATION
If recycled water is being used, it will be the responsibility of the contractor to implement BMP's ("Best Management Practices") to control soil erosion, overspray, ponding and efficient irrigation practices. The use of recycled water shall be limited to the areas designated and approved. The 507
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use of recycled water shall not be permitted during the hours of 6:00 AM through 10:00 PM unless prior approval is received from City Representative. Recycled facility shall be operated in accordance with the best BMP's to prevent direct human consumption and to minimize misting, ponding and runoff. BMP's shall be implemented that will minimize both public contact and discharge onto areas not under contractors control. Contractor shall ensure that the recycled water systems are maintained, operated, and repaired at all times in a manner that does not cause illness or injury to any person and in a manner that does not cause damage or injury to the real or personal property of any person or entity. All recycled water sites shall be in compliance with the City of Ontario Utilities Department. Contractor shall be responsible to maintain and replace all items after annual inspection pertaining to proper recycling water designation, items to include but not limited to (head color designation, tags etc...).
A. GENERAL IRRIGATION USES
• All windblown spray and surface runoff of recycled water applied for irrigation onto property not owned or controlled by the discharger or recycled user shall be prevented by implementation of BMP' s.
• Irrigation with recycled water shall be between the hours of 9:00 PM and 6:00 AM to be able to minimize public use of the service area.
• Facilities that might be used by the public, including but not limited to eating surfaces and located within the approved used areas, shall be protected to the maximum extent possible from contact by irrigation with recycled water spray, mist or runoff. • It is the responsibility of the contractor to communicate to their workers the potential health hazards associated with contact or ingestion of recycled water and shall be educated about proper hygienic practices to protect themselves and their families. • Workers and the public shall not be subjected to recycled water overspray. • Contractor shall be responsible for the training and certification on recycled water use of any staff assigned to work in the facility.
Irrigation shall be performed by the use of a Central Irrigation System (Calsense), local automated systems or manual sprinkler systems where available and operable. Contractor shall be required to monitor the computer system daily by retrieving alert/reports from the lobby area of the Public Works Agency (1425 S. Bon View Avenue, Ontario, CA.) once per day no later 508
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than 9:00 AM, contractor shall sign in every day when picking up paperwork. Completed alert/reports shall be returned to the City representative within 48 hours. Failure to do so will result in a non-compliance report and will be handled per contract specifications. Returned reports shall be accompanied with a written explanation of the problem and the repair. However, failure of the existing irrigation system to provide full and proper coverage shall not relieve the Contractor of the responsibility to provide adequate irrigation with full and proper coverage to all areas in the work site. All areas receiving marginal coverage shall be irrigated by portable irrigation method. The contractor shall furnish all tools/equipment necessary.
41. IRRIGATION INSPECTION
The Contractor shall initially inspect and familiarize themselves with the entire irrigation system at all work sites and identify all needed repairs.
Required repairs shall be submitted to the Parks and Maintenance Director, or his authorized agent, in a written statement within two (2) weeks after the start date of the Maintenance Contract. If a written statement, which documents required repairs, is not received by the authorized agent, within the stated timeframe, the entire system shall be interpreted as fully operational, and deemed acceptable by the Contractor and will become his sole responsibility to maintain. The City shall review and verify all submitted problems, repairs may be completed by the following methods:
1. Authorized the Contractor to make appropriate repairs at the expense of the City as described in Section 5.
2. Use City forces to make required repairs.
3. Use another source to make required repairs.
Upon completion of such repairs, the Contractor shall sign-off each individual area as being fully operational.
A. The Contractor shall file a monthly statement with his invoice certifying that all irrigation systems are functioning properly. If the Contractor fails to submit this statement, the invoice will be rejected until the date the statement is received.
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Ex. A - 30 (BB&K 2020)
B. The Contractor shall inspect the operation of the irrigation system on a weekly basis for any malfunctions. In addition to regular testing, all irrigation systems shall be tested and inspected as necessary when damage is suspected, observed, or reported.
C. All system malfunctions, damage and obstructions shall be recorded, reported to the Parks and Maintenance Director, or his authorized agent, and corrective action taken.
42. IRRIGATION MAINTENANCE AND REPAIRS
A. The Contractor shall maintain all irrigation systems, at no additional cost to the City, in such a way as to:
• Guarantee proper coverage and full working capability. • Make whatever adjustments may be necessary to prevent overspray or excessive runoff into street rights-of-way or other areas not meant to be irrigated.
B. The Contractor shall repair or replace at no additional cost inoperable irrigation equipment to maintain a fully operational system, including but not limited to, pressure pipes from the water meter to the control valves, all irrigation non pressurized pipes, all manual and automatic valves, filters, basket strainers, pressure regulators, sprinkler heads, irrigation clamps and stakes, anti-drain valves, quick couplers, electrical wiring from the controller to the solenoid valves, emitters, drippers, valve boxes, controllers, valve markers, batteries, fittings and risers shall be the same as to removed manufacturer items unless prior approval has been granted by City representative in writing. The contractor shall test all backflows and submit to the City the appropriate test form once completed (contractors’ cost). Any device that fails to pass, the contractor shall report to the City for needed repairs and re-inspection.
Maintenance includes, but is not limited, tightening loose fittings and packing nuts; flushing sprinkler heads, pipes, nozzles, valves, filters, strainers, and backflow devices; adjusting sprinkler heads for proper coverage and to avoid irrigating hardscape including softball and baseball infield radius; anti-drain valves and pressure regulators, adjusting and lubricating controllers; and cleaning drip emitters, replace batteries for battery operated valves and maintain solar operated valves, relocation of irrigation mainline or lateral lines due to tree placements and roots. The Contractor shall be responsible for replacing recycled (purple) valve box lids and controller boxes, as needed and or as directed by City Representative. Labor shall be provided at no additional cost to the City.
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Ex. A - 31 (BB&K 2020)
C. Irrigation repairs shall be made within the following time limits:
Mainline irrigation breaks shall be repaired within two (2) hours of identification or notification.
All other irrigation repairs shall be made within one (1) day of identification or notification.
D. Replacement of irrigation components shall match city approved equipment list.
Substitutions must be approved by the Parks and Maintenance Director, or his authorized agent, in writing prior to installation.
43. WATER CONSERVATION
The Contractor shall turn off all irrigation systems during periods of rainfall and/or times when suspension of irrigation is desirable to conserve water while remaining within the guidelines of good horticulturally acceptable maintenance practices.
The Contractor shall comply with all City of Ontario Ordinances and/or Resolutions, which relate to water conservation.
Failure to comply shall result in an equitable amount deducted from the Contractor's payment.
44. CONTROLLER PROGRAMMING
A. Adequate soil moisture will be determined by programming the automatic sprinkler controllers as follows:
Whenever possible, automatic irrigation shall be programmed to operate between the hours of 9:00 P.M. to 8:00 A.M. The Contractor shall be responsible for reprogramming the controller during inclement weather to conserve water.
Consideration must be given to the soil conditions, seasonal temperatures, wind conditions, humidity, runoff and erosion potential, and the relationship of conditions which affect day and night watering.
Extremely close attention shall be paid to the demands of the plants as influenced by their exposure to sun or shade. Also, the variation in the size of plants, as well as varietal differences must be considered.
The irrigation system will be controlled by the contractor in such a way as not to cause an excessively wet area which could interfere with the Contractor's ability to mow all turf grass. 511
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Ex. A - 32 (BB&K 2020)
C. The Contractor, at the request of the Parks and Maintenance Director or his authorized agent, shall submit a copy of the irrigation schedule for each individual controller. This information is to be readily available upon request or available at the controller.
D. All landscape and turf areas shall be irrigated as required maintaining adequate growth and appearance with a schedule most conducive to plant growth.
45. IRRIGATION CONTROLLER
A. The Contractor shall maintain controller as-builts (controller charts) inside each controller cabinet where available.
B. All controller enclosures shall receive a granular chemical application as needed to prevent pest infestation. Any damages resulting from any insect infestation due to failure to apply the chemical shall be repaired/replaced by the contractor (no expense to the City).
C. Controllers and dome antennas shall be inspected and cleaned by the contractor 4 x per year and report damages or maintenance needs.
46. TREE CARE
A. Tree Trimming
The Contractor shall be responsible for all tree under-trimmings, including the removal of palm fronds and flower stalks (if present). All trees are to be under-trimmed to ensure public and vehicle safety or as directed by the Parks and Maintenance Director, or his authorized agent.
Contractor shall have a Certified Arborist on staff to meet the following criteria:
Contractor shall prune palm trees at no extra cost to the City (dead fronds and flower stalks) annually, removal of fruit (dates) if present shall be done twice per year as designated by the Parks and Maintenance Director or his authorized agent.
Trees shall be pruned at no extra cost to the City on a cycle of once every three years, contractor to create a myOntario App once the trees have been completed under the Tree section and have the City representative inspect them. The contractor shall not leave the site until the work has been completed, approved and released by the City representative.
The Contractor shall notify the Parks and Maintenance Director, or his/her authorized agent, except when pruning is required for public safety. Once all trees are trimmed, a formal 512
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Ex. A - 33 (BB&K 2020)
(Company letterhead) record of the work performed with time, date, location, type of tree, removal percentage and staff assigned to do the work. Any tree that is not trimmed by the end of 3-year cycle shall be deducted from the final billing of the maintenance contract.
All trees in the work site shall be maintained in their natural shapes. This work shall be accomplished in a manner which will ensure that each individual tree is under-trimmed carefully to promote the tree's health and appearance.
All work shall be of the highest quality and performed in accordance with City approved tree trimming standards.
All trees shall be pruned within forty-eight (48) hours upon notification to remove or prevent encroachment where it blocks vision, or encroaches in any manner deemed undesirable by the Parks and Maintenance Director or his authorized agent.
All trees shall be continually maintained free of all dead, diseased and damaged branches back to the point of breaking. In cases where the dead, diseased or damaged branches are beyond the reach of a tree pruning pole saw being operated from ground level, the Contractor is to notify the City within 24 hours. Cuts must be made flush with the collar to promote proper healing. Pruning tools shall be adequately sharpened to provide clean cuts and shall be properly sterilized to reduce spread of disease.
All sucker growth is to be removed from trees as it occurs.
The Contractor shall maintain all branches which encroach on or over sidewalks at a minimum height of ten feet (10') clearance. The Contractor shall notify the city within 24 hours of any branches encroaching beyond the curb line into the street that cannot be reached with a pole saw.
All branches which encroach over private property shall be removed as directed.
The Contractor shall not remove or disturb any tree central leader without prior written approval from the Parks and Maintenance Director, or his authorized agent.
The Contractor shall include the removal of 20 trees per year with a DBH not to exceed 20” as part of his bid package and a unit price to perform an individual complete tree trim, and individual tree removal price. Contactor shall create a final work order using myOntario App 513
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Ex. A - 34 (BB&K 2020)
once the trees have been trimmed, the City representative will inspect once the App has been closed as completed for release.
B. Tree Staking/Guying
The Contractor shall, at no additional cost to the City, stake and tie all trees which require support. City does not provide stakes and ties. Tree stakes shall be 3” x 10’ wooden lodge poles. Two (2) tree stakes are required per tree.
Guy wires, where required, will be of pliable zinc-coated ten-gauge wire (three ties per tree), and shall have a white PVC sleeve for visibility. Guy wires shall be kept tight enough to promote natural movement of the tree. The contractor shall periodically check the tension in the guy wires.
Trees shall be secured to stakes with cinch ties or equivalent. The Contractor shall not use wire and hose. Stakes shall not be placed closer than eight inches (8") from the tree trunk.
C. Stakes and ties shall be placed so no chafing of bark occurs and shall be checked frequently, and retied as necessary, to prevent girdling.
D. Tree Replacement
1. The Contractor shall be responsible for the complete removal and replacement of trees lost due to the Contractor's faulty maintenance or negligence, as determined by the Parks and Maintenance Director, or his authorized agent.
Where there is a difference in value between the tree damaged by the Contractor and the replacement tree, this difference may be deducted from the Contractor's payment.
In all cases, the value of the trees lost will be determined by the Parks and Maintenance Director, or his authorized agent, using the latest ISA Guide for Plant Appraisal.
2. Unsalvageable downed trees, due to any cause (windstorm etc...), shall be removed, the stump ground to a depth of eighteen inches (18"), the stump grinding debris removed and the hole refilled with compatible topsoil and compacted within 48 hours of identification or notification. If the tree is in the public right-of-way or creating a public hazard, the tree is to be cut back to a 12" stump immediately upon notification and removed. Then within 48 hours, the stump is to be removed and the hole filled with compatible topsoil and compacted. This work shall be considered and EWA and invoiced to the city.
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Ex. A - 35 (BB&K 2020)
3. Trees lost from causes other than the Contractor's negligence shall be replaced by the Contractor with a twenty-four (24") box tree and billed as "Additional Work". The Parks and Maintenance Director, or his authorized agent may specify a species of tree for replacement different from the one lost.
E. Tree Irrigation
All trees shall be adequately irrigated to maintain a healthy and attractive appearance. Irrigation runoff and overspray shall be minimized.
Trees shall be irrigated in a method which promotes deep root growth. The contractor shall provide manual deep watering to those trees that show decline.
47. WEED CONTROL
Weeds are defined in the dictionary as:
“A wild plant growing where it is not wanted and in competition with cultivated plants." When classified by their gross morphological features, weeds are broken down into three major categories: grasses, sedges, and broadleaf weeds.
Full control of these 3 categories of weeds will be achieved with a combination of selective and non-selective herbicides as well as mechanical removal. Weeds should not be visible.
All areas within the specified maintenance area, including but not limited to, turf grass, shrub and ground cover areas, planters, tree wells, landscape areas, and softball/baseball infields shall always be kept free of weeds.
Weed removal shall consist of complete removal of all weeds, including top growth and roots.
Weed control shall be performed as needed.
Weeds shall be controlled either by hand, mechanical or chemical methods; however, the Parks and Maintenance Director, or his authorized agent, may restrict the use of chemical weed control in certain areas.
48. DISEASE AND PEST CONTROL
The Contractor shall regularly inspect all landscaped areas for the presence of disease, snail, insect, or rodent infestation. The Contractor shall report any applied treatments within their next monthly billing. The Contractor shall identify the disease, snail, insect or rodent and specify control measures to be taken. The Contractor shall implement control measures, exercising extreme caution in the application of all spray materials, dust or other materials utilized. 515
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Ex. A - 36 (BB&K 2020)
Approved control measures shall be continued until the disease, snail, insect, or rodent is controlled to the satisfaction of the Parks and Maintenance Director, or his authorized agent.
The Contractor shall utilize all safeguards necessary during disease, snail, insect, or rodent control operations to ensure the safety of the public and the employees of the Contractor.
The Contractor shall perform, at their sole expense, the following services:
All work involving the use of chemicals will be accomplished by a State of California licensed pest control operator. A written recommendation by a person possessing a valid California Pest Control Advisor License for each chemical used is required prior to chemical application where required by law.
All chemicals requiring a special permit for their use must be registered by the Contractor with the County Agricultural Commissioner's Office and a permit obtained with a copy from the Parks and Maintenance Director, or his authorized agent, prior to use.
A copy of all forms submitted to the County Agricultural Commissioner shall be given to the Parks and Maintenance Director, or authorized agent, monthly.
49. USE OF CHEMICALS
The Contractor shall submit a list of all chemical herbicides, pesticides, and rodenticides proposed for use under this contract for approval by the Parks and Maintenance Director or his authorized agent with the signed contract. Materials included on this list shall be limited to chemicals approved by the State of California Department of Food and Agriculture and shall include the exact brand name and generic formulation. The use of any chemical on the list shall be based on the recommendations of a California State Licensed Pest Control Advisor where required by law.
The use of chemicals shall conform to the current San Bernardino County Agriculture Commissioner regulations. No chemical herbicide, rodenticide or pesticide shall be applied until its use is approved, in writing, by the Parks and Maintenance Director, or his authorized agent as appropriate for the purpose and area proposed.
Required spray equipment will consist of at least one (1) medium spray rig of 100-gallon (minimum) capacity or more and backpack sprayers provided for each crew performing chemical landscape maintenance.
516
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Ex. A - 37 (BB&K 2020)
50. TURF BROADLEAF
Control of broadleaf weeds shall include proper notification with chemicals to be used, date, and time to the Parks and Maintenance Director, or his authorized agent. prior to starting date for approval. Frequencies will be twice per year.
51. LITTER
All areas in the work sites shall be kept free of, but not limited to, the following items: bottles, glass, broken glass, cans, paper, cardboard, metallic items, feces, leaves, tumbleweeds, and other debris on a daily basis.
The Contractor shall promptly remove from the work area all debris generated by their performance and dispose of the debris in a legal manner. The City does not allow any dumping of debris generated by your daily work in City facilities. Illegal dumping picked up by contractors shall be brought up to the City yard for proper disposal. Excessive dumping (above and beyond reasonable) after long holiday weekends and special events shall be reported immediately to the City Representative.
Hazardous waste as well as homeless belongings shall not be picked up. The contractor shall contact City Representative to arrange proper disposal by City forces. A myOntario App service request shall be created to report the hazardous conditions.
52. GRAFFITI
A. The Contractor shall remove any graffiti upon discovery within their contractual areas.
Extreme caution shall be placed on areas that get tagged to make sure that they get cleaned up with materials that do not damage the finish product (PVC Vinyl fence) and are biodegradable.
Issues of graffiti outside their contractual obligations shall be reported to the Graffiti Hot Line 909-395-2626 or create a service request within the myOntario App.
B. Issues of the above normal graffiti vandalism within the contractor's contractual area shall be reported to the City representative upon finding. Phone call, text, or creation of a myOntario App service request are acceptable methods of communication to the City Representative. The City reserves the right to request an outside contractor to help with the cleaning or will have the right to request that the contractor performs the work as an additional cost to the City.
517
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Ex. A - 38 (BB&K 2020)
C. If graffiti cannot be removed and needs to be painted over, cover up paint shall match existing paint. Graffiti on sidewalks shall be removed with a hot steam pressure washer.
Painting of sidewalks over graffiti shall not be allowed.
53. GENERAL
A. Trash Removal
Remove all trash and accumulated debris from the work sites daily. In addition, any type of feces is also to be removed from the walkways, turf or ground cover areas and dumpster areas.
B. Policing of Areas
All maintained areas shall be policed based on frequencies.
C. Curb and Gutter Maintenance
The Contractor is responsible for the removal of all weeds and grass growing in and around the curb and gutter area monthly. The Contractor is responsible for ensuring the roadway is cleared of all dirt and debris within four (4) feet of the curb and gutter in all areas adjacent to maintenance responsibilities.
D. Walkway Maintenance
Walkways shall be cleaned immediately following mowing and edging and cleaned by use of power sweeping or blower equipment. All walkway cracks and expansion joints shall always be maintained weed and grass free.
E. Drain Maintenance
All drains and catch basins shall always be kept free of siltation and debris. All V-ditches and drainage areas shall be kept clean and edged weekly by the Contractor. Cleaning of drain basins shall be done monthly, Contractor shall inspect weekly to make sure that grates are secured, if missing, Contractor shall replace at City's expense. Damaged grates due to Contractor's operations shall be replaced at Contractors expense.
F. Removal of Leaves
Accumulation of leaves shall be removed from all designated landscape areas monthly and under trees once per month or more as needed.
518
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Ex. A - 39 (BB&K 2020)
G. Hardscape Power Wash
All concrete areas shall be cleaned using a power washer (hot steam cleaning washer) to remove soda spills, gum and other stains that might be present. The City Representative will make the final determination if the service is needed.
The use of a biodegradable cleaner (soap) is required and permitted. Containment of contaminated soapy water shall be the responsibility of the Contractor.
54. REPAIR AND SERVICE OF WALKWAYS AND MISCELLANEOUS IMPROVEMENTS Walkways and Service Roads - All walkways and service roads, if any, shall be maintained by the Contractor to keep the integrity of the walking or driving surface in a safe, unimpaired condition.
The Contractor will not be responsible for total replacement of roadways or walkways as a result of normal deterioration but will be required to replace all improvements damaged by his negligence.
It will be the responsibility of the Contractor to repair or replace miscellaneous improvements such as signs and mowing strips, or any other structural improvements within the work sites, unless otherwise specified. The Contractor shall be entitled to additional compensation for these services as stated. The contractor shall communicate any improvements needed prior to repairs to the Parks and Maintenance Director or his authorized agent for proper approvals.
55. MULCH
Mulch beds shall be replenished 2 times per year at the Contractor’s cost. The City may provide the mulch if additional mulching is needed. If City provided, the Contractor will be responsible for loading the mulch at the City yard at 1425 S Bon View.
56. DECOMPOSED GRANITE/GRASS PAVER AREA
Contractor shall be responsible to drag with cocoa mat or similar and rake all decomposed granite areas monthly and to replenish displaced or missing material at his own cost as needed.
Moistening the material and use of a mechanical compactor is required when backfilling DG areas. Decomposed granite areas are to keep a grading that is acceptable and safe to walk on.
In the event of inclement weather, the City will compensate the contractor for the replacement of material for the damage created by the storm.
519
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Ex. A - 40 (BB&K 2020)
57. RODENT CONTROL
All areas shall be maintained free of rodents causing damage to turf, shrubs, and groundcover areas (gophers, squirrels etc.) by using Gophernator or trapping. Any activity that affects holes, mounds, etc. will be raked and backfilled after control.
58. CITY OF ONTARIO myOntario App (FREE)
Contractor shall download the free myOntario App for the purpose of tracking completed specialty tasks (mulching, vandalism, vehicular damage, rose trimming, fertilizations, chemical applications, illegal dumping, hazardous waste, pruning shrubs, downed branches and rodent control, restroom issues). All specialty tasks shall be recorded as a service request using the app order system and shall be reported to the city representative when completed. City staff will close the service request.
59. TRASH CONTAINERS
Contractors shall remove all litter, replace liners as needed, and check the condition of the trash container and hardware. Containers shall be replaced as needed (City to provide). Contractor shall use liners that are a minimum of 1.5 mil and be clear or black in color. Trash containers shall be inspected daily, seven days per week.
Trash containers shall be painted at least once per year as directed by the Parks and Maintenance Director, or his authorized agent. Contractor to provide labor and material.
Container holders should be set so that the bottom of the container is 12” from the surface of the ground. Bent or broken container holders must be repaired, reset, or replaced ASAP.
NOTICES
Any notice, demand, request, consent, approval, or communication that either Party desires, or is required to give to the other Party or any other person, shall be in writing and either served personally, sent by prepaid, first-class mail, or by email followed by mailing of said notice. 520
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Ex. A - 41 (BB&K 2020)
WELL SITES ANNUAL MAINTENANCE FREQUENCIES
CATEGORY “A”
Turf
Mowing 43 x per year
Edging 43 x per year
Fertilization 3 x per year
Detail 43 x per year
Broadleaf Application 2 x per year
Aeration 3 x per year
Renovation 1 x per year
Over Seeding 1 x per year
Over Seeding Bare Areas As needed
SHRUBS
Pruning 4 x per year (minimum)
Fertilization 3 x per year
Raking Leaves 12 x per year
ROSES
Pruning (heavy) 1 x per year
Fertilization 2 x per year
Line of site clearance As needed
Ground Cover
Edging As needed
Fertilization 1 x per year (minimum)
Trimming As needed
VINES
Trimming As needed
TREES
Staking/Guying As needed
Fertilization (young trees) 1 x per year
Trimming (ISA standards) 1 x every 3 years
Raking Leaves 12 x per year
Under Trimming As needed
521
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Ex. A - 42 (BB&K 2020)
IRRIGATION
Inspections 52 x per year
Reports 12 x per year
MISCELLANEOUS
Weed Removal As needed
Weed Control 24 x per year
Rodent Control As needed
Graffiti Removal As needed
Curb and Gutter 12 x per year
Walkways Blowing 104 x per year
Trash/Litter 365 x per year
Mulch Replenishing 2 x per year
Decomposed Granite (service) 12 x per year
522
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Ex. A - 43 (BB&K 2020)
WELL SITES ANNUAL MAINTENANCE FREQUENCIES
CATEGORY “B”
SHRUBS
Pruning 3 x per year (minimum)
Fertilization 2 x per year
Raking Leaves 12 x per year
ROSES
Pruning (heavy) 1 x per year
Fertilization 2 x per year
Line of site clearance As needed
VINES
Trimming As needed
TREES
Staking/Guying As needed
Fertilization (young trees) 1 x per year
Trimming (ISA standards) 1 x every 3 years
Raking Leaves 12 x per year
Under Trimming As needed
IRRIGATION
Inspections 52 x per year
Reports 12 x per year
MISCELLANEOUS
Weed Removal As needed
Weed Control 24 x per year
Rodent Control As needed
Graffiti Removal As needed
Curb and Gutter 12 x per year
Walkways Blowing 104 x per year
Trash/Litter 364 x per year
Mulch Replenishing 2 x per year
Decomposed Granite (service) 12 x per year
523
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Ex. A - 44 (BB&K 2020)
WELL SITES ANNUAL MAINTENANCE FREQUENCIES
CATEGORY “C”
TREES
Staking/Guying As needed
Fertilization (young trees) 1 x per year
Trimming (ISA standards) 1 x every 3 years
Raking Leaves 12 x per year
Under Trimming As needed
MISCELLANEOUS
Weed Removal As needed
Weed Control 24 x per year
Rodent Control As needed
Graffiti Removal As needed
Curb and Gutter 12 x per year
Walkways Blowing 104 x per year
Trash/Litter 156 x per year
Mulch Replenishing 1 x per year
Decomposed Granite (service) 12 x per year
524
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Ex. A - 45 (BB&K 2020)
LANDSCAPE MAINTENANCE SERVICES FOR ONTARIO WELL SITES
BID SCHEDULE NO. 1 Category A
LANDSCAPE MAINTENANCE CONTRACT PM 2425-16
FISCAL YEAR 2024/2025 to 2026/2027 3 YEAR CONTRACT
No. Description Monthly Annual
Cost Cost
1. Well Site #30 220 S Wineville $ $
2. Well Site #44 960 N Cucamonga $ $
3. Well Site #46 1620 E 8th St. $ $
4. Well Site #47 4265 E Concourse $ $
5. Well Site #49 1495 S Duponte Ave $ $
Total $ $
Additional cost for a complete individual tree trimming up to 30’ $ (per individual tree/required trimming to be +/- 35% of growth per ISA) Cost for complete tree (individual) removal per inch at $ DBH (diameter at breast height) stumps to
be ground to a depth of 18” minimum
Cost for complete tree removal per inch at $
DBH (diameter at breast height) (flush cut 3” from ground)
FUTURE CONTRACT ADDITIONS
Landscape maintenance areas cost per sq. ft. $
Hardscape maintenance areas cost per sq. ft. $
Weed Abatement areas cost per sq. ft. $
525
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Ex. A - 46 (BB&K 2020)
BID SCHEDULE NO. 2 Category A
LANDSCAPE MAINTENANCE CONTRACT PM 2425-16
FISCAL YEAR 2027/2028 4th YEAR CONTRACT (OPTIONAL)
No. Description Monthly Annual
Cost Cost
1. Well Site #30 220 S Wineville $ $
2. Well Site #44 960 N Cucamonga $ $
3. Well Site #46 1620 E 8th St. $ $
4. Well Site #47 4265 E Concourse $ $
5. Well Site #49 1495 S Duponte Ave $ $
Total $ $
Additional cost for a complete individual tree trimming up to 30’ $ (per individual tree/required trimming to be +/- 35% of growth per ISA) Cost for complete tree (individual) removal per inch at $ DBH (diameter at breast height) stumps to
be ground to a depth of 18” minimum
Cost for complete tree removal per inch at $
DBH (diameter at breast height) (flush cut 3” from ground)
FUTURE CONTRACT ADDITIONS
Landscape maintenance areas cost per sq. ft. $
Hardscape maintenance areas cost per sq. ft. $
Weed Abatement areas cost per sq. ft. $
526
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Ex. A - 47 (BB&K 2020)
BID SCHEDULE NO. 3 Category A
LANDSCAPE MAINTENANCE CONTRACT PM 2425-16
FISCAL YEAR 2028/2029 5th YEAR CONTRACT (OPTIONAL)
No. Description Monthly Annual
Cost Cost
1. Well Site #30 220 S Wineville $ $
2. Well Site #44 960 N Cucamonga $ $
3. Well Site #46 1620 E 8th St. $ $
4. Well Site #47 4265 E Concourse $ $
5. Well Site #49 1495 S Duponte Ave $ $
Total $ $
Additional cost for a complete individual tree trimming up to 30’ $ (per individual tree/required trimming to be +/- 35% of growth per ISA) Cost for complete tree (individual) removal per inch at $ DBH (diameter at breast height) stumps to
be ground to a depth of 18” minimum
Cost for complete tree removal per inch at $
DBH (diameter at breast height) (flush cut 3” from ground)
FUTURE CONTRACT ADDITIONS
Landscape maintenance areas cost per sq. ft. $
Hardscape maintenance areas cost per sq. ft. $
Weed Abatement areas cost per sq. ft. $
527
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Ex. A - 48 (BB&K 2020)
BID SCHEDULE NO. 1 Category B
LANDSCAPE MAINTENANCE CONTRACT PM 2425-16
FISCAL YEAR 2024/2025 to 2026/2027 3 YEAR CONTRACT
No. Description Monthly Annual
Cost Cost
1. Well Site #6 119 E Phillips $ $
2. Well Site #9 1560 N Euclid $ $
3. Well Site #15 1200 S Mountain $ $
4. Well Site #17 498 S Grove $ $
5. Well Site #20 9600 S Milliken (City of Rancho Cucamonga) $ $
6. Well Site #24 700 N Haven $ $
7. Well Site #25 2930 E Inland Empire $ $
8. Well Site #31 5719 E Santa Ana $ $
9. Well Site #35 652 E Main $ $
10. Well Site #36 1400 S Archibald Ave $ $
11. Well Site #37&39 4327 E Guasti $ $
12. Well Site #40 1335 E Holt $ $
13. Well Site #41 1252 N Hellman $ $
14. Well Site #45 665 East E St. $ $
15. Booster #3 136 N Campus (City of Upland) $ $
16. “ B” Booster 110 S Fern (City of Upland) $ $
17. Francis Future Site 906 E Francis $ $
Total $ $
Additional cost for a complete individual tree trimming up to 30’ $ (per individual tree/required trimming to be +/- 35% of growth per ISA) Cost for complete tree (individual) removal per inch at $ DBH (diameter at breast height) stumps to
be ground to a depth of 18” minimum
Cost for complete tree removal per inch at $
DBH (diameter at breast height) (flush cut 3” from ground)
FUTURE CONTRACT ADDITIONS
Landscape maintenance areas cost per sq. ft. $
Hardscape maintenance areas cost per sq. ft. $
Weed Abatement areas cost per sq. ft. $
528
46700.00100\33865500.1
Ex. A - 49 (BB&K 2020)
BID SCHEDULE NO. 2 Category B
LANDSCAPE MAINTENANCE CONTRACT PM 2425-16
FISCAL YEAR 2027/2028 4th YEAR CONTRACT (OPTIONAL)
No. Description Monthly Annual
Cost Cost
1. Well Site #6 119 E Phillips $ $
2. Well Site #9 1560 N Euclid $ $
3. Well Site #15 1200 S Mountain $ $
4. Well Site #17 498 S Grove $ $
5. Well Site #20 9600 S Milliken (City of Rancho Cucamonga) $ $
6. Well Site #24 700 N Haven $ $
7. Well Site #25 2930 E Inland Empire $ $
8. Well Site #31 5719 E Santa Ana $ $
9. Well Site #35 652 E Main $ $
10. Well Site #36 1400 S Archibald Ave $ $
11. Well Site #37&39 4327 E Guasti $ $
12. Well Site #40 1335 E Holt $ $
13. Well Site #41 1252 N Hellman $ $
14. Well Site #45 665 East E St. $ $
15. Booster #3 136 N Campus (City of Upland) $ $
16. “ B” Booster 110 S Fern (City of Upland) $ $
17. Francis Future Site 906 E Francis $ $
Total $ $
Additional cost for a complete individual tree trimming up to 30’ $ (per individual tree/required trimming to be +/- 35% of growth per ISA) Cost for complete tree (individual) removal per inch at $ DBH (diameter at breast height) stumps to
be ground to a depth of 18” minimum
Cost for complete tree removal per inch at $
DBH (diameter at breast height) (flush cut 3” from ground)
FUTURE CONTRACT ADDITIONS
Landscape maintenance areas cost per sq. ft. $
Hardscape maintenance areas cost per sq. ft. $
Weed Abatement areas cost per sq. ft. $
529
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Ex. A - 50 (BB&K 2020)
BID SCHEDULE NO. 3 Category B
LANDSCAPE MAINTENANCE CONTRACT PM 2425-16
FISCAL YEAR 2028/2029 5th YEAR CONTRACT (OPTIONAL)
No. Description Monthly Annual
Cost Cost
1. Well Site #6 119 E Phillips $ $
2. Well Site #9 1560 N Euclid $ $
3. Well Site #15 1200 S Mountain $ $
4. Well Site #17 498 S Grove $ $
5. Well Site #20 9600 S Milliken (City of Rancho Cucamonga) $ $
6. Well Site #24 700 N Haven $ $
7. Well Site #25 2930 E Inland Empire $ $
8. Well Site #31 5719 E Santa Ana $ $
9. Well Site #35 652 E Main $ $
10. Well Site #36 1400 S Archibald Ave $ $
11. Well Site #37&39 4327 E Guasti $ $
12. Well Site #40 1335 E Holt $ $
13. Well Site #41 1252 N Hellman $ $
14. Well Site #45 665 East E St. $ $
15. Booster #3 136 N Campus (City of Upland) $ $
16. “B” Booster 110 S Fern (City of Upland) $ $
17. Francis Future Site 906 E Francis $ $
Total $ $
Additional cost for a complete individual tree trimming up to 30’ $ (per individual tree/required trimming to be +/- 35% of growth per ISA) Cost for complete tree (individual) removal per inch at $ DBH (diameter at breast height) stumps to
be ground to a depth of 18” minimum
Cost for complete tree removal per inch at $
DBH (diameter at breast height) (flush cut 3” from ground)
FUTURE CONTRACT ADDITIONS
Landscape maintenance areas cost per sq. ft. $
Hardscape maintenance areas cost per sq. ft. $
Weed Abatement areas cost per sq. ft. $
530
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Ex. A - 51 (BB&K 2020)
BID SCHEDULE NO. 1 Category C
LANDSCAPE MAINTENANCE CONTRACT PM 2425-16
FISCAL YEAR 2024/2025 to 2026/2027 3 YEAR CONTRACT
No. Description Monthly Annual
Cost Cost
1. Well Site #27 4300 E Jurupa $ $
2. Well Site #29 2505 E Guasti $ $
3. Well Site #43 3650 E Airport Dr $ $
4. Well Site #50 3900 E Riverside Dr. $ $
5. Archibald Booster 14909 S Archibald Ave $ $
6. Haven Lift Station 3665 E Brentstone $ $
7. Whispering Lakes 2900 Whispering Lakes Lane $ $
8. PRV 17 13651 S Archibald Ave $ $
9. G St. Future Site 1748 E G St. $ $
10. Grove Future Site 1612 S Grove Ave $ $
11. Bon View Future 1687 S Bon View $ $
12. Future Site 8163 Rochester Ave (Rancho Cucamonga) $ $ Total $ $
Additional cost for a complete individual tree trimming up to 30’ $ (per individual tree/required trimming to be +/- 35% of growth per ISA) Cost for complete tree (individual) removal per inch at $ DBH (diameter at breast height) stumps to
be ground to a depth of 18” minimum
Cost for complete tree removal per inch at $
DBH (diameter at breast height) (flush cut 3” from ground)
FUTURE CONTRACT ADDITIONS
Landscape maintenance areas cost per sq. ft. $
Hardscape maintenance areas cost per sq. ft. $
Weed Abatement areas cost per sq. ft. $
531
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Ex. A - 52 (BB&K 2020)
BID SCHEDULE NO. 2 Category C
LANDSCAPE MAINTENANCE CONTRACT PM 2425-16
FISCAL YEAR 2027/2028 4th YEAR CONTRACT (OPTIONAL)
No. Description Monthly Annual
Cost Cost
1. Well Site #27 4300 E Jurupa $ $
2. Well Site #29 2505 E Guasti $ $
3. Well Site #43 3650 E Airport Dr $ $
4. Well Site #50 3900 E Riverside Dr. $ $
5. Archibald Booster 14909 S Archibald Ave $ $
6. Haven Lift Station 3665 E Brentstone $ $
7. Whispering Lakes 2900 Whispering Lakes Lane $ $
8. PRV 17 13651 S Archibald Ave $ $
9. G St. Future Site 1748 E G St. $ $
10. Grove Future Site 1612 S Grove Ave $ $
11. Bon View Future 1687 S Bon View $ $
12. Future Site 8163 Rochester Ave (Rancho Cucamonga) $ $ Total $ $
Additional cost for a complete individual tree trimming up to 30’ $ (per individual tree/required trimming to be +/- 35% of growth per ISA) Cost for complete tree (individual) removal per inch at $ DBH (diameter at breast height) stumps to
be ground to a depth of 18” minimum
Cost for complete tree removal per inch at $
DBH (diameter at breast height) (flush cut 3” from ground)
FUTURE CONTRACT ADDITIONS
Landscape maintenance areas cost per sq. ft. $
Hardscape maintenance areas cost per sq. ft. $
Weed Abatement areas cost per sq. ft. $
532
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Ex. A - 53 (BB&K 2020)
BID SCHEDULE NO. 3 Category C
LANDSCAPE MAINTENANCE CONTRACT PM 2425-16
FISCAL YEAR 2028/2029 5th YEAR CONTRACT (OPTIONAL)
No. Description Monthly Annual
Cost Cost
1. Well Site #27 4300 E Jurupa $ $
2. Well Site #29 2505 E Guasti $ $
3. Well Site #43 3650 E Airport Dr $ $
4. Well Site #50 3900 E Riverside Dr. $ $
5. Archibald Booster 14909 S Archibald Ave $ $
6. Haven Lift Station 3665 E Brentstone $ $
7. Whispering Lakes 2900 Whispering Lakes Lane $ $
8. PRV 17 13651 S Archibald Ave $ $
9. G St. Future Site 1748 E G St. $ $
10. Grove Future Site 1612 S Grove Ave $ $
11. Bon View Future 1687 S Bon View $ $
12. Future Site 8163 Rochester Ave (Rancho Cucamonga) $ $ Total $ $
Additional cost for a complete individual tree trimming up to 30’ $ (per individual tree/required trimming to be +/- 35% of growth per ISA) Cost for complete tree (individual) removal per inch at $ DBH (diameter at breast height) stumps to
be ground to a depth of 18” minimum
Cost for complete tree removal per inch at $
DBH (diameter at breast height) (flush cut 3” from ground)
FUTURE CONTRACT ADDITIONS
Landscape maintenance areas cost per sq. ft. $
Hardscape maintenance areas cost per sq. ft. $
Weed Abatement areas cost per sq. ft. $
533
46700.00100\40935194.1
BB&K (2023) Exhibit B-1 MAINTENANCE SERVICES AGREEMENT
EXHIBIT “B”
SCHEDULE OF SERVICES
JULY 1, 2024 - JUNE 30, 2027
534
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BB&K (2023) Exhibit C-1 MAINTENANCE SERVICES AGREEMENT
EXHIBIT “C”
COMPENSATION
NOT TO EXCEED $694,872
PERFORMANCE/PAYMENT BONDS ON THE NEXT PAGE
535
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BB&K (2023) Exhibit C-2 MAINTENANCE SERVICES AGREEMENT
PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:
THAT WHEREAS, the City of Ontario (hereinafter referred to as “City”) has awarded to ____________________, (hereinafter referred to as the “Contractor”) _______________________ an agreement for ______________________________ (hereinafter referred to as the “Project”).
WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated ________________, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and
WHEREAS, the Contractor is required by said Contract Documents to perform the terms thereof and to furnish a bond for the faithful performance of said Contract Documents.
NOW, THEREFORE, we, _______________, the undersigned Contractor and _____________________________________________ as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto the City in the sum of ___________________________ DOLLARS, ($____________), said sum being not less than one hundred percent (100%) of the total amount of the Contract, for which amount well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, that, if the Contractor, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Contract Documents and any alteration thereof made as therein provided, on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their intent and meaning; and shall faithfully fulfill all obligations including the one-year guarantee of all materials and workmanship; and shall indemnify and save harmless the City, its officers and agents, as stipulated in said Contract Documents, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.
As a condition precedent to the satisfactory completion of the Contract Documents, unless otherwise provided for in the Contract Documents, the above obligation shall hold good for a period of one (1) year after the acceptance of the work by City, during which time if Contractor shall fail to make full, complete, and satisfactory repair and replacements and totally protect the City from loss or damage resulting from or caused by defective materials or faulty workmanship, Surety shall undertake and faithfully fulfill all such obligations. The obligations of Surety hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall limit the City’s rights or the Contractor or Surety’s obligations under the Contract, law or equity, including, but not limited to, California Code of Civil Procedure section 337.15.
Whenever Contractor shall be, and is declared by the City to be, in default under the Contract Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall promptly, at the City’s option:
536
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BB&K (2023) Exhibit C-3 MAINTENANCE SERVICES AGREEMENT
(1) Take over and complete the Project in accordance with all terms and conditions in the Contract Documents; or
(2) Obtain a bid or bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible bidder, arrange for a Contract between such bidder, the Surety and the City, and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
(3) Permit the City to complete the Project in any manner consistent with local, California and federal law and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
Surety expressly agrees that the City may reject any contractor or subcontractor which may be proposed by Surety in fulfillment of its obligations in the event of default by the Contractor.
Surety shall not utilize Contractor in completing the Project nor shall Surety accept a bid from Contractor for completion of the Project if the City, when declaring the Contractor in default, notifies Surety of the City’s objection to Contractor’s further participation in the completion of the Project.
The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project, including but not limited to the provisions of sections 2819 and 2845 of the California Civil Code.
537
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BB&K (2023) Exhibit C-4 MAINTENANCE SERVICES AGREEMENT
IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__).
(Corporate Seal)
Contractor/ Principal
By
Title
(Corporate Seal)
Surety
By
Attorney-in-Fact
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached.
(Attach Attorney-in-Fact Certificate) Title
The rate of premium on this bond is ____________ per thousand. The total amount of premium charges, $_______________________________.
(The above must be filled in by corporate attorney.)
THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety)
(Name and Address of Agent or
Representative for service of
process in California, if different
from above)
(Telephone number of Surety
and Agent or Representative for
service of process in California)
NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
538
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BB&K (2023) Exhibit C-5 MAINTENANCE SERVICES AGREEMENT
Notary Acknowledgment
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally
appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
Title(s) Title or Type of Document
Partner(s) Limited
General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
539
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BB&K (2023) Exhibit C-6 MAINTENANCE SERVICES AGREEMENT
PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS That
WHEREAS, the City of Ontario (hereinafter designated as the “City”), has awarded to ________________ hereinafter designated as the “Principal,” a contract for the work described as follows:
_____________________________________________________ (the “Project”); and WHEREAS, the work to be performed by the Principal is more particularly set forth in the Contract Documents for the Project dated __________________ (“Contract Documents”), the terms and conditions of which are expressly incorporated by reference; and WHEREAS, said Principal is required to furnish a bond in connection with said contract; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth.
NOW THEREFORE, we, the Principal and __________________________ as Surety, are held and firmly bound unto the City in the penal sum of ______________ Dollars ($___________) lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in Section 9100 of the Civil Code, fail to pay for any materials, provisions or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to Section 18663 of the Revenue and Taxation Code, with respect to such work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified.
This bond shall inure to the benefit of any of the persons named in Section 9100 of the Civil Code so as to give a right of action to such persons or their assigns in any suit brought upon this bond.
It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement herein above described, nor by any rescission or 540
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BB&K (2023) Exhibit C-7 MAINTENANCE SERVICES AGREEMENT
attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or City and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Section 9100 of the Civil Code, and has not been paid the full amount of his claim and that Surety does hereby waive notice of any such change, extension of time, addition, alteration or modification herein mentioned and the provisions of sections 2819 and 2845 of the California Civil Code.
IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__.
(Corporate Seal)
Contractor/ Principal
By
Title
(Corporate Seal) Surety
By
Attorney-in-Fact
Title
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached. A Power-of-Attorney authorizing the person signing on behalf of the Surety to do so much be attached hereto.
NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
541
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BB&K (2023) Exhibit C-8 MAINTENANCE SERVICES AGREEMENT
Notary Acknowledgment
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
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
542
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BB&K (2023) - 1 - MAINTENANCE SERVICES AGREEMENT
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 Former Redevelopment Sites 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 Former Redevelopment Sites PM 2425-03 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 543
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BB&K (2023) - 2 - MAINTENANCE SERVICES AGREEMENT
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 Five Hundred Ninety-Two Thousand Two Hundred Dollars ($592,200) 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 544
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BB&K (2023) - 3 - MAINTENANCE SERVICES AGREEMENT
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 545
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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 Two Hundred Seventy Dollars with Zero Cents ($270) 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. 546
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BB&K (2023) - 5 - MAINTENANCE SERVICES AGREEMENT
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 547
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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 548
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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 549
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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. 550
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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. 551
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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 552
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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 553
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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. 554
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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 555
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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 557
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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, 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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Ex. A - 1 (BB&K 2020)
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EXHIBIT “A”
SCOPE OF SERVICES
1. SCOPE OF WORK
A. The intent of this Agreement is to secure a contractor(s) who shall provide Landscape Maintenance Services for the Economic Development Sites PM 2425-03.
B. The Contractor shall furnish all labor, tools, materials, and equipment to provide the landscape maintenance and repairs as set forth in this Agreement.
C. All Work shall be done in a professional, thorough, and workman like manner to the satisfaction of the Parks and Maintenance Director, or his/her authorized agent, and comply with all legal construction and landscape maintenance practices. The premises shall always be maintained at the level of service provided for in these specifications. The Contractor shall have the duty to provide complete landscape maintenance of all the project areas, including, but not limited to, the following: Fertilize, under-trim trees and shape shrubs, trim ground cover areas, mow, and edge turf grass areas. Consistently maintain the project areas with horticulturally acceptable growth and color. Consistently maintain the project areas to be devoid of weeds.
Consistently maintain the project areas to be devoid of weeds five (5) feet out into the curb, gutter and street. Consistently maintain the project areas to be devoid of diseases, rodents and pests. Consistently maintain the project areas to be devoid of litter. Consistently maintain the project areas to be devoid of safety hazards. Consistently maintain the project areas to be devoid of unsafe walkways. Consistently maintain the project areas to be devoid of blocked drainage systems. Consistently maintain the project areas to be devoid of malfunctioning irrigation systems. Consistently maintain the project areas to be devoid of graffiti and paper like signs. Program, monitor, adjust and maintain all irrigation system clocks, and perform extra work as directed and approved.
E. The Contractor shall be available twenty-four (24) hours a day, seven (7) days a week to respond to all emergencies within two (2) hours of notification. Emergencies that involve maintenance work included in these general conditions shall not be compensated.
F. The Contractor shall perform a weekly maintenance inspection, during daylight hours, of all areas. Such an inspection shall be both visual and operational. It shall include, but not be limited to, the operation of all irrigation and/or other mechanical systems to check for proper condition and reliability.
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2. WORK SITE
Work sites may include parks, medians, trails, weed abatement areas, and parkways.
The City reserves the right to make additions or deletions under this contract with written notice to the Contractor. The monthly compensation shall be adjusted by the monthly unit cost per square foot if any changes result in an increase or reduction in square footage maintained.
Compensation shall be based on a-per unit cost (bid schedule form submitted) of work completed.
3. LENGTH OF CONTRACT
This PRIMARY contract shall begin July 1, 2024, and shall terminate on June 30, 2027.
The FIRST optional extension may be granted for a term of TWELVE (12) MONTHS, from July 1, 2027, through June 30, 2028, and any proposed increase shall be no greater than the CPI (Consumer Price Index) for the Ontario area, measured performance of the contractor and funding renewal.
The SECOND optional extension may be granted for a term of TWELVE (12) MONTHS, from July 1, 2028, through June 30, 2029, and any proposed increase shall be no greater than the CPI (Consumer Price Index) for the Ontario area, measured performance of the contractor and funding renewal.
All optional extensions of the contract are subject to approval by the City Manager, or his authorized agent, and are contingent upon funding and performance by the Contractor.
4. DEFINITIONS
Where "as directed", "as required", "as permitted", "approved", "acceptance", or words of similar importance are used, it shall be understood that the direction, requirement, permission, approval or acceptance of the Parks and Maintenance Director, or his authorized agent, is intended unless otherwise stated.
The use of the word "Contractor" shall be held to mean the Contractor and/or any person employed by the City of Ontario, Parks and Maintenance Director, or his/her authorized agent and working under this contract.
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The use of the words "shall" and "may" shall be held to mean "mandatory" and "permissive" respectively.
The use of the words "his" or "him" shall be construed to mean either gender, as appropriate.
The use of the words " Parks and Maintenance Director " shall be construed to mean either the Parks and Maintenance Director or his authorized agent(s).
The words "City working day" refers to Monday-Friday, 6:30 a.m. to 4:00 p.m.
5. VANDALISM/THEFT/DAMAGE
Contractor shall be responsible for performing maintenance, repairs, and replacement of existing landscaped areas which are maintained under this contract and damaged or altered in any way as a result of theft, vandalism or mysterious damages that do not result from the performance of the Contractor.
In the case of vandalism to the maintained areas (Damage by Unknown Circumstances), Contractor shall notify the City within 24 hours using the free myOntario App. Graffiti will be entered under the “graffiti “Tab. All other Vandalism will be entered under the “Parks” Tab. In addition, EXCEPT in the case of graffiti, a text or email must be sent to the City’s Representative within 24 Hours detailing the Vandalism.
The use of red "Danger" tape shall be used when an area is unsafe for the public by the end of the workday.
The repairs shall be made within 24 hours of receiving a notice to proceed by text or email. At no time shall damage by unknown sources remain unrepaired for a period exceeding 72 hours.
Additional compensation will be provided only for costs that are directly related to the theft and/or vandalism.
The following conditions shall be met prior to the Contractor being reimbursed for "Damage by Unknown Circumstances".
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6. VANDALISM/THEFT/DAMAGE BIDS
Contractor shall submit an itemized EWA (Extra Work Authorization) within 24 hours to the City’s Representative. Contractor shall secure written authorization for the repairs by the Parks and Maintenance Director, or his authorized agent within twenty-four (24) hours by e- mail or text. For emergencies regarding public safety, a verbal or text approval by the Parks and Maintenance Director, or his authorized agents, may be obtained.
7. COMPLETION OF PROPOSED VANDALISM/THEFT/DAMAGE WORK
A. Work is to commence within twenty-four (24) hours after receiving City approval.
B. The work shall be inspected and released as complete by the City representative, and then invoiced as specified in section (8). ·
8. INVOICING OF PROPOSED VANDALISM/THEFT/DAMAGE WORK
A. Contractor shall submit on business letterhead, a photocopy of the original EWA describing individual material costs and an invoice with line items for material costs, labor costs and administrative costs. The cost estimate for additional work shall consist of the following elements: Base cost of labor plus Fifteen percent (15%) for overhead and profit. Actual cost of materials plus fifteen percent (15%) for overhead and profit. City reserves the right to ask for payroll records and vendor invoice if discrepancies on the bid exist. Materials may be provided by the City of Ontario.
B. Contractor shall submit a copy of a report filed with the City of Ontario Police Department, which relates to the specific incident if required by the Parks and Maintenance Director or his authorized agent.
9. ADDITIONAL (EXTRA) WORK (EXTRA WORK AUTHORIZATION or EWA) A. The Parks and Maintenance Director, or his authorized agent, may, at his discretion, authorize the Contractors to perform additional work. Additional work (work not related to "Damages by Unknown Circumstances") shall be defined as work not included in this Agreement.
B. Prior to the Contractor performing any additional work, the Contractor shall prepare and submit a written description of why the additional work is required, what type of work is proposed, and a cost estimate for the additional work as stated. No work shall commence 564
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without written authorization from the Parks and Maintenance Director, or his authorized agent.
Notwithstanding the above authorization, when a condition exists where there is imminent danger of injury to the public or damage to property, the Parks and Maintenance Director, or his authorized agent may verbally authorize the work to be performed upon receiving a verbal estimate from the Contractor. However, within twenty-four (24) hours after receiving a verbal authorization, the Contractor shall submit a written estimate to the Parks and Maintenance Director, or his authorized agent, for approval.
C. The cost estimate for additional work shall consist of the following elements:
Base cost of labor plus fifteen percent (15%) for overhead and profit.
Actual cost of materials plus fifteen percent (15%) for overhead and profit (invoice from vendor shall be attached to each invoice turned in for payment).
The city reserves the right to ask for payroll records. Materials may be provided by the City of Ontario.
D. Written authorization from the Parks and Maintenance Director, or his authorized agent, shall be by the issuance of a change order or signed bid. This change order or signed bid shall be considered an amendment to this Agreement and approved by the Parks and Maintenance Director, or his authorized agent, and Contractor.
E. All additional work shall commence on the agreed date and shall diligently proceed until completion. Contractor could use the labor force assigned to the contractual maintenance tasks to perform additional work if prior approval has been granted by the City representative.
F. Upon completion of the additional work, the Parks and Maintenance Director, or his authorized agent, shall be notified so that the work may be verified.
G. The Contractor shall submit an invoice for compensation with attached photocopies of original invoices for materials and a copy of signed bid. Compensation shall not exceed the written estimate. The Contractor's invoice shall be subject to audit and review by the City prior to payment.
H. The City of Ontario reserves the right to repair or contract with a third Party to perform such additional work (if bids are not received within 72 hours of official request and or if the proposed costs do not concur with contractor's labor rates and cost of materials) 565
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10. CONTRACTOR LIABILITY
A. All damage to existing improvements located within areas and adjacent to areas under construction, which in the opinion of the Parks and Maintenance Director, or his authorized agent, are due to the Contractor's operation, shall be repaired or replaced at the Contractor's expense with exact (existing) materials and in an approved manner.
B. Such repairs or replacements shall be performed by the Contractor at no cost to the City and shall be accomplished as directed by the Parks and Maintenance Director or his/her authorized agent. Repairs shall be made immediately after damage or alteration occurs.
Deductions shall be made from the Contractor's payments in the amount necessary to compensate the City for such repairs in the event such repair work is done by City forces, or another source.
C. Irrigation damage shall be repaired or replaced within the following time limits: Irrigation entities such as, but not limited to, (risers, heads, backflow device and cages, controllers, basket strainers, pressure regulators, irrigation wires and valves, valve boxes, irrigation pumps, ET gauges, rain buckets, antennas, flow sensors, and landscape lighting equipment) that are damaged during regular routine maintenance and become non-functional or non-efficient shall be replaced immediately. Mainline irrigation breaks shall be repaired within two (2) hours of being notified. All other irrigation repairs and/or replacement shall be completed within 24 hours of being notified. (In the event that the mainline repairs require specialized parts and or materials, the contractor shall be responsible to request from the City additional time to complete the repair/s)
D. All damage to turf grass, groundcover, shrubs, or trees, shall be repaired or replaced within three (3) working days of being notified. Damage to turf shall be repaired by replacement with the appropriate variety of bermudagrass sod or seeded with warm season seed and topper added. Damage to groundcover shall be repaired by replacement with the appropriate variety of plant material. Size and spacing shall be determined by the Parks and Maintenance Director, or his authorized agent. Damage to shrubs may be corrected by appropriate pruning; however, if in the opinion of the Parks and Maintenance Director, or his authorized agent, the damage is severe, the shrub (in its entirety) shall be removed and replaced with a similar variety and size. 566
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E. Damage to trees shall be repaired in the following manner:
Minor damage, such as bark lost from mechanical equipment shall be remedied by a certified Arborist. If the damage results in the loss of the tree, or, if in the opinion of the Parks and Maintenance Director or his authorized agent, the damage is severe, the damaged tree shall be removed and replaced with a similar variety and size. All damage resulting from chemical application and/or operation, either by spray-drift, improper application, lateral leaching, or other means shall be corrected in accordance with the previous provisions and the soil conditioned to ensure its ability to support plant life. All work shall be inspected, verified, and completed to the satisfaction of the Parks and Maintenance Director, or his authorized agent.
11. INSPECTION/DRIVE
The City and an appointed representative of the Contractor shall conduct a once-a-month walkthrough to inspect each individual work area. It is the responsibility of the Contractor to set up the inspection time(s) five (5) working days prior to the walkthrough/inspection. It is a requirement that a six to twelve (6-12) month master calendar be set up within 30 days of the award of the contract to insure coordinated dates of inspection. This inspection is to ensure adequacy of maintenance, methods of performing the work are in compliance with the contract and allow all deficiencies to be corrected prior to invoice submission and payment. However, this shall not be construed to relieve the Contractor of the duty to provide continuous inspection of individual work areas. Discrepancies and deficiencies in the Contractor's work shall be brought to the attention of the Contractor and corrected in the manner prior to invoicing and payment.
12. HAZARDOUS CONDITIONS
It shall be the Contractor's responsibility to inspect, and identify, any condition(s) that renders any areas within this Agreement unsafe, as well as any unsafe practices occurring thereon. The Parks and Maintenance Director, or his authorized agent, shall be notified immediately using the myOntario App, as well as text or phone call, of any unsafe condition that requires major correction.
The Contractor shall be responsible for making minor corrections including, but not limited to, filling holes in landscaped areas, diverting water sheet flow, using barricades, danger tape or traffic cones to alert persons of the existence of hazards and replacing valve box covers so as to protect all persons from injury.
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The Contractor shall inspect all work sites for hazards, or potential hazards in the contractual areas daily.
During the required inspection of all work sites for hazards, or potential hazards, the Contractor shall immediately contact the City representative (either e-mail or text) indicating the condition, date, and the area that was inspected and a work order should be created using the myOntario App.
The Contractor shall cooperate fully with the City of Ontario in the investigation of any accidental injury or death occurring on the premises, including the submission of a complete written report thereof to the Parks and Maintenance Director within three (3) days following the occurrence.
13. REMOVING OBSTRUCTION AND MAINTENANCE OF EXISTING IMPROVEMENTS Where the work is to be constructed in, or adjacent to, areas which have been improved by lawns, trees, shrubs, or gardens, the Contractor shall remove such trees or plants as may be necessary for the prosecution of the work and give them proper care and attention until the work has been satisfactorily completed, after which the Contractor shall replace them in as nearly the original condition and location as is reasonably possible. Where it is necessary to deposit the excavated materials on lawns during the process of construction, the Contractor shall first lay burlap or canvas on the lawn to prevent contact between the excavated material and turf grass.
Unless otherwise indicated in the contract documents, all utility lines, conduits, wires, or structures shall be maintained by the Contractor and shall not be disturbed, disconnected or damaged by them during the progress of the work, provided, that should the Contractor in the performance of the work disturb, disconnect, or damage any of the above, all expense, arising from such disturbance, or in the replacement or repair thereof, shall be borne by the Contractor.
However, in accordance with Section 4215 of the California Government Code, the Contractor shall be compensated 1) for the cost of locating and repairing damage to main or trunk line utility facilities located on the job site, not due to the failure of the Contractor or exercise reasonable care; 2) for costs of removing or relocating such utility facilities not indicated in the contract documents with reasonable accuracy; and 3) for the operation cost for equipment on the project necessarily idled such work.
At least two (2) working days prior to commencing any excavation pursuant to this Contract, the Contractor shall contact Underground Service Alert at (800) 422-4133 or other appropriate regional notification center if the excavation will be conducted in an area which is known, or reasonably should be known, to contain subsurface installations. 568
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14. CONTRACTOR STAFF
The contractor shall provide the manpower as a minimum staffing requirement to comply with the performance of the landscape/irrigation maintenance specifications and requirements of the site.
The Contractor shall furnish one (1) supervisor with a minimum of 5 years of landscape and irrigation maintenance experience and sufficient supervisory and working personnel capable of promptly accomplishing all tasks on schedule, to the satisfaction of the Parks and Maintenance Director, or his authorized agent, all work required under this contract during the prescribed hours (6:30 AM to 4:00 pm). Staffing shall be as needed plus any additional workforce to complete the maintenance/construction tasks required on the frequency page. Payment will be based upon completed, acceptable work, Irrigation technician and spray technician to be provided as needed (personnel needs do not address the alternates per bid forms). Incomplete or unacceptable work will result in a delay or reduction of billing payment.
The Contractor shall have a competent supervisor, who is capable of communicate effectively both in written and oral English and discuss matters pertaining to this contract. The supervisor must be able to demonstrate to the satisfaction of the Parks and Maintenance Director, or his authorized agent, that they possess an adequate technical background. Adequate and competent supervision shall be provided for all work done by the Contractor's employees to ensure the accomplishment of high-quality work, which will be acceptable to the Parks and Maintenance Director or his authorized agent.
Any order or communication given to the supervisor shall be deemed as delivered to the Contractor. The contractor shall use the free myOntario App. The use of a Smart phone will be required.
The contractor shall provide the minimum staffing requirements to comply with the performance of the landscape maintenance specifications and requirements of the site. Personnel shall be on site ready to work no later than 6:30am.
The Contractor, and their employees, shall always conduct themselves in a proper and efficient manner and shall cause the least possible annoyance to the public. The Parks and Maintenance Director or his authorized agent, may require a Contractor to remove from the work site any employee(s) deemed careless, incompetent, or otherwise objectionable, whose continued employment on the job is considered to be contrary to the best interest of the City of Ontario. 569
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The Contractor shall require each of his employees to wear basic public works working attire.
These are basically proper shoes, and other gear required by State Safety Regulation, and proper wearing of the clothing. Shirts shall be worn and always buttoned; safety vests "Type II" are required when indicated by the Work Area Traffic Control Handbook, the Parks and Maintenance Director or his authorized agent.
The Contractor shall establish an identification system for personnel assigned to the maintenance/construction site, which clearly indicates to the public the name of the Contractor and individual responsible for the construction/maintenance work. The identification system shall be furnished at the Contractor's expense and may include appropriate attire and name badges.
The contractor shall be responsible for traffic control (where needed) and shall be done per "WATCH" standards. Failure to comply with proper "WATCH" standards shall result in stoppage of all work until the proper traffic control is set up and could result in a fine. 1st violation $500.00, 2nd. Violation $ 1000.00, 3rd. violation and thereafter $ 3000.00 and/or possible cancellation of contract.
Inclement Weather
During inclement weather, (rainstorms, windstorms etc.) the contractor shall be required to contact the City representative prior to 7:00 am to receive clear directions of their assignments for the day. A minimum of two staff members shall be at the disposition of the City.
15. LOCAL OFFICE
A. The Contractor shall maintain an office with a telephone and provide at all times the following:
A responsible person(s), employed by the Contractor, shall have the ability to take necessary action regarding all inquiries and/or complaints received from the Parks and Maintenance Director, or his authorized agent. This person(s) shall be accessible twenty-four (24) hours per day and seven (7) days per week. An answering service shall be considered an acceptable substitute to full-time coverage, outside of prescribed working hours, provided the Contractor is notified of any communication within one (1) hour after receipt of said communication. The telephone number(s) of the Contractor or responsible person(s) of the Contractor shall be a tollfree number for the City of Ontario. 570
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B. During normal working hours, the Contractor's supervisors, who are responsible for providing contractual services, shall be available for notification through a landline or cellular telephone communication. This will allow the city to access the contractor at any time during City working hours.
16. STORAGE FACILITIES
The City of Ontario will not be providing storage facilities throughout the duration of this contract.
A. SIGNS
The contractor shall not post signs or advertising matter upon the areas under maintenance or improvements thereon, unless prior written approval is obtained from the Parks and Maintenance Director, or his authorized agent.
The contractor shall, always, remove all unauthorized signs and advertising matter such as, but not limited to, garage sale signs, yard sale signs, campaign signs and personal business signs in the area under maintenance.
17. LOCK AND KEYS
A. Where City of Ontario locks and keys are required as part of this contract, the Contractor shall:
Not duplicate any coded City key furnished by the city.
Surrender all keys furnished by the Parks and Maintenance Director or his authorized agent promptly at the end of the contract period, or at any time-deemed necessary by the Parks and Maintenance Director, or his authorized agent, to prevent loss to the City of Ontario.
Protect the security of City property by keeping controller cabinets and enclosure doors always locked.
Contact the City immediately if a security lock is non-functional and needs repair. Refrain from using premises behind locked doors for storage of materials, supplies or tools except as approved by the Parks and Maintenance Director or his authorized agent. In the event that the 571
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contractor staff who has been assigned keys to the facilities resigns from his position, it is the sole responsibility of the contractor to retrieve the keys assigned to such staff member and return to the City.
18. UTILITIES
The City of Ontario shall pay for the maintenance related to water and electrical utilities.
When needed, water usage shall not exceed the budgeted amount to comply with the City Water Conservation efforts. A water budget may be provided by the City and shall be reviewed and adhered to by the Contractor. The water budget shall be approved by the Parks and Maintenance Director, or his authorized agent.
The Contractor may be charged for all excessive utility usage (using the current utility rate) due to the contractor's failure to manage and or monitor irrigation system malfunctions or unauthorized increases in water usage. The excess cost will be determined by comparing the current utility usage with historical usage data for the same period.
The excess cost factor shall be deducted from payments to the Contractor. However, the Contractor will be allowed three (3) working days, upon receiving notice, to explain in written documentation the cause of the increase in utility usage in question. A final determination (after review of Contractor's explanation) of the deduction will be assessed by the Parks and Maintenance Director or his authorized agent.
19. NON-INTERFERENCE
The Contractor shall not interfere with the public use of the premises and shall conduct their operations so as to offer the least possible obstruction and inconvenience to the public, nor disrupt the peace and quiet of the area within which the services are performed.
20. PARKING
A. The Contractor shall park their vehicles and equipment within designated parking areas or in such a location to ensure normal vehicular traffic.
B. The Contractor's vehicles and equipment shall not be parked or set in such a manner that they block pedestrian access or vehicular right-of-way except as required to comply with all safety standards of OSHA or CAL-OSHA. Failure to perform proper traffic control will result in a 572
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formal warning (first time), a deduction of $500.00 per instance after formal warning has been given and contractor fails to comply.
21. EMERGENCY CALLS
A. The Contractor shall have the capability to receive and respond immediately to calls of an emergency nature during normal working hours and outside of normal working hours. Calls of an emergency nature received by the Parks and Maintenance Director or his authorized agent, shall be referred to the worksite Contractor for immediate disposition. If the work site Contractor cannot be reached within two (2) hours, the City will deduct from the monthly billing the cost of City forces, or other sources, used to repair the emergency. The Contractor shall not receive additional compensation for responding to emergencies for work included in these general conditions at contract work sites.
22. EXTRAORDINARY SERVICES
A. The Contractor shall be responsible for providing extraordinary maintenance and/or repairs to existing landscape and new landscape areas outside of their contract areas.
Extraordinary services shall be defined as work not included in these general conditions or work required at a site for which there is no contract. Extraordinary maintenance shall include answering emergency calls as required. Contractors shall respond to an emergency call within two (2) hours. Contractors shall maintain a 24-hour per day, seven days per week, on-call service for emergency calls. The Contractor shall notify the Parks and Maintenance Director, or his authorized agent, by telephone within 24 hours of any emergency extraordinary work that is performed. Non-emergency extraordinary work requires written approval before the work is performed. Submission of an EWA and approval by the Parks and Maintenance Director, or his authorized agent will be necessary. The Contractor shall be compensated for extraordinary work as defined in Section 9.
B. In situations involving emergency repair work after normal work hours, Contractors shall dispatch qualified personnel and equipment to reach the site within two (2) hours. The Contractor's vehicle shall carry sufficient equipment to effect safe control of traffic. When the work site Contractor arrives at the site, the Contractor shall set up traffic warning and control devices, if deemed necessary and proceed to repair on a temporary/permanent basis.
C. If a City Representative is still at the site when the worksite contractor arrives, the Contractor shall quickly evaluate the situation and discuss it with the City Representative. If the 573
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repair will take only a few minutes, the City Representative may stay to continue to direct traffic while the Contractor makes the repairs. If the repair will take longer than the City Representative can wait, the Contractor shall immediately set up temporary traffic control devices and all other necessary warning devices and relieve the City Representative.
D. An emergency may be called by the following individuals or agencies at anytime for extraordinary services involving repair work:
1. City Manager
2. Police Department
3. Fire Department
4. Parks and Maintenance Director
E. The following emergency phone numbers are listed for the convenience of the Contractors:
Fire Department (Dispatch) (909) 983-5911
Fire Department (Emergency) 911
Police Department (Dispatch) (909) 986-6711
Police Department (Emergency) 911
Southern California Edison (800) 655-4555
Southern California Gas (800) 427-2200
Dig Alert (800) 422-4133
23. REPORTING DAMAGE OR MALFUNCTION
Any damage to, or malfunction of, any facility not specifically stated in this Agreement shall be promptly reported to the Parks and Maintenance Director, or his authorized agent.
24. COMPENSATION FOR ROUTINE MAINTENANCE
The City shall compensate Contractors based upon the total dollar amount of a bid or the total dollar amount of a combination of bids, if applicable, in monthly installments beginning 30 days after the commencement of work. Billing adjustments may be made where authorized by this Agreement.
25. ADDITION OR DELETION OF LANDSCAPE AREAS
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The Contractors shall maintain, at a unit price comparable to other existing landscape areas and subject to the Parks and Maintenance Director approval or his authorized agent's approval, additional landscape areas that the city adds to this contract. If notification is made of a new installation other than at the beginning of a monthly period, the unit cost negotiated and agreed upon by the parties shall be prorated from the day the Contractor is notified to start maintenance. The City may elect to delete work sites, or portions thereof, within this Agreement at a unit price comparable to the bid price of said work sites.
26. DISCREPANCIES OR OMISSIONS
Should a bidder find discrepancies or omissions in the specifications or other documents, or be in doubt as to their true meaning, he may request a written interpretation from the Parks and Maintenance Director, or his authorized agent. Any interpretation, or change in the proposed documents, will be made only by addendum issued to each person to whom bid forms have been issued and shall become a part of the bid.
27. MINOR MODIFICATION
The Parks and Maintenance Director, or his authorized agent, may modify these specifications with the joint approval of the Contractor.
28. CONTRACTOR NON-COMPLIANCE
If the Parks and Maintenance Director, or his authorized agent, determines that there are deficiencies in the performance of this Agreement, the Parks and Maintenance Director, or his authorized agent, will provide a written inspection notice to the Contractor stating the deficiencies and specifying a time frame to correct the specified deficiencies. This time frame shall be reasonable, as determined by the Parks and Maintenance Director, or his authorized agent, to correct the specified deficiencies but not to exceed five 5 working days from the day of the inspection punch list. If the site(s) show obvious signs of non-performance, the Parks and Maintenance Director, or his authorized agent shall have the ability to immediately enforce partial or full deduction for the site in question. Should the Contractor fail to correct all deficiencies within the stated time frame, the Parks and Maintenance Director, or his authorized agent, may exercise the following measures:
A. Deduct from the Contractor's payment the amount necessary to correct the deficiency, including City overhead and impose a deficiency deduction. 575
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B. Withhold the entire or partial payment.
C. Utilize City forces, or an alternate source, to correct the deficiency and deduct from the Contractor's payment the total cost, including City overhead. The Parks and Maintenance Director, or his authorized agent, shall decide all questions which arise as to the manner of performance and completion per schedule, acceptable fulfillment of the contract by the Contractor, interpretation of the specifications, and compensation to include completion of work by alternate sources. In addition to the provisions of Section 3.3, Contract Documents and Section 28 (B), in the event of a failure to correct a deficiency, or for any other breach of this Agreement by the Contractor, the City of Ontario may immediately terminate this Agreement. If the contractor requires extra time to complete the deficiency list due to materials/parts shortage, the contractor shall request in writing only the time needed to be added and the reasons why.
The City representative will review the request and shall respond to the contractor in writing of the decision made. Contractor shall present the request for extension within the first five (5) working days of the deficiency list.
29. PAYMENTS WITHHELD
The city may withhold entire or partial payment for reasons as follows:
A. Work required in the specifications, which is defective, incomplete, or not performed. Claims filed or reasonable evidence indicating probable filing of claims.
B. Failure of the Contractor to make payments properly to subcontractors, or for materials and/or labor. A reasonable doubt that the contract cannot be completed for the remaining balance.
C. Reports, logs, or other contractual written documentation required of the Contractor to be delivered to the Parks and Maintenance Director, or his authorized agent, which is/are incomplete or not performed.
30. WITHHELD CONTRACT FUNDS
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The Contractors may, at his sole cost and expense, substitute securities equivalent to any monies withheld by the City to insure performance under the contract. Such securities shall be deposited with the City or with a State or Federally Chartered Bank as escrow agent who shall pay such monies to the Contractors upon satisfactory completion of the contract. The Contractor shall be the beneficial owner of any securities substituted for monies withheld and shall receive any interest thereon. Securities eligible for investment under this section shall include those listed in Public Contract Code Section 22300. One definition of just cause for immediate contract termination is, if in the opinion of the Parks and Maintenance Director, or his authorized agent, the contract cannot or will not be completed by the Contractor in its entirety. In the event of such termination, the bonds required shall remain in effect for six (6) months after the date of termination to provide surety that any remedial work required at the time of termination will be completed.
If the Contractor fails to meet the specifications of this contract for any fifteen (15) consecutive or non-consecutive days, the Parks and Maintenance Director, or his authorized agent, may at his option terminate the balance of this contract by written notice of termination to the Contractor. Notice of such termination shall take effect three (3) days after such notice is mailed.
31. COMPLAINTS FROM CITY
The Contractor shall maintain an on-the-job a written log of all complaints which includes the date and time received and the action taken or the reason for non-action. The on-the-job log of complaints shall be available upon request from the City Representative. All complaints shall be abated as soon as possible after notification; but in all cases within 24 hours, to the satisfaction of the Parks and Maintenance Director, or his authorized agent. If any complaint is not abated within 24 hours, the Parks and Maintenance Director, or his authorized agent, shall be notified immediately of the reason for not abating the complaint, followed by a written report to the Parks and Maintenance Director or his authorized agent, within four (4) City working days.
If the complaints are not abated within the time specified, or to the satisfaction of the Parks and Maintenance Director or his authorized agent, the Parks and Maintenance Director, or his authorized agent, may correct the specific complaint and the total cost incurred by the City of Ontario shall be deducted and forfeited from the payments owing to the Contractor from the City of Ontario.
32. CONTRACTOR IS AN INDEPENDENT CONTRACTOR, INDEMNIFICATION 577
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Contractor shall act under the contract as an Independent Contractor thorough the City of Ontario and will not be an agent, or employee of the City. The contractor shall not represent or otherwise hold out itself, or any of its subcontractors, directors, officers, partners, employees, or agents, to be an agent or employee of the City. Contractors shall indemnify and otherwise hold harmless the City, its officials, officers, directors, employees, agents and other representatives, from all liability, loss, or damage, including reasonable attorney's fees and other costs of defense resulting from damage or injury to persons or property caused, or claimed to have been caused, by acts or omissions of the Contractor, or of any of its subcontractors, directors, officers, partners, employees, or agents in the course of, or in connection with the Contractor's performance under the contract. The Parties agree to cooperate fully in the resolution of any claims for such liability, loss, or damage.
33. SUBCONTRACTOR/ASSIGNMENT OF CONTRACT
Reference is hereby made to the provisions of The Subletting and Subcontracting Fair Practices Act (Government Code Sections 4100, et. seq.), which are incorporated herein and made a part hereof by this reference.
A copy of each subcontract, if in writing, or if not in writing, then a written statement signed by the Contractor, giving the name of the subcontractor, and the terms and conditions of such subcontract, shall be filed with the City before the subcontractor begins work. Each subcontract shall contain a reference to this agreement between the City and the Contractor, and the terms of that agreement between the City and the Contractor and all parts thereof shall be made a part of such subcontract insofar as applicable to the work covered thereby. Each subcontractor shall provide for its annulment by the Contractor at the order of the City, if, in the City's opinion, the subcontractor fails to comply with the requirements of the principal contract insofar as the same may be applicable to his work. Nothing herein contained shall create any contractual relation between any subcontractor and the City or relieve the Contractor of any liability or obligation hereunder.
The contractor shall not assign, transfer, convey or otherwise dispose of this contract, or of his rights of interests in or to the same or any part hereof, without the previous consent in writing of the Parks and Maintenance Director, or his authorized agent. If the Contractor, without such previous written consent assigns, transfers, conveys, or otherwise disposes of the contract, or of his rights or interests therein, the contract may, at the option of the City, be terminated and revoked, and the City shall there upon be relieved and discharged from all liability and obligations arising out of the same to the Contractor, and to his assignee or transferee. No right 578
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under the contract, nor any right to any money to become due hereunder, shall be asserted against the City in law or equity by reason of any so-called assignment of the contract, or any part thereof unless authorized by the written consent of the Parks and Maintenance Director, or his authorized agent.
34. COMPLIANCE WITH THE LAW
Contractor agrees that their performance under this contract shall comply with all applicable laws of the United States of America, the State of California, the county of San Bernardino, the City of Ontario and any other political entity having jurisdiction over the activities of the Contractors. The Contractor State License Board for the State of California has administratively determined in writing that a C-27 Contractor License is required to provide the service as set forth in the contract and specifications. Therefore, each bidder will be required to hold a valid C27 Contractor License.
35. PAYROLL
Section 1776, Chapter 1 of Division 2, from the California Labor Code requires that each Contractor and Subcontractor keep an accurate payroll record, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and each week, and the actual per diem wages paid each journeyman, apprentice or worker employed by him.
The employee's own payroll records shall be available for inspection, and a copy shall be made available to the employee or his authorized representative, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standard.
Pursuant to Labor Code Section 1778.8, the Contractor agrees to pay travel and subsistence payments to each workman needed to execute the work in accordance with the applicable collective bargaining agreements filed with the Department of Industrial Relations.
36. LABOR STRIKE
It shall be the responsibility of each contractor to provide continuous contractual services, without any interruption.
In case of any labor strikes, the Contractor shall provide other means, as its own cost, to provide a comparable continuous contractual service as if there were no strike. 579
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Failing to do so will cause the Parks and Maintenance Director, or his authorized agent, to take whatever action is deemed necessary to provide such service and the cost will be borne by the Contractor.
37. TURF GRASS CARE
A. Turf grass Mowing:
The Contractor shall mow all turf grass with adequately sharpened rotary type mowers as to provide a smooth and even cut without tearing of turf grass blades.
The blade adjustment shall provide a uniform, level cut without ridges, depressions or scalping.
All cool season turf grasses shall be cut with a power driven rotary mower at a two inch (2") height from November to February and at two and half inches(2 1/2'.') from March to October.
Turf grass mowing heights may be adjusted by the Parks and Maintenance Director, or his authorized agent, during periods of turf grass renovation.
Care shall be exercised to avoid depressions in the established grade from mowing when the soil is saturated.
The Contractor shall submit, in writing, a mowing schedule within ten (10) days after the start of the maintenance contract. This mowing schedule shall be approved by the Parks and Maintenance Director, or his authorized agent. Any alteration of the approved mowing schedule shall be submitted in writing to the Parks and Maintenance Director or his authorized agent, for approval prior to implementation.
B. Turf Grass Edging and Trimming:
Turf grass edging and trimming shall be performed per frequency schedule at the time of mowing.
Edging of turf grass shall be performed with a power edger containing a steel blade, the use of string trimmers (weed-eater) to edge turf areas is not a practice acceptable to the City. The use of a stick edger is acceptable.
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All turf grass adjacent to sidewalks, curbs, mowing strips, shrub beds, and where no improved surface exists, shall be edged in a neat uniform line.
Where facilities include a softball or baseball field, the infield radius shall be edged regularly to keep radius clearly defined. Grass and weeds shall not encroach into the infield and shall be treated/removed immediately.
Trimming of turf grass shall be performed along walls, and around valve boxes, water meter boxes, backflow devices, trees, shrubs, or any structures located within the turf grass area.
Tree trunk protectors shall be provided and installed, at no additional cost to the City, when string trimmers are utilized for trimming around the base of trees. The City may allow a sixteeninch (16") diameter mulch ring around trees to eliminate continual string trimming.
A four-inch (4") barren strip shall be provided, and maintained, between turf grass areas and adjacent ground cover. Edging of turf grass and ground cover shall provide uniform delineation adjacent to this barren strip.
Trimming of plant material may be required around sprinklers to provide maximum irrigation coverage.
All clippings and trimmings shall be removed from the work site the same day work is performed and prior to the contractor vacating the work site.
After mowing and edging is completed, all adjacent walkways and gutters shall be swept or blown clean.
Blowing and disposing of grass clippings into the City storm drain system and/or streets shall not be permitted. If found contractor will face liquidating damages as follows; 1st violation$ 1000.00, 2nd violation $ 2000.00, 3rd violation and thereafter $ 3000.00.
C. Turf grass Fertilization
The turf grass shall be continually fertilized a minimum of 3 x per year with additional application if needed, to provide a healthy and vigorously growing turf grass with horticultural acceptable growth and color, as determined by the Parks and Maintenance Director, or his authorized agent.
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1. Fertilization shall be performed with a balanced fertilizer, consisting of a 3-1-2 ratio, at a rate of one (1) pound of actual Nitrogen per 1,000 square feet of area. Any change in the fertilizer ratio and/or rate shall be submitted in writing and approved by the Parks and Maintenance Director, or his authorized agent, prior to usage.
2. The Contractor shall notify the Parks and Maintenance Director, or his authorized agent, in writing, five (5) working days prior to any fertilizer application. This written document shall include the following:
• Location and exact date the fertilizer application will be performed. • Type of fertilizer and method of application to be used.
3. The Contractor shall immediately irrigate (staff shall be present when irrigating during the day) after each fertilizer application and repair with sod (Dwarf Fescue) any damaged areas due to fertilizer/chemical burn.
4. All fertilizer applications shall be performed with properly calibrated equipment to provide a uniform application.
D. Turf grass Renovation
1. Renovation shall consist of aerating, verticutting, thatch removal, over-seeding and top dressing (a minimum of l/8").
2. The Contractor shall notify the Parks and Maintenance Director, or his authorized agent, in writing, five (5) working days prior to any renovation operation. This written document shall include location and exact date the renovation will be performed and type of equipment and materials to be used.
3. Contractors shall remove all renovation-generated debris from the work site the day of the renovation operation and prior to vacating the work site.
4. Light verticutting and thatch removal of warm season turf grass (where present) shall be performed between September 30th and October 15th or as directed by the City Representative.
5. Over-seeding shall be performed within two (2) days after verticutting with properly calibrated seeders. Warm season turf grass shall be over-seeded at a rate of ten (10) pounds of seed per 1,000 square feet. A 3 way dwarf type Bermuda grass seed shall be used. Seed tags 582
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shall be provided to the Parks and Maintenance Director, or his authorized agent. Additional over-seeding shall be performed if less than 80% germination occurs within the first month.
6. Top dressing shall be performed using a properly calibrated top dressing machine and seed shall be topped with one-eight inch (1/8") of weed free topper. The topper must be approved by the Parks and Maintenance Director or his authorized agent, and shall not contain steer manure (City reserves the right to provide the topper needed if available and in stock).
7. Reseeding of bare spots shall be performed continually throughout the year to reestablish turf to an acceptable quality. If quality does not meet the City acceptance contractor shall replace with sod (Bermuda grass, Dwarf Fescue or equal).
The Parks and Maintenance Director or his authorized agent, will require the use of sod as a replacement material when deemed necessary. The Contractors shall be entitled to the wholesale cost of the sod only, provided the loss of turf grass was not due to the negligence of the Contractor. Sod shall be Bermuda grass or Dwarf Fescue.
E. Aeration
All turf grass shall be aerated four (2) times per year, once every quarter, starting July 1st.
Aeration shall be performed with a ride on or a walk behind an aerator machine which has onehalf inch (1/2") to one inch (1") in diameter coring tines spaced no more than six inches (6") apart. The machine shall remove cores from the turf to a depth of 4-6”. Dragging or pulverizing of cores is acceptable.
F. Turf grass Irrigation
All turf grass shall be adequately irrigated to maintain a healthy and attractive appearance.
Irrigation runoff and overspray shall be minimized. Where possible, the turf grass irrigation shall be on a separate program from other plant material irrigation. Turf grass shall be irrigated in a method which promotes deep root growth.
At facilities with softball and baseball infields, Irrigation shall be adjusted so as not to overlap into the infield mix. Any reports of saturated infield mix from irrigation shall be addressed immediately.
38. SHRUB CARE
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A. Pruning of Shrubs
Shrubs shall be pruned with sharp pruning tools.
Shrubs shall be continually pruned, as necessary, to prevent encroachment of passageways, walks, streets, and view of signs. Shrubs shall be tapered to provide irrigation coverage and an aesthetically pleasing landscape.
All pruning cuts shall be one-quarter inch (1/4") above a node (bud). No projections or stubs shall be allowed to remain.
After pruning is completed, all adjacent walkways and gutters shall be left clean. Blowing and disposing of any debris into the Storm Drain system and/or streets shall not be permitted. If found, Contractor will face liquidating damages as follows; 1st violation $ 500.00, 2nd. violation $1000.00, 3rd. violation and thereafter $3000.00 and/or possible cancellation of contracts.
During blooming season, vines shall be trimmed minimally so as not to remove floral display areas.
Pruning shall be done to maintain a well-groomed, natural growth habit, and encourage air movement through shrubs.
The Contractor shall remove all clippings the same day shrubbery is pruned and prior to vacating the work site.
Pruning of roses (except for trailing roses) shall be accomplished using best horticultural practices. The use of hedge shears to prune roses will not be permitted. Roses shall be deadheaded as needed and shall be heavy pruned once per year.
New plantings, once approved by the City Representative, shall take place within a week from the date reported.
B. Shrub Fertilization
Shrubs (including roses) shall be fertilized a minimum of 3x per year or as directed by the Parks and Maintenance Director, his authorized agent with a balanced fertilizer specific for the type of plants. Roses shall be fertilized once following heavy pruning and one additional time per year. 584
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Foliar fertilization may be performed when appropriate and will require the approval of the City Representative.
C. Shrub Irrigation
All shrubs shall be adequately irrigated to maintain a healthy and attractive appearance.
Irrigation runoff and overspray shall be minimized. Shrubs shall be irrigated in a method which promotes deep root growth.
D. Shrub Replacement
All damaged, diseased (untreatable) or dead shrubs shall be replaced with the same species plant material that existed (unless a disease situation is discovered affecting the species).
Shrubs shall be replaced within 7 days after being identified by the contractor or authorized agent. The size of the replacement plant material is to be determined by the authorized agent.
The Contractor shall be responsible for the complete removal and replacement of shrubs lost due to the Contractor's faulty maintenance or negligence, as determined by the Parks and Maintenance Director, or his authorized agent.
Substitutions or any plant materials must have prior written approval by the Parks and Maintenance Director, or his authorized agent.
Original plans and specifications may be consulted to determine the correct identification of species.
All shrubs shall be guaranteed to live and remain in a healthy condition for the duration of the contract from the date of installation, inspection and verification by the Parks and Maintenance Director, or his authorized agent.
Soil build-up around the crown of shrubs shall be continuously removed.
E. Vine Maintenance
Vines shall be trimmed as needed to promote upright growth and shall be kept attached and contained on the structure.
All vines shall be trimmed on a as needed basis by the contractor, the standard of the City is to trim vines one block below the top of the wall, the City understands that its vines in some sites are mature and have grown over the top of the wall, the contractor shall only be responsible to 585
Ex. A - 26 (BB&K 2020)
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trim the vines that are solicited by our residents and will have to adhere to the standards herby mentioned. No vines will be allowed to grow in newly installed wood fences or wood fence extensions (above the top of the fence or block wall). Vines shall be trimmed tight and follow horticultural standards.
39. GROUNDCOVER CARE
Groundcovers are low growing plants that grow in colonies to form a solid mat over the surface of the ground. The plants give a flat or two-dimensional effect to the landscape, such as, but not limited to, Honeysuckle, Myoporum, Senecio, Rosemary, Lantana, Ivy (spp.) Salvia (spp.)
A. Edging and Trimming of Groundcover
Edging of groundcover areas shall be performed monthly or as needed.
All groundcover adjacent to sidewalks, curbs, mowing strips, or where no improved surface exists, shall be edged in a neat, uniform line.
All groundcover shall be continually trimmed at the drip line of all shrubs.
All groundcover shall be continually trimmed along walls, valve boxes, water meter boxes, backflow devices, or other structures located within the groundcover area as determined by the Parks and Maintenance Director, or his authorized agent. Thinning of groundcover may be required around sprinklers to provide maximum irrigation coverage.
All clippings and trimmings shall be removed from the work site in a legal manner the same day work is performed and prior to the Contractor vacating the work site.
After edging or trimming, the Contractor shall clean all adjacent sidewalks or gutters.
B. Renovation of Groundcover Areas
Groundcover planting shall be thinned and pruned for the health of the planting and the appearance of the site, or as required by the Parks and Maintenance Director, or his authorized agent.
C. Replanting of Groundcover Areas
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Replanting shall be required to maintain the continuity of the groundcover areas that die back after awarding the contract.
Labor and replacement material costs shall be incurred by the Contractor.
D. Groundcover Irrigation
All groundcover areas shall be adequately irrigated to maintain a healthy and attractive appearance.
Irrigation runoff and overspray shall be minimized.
E. Groundcover Fertilization
The groundcover shall be fertilized during growing season, minimum lx per year, to provide a healthy and vigorously growing ground cover with horticultural acceptable growth and appearance, as determined by the Parks and Maintenance Director, or his authorized agent.
Fertilizing shall be performed with a balanced fertilizer, consisting of a 1-1-1 ratio, at a rate of one pound (1 lb.) of actual Nitrogen per 1,000 square feet. Any change in the fertilizer ratio and/or rate shall be submitted in writing and approved by the Parks and Maintenance Director, or his authorized agent, prior to usage.
The Contractor shall immediately irrigate after each fertilizer application.
All fertilizer applications shall be performed with properly calibrated equipment to provide a uniform application.
The Contractor shall notify the Parks and Maintenance Director, or his authorized agent, in writing, five (5) working days prior to any fertilizer application. This written document shall include the location and exact date the fertilizer application will be performed, type of fertilizer and method of application to be used.
40. METHOD OF IRRIGATION
If recycled water is being used, it will be the responsibility of the contractor to implement BMP's ("Best Management Practices") to control soil erosion, overspray, ponding and efficient irrigation practices. The use of recycled water shall be limited to the areas designated and approved. The use of recycled water shall not be permitted during the hours of 6:00 AM through 10:00 PM 587
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unless prior approval is received from City Representative. Recycled facility shall be operated in accordance with the best BMP's to prevent direct human consumption and to minimize misting, ponding and runoff. BMP's shall be implemented that will minimize both public contact and discharge onto areas not under contractors control. Contractor shall ensure that the recycled water systems are maintained, operated and repaired at all times in a manner that does not cause illness or injury to any person and in a manner that does not cause damage or injury to the real or personal property of any person or entity. All recycled water sites shall be in compliance with the City of Ontario Utilities Department. Contractor shall be responsible to maintain and replace all items after annual inspection pertaining to proper recycling water designation, items to include but not limited to (head color designation, tags etc... ).
A. GENERAL IRRIGATION USES
• All windblown spray and surface runoff of recycled water applied for irrigation onto property not owned or controlled by the discharger or recycled user shall be prevented by implementation of BMP' s.
• Irrigation with recycled water shall be between the hours of 9:00 PM and 6:00 AM to be able to minimize public use of the service area.
• Facilities that might be used by the public, including but not limited to eating surfaces and located within the approved used areas, shall be protected to the maximum extent possible from contact by irrigation with recycled water spray, mist or runoff. • It is the responsibility of the contractor to communicate to their workers the potential health hazards associated with contact or ingestion of recycled water and shall be educated about proper hygienic practices to protect themselves and their families. • Workers and public shall not be subjected to recycled water overspray. • Contractor shall be responsible for the training and certification on recycled water use of any staff assigned to work in the facility.
Irrigation shall be performed by the use of a Central Irrigation System (Calsense), local automated systems or manual sprinkler systems where available and operable. Contractor shall be required to monitor the computer system daily by retrieving alert/reports from the lobby area of the Public Works Agency (1425 S. Bon View Avenue, Ontario, CA.) once per day no later than 9:00 AM, contractor shall sign in every day when picking up paperwork. Completed 588
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alert/reports shall be returned to the City representative within 48 hours. Failure to do so will result in a non-compliance report and will be handled per contract specifications. Returned reports shall be accompanied with a written explanation of the problem and the repair. However, failure of the existing irrigation system to provide full and proper coverage shall not relieve the Contractor of the responsibility to provide adequate irrigation with full and proper coverage to all areas in the work site. All areas receiving marginal coverage shall be irrigated by portable irrigation method. The contractor shall furnish all tools/equipment necessary.
41. IRRIGATION INSPECTION
The Contractor shall initially inspect and familiarize themselves with the entire irrigation system at all work sites and identify all needed repairs.
Required repairs shall be submitted to the Parks and Maintenance Director, or his authorized agent, in a written statement within two (2) weeks after the start date of the Maintenance Contract. If a written statement, which documents required repairs, is not received by the authorized agent, within the stated timeframe, the entire system shall be interpreted as fully operational, and deemed acceptable by the Contractor and will become his sole responsibility to maintain. The City shall review and verify all submitted problems, repairs may be completed by the following methods:
1. Authorized the Contractor to make appropriate repairs at the expense of the City as described in Section 5.
2. Use City forces to make required repairs.
3. Use another source to make required repairs.
Upon completion of such repairs, the Contractor shall sign-off each individual area as being fully operational.
A. The Contractor shall file a monthly statement with his invoice certifying that all irrigation systems are functioning properly. If the Contractor fails to submit this statement, the invoice will be rejected until such date the statement is received.
B. The Contractor shall inspect the operation of the irrigation system on a weekly basis for any malfunctions. In addition to regular testing, all irrigation systems shall be tested and inspected as necessary when damage is suspected, observed, or reported. 589
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C. All system malfunctions, damage and obstructions shall be recorded, reported to the Parks and Maintenance Director, or his authorized agent, and corrective action taken.
42. IRRIGATION MAINTENANCE AND REPAIRS
A. The Contractor shall maintain all irrigation systems, at no additional cost to the City, in such a way as to:
• Guarantee proper coverage and full working capability. • Make whatever adjustments may be necessary to prevent overspray or excessive runoff into street rights-of-way or other areas not meant to be irrigated.
B. The Contractor shall repair or replace at no additional cost inoperable irrigation equipment to maintain a fully operational system, including but not limited to, pressure pipes from the water meter to the control valves, all irrigation non pressurized pipes, all manual and automatic valves, filters, basket strainers, pressure regulators, sprinkler heads, irrigation clamps and stakes, anti-drain valves, quick couplers, electrical wiring from the controller to the solenoid valves, emitters, drippers, valve boxes, controllers, valve markers, batteries, fittings and risers shall be the same as to removed manufacturer items unless prior approval has been granted by City representative in writing. The contractor shall test all backflows and submit to the City the appropriate test form once completed (contractors’ cost). Any device that fails to pass, the contractor shall report to the City for needed repairs and re-inspection.
Maintenance includes, but is not limited, tightening loose fittings and packing nuts; flushing sprinkler heads, pipes, nozzles, valves, filters, strainers, and backflow devices; adjusting sprinkler heads for proper coverage and to avoid irrigating hardscape including softball and baseball infield radius; anti-drain valves and pressure regulators, adjusting and lubricating controllers; and cleaning drip emitters, replace batteries for battery operated valves and maintain solar operated valves, relocation of irrigation mainline or lateral lines due to tree placements and roots. The Contractor shall be responsible to replace recycle (purple) valve box lids and controller boxes, as needed and or as directed by City Representative. Labor shall be provided at no additional cost to the City.
C. Irrigation repairs shall be made within the following time limits:
Mainline irrigation breaks shall be repaired within two (2) hours of identification or notification.
All other irrigation repairs shall be made within one (1) day of identification or notification. 590
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D. Replacement of irrigation components shall match city approved equipment list.
Substitutions must be approved by the Parks and Maintenance Director, or his authorized agent, in writing prior to installation.
43. WATER CONSERVATION
The Contractor shall turn off all irrigation systems during periods of rainfall and/or times when suspension of irrigation is desirable to conserve water while remaining within the guidelines of good horticulturally acceptable maintenance practices.
The Contractor shall comply with all City of Ontario Ordinances and/or Resolutions, which relate to water conservation.
Failure to comply shall result in an equitable amount deducted from the Contractor's payment.
44. CONTROLLER PROGRAMMING
A. Adequate soil moisture will be determined by programming the automatic sprinkler controllers as follows:
Whenever possible, automatic irrigation shall be programmed to operate between the hours of 9:00 P.M. to 8:00 A.M. The Contractor shall be responsible for reprogramming controller during inclement weather to conserve water.
Consideration must be given to the soil conditions, seasonal temperatures, wind conditions, humidity, runoff and erosion potential, and the relationship of conditions which affect day and night watering.
Extremely close attention shall be paid to the demands of the plants as influenced by their exposure to sun or shade. Also, the variation in the size of plants, as well as varietal differences must be considered.
The irrigation system will be controlled by the contractor in such a way as not to cause an excessively wet area which could interfere with the Contractor's ability to mow all turf grass.
C. The Contractor, at the request of the Parks and Maintenance Director or his authorized agent, shall submit a copy of the irrigation schedule for each individual controller. This information is to be readily available upon request or available at the controller. 591
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D. All landscape and turf areas shall be irrigated as required maintaining adequate growth and appearance with a schedule most conducive to plant growth.
45. IRRIGATION CONTROLLER
A. The Contractor shall maintain controller as-builts (controller charts) inside each controller cabinet where available.
B. All controller enclosures shall receive a granular chemical application as needed to prevent pest infestation. Any damages resulting from any insect infestation due to failure to apply the chemical shall be repaired/replaced by the contractor (no expense to the City).
C. Controllers and dome antennas shall be inspected and cleaned by the contractor 4 x per year and report damages or maintenance needs.
46. TREE CARE
A. Tree Trimming
The Contractor shall be responsible for all tree under-trimmings, including the removal of palm fronds and flower stalks (if present). All trees are to be under-trimmed to ensure public and vehicle safety or as directed by the Parks and Maintenance Director, or his authorized agent.
Contractor shall have a Certified Arborist on staff to meet the following criteria:
Contractor shall prune palm trees at no extra cost to the City (dead fronds and flower stalks) annually, removal of fruit (dates) if present shall be done twice per year as designated by the Parks and Maintenance Director or his authorized agent.
Trees shall be pruned at no extra cost to the City on a cycle of once every three years, contractor to create a myOntario App once the trees have been completed under the Tree section and have the City representative inspect them. The contractor shall not leave the site until the work has been completed, approved and released by the City representative.
The Contractor shall notify the Parks and Maintenance Director, or his/her authorized agent, except when pruning is required for public safety. Once all trees are trimmed, a formal (Company letterhead) record of the work performed with time, date, location, type of tree, removal percentage and staff assigned to do the work. Any tree that is not trimmed by the end of 3-year cycle shall be deducted from the final billing of the maintenance contract. 592
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All trees in the work site shall be maintained in their natural shapes. This work shall be accomplished in a manner which will ensure that each individual tree is under-trimmed carefully to promote the tree's health and appearance.
All work shall be of the highest quality and performed in accordance with City approved tree trimming standards.
All trees shall be pruned within forty-eight (48) hours upon notification to remove or prevent encroachment where it blocks vision, or encroaches in any manner deemed undesirable by the Parks and Maintenance Director or his authorized agent.
All trees shall be continually maintained free of all dead, diseased and damaged branches back to the point of breaking. In cases where the dead, diseased or damaged branches are beyond the reach of a tree pruning pole saw being operated from ground level, the Contractor is to notify the City within 24 hours. Cuts must be made flush with the collar to promote proper healing. Pruning tools shall be adequately sharpened to provide clean cuts and shall be properly sterilized to reduce spread of disease.
All sucker growth is to be removed from trees as it occurs.
The Contractor shall maintain all branches which encroach on or over sidewalks at a minimum height of ten feet (10') clearance. The Contractor shall notify the city within 24 hours of any branches encroaching beyond the curb line into the street that cannot be reached with a pole saw.
All branches which encroach over private property, shall be removed as directed.
The Contractor shall not remove or disturb any tree central leader without prior written approval from the Parks and Maintenance Director, or his authorized agent.
The Contractor shall include the removal of 20 trees per year with a DBH not to exceed 20” as part of his bid package and a unit price to perform an individual complete tree trim, and individual tree removal price. Contactor shall create a final work order using myOntario App once the trees have been trimmed, the City representative will inspect once the App has been closed as completed for release.
B. Tree Staking/Guying
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The Contractor shall, at no additional cost to the City, stake and tie all trees, which require support. City does not provide stakes and ties. Tree stakes shall be 3” x 10’ wooden lodge poles. Two (2) tree stakes are required per tree.
Guy wires, where required, will be of pliable zinc-coated ten-gauge wire (three ties per tree), and shall have a white PVC sleeve for visibility. Guy wires shall be kept tight enough to promote natural movement of the tree. Contractor shall periodically check the tension in the guy wires.
Trees shall be secured to stakes with cinch ties or equivalent. The Contractor shall not use wire and hose. Stakes shall not be placed closer than eight inches (8") from the tree trunk.
C. Stakes and ties shall be placed so no chafing of bark occurs and shall be checked frequently, and retied as necessary, to prevent girdling.
D. Tree Replacement
1. The Contractor shall be responsible for the complete removal and replacement of trees lost due to the Contractor's faulty maintenance or negligence, as determined by the Parks and Maintenance Director, or his authorized agent.
Where there is a difference in value between the tree damaged by the Contractor and the replacement tree, this difference may be deducted from the Contractor's payment.
In all cases, the value of the trees lost will be determined by the Parks and Maintenance Director, or his authorized agent, using the latest ISA Guide for Plant Appraisal.
2. Unsalvageable downed trees, due to any cause (windstorm etc...), shall be removed, the stump ground to a depth of eighteen inches (18"), the stump grinding debris removed and the hole refilled with compatible topsoil and compacted within 48 hours of identification or notification. If the tree is in the public right-of-way or creating a public hazard, the tree is to be cut back to a 12" stump immediately upon notification and removed. Then within 48 hours, the stump is to be removed and the hole filled with compatible topsoil and compacted. This work shall be considered and EWA and invoiced to the city.
3. Trees lost from causes other than the Contractor's negligence shall be replaced by the Contractor with a twenty-four (24") box tree and billed as "Additional Work". The Parks and Maintenance Director, or his authorized agent may specify a species of tree for replacement different from the one lost.
594
Ex. A - 35 (BB&K 2020)
46700.00100\33865500.1
E. Tree Irrigation
All trees shall be adequately irrigated to maintain a healthy and attractive appearance. Irrigation runoff and overspray shall be minimized.
Trees shall be irrigated in a method which promotes deep root growth. The contractor shall provide manual deep watering to those trees that show decline.
47. WEED CONTROL
Weeds are defined in the dictionary as:
“A wild plant growing where it is not wanted and in competition with cultivated plants." When classified by their gross morphological features, weeds are broken down into three major categories: grasses, sedges, and broadleaf weeds.
Full control of these 3 categories of weeds will be achieved with a combination of selective and non-selective herbicides as well as mechanical removal. Weeds should not be visible.
All areas within the specified maintenance area, including but not limited to, turf grass, shrub and ground cover areas, planters, tree wells, landscape areas, and softball/baseball infields shall be kept free of weeds at all times.
Weed removal shall consist of complete removal of all weeds, including top growth and roots.
Weed control shall be performed as needed.
Weeds shall be controlled either by hand, mechanical or chemical methods; however, the Parks and Maintenance Director, or his authorized agent, may restrict the use of chemical weed control in certain areas.
48. DISEASE AND PEST CONTROL
The Contractor shall regularly inspect all landscaped areas for the presence of disease, snail, insect or rodent infestation. The Contractor shall report any applied treatments within their next monthly billing. The Contractor shall identify the disease, snail, insect or rodent and specify control measures to be taken. The Contractor shall implement control measures, exercising extreme caution in the application of all spray materials, dust or other materials utilized.
Approved control measures shall be continued until the disease, snail, insect or rodent is controlled to the satisfaction of the Parks and Maintenance Director, or his authorized agent.
The Contractor shall utilize all safeguards necessary during disease, snail, insect or rodent control operations to ensure the safety of the public and the employees of the Contractor. 595
Ex. A - 36 (BB&K 2020)
46700.00100\33865500.1
The Contractor shall perform, at their sole expense, the following services:
All work involving the use of chemicals will be accomplished by a State of California licensed pest control operator. A written recommendation by a person possessing a valid California Pest Control Advisor License for each chemical used is required prior to chemical application where required by law.
All chemicals requiring a special permit for their use must be registered by the Contractor with the County Agricultural Commissioner's Office and a permit obtained with a copy to the Parks and Maintenance Director, or his authorized agent, prior to use.
A copy of all forms submitted to the County Agricultural Commissioner shall be given to the Parks and Maintenance Director, or authorized agent, monthly.
49. USE OF CHEMICALS
The Contractor shall submit a list of all chemical herbicides, pesticides, and rodenticides proposed for use under this contract for approval by the Parks and Maintenance Director or his authorized agent with the signed contract. Materials included on this list shall be limited to chemicals approved by the State of California Department of Food and Agriculture and shall include the exact brand name and generic formulation. The use of any chemical on the list shall be based on the recommendations of a California State Licensed Pest Control Advisor where required by law.
The use of chemicals shall conform to the current San Bernardino County Agriculture Commissioner regulations. No chemical herbicide, rodenticide or pesticide shall be applied until its use is approved, in writing, by the Parks and Maintenance Director, or his authorized agent as appropriate for the purpose and area proposed.
Required spray equipment will consist of at least one (1) medium spray rig of 100-gallon (minimum) capacity or more and backpack sprayers provided for each crew performing chemical landscape maintenance.
50. TURF BROADLEAF
Control of broadleaf weeds shall include proper notification with chemicals to be used, date, and time to the Parks and Maintenance Director, or his authorized agent. prior to starting date for approval. Frequencies will be twice per year.
596
Ex. A - 37 (BB&K 2020)
46700.00100\33865500.1
51. LITTER
All areas in the work sites shall be kept free of, but not limited to, the following items: bottles, glass, broken glass, cans, paper, cardboard, metallic items, feces, leaves, tumbleweeds and other debris on a daily basis.
The Contractor shall promptly remove from the work area, all debris generated by their performance and dispose of the debris in a legal manner. The City does not allow any dumping of debris generated by your daily work in City facilities. Illegal dumping picked up by contractors shall be brought up to the City yard for proper disposal. Excessive dumping (above and beyond reasonable) after long holiday weekends and special events shall be reported immediately to the City Representative.
Hazardous waste as well as homeless belongings shall not be picked up. Contractor shall contact City Representative to arrange proper disposal by City forces. A myOntario App service request shall be created to report the hazardous conditions.
52. GRAFFITI
A. The Contractor shall remove any graffiti upon discovery within their contractual areas.
Extreme caution shall be placed on areas that get tagged to make sure that they get cleaned up with materials that do not damage the finish product (PVC Vinyl fence) and are biodegradable.
Issues of graffiti outside their contractual obligations shall be reported to the Graffiti Hot Line 909-395-2626 or create a service request within the myOntario App B. Issues of above normal graffiti vandalism within the contractor's contractual area shall be reported to the City representative upon finding. Phone call, text, or creation of a myOntario App service request are acceptable methods of communication to the City Representative. The City reserves the right to request an outside contractor to help with the cleaning or will have the right to request that the contractor performs the work as an additional cost to the City.
C. If graffiti cannot be removed and needs to be painted over, cover up paint shall match existing paint. Graffiti on sidewalks shall be removed with a hot steam pressure washer.
Painting of sidewalks over graffiti shall not be allowed.
53. GENERAL
A. Trash Removal
597
Ex. A - 38 (BB&K 2020)
46700.00100\33865500.1
Remove all trash and accumulated debris from the work sites daily. In addition, any type of feces is also to be removed from the walkways, turf or ground cover areas and dumpster areas.
B. Policing of Areas
All maintained areas shall be policed based on frequencies.
C. Curb and Gutter Maintenance
The Contractor is responsible for removal of all weeds and grass growing in and around the curb and gutter area monthly. The Contractor is responsible for insuring the roadway is cleared of all dirt and debris within four (4) feet of the curb and gutter in all areas adjacent to maintenance responsibilities.
D. Walkway Maintenance
Walkways shall be cleaned immediately following mowing and edging and cleaned by use of power sweeping or blower equipment. All walkway cracks and expansion joints shall be maintained weed and grass free at all times.
E. Drain Maintenance
All drains and catch basins shall be kept free of siltation and debris at all times. All V-ditches and drainage areas shall be kept clean and edged weekly by the Contractor. Cleaning of drain basins shall be done monthly, Contractor shall inspect weekly to make sure that grates are secured, if missing, Contractor shall replace at City's expense. Damaged grates due to Contractor's operations shall be replaced at Contractors expense.
F. Removal of Leaves
Accumulation of leaves shall be removed from all designated landscape areas on a monthly basis and under trees once per month or more as needed.
G. Hardscape Power Wash
598
Ex. A - 39 (BB&K 2020)
46700.00100\33865500.1
All concrete areas shall be cleaned using a power washer (hot steam cleaning washer) to remove soda spills, gum and other stains that might be present. The City Representative will make the final determination if the service is needed.
The use of a biodegradable cleaner (soap) is required and permitted. Containment of contaminated soapy water shall be the responsibility of the Contractor.
54. REPAIR AND SERVICE OF WALKWAYS AND MISCELLANEOUS IMPROVEMENTS Walkways and Service Roads - All walkways and service roads, if any, shall be maintained by the Contractor so as to keep the integrity of the walking or driving surface in a safe, unimpaired condition.
The Contractor will not be responsible for total replacement of roadways or walkways as a result of normal deterioration but will be required to replace all improvements damaged by his negligence.
It will be the responsibility of the Contractor to repair or replace miscellaneous improvements such as signs and mowing strips, or any other structural improvements within the work sites, unless otherwise specified. The Contractor shall be entitled to additional compensation for these services as stated. The contractor shall communicate any improvements needed prior to repairs to the Parks and Maintenance Director or his authorized agent for proper approvals.
55. MULCH
Mulch beds shall be replenished 2 time per year at the Contractor’s cost . The City may provide the mulch if an additional mulching is needed. If City provided, the Contractor will be responsible for loading the mulch at the City yard at 1425 S Bon View.
56. DUMPSTER ENCLOSURES
Dumpster enclosures will be kept weed and debris free. Odors and excessive staining must be addressed by power washing the affected area. Vandalism is reported using the MyOntario app.
If locks need to be replaced, please reach out to your Authorized Representative.
57. RODENT CONTROL
599
Ex. A - 40 (BB&K 2020)
46700.00100\33865500.1
All areas shall be maintained free of rodents causing damage to turf, shrubs, and groundcover areas (gophers, squirrels etc.) by using Gophernator or trapping. Any activity that affects holes, mounds, etc. will be raked and backfilled after control.
58. CITY OF ONTARIO myOntario App (FREE)
Contractor shall download the free myOntario App for the purpose of tracking completed specialty tasks (mulching, vandalism, vehicular damage, rose trimming, fertilizations, chemical applications, illegal dumping, hazardous waste, pruning shrubs, downed branches and rodent control, restroom issues). All specialty tasks shall be recorded as a service request using the app order system and shall be reported to the city representative when completed. City staff will close the service request.
NOTICES
Any notice, demand, request, consent, approval, or communication that either Party desires, or is required to give to the other Party or any other person, shall be in writing and either served personally, sent by prepaid, first-class mail, or by email followed by mailing of said notice.
Economic Development Sites
MAINTENANCE FREQUENCIES
TURF
Mowing 43 x per year
Edging 43 x per year
Detail 43 x per year
Fertilization 3 x per year
Broadleaf Control (minimum) 2 x per year
Nutsedge Control(minimum) 2 x per year
Aeration 2 x per year
Renovation 1x per year
Over Seeding As needed
Over Seeding (repairs) As needed
600
Ex. A - 41 (BB&K 2020)
46700.00100\33865500.1
SHRUBS
Pruning As needed
Raking Leaves As needed
ROSES
Pruning (heavy) 1 x per year
Fertilization 2 x per year
Line of site clearance As needed
VINES
Trimming (To be kept 8” below top of wall) As needed
TREES
Staking/Guying As needed
Trimming (ISA standards) 1 x every 3 years
Raking Leaves As needed
Under Trimming As needed
IRRIGATION
Service (minimum) 52 x per year
Inspections 52 x per year
Reports 12 x per year
MISCELLANEOUS
Weed Removal As needed
Weed Control 24 x per year
Rodent Control As needed
Graffiti Removal 364 x year
Curb and Gutter service As needed
Trash/Litter 364 x per year
Mulch Replenishing 2x per year
601
Ex. A - 42 (BB&K 2020)
46700.00100\33865500.1
SCOPE OF SERVICES
LANDSCAPE MAINTENANCE SERVICES FOR THE ECONOMIC DEVELOPMENT SITES BID SCHEDULE NO. 1
LANDSCAPE MAINTENANCE CONTRACT PM 2425-03
FISCAL YEAR 2024/2025 to 2026/2027 3 YEAR
CONTRACT
No. Description Monthly
Cost
Annual
Cost
1. 122 W F St. $ $
2. 117 W F St $ $
3. 120 W E St. $ $
4. 221 W E St. $ $
5. 206 W D St. $ $
6. 420 N Laurel Ave $ $
7. 120 W D St. $ $
8. 418 N Lemon Ave.
9. 121,123,115 W D St. & 324 N Laurel Ave.
10. 112,114,126 W C St.
11. 155,127 E C St. Parking Structure
12. - No Bid
13. - No Bid
14. - No Bid
15. - No Bid
16. - No Bid
17. 215 W C St .
18. 236 N Laurel Ave, 115 W C St.
19. 216 N Laurel Ave, 0 N Laurel Ave.
20. - No Bid
21. - No Bid
22. 207 N Euclid Ave
23. 0 N Laurel Ave. (South of B St.)
24. 0 N Laurel Ave. (North of Holt)
25. 0 W Holt Blvd.
26. 125 N Euclid Ave.
27. 121 N Euclid Ave.
28. 116 E B St., 127 N Lemon (parking lot)
29. 115,117,123,127 E Holt Blvd.
30. 118 S Euclid Ave.
31. 117 W Transit St.
32. 208, 228 W Emporia (North turf area included)
33. 125 W Emporia St.
34. - No Bid
35. 212,214,218 E Holt Blvd
36. 110,114,118,120,126, N Euclid Ave
37. Bus Stops
38.- No Bid
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
602
Ex. A - 43 (BB&K 2020)
46700.00100\33865500.1
39. 1236 E Airport $ $
40. 4
th and Via Piemonte $ $
41. 708 E Willow $ $
42. 815 E Woodlawn $ $
43. 818 E Woodlawn $ $
44. 0 S Wineville $ $
45. 502 E Nocta $ $
46. 133 S Malcom $ $
47. 1006 E Holt $ $
48. 217 S Lemon $ $
49. 122 S Vine $ $
50. 305 N Mountain $ $
51. 325 N Mountain $ $
52. 220 W B St (parking lot) $ $
53. 315 W D St $ $
54. 325 W D St $ $
55. Ontario Sports Complex $ $
56. APN 21806307 (2600 E Griffith Ct., half circle lot) $ $ Total $ $
$
$
$
Additional cost for a complete individual tree trimming up to 30’ (per individual tree/required trimming to be +/- 35% of growth per ISA) Cost for complete tree (individual) removal per inch at DBH (diameter at breast height) stumps to
be ground to a depth of 18” minimum
Cost for complete tree removal per inch at
DBH (diameter at breast height) (flush cut 3” from ground)
FUTURE CONTRACT ADDITIONS
$
$
Landscape maintenance areas cost per sq. ft.
Hardscape maintenance areas cost per sq. ft.
Weed Abatement areas cost per sq. ft. $
603
Ex. A - 44 (BB&K 2020)
46700.00100\33865500.1
LANDSCAPE MAINTENANCE SERVICES FOR THE ECONOMIC DEVELOPMENT SITES BID SCHEDULE NO. 2
LANDSCAPE MAINTENANCE CONTRACT PM 2425-03 FISCAL
YEAR 2027/2028 4th YEAR CONTRACT (OPTIONAL)
No. Description Monthly
Cost
Annual
Cost
1. 122 W F St. $ $
2. 117 W F St $ $
3. 120 W E St. $ $
4. 221 W E St. $ $
5. 206 W D St. $ $
6. 420 N Laurel Ave $ $
7. 120 W D St. $ $
8. 418 N Lemon Ave.
9. 121,123,115 W D St. & 324 N Laurel Ave.
10. 112,114,126 W C St.
11. 155,127 E C St. Parking Structure
12. - No Bid
13. - No Bid
14. - No Bid
15. - No Bid
16. - No Bid
17. 215 W C St .
18. 236 N Laurel Ave, 115 W C St.
19. 216 N Laurel Ave, 0 N Laurel Ave.
20. - No Bid
21. - No Bid
22. 207 N Euclid Ave
23. 0 N Laurel Ave. (South of B St.)
24. 0 N Laurel Ave. (North of Holt)
25. 0 W Holt Blvd.
26. 125 N Euclid Ave.
27. 121 N Euclid Ave.
28. 116 E B St., 127 N Lemon (parking lot)
29. 115,117,123,127 E Holt Blvd.
30. 118 S Euclid Ave.
31. 117 W Transit St.
32. 208, 228 W Emporia (North turf area included)
33. 125 W Emporia St.
34. - No Bid
35. 212,214,218 E Holt Blvd
36. 110,114,118,120,126, N Euclid Ave
37. Bus Stops
38. - No Bid
39. 1236 E Airport
40. 4
th and Via Piemonte
41. 708 E Willow
42. 815 E Woodlawn
43. 818 E Woodlawn
44. 0 S Wineville
45. 502 E Nocta
46. 133 S Malcom
47. 1006 E Holt
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
604
Ex. A - 45 (BB&K 2020)
46700.00100\33865500.1
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$
48. 217 S Lemon
49. 122 S Vine
50. 305 N Mountain
51. 325 N Mountain
52. 220 W B St (parking lot)
53. 315 W D St
54. 325 W D St
55. Ontario Sports Complex
56. APN 21806307 (2600 E Griffith Ct., half circle lot) $
$
$
Additional cost for a complete individual tree trimming up to 30’ (per individual tree/required trimming to be +/- 35% of growth per ISA) Cost for complete tree (individual) removal per inch at DBH (diameter at breast height) stumps to
be ground to a depth of 18” minimum
Cost for complete tree removal per inch at
DBH (diameter at breast height) (flush cut 3” from ground)
FUTURE CONTRACT ADDITIONS
$
$
Landscape maintenance areas cost per sq. ft.
Hardscape maintenance areas cost per sq. ft.
Weed Abatement areas cost per sq. ft. $
Total $ $
$
605
Ex. A - 46 (BB&K 2020)
46700.00100\33865500.1
LANDSCAPE MAINTENANCE SERVICES FOR THE ECONOMIC DEVELOPMENT SITES BID SCHEDULE NO. 3
LANDSCAPE MAINTENANCE CONTRACT PM 2425-03 FISCAL
YEAR 2028/2029 5th YEAR CONTRACT (OPTIONAL)
No. Description Monthly
Cost
Annual
Cost
1. 122 W F St. $ $
2. 117 W F St $ $
3. 120 W E St. $ $
4. 221 W E St. $ $
5. 206 W D St. $ $
6. 420 N Laurel Ave $ $
7. 120 W D St. $ $
8. 418 N Lemon Ave.
9. 121,123,115 W D St. & 324 N Laurel Ave.
10. 112,114,126 W C St.
11. 155,127 E C St. Parking Structure
12. - No Bid
13. - No Bid
14. - No Bid
15. - No Bid
16. - No Bid
17. 215 W C St .
18. 236 N Laurel Ave, 115 W C St.
19. 216 N Laurel Ave, 0 N Laurel Ave.
20. - No Bid
21. - No Bid
22. 207 N Euclid Ave
23. 0 N Laurel Ave. (South of B St.)
24. 0 N Laurel Ave. (North of Holt)
25. 0 W Holt Blvd.
26. 125 N Euclid Ave.
27. 121 N Euclid Ave.
28. 116 E B St., 127 N Lemon (parking lot)
29. 115,117,123,127 E Holt Blvd.
30. 118 S Euclid Ave.
31. 117 W Transit St.
32. 208, 228 W Emporia (North turf area included)
33. 125 W Emporia St.
34. - No Bid
35. 212,214,218 E Holt Blvd
36. 110,114,118,120,126, N Euclid Ave
37. Bus Stops
38. - No Bid
39. 1236 E Airport
40. 4ᵗʰ and Via Piemonte
41. 708 E Willow
42. 815 E Woodlawn
43. 818 E Woodlawn
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
606
Ex. A - 47 (BB&K 2020)
46700.00100\33865500.1
44. S Wineville
45. 502 E Nocta
46. 133 S Malcom
47. 1006 E Holt
48. 217 S Lemon
49. 122 S Vine
50. 305 N Mountain
51. 325 N Mountain
52. 220 W B St (parking lot)
53. 315 W D St
54. 325 W D St
55. Ontario Sports Complex
56. APN 21806307 (2600 E Griffith Ct., half circle lot) $ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
$ $
Total $ $
$
$
$
Additional cost for a complete individual tree trimming up to 30’ (per individual tree/required trimming to be +/- 35% of growth per ISA) Cost for complete tree (individual) removal per inch at DBH (diameter at breast height) stumps to
be ground to a depth of 18” minimum
Cost for complete tree removal per inch at
DBH (diameter at breast height) (flush cut 3” from ground)
FUTURE CONTRACT ADDITIONS
$
$
Landscape maintenance areas cost per sq. ft.
Hardscape maintenance areas cost per sq. ft.
Weed Abatement areas cost per sq. ft. $
607
46700.00100\40935194.1
BB&K (2023) Exhibit B-1 MAINTENANCE SERVICES AGREEMENT
EXHIBIT “B”
SCHEDULE OF SERVICES
JULY 1, 2024 - JUNE 30, 2027
608
46700.00100\40935194.1
BB&K (2023) Exhibit C-1 MAINTENANCE SERVICES AGREEMENT
EXHIBIT “C”
COMPENSATION
NOT TO EXCEED $592,200
PERFORMANCE/PAYMENT BONDS ON THE NEXT PAGE
609
46700.00100\40935194.1
BB&K (2023) Exhibit C-2 MAINTENANCE SERVICES AGREEMENT
PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:
THAT WHEREAS, the City of Ontario (hereinafter referred to as “City”) has awarded to ____________________, (hereinafter referred to as the “Contractor”) _______________________ an agreement for ______________________________ (hereinafter referred to as the “Project”).
WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated ________________, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and
WHEREAS, the Contractor is required by said Contract Documents to perform the terms thereof and to furnish a bond for the faithful performance of said Contract Documents.
NOW, THEREFORE, we, _______________, the undersigned Contractor and _____________________________________________ as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto the City in the sum of ___________________________ DOLLARS, ($____________), said sum being not less than one hundred percent (100%) of the total amount of the Contract, for which amount well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, that, if the Contractor, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Contract Documents and any alteration thereof made as therein provided, on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their intent and meaning; and shall faithfully fulfill all obligations including the one-year guarantee of all materials and workmanship; and shall indemnify and save harmless the City, its officers and agents, as stipulated in said Contract Documents, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.
As a condition precedent to the satisfactory completion of the Contract Documents, unless otherwise provided for in the Contract Documents, the above obligation shall hold good for a period of one (1) year after the acceptance of the work by City, during which time if Contractor shall fail to make full, complete, and satisfactory repair and replacements and totally protect the City from loss or damage resulting from or caused by defective materials or faulty workmanship, Surety shall undertake and faithfully fulfill all such obligations. The obligations of Surety hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall limit the City’s rights or the Contractor or Surety’s obligations under the Contract, law or equity, including, but not limited to, California Code of Civil Procedure section 337.15.
Whenever Contractor shall be, and is declared by the City to be, in default under the Contract Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall promptly, at the City’s option:
610
46700.00100\40935194.1
BB&K (2023) Exhibit C-3 MAINTENANCE SERVICES AGREEMENT
(1) Take over and complete the Project in accordance with all terms and conditions in the Contract Documents; or
(2) Obtain a bid or bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible bidder, arrange for a Contract between such bidder, the Surety and the City, and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
(3) Permit the City to complete the Project in any manner consistent with local, California and federal law and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
Surety expressly agrees that the City may reject any contractor or subcontractor which may be proposed by Surety in fulfillment of its obligations in the event of default by the Contractor.
Surety shall not utilize Contractor in completing the Project nor shall Surety accept a bid from Contractor for completion of the Project if the City, when declaring the Contractor in default, notifies Surety of the City’s objection to Contractor’s further participation in the completion of the Project.
The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project, including but not limited to the provisions of sections 2819 and 2845 of the California Civil Code.
611
46700.00100\40935194.1
BB&K (2023) Exhibit C-4 MAINTENANCE SERVICES AGREEMENT
IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__).
(Corporate Seal)
Contractor/ Principal
By
Title
(Corporate Seal)
Surety
By
Attorney-in-Fact
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached.
(Attach Attorney-in-Fact Certificate) Title
The rate of premium on this bond is ____________ per thousand. The total amount of premium charges, $_______________________________.
(The above must be filled in by corporate attorney.)
THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety)
(Name and Address of Agent or
Representative for service of
process in California, if different
from above)
(Telephone number of Surety
and Agent or Representative for
service of process in California)
NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
612
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BB&K (2023) Exhibit C-5 MAINTENANCE SERVICES AGREEMENT
Notary Acknowledgment
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally
appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
Title(s) Title or Type of Document
Partner(s) Limited
General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
613
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BB&K (2023) Exhibit C-6 MAINTENANCE SERVICES AGREEMENT
PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS That
WHEREAS, the City of Ontario (hereinafter designated as the “City”), has awarded to ________________ hereinafter designated as the “Principal,” a contract for the work described as follows:
_____________________________________________________ (the “Project”); and WHEREAS, the work to be performed by the Principal is more particularly set forth in the Contract Documents for the Project dated __________________ (“Contract Documents”), the terms and conditions of which are expressly incorporated by reference; and WHEREAS, said Principal is required to furnish a bond in connection with said contract; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth.
NOW THEREFORE, we, the Principal and __________________________ as Surety, are held and firmly bound unto the City in the penal sum of ______________ Dollars ($___________) lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in Section 9100 of the Civil Code, fail to pay for any materials, provisions or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to Section 18663 of the Revenue and Taxation Code, with respect to such work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified.
This bond shall inure to the benefit of any of the persons named in Section 9100 of the Civil Code so as to give a right of action to such persons or their assigns in any suit brought upon this bond.
It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement herein above described, nor by any rescission or 614
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BB&K (2023) Exhibit C-7 MAINTENANCE SERVICES AGREEMENT
attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or City and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Section 9100 of the Civil Code, and has not been paid the full amount of his claim and that Surety does hereby waive notice of any such change, extension of time, addition, alteration or modification herein mentioned and the provisions of sections 2819 and 2845 of the California Civil Code.
IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__.
(Corporate Seal)
Contractor/ Principal
By
Title
(Corporate Seal) Surety
By
Attorney-in-Fact
Title
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached. A Power-of-Attorney authorizing the person signing on behalf of the Surety to do so much be attached hereto.
NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
615
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BB&K (2023) Exhibit C-8 MAINTENANCE SERVICES AGREEMENT
Notary Acknowledgment
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
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
616
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BB&K (2023) - 1 - MAINTENANCE SERVICES AGREEMENT
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 for the Housing and Gas Tax Funded Sites 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 for the Housing and Gas Tax Funded Sites PM 2425-04 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 617
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BB&K (2023) - 2 - MAINTENANCE SERVICES AGREEMENT
the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.
3.2 Compensation.
3.2.1 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “C” attached hereto and incorporated herein by reference. The total compensation shall not exceed One Hundred Seventy-Five Thousand Five Hundred Dollars ($175,500) 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 618
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BB&K (2023) - 3 - MAINTENANCE SERVICES AGREEMENT
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 619
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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 Eighty Dollars with Zero Cents ($80) 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. 620
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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 621
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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 622
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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 623
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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. 624
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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. 625
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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 626
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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 627
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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. 628
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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 629
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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 631
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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, 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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Ex. A - 1 (BB&K 2020)
EXHIBIT “A”
SCOPE OF SERVICES
1. SCOPE OF WORK
A. The intent of this Agreement is to secure a contractor(s) who shall provide Landscape Maintenance Services for the Housing and Gas Tax Sites. PM 2425-04.
B. The Contractor shall furnish all labor, tools, materials, and equipment to provide the landscape maintenance and repairs as set forth in this Agreement.
C. All Work shall be done in a professional, thorough, and workman like manner to the satisfaction of the Parks and Maintenance Director, or his/her authorized agent, and comply with all legal construction and landscape maintenance practices. The premises shall always be maintained at the level of service provided for in these specifications. The Contractor shall have the duty to provide complete landscape maintenance of all the project areas, including, but not limited to, the following: Fertilize, under-trim trees and shape shrubs, trim ground cover areas, mow, and edge turf grass areas. Consistently maintain the project areas with horticulturally acceptable growth and color. Consistently maintain the project areas to be devoid of weeds.
Consistently maintain the project areas to be devoid of weeds five (5) feet out into the curb, gutter and street. Consistently maintain the project areas to be devoid of diseases, rodents and pests. Consistently maintain the project areas to be devoid of litter. Consistently maintain the project areas to be devoid of safety hazards. Consistently maintain the project areas to be devoid of unsafe walkways. Consistently maintain the project areas to be devoid of blocked drainage systems. Consistently maintain the project areas to be devoid of malfunctioning irrigation systems. Consistently maintain the project areas to be devoid of graffiti and paper like signs. Program, monitor, adjust and maintain all irrigation system clocks, and perform extra work as directed and approved.
E. The Contractor shall be available twenty-four (24) hours a day, seven (7) days a week to respond to all emergencies within two (2) hours of notification. Emergencies that involve maintenance work included in these general conditions shall not be compensated.
F. The Contractor shall perform a weekly maintenance inspection, during daylight hours, of all areas. Such inspection shall be both visual and operational. It shall include, but not be limited 635
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to, the operation of all irrigation and/or other mechanical systems to check for proper condition and reliability.
2. WORK SITE
Work sites may include parks, medians, trails, weed abatement areas, and parkways.
The City reserves the right to make additions or deletions under this contract with written notice to the Contractor. The monthly compensation shall be adjusted by the monthly unit cost per square foot if any changes result in an increase or reduction in square footage maintained.
Compensation shall be based on a-per unit cost (bid schedule form submitted) of work completed.
3. LENGTH OF CONTRACT
This PRIMARY contract shall begin July 1, 2024 and shall terminate on June 30, 2027.
The FIRST optional extension may be granted for a term of TWELVE (12) MONTHS, from July 1, 2027, through June 30, 2028, and any proposed increase shall be no greater than the CPI (Consumer Price Index) for the Ontario area, measured performance of the contractor and funding renewal.
The SECOND optional extension may be granted for a term of TWELVE (12) MONTHS, from July 1, 2028, through June 30, 2029, and any proposed increase shall be no greater than the CPI (Consumer Price Index) for the Ontario area, measured performance of the contractor and funding renewal.
All optional extensions of the contract are subject to approval by the City Manager, or his authorized agent and are contingent upon funding and performance by the Contractor.
4. DEFINITIONS
Where "as directed", "as required", "as permitted", "approved", "acceptance", or words of similar importance are used, it shall be understood that the direction, requirement, permission, approval or acceptance of the Parks and Maintenance Director, or his authorized agent, is intended unless otherwise stated.
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Ex. A - 3 (BB&K 2020)
The use of the word "Contractor" shall be held to mean the Contractor and/or any person employed by the City of Ontario, Parks and Maintenance Director, or his/her authorized agent and working under this contract.
The use of the words "shall" and "may" shall be held to mean "mandatory" and "permissive" respectively.
The use of the words "his" or "him" shall be construed to mean either gender, as appropriate.
The use of the words " Parks and Maintenance Director " shall be construed to mean either the Parks and Maintenance Director or his authorized agent(s).
The words "City working day" refers to Monday-Friday, 6:30 a.m. to 4:00 p.m.
5. VANDALISM/THEFT/DAMAGE
Contractor shall be responsible for performing maintenance, repairs, and replacement of existing landscaped areas which are maintained under this contract and damaged or altered in any way as a result of theft, vandalism or mysterious damages that do not result from the performance of the Contractor.
In the case of vandalism to the maintained areas (Damage by Unknown Circumstances), Contractor shall notify the City within 24 hours using the free myOntario App. Graffiti will be entered under the “graffiti “Tab. All other Vandalism will be entered under the “Parks” Tab. In addition, EXCEPT in the case of graffiti, a text or email must be sent to the City’s Representative within 24 Hours detailing the Vandalism.
The use of red "Danger" tape shall be used when an area is unsafe for the public by the end of workday.
The repairs shall be made within 24 hours of receiving a notice to proceed by text or email. At no time shall damage by unknown sources remain unrepaired for a period exceeding 72 hours.
Additional compensation will be provided only for costs that are directly related to the theft and/or vandalism.
The following conditions shall be met prior to the Contractor being reimbursed for "Damage by Unknown Circumstances".
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Ex. A - 4 (BB&K 2020)
6. VANDALISM/THEFT/DAMAGE BIDS
Contractor shall submit an itemized EWA (Extra Work Authorization) within 24 hours to the City’s Representative. Contractor shall secure written authorization for the repairs by the Parks and Maintenance Director, or his authorized agent within twenty-four (24) hours by e mail or text. For emergencies regarding public safety, a verbal or text approval by the Parks and Maintenance Director, or his authorized agents, may be obtained.
7. COMPLETION OF PROPOSED VANDALISM/THEFT/DAMAGE WORK
A. Work is to commence within twenty-four (24) hours after receiving City approval.
B. The work shall be inspected and released as complete by the City representative, and then invoiced as specified in section (8). ·
8. INVOICING OF PROPOSED VANDALISM/THEFT/DAMAGE WORK
A. Contractor shall submit on business letterhead, a photocopy of the original EWA describing individual material costs and an invoice with line items for material costs, labor costs and administrative costs. The cost estimate for additional work shall consist of the following elements: Base cost of labor plus Fifteen percent (15%) for overhead and profit. Actual cost of materials plus fifteen percent (15%) for overhead and profit. City reserves the right to ask for payroll records and vendor invoice if discrepancies on the bid exist. Materials may be provided by the City of Ontario.
B. Contractor shall submit a copy of a report filed with the City of Ontario Police Department, which relates to the specific incident if required by the Parks and Maintenance Director or his authorized agent.
9. ADDITIONAL (EXTRA) WORK (EXTRA WORK AUTHORIZATION or EWA) A. The Parks and Maintenance Director, or his authorized agent, may, at his discretion, authorize the Contractors to perform additional work. Additional work (work not related to "Damages by Unknown Circumstances") shall be defined as work not included in this Agreement.
B. Prior to the Contractor performing any additional work, the Contractor shall prepare and submit a written description of why the additional work is required, what type of work is proposed, and a cost estimate for the additional work as stated. No work shall commence 638
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Ex. A - 5 (BB&K 2020)
without written authorization from the Parks and Maintenance Director, or his authorized agent.
Notwithstanding the above authorization, when a condition exists where there is imminent danger of injury to the public or damage to property, the Parks and Maintenance Director, or his authorized agent may verbally authorize the work to be performed upon receiving a verbal estimate from the Contractor. However, within twenty-four (24) hours after receiving a verbal authorization, the Contractor shall submit a written estimate to the Parks and Maintenance Director, or his authorized agent, for approval.
C. The cost estimate for additional work shall consist of the following elements:
Base cost of labor plus fifteen percent (15%) for overhead and profit.
Actual cost of materials plus fifteen percent (15%) for overhead and profit (invoice from vendor shall be attached to each invoice turned in for payment).
City reserves the right to ask for payroll records. Materials may be provided by the City of Ontario.
D. Written authorization from the Parks and Maintenance Director, or his authorized agent, shall be by the issuance of a change order or signed bid. This change order or signed bid shall be considered an amendment to this Agreement and approved by the Parks and Maintenance Director, or his authorized agent, and Contractor.
E. All additional work shall commence on the agreed date and shall diligently proceed until completion. Contractor could use the labor force assigned to the contractual maintenance tasks to perform additional work if prior approval has been granted by the City representative.
F. Upon completion of the additional work, the Parks and Maintenance Director, or his authorized agent, shall be notified so that the work may be verified.
G. The Contractor shall submit an invoice for compensation with attached photocopies of original invoices for materials and a copy of signed bid. Compensation shall not exceed the written estimate. The Contractor's invoice shall be subject to audit and review by the City prior to payment.
H. The City of Ontario reserves the right to repair or contract with a third Party to perform such additional work (if bids are not received within 72 hours of official request and or if the proposed costs do not concur with contractor's labor rates and cost of materials) 639
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Ex. A - 6 (BB&K 2020)
10. CONTRACTOR LIABILITY
A. All damage to existing improvements located within areas and adjacent to areas under construction, which in the opinion of the Parks and Maintenance Director, or his authorized agent, are due to the Contractor's operation, shall be repaired or replaced at the Contractor's expense with exact (existing) materials and in an approved manner.
B. Such repairs or replacements shall be performed by the Contractor at no cost to the City and shall be accomplished as directed by the Parks and Maintenance Director or his/her authorized agent. Repairs shall be made immediately after damage or alteration occurs.
Deductions shall be made from the Contractor's payments in the amount necessary to compensate the City for such repairs in the event such repair work is done by City forces, or another source.
C. Irrigation damage shall be repaired or replaced within the following time limits: Irrigation entities such as, but not limited to, (risers, heads, backflow device and cages, controllers, basket strainers, pressure regulators, irrigation wires and valves, valve boxes, irrigation pumps, ET gagues, rain buckets, antennas, flow sensors, and landscape lighting equipment) that are damaged during regular routine maintenance and become non functional or non-efficient shall be replaced immediately. Mainline irrigation breaks shall be repaired within two (2) hours of being notified. All other irrigation repair and/or replacement shall be completed within 24 hours of being notified. (In the event that the mainline repairs require specialized parts and or materials, the contractor shall be responsible to request from the City additional time to complete the repair/s)
D. All damage to turf grass, groundcover, shrubs or trees, shall be repaired or replaced within three (3) working days of being notified. Damage to turf shall be repaired by replacement with the appropriate variety of bermudagrass sod or seeded with warm season seed and topper added. Damage to groundcover shall be repaired by replacement with the appropriate variety of plant material. Size and spacing shall be determined by the Parks and Maintenance Director, or his authorized agent. Damage to shrubs may be corrected by appropriate pruning; however, if in the opinion of the Parks and Maintenance Director, or his authorized agent, the damage is severe, the shrub (in its entirety) shall be removed and replaced with a similar variety and size. 640
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Ex. A - 7 (BB&K 2020)
E. Damage to trees shall be repaired in the following manner:
Minor damage, such as bark lost from mechanical equipment shall be remedied by a certified Arborist. If the damage results in the loss of the tree, or, if in the opinion of the Parks and Maintenance Director or his authorized agent, the damage is severe, the damaged tree shall be removed and replaced with a similar variety and size. All damage resulting from chemical application and/or operation, either by spray-drift, improper application, lateral leaching, or other means shall be corrected in accordance with the previous provisions and the soil conditioned to ensure its ability to support plant life. All work shall be inspected, verified, and completed to the satisfaction of the Parks and Maintenance Director, or his authorized agent.
11. INSPECTION/DRIVE
The City and an appointed representative of the Contractor shall conduct a once a month walkthrough to inspect each individual work area. It is the responsibility of the Contractor to set up the inspection time(s) five (5) working days prior to the walkthrough/inspection. It is a requirement that a six to twelve (6-12) month master calendar be set up within 30 days of the award of the contract to insure coordinated dates of inspection. This inspection is to ensure adequacy of maintenance, methods of performing the work are in compliance with the contract and allow all deficiencies to be corrected prior to invoice submission and payment. However, this shall not be construed to relieve the Contractor of the duty to provide continuous inspection of individual work areas. Discrepancies and deficiencies in the Contractor's work shall be brought to the attention of the Contractor and corrected in the manner prior to invoicing and payment.
12. HAZARDOUS CONDITIONS
It shall be the Contractor's responsibility to inspect, and identify, any condition(s) that renders any areas within this Agreement unsafe, as well as any unsafe practices occurring thereon. The Parks and Maintenance Director, or his authorized agent, shall be notified immediately using the myOntario App, as well as text or phone call, of any unsafe condition that requires major correction.