Payments made for Additional Services shall be made in installments, not more often than monthly, proportionate to the degree of completion of such services or in such other manner as the Parties shall specify when such services are agreed upon, and in accordance with any authorized fee or rate schedule. In order to receive payment, Consultant shall present to City an itemized statement which indicates the Additional Services performed, percentage of Additional Services completed, method for computing the amount payable, and the amount to be paid. The statement shall describe the amount of Additional Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within thirty (30) days of receiving such statement, review 259
46700.00100\40935196.1
BB&K (2023) -10-
the statement and pay all approved charges thereon pursuant to the provisions of Civil Code Section 3320. Disputed amounts shall be resolved by the Parties in a mutually agreeable manner.
Upon cancellation or termination of this Agreement, Consultant shall be compensated as set forth in the termination provision herein.
3.10.5 Withholding Payment to Consultant. The City may withhold payment, in whole or in part, to the extent reasonably necessary to protect the City from claims, demands, causes of action, costs, expenses, liabilities, losses, damages, or injuries of any kind to the extent arising out of or caused by the negligence, recklessness, or willful misconduct protected under the indemnification provisions of this Agreement. Failure by City to deduct any sums from a progress payment shall not constitute a waiver of the City’s right to such sums. The City may keep any moneys which would otherwise be payable at any time hereunder and apply the same, or so much as may be necessary therefor, to the payment of any expenses, losses, or damages as determined by the City, incurred by the City for which Consultant is liable under the Agreement or state law. Payments to the Consultant for compensation and reimbursable expenses due shall not be contingent on the construction, completion or ultimate success of the Project. Payment to the Consultant shall not be withheld, postponed, or made contingent upon receipt by the City of offsetting reimbursement or credit from Parties not within the Consultant’s reasonable control.
3.10.6 P
revailing Wages . Consultant is aware of the requirements of California Labor Code Sections 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and If the total compensation is $1,000 or more, Consultant agrees to fully comply with and to require its consultants to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement.
Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant’s principal place of business and at the Project site. It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.
Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure of the Consultant or its consultants to comply with the Prevailing Wage Laws.
(a) R
egistration/DIR Compliance. If the Services are being performed as part of an applicable “public works project” of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such Services must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain 260
46700.00100\40935196.1
BB&K (2023) -11-
registration for the duration of the P roject and require the same of any subconsultants. This project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the Department of Industrial Relations against Consultant or any subconsultant that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subconsultant.
3.11 Notice to Proceed.
Consultant shall not proceed with performance of any Services under this Agreement unless and until the City provides a written notice to proceed.
3.12 Termination, Suspension and Abandonment.
3.12.1 Grounds for Termination; Consultant’s Termination for Cause. City hereby reserves the right to suspend or abandon, at any time and for any reason, all or any portion of the Project and the construction work thereon, or to terminate this Agreement at any time with or without cause. Consultant shall be provided with at least seven (7) days advanced written notice of such suspension, abandonment or termination. In the event of such suspension, abandonment or termination, Consultant shall be paid for Services and reimbursable expenses rendered up to the date of such suspension, abandonment or termination, pursuant to the schedule of payments provided for in this Agreement, less any claims against or damages suffered by City as a result of the default, if any, by Consultant. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement, except as set forth herein, in the event of such suspension, abandonment or termination. Consultant may terminate this Agreement for substantial breach of performance by the City such as failure to make payment to Consultant as provided in this Agreement.
3.12.2 C
ity’s Suspension of Work. If Consultant’s Services are suspended by City, City may require Consultant to resume such Services within ninety (90) days after written notice from City. When the Project is resumed, the Total Compensation and schedule of Services shall be equitably adjusted upon mutual agreement of the City and Consultant.
3.12.3 D ocuments and Other Data. Upon suspension, abandonment or termination, Consultant shall provide to City all preliminary studies, sketches, working drawings, specifications, computations, and all other Project Documents, as defined below, to which City would have been entitled at the completion of Consultant’s Services under this Agreement. Upon payment of the amount required to be paid to Consultant pursuant to the termination provisions of this Agreement, City shall have the rights, as provided in this Agreement hereinafter, to use such Project Documents prepared by or on behalf of Consultant under this Agreement.
Consultant shall make such documents available to City upon request and without additional compensation other than as may be approved as a reimbursable expense.
3.12.4 E mployment of other Consultants. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 261
46700.00100\40935196.1
BB&K (2023) -12-
3.13 Ownership and Use of Documents; Confidentiality.
3.13.1 Ownership. All plans, specifications, original or reproducible transparencies of working drawings and master plans, preliminary sketches, architectural presentation drawings, structural computations, estimates and any other documents prepared pursuant to this Agreement, including, but not limited to, any other works of authorship fixed in any tangible medium of expression such as writings, physical drawings and data magnetically or otherwise recorded on computer diskettes (hereinafter referred to as the “Project Documents”) shall be and remain the property of City. Although the official copyright in all Project Documents shall remain with th e Consultant or other applicable subcontractors or consultants, the Project Documents shall be the property of City whether or not the work for which they were made is executed or completed. Within thirty (30) calendar days following completion of the Pro ject, Consultant shall provide to City copies of all Project Documents required by City. In addition, Consultant shall retain copies of all Project Documents on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of reasonable duplication costs. Before destroying the Project Documents following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.
3.13.2 Rig
ht to Use . Consultant grants to City the right to use and reuse all or part of the Project Documents, at City’s sole discretion and with no additional compensation to Consultant, for the following purposes:
(a) The construction of all or part of this Project.
(b) The repair, renovation, modernization, replacement, reconstruction or expansion of this Project at any time;
(c) The construction of another project by or on behalf of the City for its ownership and use;
City is not bound by this Agreement to employ the services of Consultant in the event such documents are used or reused for these purposes. City shall be able to use or reuse the Project Documents for these purposes without risk of liability to the Consultant or third parties with respect to the condition of the Project Documents, and the use or reuse of the Project Documents for these purposes shall not be construed or interpreted to waive or limi t City’s right to recover for latent defects or for errors or omissions of the Consultant.
Any use or reuse by City of the Project Documents on any project other than this Project without employing the services of Consultant shall be at City’s own risk wit h respect to third parties. If City uses or reuses the Project Documents on any project other than this Project, it shall remove the Consultant’s seal from the Project Documents and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Project Documents on such other project.
3.13.3 License. This Agreement creates a non -exclusive and perpetual license for City to copy, use, modify or reuse any and all Project Documents and any intellectual property rights therein. Consultant shall require any and all subcontractors and consultants to agree in writing that City is granted a non- exclusive and perpetual license for the work of such subcontractors or consultants performed pursuant to this Agreement. 262
46700.00100\40935196.1
BB&K (2023) -13-
3.13.4 Right to License. Consultant represents and warrants that Consultant has the legal right to license any and all copyrights, designs and other intellectual property embodied in the Project Documents that Consultant prepares or causes to be prepared pursuant to this Agreement. Consultant shall indemnify and hold City harmless pursuant to the indemnification provisions of this Agreement for any breach of this Section. Consultant makes no such representation and warranty in regard to previously prepared designs, plans, specifications, studies, drawings, estimates or other documents that were prepared by design professionals other than Consultant and provided to Consultant by City.
3.13.5 C onfidentiality . All Project Documents, either created by or provided to Consultant in connection with the performance of this Agreement, shall be held confidential by Consultant to the extent they are not subject to disclosure pursuant to the Public Records Act. All Project Documents shall not, without the written consent of City, be used or reproduced by Consultant for any purposes other than the performance of the Services. Consultant shall not disclose, cause or facilitate the disclosure of the Project Documents to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City’s name or insi gnia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the written consent of City.
3.14 Indemnification.
3.14.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful mis conduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.
3.14.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
3.15 Insurance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this Section. In addition, Consultant shall not allow any subconsultant to commence work on any 263
46700.00100\40935196.1
BB&K (2023) -14-
subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section.
3.15.1 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, Consultant shall, at its expense, procure and maintain in full force and effect for the duration of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so.
3.15.2 A dditional Insured . The City of Ontario, its officials, officers, employees, agents, and volunteers shall be named as additional insureds on Consultant ’s and its subconsultants’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.
3.15.3 Co
mmercial General Liability
(a) The Consultant shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City. (b) Coverage for Commercial General Liability insurance shall be at least as broad as the following: Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. Commercial General Liability Insurance must include coverage for the following:
(i) Bodily Injury and Property Damage
(ii) Personal Injury/Advertising Injury
(iii) Premises/Operations Liability
(iv) Products/Completed Operations Liability
(v) Aggregate Limits that Apply per Project
(vi) Explosion, Collapse and Underground (UCX) exclusion deleted
(vii) Contractual Liability with respect to this Contract (viii) Broad Form Property Damage
(ix) Independent Consultants Coverage
(c) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement.
264
46700.00100\40935196.1
BB&K (2023) -15-
(d) The policy shall give City, the City Council and each member of the City Council, its officers, employees, agents and City designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(e) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured.
3.15.4 Automobile Liability
(a) At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City.
(b) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto).
(c) The policy shall give City, the City Council and each member of the City Council, its officers, employees, agents and City designated volunteers additional insured status.
(d) Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention.
3.15.5 Workers’ Compensation/Employer’s Liability
(a) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self -insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement.
(b) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this Section.
3.15.6 Professional Liability (Errors and Omissions)
(a) At all times during the performance of the work under this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and 265
46700.00100\40935196.1
BB&K (2023) -16-
in an amount indicated herein. This insurance shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend.
3.15.7 Minimum Policy Limits Required
(a) The following insurance limits are required for the Agreement:
Coverage Combined Single Limit
Commercial General Liability $2,000,000 per occurrence/ $4,000,000 aggregate for bodily injury, personal
injury, and property damage
Automobile Liability $2,000,000 per occurrence for bodily injury and property damage
Employer’s Liability $1,000,000 per occurrence
Professional Liability $2,000,000 per claim and aggregate (errors and omissions)
(b) Defense costs shall be payable in addition to the limits. (c) Requirements of specific coverage or limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement.
3.15.8 Evidence Required
(a) Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance.
3.15.9 Policy Provisions Required
(a) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration.
266
46700.00100\40935196.1
BB&K (2023) -17-
(b) The Commercial General Liability Policy and Automobile Policy shall each contain a pro vision stating that Consultant’s policy is primary insurance and that any insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
(c) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims -made policy with a retroactive date subsequent to the effective date of this Agreement.
(d) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
(e) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability.
Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
3.15.10 Qualifying Insurers
(a) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
3.15.11 Additional Insurance Provisions
(a) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(b) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold 267
46700.00100\40935196.1
BB&K (2023) -18-
amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
(c) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (d) Neither the City nor the City Council, nor any member of the City Council, nor any of the officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.
3.15.12 Subconsultant Insurance Requirements
(a) Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this Section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant , City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants.
3.16 Records.
Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identi fiable.
Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of five (5) years from the date of final payment under this Agreement.
3.17 Standardized Manufactured Items.
Consultant shall cooperate and consult with City in the use and selection of manufactured items on the Project, including but not limited to, paint, hardware, plumbing, mechanical and electrical equipment, fixtures, roofing materials and floor coverings. All such manufactured items shall be standardized to City’s criteria to the extent such criteria do not interfere with building design.
3.18 Limitation of Agreement.
This Agreement is limited to and includes only the work included in the Project described herein. Any additional or subsequent construction at the site of the Project, or at any other City site, will be covered by, and be the subject of, a separate Agreement for architectural services between City and the Consultant chosen therefor by City.
3.19 Mediation.
Disputes arising from this Agreement may be submitted to mediation if mutually agreeable to the Parties hereto. The type and process of mediation to be utilized shall be subject to the mutual agreement of the Parties.
268
46700.00100\40935196.1
BB&K (2023) -19-
3.20 Successors and Assigns.
This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each Party to this Agreement. However, Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void.
3.21 Asbestos Certification.
Consultant shall certify to City, in writing and under penalty of perjury, that to the best of its knowledge, information and belief no asbestos -containing material or other material deemed to be hazardous by the state or federal government was specified as a building material in any construction document that the Consultant prepares for the Project. Consultant shall require all consultants who prepare any other documents for the Project to submit the same written certification. Consultant shall also assist the City in ensuring that contractors provide City with certification, in writing and under penalty of perjury, that to the best of their knowledge, information and belief no material furnished, installed or incorporated into the Project contains asbestos or any other material deemed to be hazardous by the state or federal government. These certifications shall be part of the final Project submittal. Consultant shall include statements in its specifications that materials containing asbestos or any other material deemed to be hazardous by the state or federal government are not to be included.
3.22 No Third Party Rights.
This Agreement shall not create any rights in, or inure to the benefits of, any third party except as expressly provided herein.
3.23 Governing Law.
This Agreement shall be construed in accordance with, and governed by, the laws of the State of California. Venue shall be in San Bernardino County.
3.24 Exhibits and Recitals.
All exhibits and recitals contained herein and attached hereto are material parts of this Agreement and are incorporated as if fully set forth.
3.25 Severability.
Should any provision in the Agreement be held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall continue in full force and effect.
3.26 Non-Waiver.
None of the provisions of this Agreement shall be considered waived by either Party , unless such waiver is specifically specified in writing. 269
46700.00100\40935196.1
BB&K (2023) -20-
3.27 Safety.
Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of its employees, consultant and subcontractors appropriate to the nature of the work and the conditions under which the work is to be performed.
3.28 Harassment Policy.
Consultant shall provide a copy of the City's Harassment Policy to each of its employees assigned to perform the tasks under this Agreement. Consultant shall submit to the City's Personnel Manager a statement signed by each of its employees who are assigned to perform the Services under this Agreement certifying receipt of City's H arassment Policy and certifying that they have read the Harassment Policy. A finding by the City that any of Consultant 's employees has harassed a City employee shall be grounds for appropriate discipline, up to and including such employee's removal from performance of this Agreement at City's request.
3.29 Delivery of Notices.
All notices permitted or required under this Agreement shall be given to the respective Parties at the following address, or at such other address as the respective Parties may provide in writing for this purpose:
CITY:
City of Ontario
303 East “B” Street
Ontario, CA 91764
Attn: Alfredo Banuelos, Parks & Maintenance
Director
CONSULTANT:
Community Works Design Group
7111 Indiana Avenue,
Suite 300
Riverside, CA 92504
Attn: Scott Rice
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the Party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.30 Time of Essence.
Time is of the essence for each and every provision of this Agreement.
3.31 City’s Right to Employ Other Consultants.
City reserves right to employ other consultants, including designers, in connection with this Project or other projects.
270
46700.00100\40935196.1
BB&K (2023) -21-
3.32 Prohibited Interests.
3.32.1 Solicitation. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability.
3.32.2 C onflict of Interest. For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.33 Equal Opportunity Employment.
Consultant represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or any other classification protected by federal or state law.
Such non- discrimination shall include, but not be limited to, all activities rel ated to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City’s minority business enterprise program, affirmative action plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.34 Labor Certification.
By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker’s Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
3.35 Subcontracting.
As spe cified in this Agreement, Consultant shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to each and every provision of this Agreement.
3.36 Supplemental Conditions.
Any supplemental conditions shall be attached as an exhibit to this Agreement, and that exhibit shall be incorporated herein by reference.
3.37 Entire Agreement.
This Agreement, with its exhibits, contains the entire agreement of the Parties hereto, and supersedes any and all other prior or contemporaneous negotiations, understandings and oral or written agreements between the Parties hereto. Each Party acknowledges that no representations, inducements, promises or agreements have been made by any person which 271
46700.00100\40935196.1
BB&K (2023) -22-
are not incorporated herein, and that any other agreements shall be void. Furthermore, any modification of this Agreement shall only be effective if in writing signed by all Parties hereto.
SIGNATURES ON FOLLOWING PAGE
272
46700.00100\40935196.1
BB&K (2023) -23-
SIGNATURE PAGE FOR DESIGN SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO
AND COMMUNITY WORKS DESIGN GROUP
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
CITY OF ONTARIO COMMUNITY WORKS DESIGN GROUP
By
:
Its:
Printed Name:
By:
Its:
Printed Name:
Approved By:
Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:
City Clerk
273
46700.00100\40935196.1
BB&K (2023) Exhibit A-1
EXHIBIT “A”
SCOPE OF SERVICES
1. GENERAL REQUIREMENTS.
1.1 Basic Services. Consultant agrees to perform all the necessary professional architectural, engineering (e.g. mechanical, electrical, plumbing, structural, site engineering, and any other necessary engineering services mutually agreeable to the Parties) and construction administration services for the Project in a timely and professional manner, consistent with the standards of the profession, including those provided for herein.
1.2 Exclusions from Basic Services. The following services shall be excluded from the basic services listed above: None. On-Call/As-Needed Professional Consulting with rate sheet attached.
1.3 Additional Services. Consultant shall perform the following Additional Services for the Project: N/A
1.4 Communication with City. Consultant shall participate in consultations and conferences with authorized representatives of City and/or other local, regional, or state agencies concerned with the Project, which may be necessary for the completion of the Project or the development of the drawings, specifications and documents in accordance with the applicable standards and requirements of law and the City. Such consultations and conferences shall continue throughout the planning and construction of the Project and the contractor’s warranty period. Consultant shall ta ke direction only from the City’s Representative, or any other representative specifically designated by the City for this Project, including any construction manager hired by the City.
1.5 Coordination and Cooperation with Construction Manager. The City may hire a construction manager to administer and coordinate all or any part of the Project on its behalf. If the City does so, it shall provide a copy of its agreement with the construction manager so that the Consultant will be fully aware of the duties and responsibilities of the construction manager.
The Consultant shall cooperate with the construction manager and respond to any requests or directives authorized by the City to be made or given by the construction manager. The Consultant shall request clarification from the City in writing if the Consultant should have any questions regarding the authority of the construction manager.
2. INITIAL PLANNING PHASE.
During the initial planning phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
2.1 Project Feasibility. Provide advice and assistance to City in determining the feasibility of the Project, analysis of the type and quality of materials and construction to be selected, the site location, and other initial planning matters.
2.2 Meeting Budget and Project Goals. Consultant shall notify City in writing of potential complications, cost overruns, unusual conditions, and general needs that potentially impact the Project budget and time line, including the City’s Preliminary Construction Budget.
Consultant shall use its best judgment in determining the balance between the size, type and quality of construction to achieve a satisfactory solution within the Project’s budget and 274
46700.00100\40935196.1
BB&K (2023) Exhibit A-2
construction allowance. It shall be the duty of the Consultant to design the Project within budget.
As discussed herein, including in Section 7.3, if the lowest responsive and responsible bid for the Project exceeds the budget by the stated amount, Consultant may be required to make the necessary changes in the drawing and specifications, at its sole cost and expense, to bring the bids within the required budget.
2.3 Permits, Approvals and Authorizations. As indicated in Section 3.5.4 of the Agreement, Consultant shall assist City in securing easements, encroachment permits, rights of way, dedications, infrastructures and road improvements, as well as coordinating with utilities and adjacent property owners.
3. SCHEMATIC PLAN PHASE.
During the schematic plan phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
3.1 Funding Documents. Consultant shall provide a site plan and all other Project - related information necessary and required for an application by City to any federal, state, regional, or local agencies for funds to finance the construction Project.
3.2 Schematic Plans. In cooperation with City, Consultant shall prepare preliminary plans and studies, schematic drawings, site utilization plans, and phasing plans showing the scale and relationship of the components of the Project, the plot plan development at the site, and the proposed architectural concept of the buildings (“Schematic Plans”). Consultant shall incorporate the functional requirements of City into the Schematic Plans. The Schematic Plans shall meet all laws, rules and regulations of the State of California. The Schematic Plans shall show all rooms incorporated in each building of the Project in single-line drawings, and shall include all revisions required by City or by any federal , state, regional or local agency having jurisdiction over the Project. All architectural drawings for the Project shall be in a form suitable for reproduction.
3.3 Preliminary Project Budget. Consultant shall use the City’s Preliminary Construction Budget and its own expertise and experience with the Project to establish a preliminary project budget or allowance in a format required by City (“ Consultant’s Preliminary Project Budget”). The purpose of the Consultant ’s Preliminary Project Budget is to show the probable Project cost in relation to City’s Preliminary Construction Budget and the construction standards of any applicable funding agency. If Consultant perceives site considerations which render the Project expensive or cost prohibitive, Consultant shall disclose such conditions in writing to City immediately. As discussed herein, including in Section 7.3, if the lowest responsive and responsible bid for the Project exceeds the budget by more than the stated amount, Consultant may be required to make the necessary changes in the drawings and specifications, at its sole cost and expense, to bring the bids within the required budget Consultant shall provide a preliminary written time schedule for the performance of all construction work on the Project.
3.4 Copies of Schematic Plans and Other Documents. Consultant , at its own expense, shall provide a complete set of the Schematic Plans described herein for City’s review and approval. Additionally, at City’s expense, Consultant shall provide such documents as may be required by any federal, state, regional or local agencies concerned with the Project. Any additional copies required by City shall be provided at actual cost to City. 275
46700.00100\40935196.1
BB&K (2023) Exhibit A-3
4. DESIGN DEVELOPMENT PHASE.
During the design development phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
4.1 Design Development Documents. Once City provides Consultant with specific written approval of the Schematic Plans described herein, Consultant shall prepare design development documents consisting of: (1) site and floor plans; (2) elevations; and (3) any other drawings and documents sufficient to fix and describe the types and makeup of materials, as well as the size and character of the Project’s structural, mechanical and electrical systems, and to outline the Project specifications (“Design Development Documents”). The Design Development Documents shall be prepared in sufficient form to present to the City Council for approval.
4.2 Copies of Design Development and Other Documents. Consultant, at its own expense, shall provide a complete set of the Design Development Documents described herein for City’s review and approval. Additionally, at City’s expense, Consultant shall provide such documents as may be required by any federal, state, regional or local agencies concerned with the Project. Any additional copies required by City shall be provided at actual cost to City.
4.3 Updated Project Budget. Consultant shall use its Preliminary Project Budget and expertise and experience with the Project to establish an updated estimate of probable construction costs, containing detail consistent with the Design Development Documents as set forth herein and containing a breakdown based on types of materials and specifications identified herein (“Consultant’s Updated Project Budget”).
4.4 Timetable. Consultant shall provide a written timetable for full and adequate completion of the Project to City.
4.5 Application for Approvals. Consultant shall assist City in applying f or and obtaining required approvals from all federal, state, regional or local agencies concerned with the Project. Consultant shall furnish and process all architectural and engineering information required to prepare and process applications to applicable utilities in order to secure priorities and materials, to aid in the construction of the Project and to obtain final Project approval and acceptance by any of the above agencies as may be required.
4.6 Color and Other Aesthetic Issues. Consultant shall provide, for City’s review and approval, a preliminary schedule of all color materials and selections of textures, finishes and other matters involving an aesthetic decision about the Project.
5. FINAL WORKING DRAWINGS AND SPECIFICATIONS.
During the final working drawings and specifications phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
5.1 Final Working Drawings and Specifications. Once City provides Consultant with specific written approval of the Design Development Documents described herein, Consultant shall prepare such complete working drawings and specifications as are necessary for developing complete bids and for properly executing the Project work in an efficient and thorough manner (“Final Working Drawings and Specifications”). Such Final Working Drawings and Specifications shall be developed from the Schematic Plans and Design Development Documents approved by City. The Final Working Drawings and Specifications shall set f orth in 276
46700.00100\40935196.1
BB&K (2023) Exhibit A-4
detail all of the following: (1) the Project construction work to be done; (2) the materials, workmanship, finishes, and equipment required for the architectural, structural, mechanical, and electrical systems; and (3) the utility service connection equipment and site work. As indicated in Section 3.9.2 of the Agreement, City may be requested to supply Consultant with the necessary information to determine the proper location of all improvements on and off site, including record drawings (“as-built drawings”) in City’s possession. Consultant will make a good -faith effort to verify the accuracy of such information by means of a thorough interior and exterior visual survey of site conditions. City shall also make a good -faith effort to verify the ac curacy of the as -built drawings and provide any supplemental information to Consultant which may not be shown on the as-built drawings.
5.2 Form. The Final Working Drawings and Specifications must be in such form as will enable Consultant and City to secure t he required permits and approvals from all federal, state, regional or local agencies concerned with the Project. In addition, the Final Working Drawings and Specifications must be in such form as will enable City to obtain, by competitive bidding, a responsible and responsive bid within the applicable budgetary limitations and cost standards. The Final Working Drawings and Specifications shall be clear and legible so that uniform copies may be on standard architectural size paper, properly indexed and numbered, and shall be capable of being clearly copied and assembled in a professional manner by Consultant.
5.3 Approval and Revisions. City shall review, study, and check the Final Working Drawings and Specifications presented to it by Consultant, and request any necessary revisions or obtain any necessary approvals by the City Council, subject to the approval of all federal, state, regional or local agencies concerned with the Project. Consultant shall make all City-requested changes, additions, deletions, and corrections in the Final Working Drawings and Specifications at no additional cost, so long as they are not in conflict with the requirements of public agencies having jurisdiction or prior approval, or inconsistent with earlier City direction or Consul tant’s professional judgment. Consultant shall bring any such conflicts and/or inconsistencies to the attention of City. The Parties agree that Consultant, and not the City, possesses the requisite expertise to determine the constructability of the Final Working Drawings and Specifications.
However, the City reserves the right to conduct one or more constructability review processes with the Final Working Drawings and Specifications, and to hire an independent architect or other consultant to perform suc h reviews. Any such independent constructability review shall be at City’s expense. Consultant shall make all City -requested changes, additions, deletions, and corrections in the Final Working Drawings and Specifications which may result from any constructability review, at no additional cost to the City, so long as they are not in conflict with the requirements of public agencies having jurisdiction or prior approval, or inconsistent with earlier City direction or Consultant ’s professional judgment. If such changes, additions, deletions or corrections are inconsistent with prior City direction, Consultant shall make such alterations and be compensated therefore pursuant to the Additional Services provision of this Agreement.
5.4 Costs of Construction. It is understood by Consultant that should the Final Working Drawings and Specifications be ordered by City, City shall specify the sum of money set aside to cover the total cost of construction of the work, exclusive of Consultant’s fees. Should it become evident that the total construction cost will exceed the specified sum, Consultant shall at once present a statement in writing to the City’s Representative setting forth this fact and giving a full statement of the cost estimates on which the conclusion is based.
5.5 Copies of Final Working Drawings and Specifications and Other Documents.
Consultant, at its own expense, shall provide a complete set of the Final Working Drawings and Specifications described herein for City’s review and approval. Additionally, at City’s expense, 277
46700.00100\40935196.1
BB&K (2023) Exhibit A-5
Consultant shall provide such documents as may be required by any federal , state, regional or local agencies concerned with the Project. Any additional copies required by City shall be provided at actual cost to City.
6. CONSTRUCTION CONTRACT DOCUMENTS.
During the construction contract documents phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
6.1 Bid and Contract Documents. If so required by City, Consultant shall assist City in the completion of all bid and construction documents, including but not limited to, the Notice Inviting Bids, Instructions to Bidders, Contract Bid Forms (including Alternate Bids as requested by City), `Contract, General Conditions, Supplementary General Conditions, Special Conditions, DVBE and other applicable affirmative action documents, Performance Bond, Payment Bond, Escrow Agreement for Security Deposits, and any other certifications and documents required by federal, state and local laws, rules and regulations which may be reasonably required in order to obtain bids responsive to the specificat ions and drawings. All such documents shall be subject to the approval of City and City’s legal counsel.
6.2 Final Estimate. At the time of delivery of these bid and construction documents, which shall include the Final Working Drawings and Specifications (collectively referred to herein as the “Construction Documents”), Consultant shall provide City with its final estimate of probable construction cost (“Consultant’s Final Estimate”). As discussed herein, including in Section 7.3, it shall be the Consultant’s duty to design the Project within budget.
7. BID PHASE.
During the bid phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
7.1 Reproducible Construction Documents. Once City provides Consultant with specific written approval of the Construction Documents and Consultant ’s Final Estimate, Consultant shall provide to City one set of reproducible Construction Documents.
7.2 Distribution of Contract Documents and Review of Bids. Consultant shall assist City in distributing the Construction Documents to bidders and conducting the opening and review of bids for the Project.
7.3 Over Budget. If the apparent lowest responsive and responsible bid on the Project exceeds the Consultant’s Final Estimate by more than five percent (5%), City may request Consultant to amend, at Consultant’s sole cost and expense, the Final Drawings and Specifications in order to rebid the Project and receive a lowest responsive and responsible bid equal to or less than the Consultant’s Final Estimate. All revisions necessary to bring the lowest responsible and responsive bid within the Consultant ’s Final Estimate, including any omissions, deferrals or alternates, shall be made in consultation with, and subject to the approval of, the City.
8. CONSTRUCTION PHASE.
During the construction phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
278
46700.00100\40935196.1
BB&K (2023) Exhibit A-6
8.1 Observation. The Project Consultant shall observe work executed from the Final Working Drawings and Specifications in person, provided that City may, in its discretion, consent to such observation by another competent representative of Consultant.
8.2 General Administration. Consultant shall provide general administration of the Construction Documents and the work performed by the contractors.
8.3 Pre-Construction Meeting. Consultant shall conduct one or more pre- construction meetings, as the City determines is needed for the Project, with all interested Parties.
8.4 Site Visits of Contractor’s Work. Consultant shall conduct site visits to observe each contractors’ work for general conformance with the Construction Documents and with any approved construction schedules or milestones. Such site visits shall be conducted as often as are necessary and appropriate to the stage of construction, according to the City’s sole discretion, but in no event less than weekly.
8.5 Site Visits of Inspector’s Work. Consultant shall conduct site visits to communicate and observe the activities of the City inspectors. Such site visits shall be conducted as often as is mutually acceptable to Consultant and City. Consultant shall direct the City inspectors and the Project contractors to coordinate the preparation of record drawings indicating dimensions and location of all “as-built” conditions, including but not limited to, underground utility lines.
8.6 Coordination of Subc onsultants. Consultant shall cause all architects, engineers and other consultants, as may be hired by Consultant or City, to observe the work completed under their disciplines as required, and approve and review all test results for general conformance with the Construction Documents.
8.7 Reports. Consultant shall make regular reports as may be required by applicable federal, state or local laws, rules or regulations, as well as the federal, state, regional or local agencies concerned with the Project.
8.8 Construction Meetings; Minut es. Consultant shall attend all construction meetings and provide written reports/minutes to the City after each construction meeting in order to keep City informed of the progress of the work. Such meetings shall occur at a frequency necessary for the progress of the Project work, according to the City’s sole discretion, but no less than weekly.
8.9 Written Reports. Consultant shall make written reports to City as necessary to inform City of problems arising during construction, changes contemplated as a result of each such problems, and progress of the Project work.
8.10 Written Records. Consultant shall keep accurate written records of the progress and quality of the Project work and the time schedules, and shall advise the contractors and City of any deviations from the time schedule which could delay timely completion of the Project.
8.11 Material and Test Reports. Consultant shall check and process, in a timely manner, all required material and test reports for the Project work. In addition, Consultant shall provide notice of any deficiencies in material or work reflected in such reports, as well as its recommendation for correction of such deficiencies, to the contractors and City. 279
46700.00100\40935196.1
BB&K (2023) Exhibit A-7
8.12 Review and Response to Submissions. Consultant shall review and respond, in a timely manner, to all schedules, submittals, shop drawings, samples, information requests, change requests, and other submissions of the contractor and subcontractors for compliance with, or alterations and additions to, the Construction Documents. Consultant ’s review and response shall be done in such a manner so as to ensure the timely and uninterrupted progress of the Project work.
8.13 Rejection of Work. Consultant shall promptly reject, as discussed with City, work or materials which do not conform to the Construction Documents. Consultant shall immediately notify the City and contractor(s) of such rejections. Consultant shall also have the authority to recommend to the City that additional inspection or testing of the work be performed, whether or not such work is fabricated, installed or completed.
8.14 Substitutions. Consultant shall consult with City, in a timely manner, with regard to substitution of materials, equipment and laboratory reports thereof, prior to the City’s final written approval of such substitutions. Consultant’s consultation shall be done in such a manner so as to ensure the timely and uninterrupted progress of the Project work.
8.15 Revised Documents and Drawings. Consultant shall prepare, at no additional expense to City, all documents and/or drawings made necessary by errors and omissions in the originally approved Construction Documents.
8.16 Change Requests and Material Changes. Consultant shall evaluate and advise City, in a timely manner and in writing, of any change requests and material change(s) which may be requested or necessary in the Project plans and specifications. Co nsultant shall provide the City with its opinion as to whether such change requests should be approved, denied or revised.
If the City has not hired a construction manager or other person to do so, the Consultant shall prepare and execute all change orders and submit them to the City for authorization. If the City has designated a construction manager or other person to prepare all change orders, the Consultant shall review all change orders prepared by such person, execute them and deliver them to the City for authorization if they meet with the Consultant ’s approval, or submit them to the City with recommendations for revision or denial if necessary. Consultant shall not order contractors to make any changes affecting the contract price without approval by City of such a written change order, pursuant to the terms of the Construction Documents. Consultant may order, on its own responsibility and pending City Council approval, changes necessary to meet construction emergencies, if written approval of City’s Representative is first secured.
8.17 Applications for Payment. Consultant shall examine, verify and approve contractor’s applications for payment, and shall issue certificates for payment in amounts approved by the City’s inspector.
8.18 Final Color and Product Selection. Consultant shall coordinate final color and product selection with City’s original design concept.
8.19 Substantial Completion. Consultant shall determine the date of substantial completion, in consultation with the City.
8.20 Punch List. After deter mining that the Project is substantially complete, Consultant shall participate in the inspection of the Project and shall review all remaining deficiencies and minor items needed to be corrected or completed on the Project, including those identified on the punch list prepared by the contractor (“Punch List Items”). Consultant shall notify 280
46700.00100\40935196.1
BB&K (2023) Exhibit A-8
contractor in writing that all Punch List Items must be corrected prior to final acceptance of the Project and final payment. Consultant shall also notify City of all Punch List Items.
8.21 Warranties. Consultant shall review materials assembled by the contractor and subcontractors with regard to all written warranties, guarantees, owners’ manuals, instruction books, diagrams, record “as built” drawings, and any other materials required from the contractors and subcontractors pursuant to the Construction Documents. Consultant shall coordinate and provide these materials to the City.
8.22 Certificate of Completion. Consultant shall participate in any further inspections of the P roject necessary to issue Consultant ’s Certificate of Completion and final certificate for payment.
8.23 Documents for Project Close- Out. Consultant shall cause all other architects, engineers and other consultants, as may be hired by Consultant , to file any and all required documentation with the City or other governmental authorities necessary to close out the Project.
Consultant shall assist the C ity in obtaining such documentation from all other architects, engineers, or other consultants.
9. AS-BUILT DRAWINGS.
During the as-built drawings phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
9.1 As-Built Drawings and Specifications. Not later than thirty (30) days after substantial completion of the Project, before receipt of final payment, Consultant shall review and forward the Final Working Drawings and Specifications, indicating on them all changes made by change orders or otherwise pursuant to the Construction Documents, as well as all information called for on the specifications, thus producing an “as -built” set of Final Working Drawings and Specifications (“As-Built Drawings and Specifications”). The As-Built Drawings and Specifications shall show, among other things, the location of all concealed pipe, buried conduit runs and other similar elements within the completed Project. Consultant shall personally review and certify that the As-Built Drawings and Specifications are a correct representation of the information supplied to Consultant by any inspectors and the contractor, and shall obtain certifications from any inspectors and the contractor that the drawings are correct.
9.2 Approval. Once City provides Consultant with specific written approval of the As- Built Drawings and Specifications, Consultant shall forward to City the complete set of original As-Built Drawings and Specifications or a complete set of reproducible duplicate As -Built Drawings and Specifications. The tracing shall be of such quality that clear and legible prints may be made without appreciable and objectionable loss of detail.
9.3 Documents for Final Payment. Prior to the receipt of Consultant’s final payment, Consultant shall forward to City all of the following: (1) one clear and legible set of reproductions of the computations; (2) the original copy of the specifications; (3) the As -Built Drawings and Specifications as required herein; and (4) Consultant’s Certificate of Completion.
10. WARRANTY PERIOD.
During the warranty period phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
281
46700.00100\40935196.1
BB&K (2023) Exhibit A-9
10.1 Advice. Consultant shall provide advice to City on apparent deficiencies in the Project during any applicable warranty periods for the Project. 282
46700.00100\40935196.1
BB&K (2023) Exhibit B-1
EXHIBIT “B”
FEE SCHEDULES
1. FEE SCHEDULE.
Consultant will invoice City on a monthly cycle. Consultant will include with each invoice a detailed progress report that indicates the amount of budget spent on each phase and the total amount spent against the Total Compensation. Consultant will inform City regarding any out-of- scope work being performed by Consultant for which Consultant intends to seek compensation from City.
2. PHASING/FUNDING SCHEDULE.
Progress payments towards Total Compensation shall never exceed the following percentages of Total Compensation as of the phase indicated:
Initial Planning Phase: ________ percent (%____)
Schematic Plan Phase: ________ percent (%____)
Design Development Phase: ________ percent (%____)
Final Working Drawings & Specifications Phase: ________ percent (%____) Construction Contract Documents Phase: ________ percent (%____) Bid Phase: ________ percent (%____)
Construction Phase: ________ percent (%____)
As-Built Drawings Phase: ________ percent (%____)
Warranty Period Phase: ________ percent (%____)
*Phasing/Funding Schedule to be provided if/when needed. Currently, this is not applicable* 283
46700.00100\40935196.1
BB&K (2023) Exhibit C-1
EXHIBIT “C”
COMPENSATION RATES AND REIMBURSABLE EXPENSES
1. HOURLY COMPENSATION RATES.
2. REIMBURSABLE EXPENSES.
When incurred, the following project expenses will be billed at a cost plus 15% administrative fee in addition to the above professional services fee:
• PRINTING, PLOTTING, COPYING, SCANNING, PHOTOGRAPHY, GRAPHIC EXPENSES; • DELIVERY, SHIPPING AND HANDLING OF DOCUMENTS;
• PERMITS, PLAN CHECK, INSPECTION DOCUMENTS;
284
46700.00100\40935196.1
BB&K (2023) Exhibit C-2
3. ADDITIONAL SERVICES.
Additional Services shall be computed at the actual hourly rates listed above.
4. ADDITIONAL CONSULTANTS.
If City requires Consultant to hire consultants to perform any Additional Services, Consultant shall be compensated therefore at the Consultant’s actual hourly rates plus 15% Owner shall have the authority to review and approve the rates of any such consultants. 285
46700.00920\42359402.1
1 BBK: June 2024
CIT
Y OF ONTARIO
AS-NEEDED PROFESSIONAL CONSULTANT SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered into this __ day of _______, 2024, by and between the City of Ontario (“City”) and SWA Group Inc., a California corporation with its princ ipal place of business at 2200 Bridgeway Blvd., Sausalito, CA 94965 (“Consultant”). City and Consultant are sometimes individually referred to herein as “Party” and collectively as “Parties.”
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain as - needed professional consulting services required by t he City on an on-call basis on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing professional consulting services to public clients, is licensed in the State of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such professional consulting services for the City Owned Parks and Landscape On-Call Project(s) (“Project”) as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant 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 professional consulting services necessary for the Project on an on -call basis (“Services”). The City will issue individual Task Orders that more particularly describe the Services to be performed by Consultant during the term of this Agreement. No Services shall be performed by Consultant unless authorized by a fully executed Task Order in the form provided by the City as set forth in Exhibit “D.” The terms of each Task Order constitute full and final compensation for the Services set forth therein. 286
46700.00920\42359402.1
2 BBK: June 2024
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, the task order(s) issued pursuant to this Agreement, and all applicable local, state and federal laws, rules and regulations.
3.1.2 Term.
The term of this Agreement shall be from the date set forth in the first paragraph above to June 30, 2027, 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. The City may, at its sole option, extend the term of this Agreement for not to exceed two (2) additional one (1) year terms.
3.2 Responsibilities of Consultant.
3. 2.1 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee.
Consultant 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 Consultant shall also not be employees of City and shall at all times be under Consultant’s exclusive direction and control. Neither City, nor any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Consultant’s officer s, employees, or agents, except as set forth in this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
3.2.2 Schedule of Services. Consultant 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 which may be more particularly defined in Task Orders issued pursuant to this Agreement.. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant’s conformance with the Schedule, City shall respond to Consultant’s submittals in a timely manner. Upon request of City , Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.
3.2.3 Conformance to Applicable Requirements.
All work prepared by Consultant
shall be subject to the approval of City.
3.2.4 Substitution of Key Personnel. Consultant has represented to City t hat certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the C ity, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Consultant at the request of the City. The key personnel for performance of this Agreement are as follows:
287
46700.00920\42359402.1
3 BBK: June 2024
Sean O'Malley (License No. CA 3286) to act as the Managing Principal, Steve Rydzon, Principal in Charge (License No. 6038), Daniel Dobson, Associate Principal (License No.
CA 6935); Lovisa Kjerrgren, Associate Principal (License No. CA 6986); Joseph Hsu, Associate (License No. 6603) and Chris Anderson, Associate Landscape Designer.
3.2.5 City’s Representative. The City hereby designates Alfredo Banuelos, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement (“ City’s Representative”). City ’s Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Work or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City ’s behalf and to execute all necessary documents which enlarge the Scope of Work or change the Consultant’s total compensation subject to the provisions contained in Section 3.3 of this Agreement. Consultant shall not accept direction or orders from any person other than the City Manager, City’s Representative or his/her designee.
3.2.6 C
onsultant’s Representative. Consultant hereby designates Sean O'Malley (License No. CA 3286), or his/her designee, to act as its representative for the performance of this Agreement (“Consultant’s Representative”). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement.
The Consultant’s Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
3.2.7 C
oordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City’s staff, consultants and other staff at all reasonable times.
3.2.8 S tandard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant represents and warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City , any services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub- consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.
3.2.9 Law
s and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If Consultant performs any work knowing it to be contrary 288
46700.00920\42359402.1
4 BBK: June 2024
to such laws, rules and regulations, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City , its officials, directors, officers, employees, agents, and volunteers 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.
3.2.10 Insurance.
3.2.10.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section.
3.2.10.2 Ty pes of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, the Consultant, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so.
(A) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office “occurrence” form CG 0001, or the exact equivalent, with limits of not less than $1,000,000 per occurrence and no less than $2,000,000 in the general aggregate. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions. (B) Automobile Liability Insurance: (1) a Personal Automobile Liability policy for the Consultant's own vehicle ''stipulating Automobile Liability Insurance wi th a limit of not less than $1,000,000 each accident''; or (2) a non- owned auto endorsement to the Commercial General Liability policy if Consultant uses vehicles of others (e.g., vehicles of employees).
(C) Workers’ Compensation/Employer’s
Liability: Workers’ Compensation Insurance, as required by the State of California and Employer’s Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease. If Consultant has no employees or agents, Consultant shall not be required to maintain Workers’ Compensation Insurance. However, in the event that Consultant hires employees or agents during the term of this Agreement, Consultant shall obtain and maintain Workers’ Compensation/Employer’s Liability Insurance in accordance with this Section. (D) Professional Liability (Errors & Omissions): Professional Liability insurance or Errors & Omissions insurance appropriate to Consultant’s profession with limits of not less than $1,000,000 per claim and in aggregate. Covered professional services shall specifically include all work to be performed under the Agreement. If coverage is written on a claims-made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least three (3) years from termination or expiration of this agreement.
3.2.10.3 Insurance Endorsements. Required insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
289
46700.00920\42359402.1
5 BBK: June 2024
(A) Commercial General Liability and Pollution Liability:
(1) Additional Insured: The City , its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement. (2) Additional Insured Endorsements shall not (1) be
restricted to “ongoing operations”; (2) exclude “contractual liability”; (3) restrict coverage to “sole” liability of Consultant; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial General Liability insurance, Consultant shall provide endorsements in the form of ISO CG 20 10 and 20 37 (or endorsements providing the exact same coverage) to effectuate this requirement.
(3) Cancellation: Required insurance policies shall not be canceled or the coverage - materially-changed until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium.
(B) Automobile Liability:
(1) Cancellation: Required insurance policies shall not be canceled or the coverage materially changed until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (C) Professional Liability (Errors & Omissions):
(1) Cancellation: Required insurance policies shall not be canceled or materially changed until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (D) Worker’s Compensation:
(1) Cancellation: Required insurance policies shall not be canceled or the coverage materially changed until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (2) Waiver of Subrogation: A waiver of subrogation
stating that the insurer waives all rights of subrogation against the City , its officials, officers, employees, agents, and volunteers.
3.2.10.4 Primary and Non- Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
3.2.10.5 W
aiver of Subrogation. All policies of Commercial General Liability and Automobile Liability insurance shall contain or be endorsed to waive subrogation against the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby grants to City a waiver of any right to subrogation which any insurer of said Consultant may acquire against the City by virtue of the payment of any loss under such insurance. Consultant agrees to obtain any endorsement that 290
46700.00920\42359402.1
6 BBK: June 2024
may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
Consultant shall require similar written express waivers and insurance clauses from each of its subconsultants.
3.2.10.6 Deductibles and Self-Insured Retentions. Any deductible or self- insured retention must be approved in w riting by the City and shall protect the City , its officials, officers, employees, agents, and volunteers in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self -insured retention.
3.2.10.7 E vidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the City, together with all endorsements affecting each policy. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least ten (10) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City.
If such coverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the required coverage, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.
3.2.10.8 Fai
lure to Maintain Coverage. In the event any policy of
insurance required under this Agreement does not comply with these specifications or is canceled and not replaced immediately so as to avoid a lapse in the required coverage, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement effective upon notice.
3.2.10.9 A
cceptability of Insurers . Each such policy shall be from a company or companies with a current A.M. Best’s rating of no less than A:VII and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
3.2.10.10 E
nforcement of Agreement Provisions (non estoppel) .
Consultant acknowledges and agrees that actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder.
3.2.10.11 Cla ims Made Policies . If any of the required polici es provide coverage on a claims-made basis:
(A) The Retroactive Date must be shown and must be before the effective date of the Agreement or the beginning of work under this Agreement. (B) Such insurance must be maintained and evidence of
insurance must be provided for at least three (3) years after completion of all services under this Agreement.
291
46700.00920\42359402.1
7 BBK: June 2024
(C) If coverage is canceled or non -renewed, and not replaced with another claims -made policy form with a Retroactive Date prior to the effective date of the Agreement, the Consultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of all services under this Agreement.
3.2.10.12 Special Risks or Circumstances. City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. The Consultant shall be compensated if the changes increase the insurance cost.
3.2.10.13 I nsurance for Subconsultants . Consultant shall include all subconsultants engaged in any work for Consultant relating to this Agreement as additional insureds under the Consultant’s policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City, its officials, officers, employees, agents, and volunteers as additional insureds to the subconsultant’s policies. All policies of Commercial General Liability insurance provided by Consultant’s subconsultants performing work relating to this Agreement shall be endorsed to name the City, its officials, officers, employees, agents and volunteers as additional insureds using endorsement form ISO CG 20 38 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant to commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subconsultant’s compliance with all insurance requirements under this Agreement, to the extent applicable. The Consultant shall provide satisfactory evidence of compliance with this section upon request of the City.
3.2.11 S
afety . Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions, where 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 subconsultants, 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 acciden ts or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.
3.2.12 W
ater Quality Management and Compliance.
3.2.12.1 Storm Water Management . Storm, surface, nuisance, or other waters may be encountered at various times during the Services. Consultant hereby acknowledges that it has investigated the risk arising from such waters, and assumes any and all risks and liabilities arising therefrom.
3.2.12.2 C
ompliance with Water Quality Laws, Ordinances and
Regulations. Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, al l applicable provisions of the City ’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.); the California Porter -Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority. Consultant shall additionally comply with the lawful 292
46700.00920\42359402.1
8 BBK: June 2024
requirements of the City, and any other water district, municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges.
3.2.12.3 S tandard of Care. Consultant represents and warrants that all employees and subcontractors shall have sufficient skill and experience to perform the work assigned to them without impacting water quality in violation of the laws, regulations and policies described in Section 3.2.12.2 of this Agreement. Consultant further represents and warrants that it, its employees and subcontractors have or will receive adequate training, as determined by the City, regarding these requirements as they may relate to the Services.
3.2.12.4 Lia bility for Non-compliance.
(A) Indemnity: Failure to comply with laws, regulations, and ordinances listed in Section 3.2.12.2 of this Agreement is a violation of federal and state law.
Notwithstanding any other indemnity contained in this Agreement, Consultant agrees to indemnify and hold harmless the City, its officials, officers, agents, employees and authorized volunteers from and against any and all claims, demands, losses or liabilities of any kind or nature which the City, its officials, officers, agents, employees and authorized volunteers may sustain or incur for noncompliance with the laws, regulations, and ordinances listed above, arising out of or in connection with the Services, except for liability resulting from the sole established negligence, willful misconduct or active negligence of the City , its officials, officers, agents, employees or authorized volunteers.
(B) Defense: City reserves the right to defend any enforcement action or civil action brought against the City for Consultant’s failure to comply with any applicable water quality law, regulation, or policy. Consultant hereby agrees to be bound by, and to reimburse the City for the costs associated with, any settlement reached between the City and the relevant enforcement entity.
(C) Damages: City may seek damages from Consultant for
delay in completing the Services caused by Consultant’s failure to comply with the laws, regulations and policies described in Section 3.2.12.2 of this Agreement, or any other relevant water quality law, regulation, or policy.
3.3 Fees and Payments.
3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit ”C” attached hereto and incorporated herein by reference. The total compensation shall not exceed One Hundred Thousand Dollars ($100,000) without written approval of the City Council or City Manager as applicable. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.3.2 P ayment of Compensation. Consultant shall submit to City a monthly invoice which indicates work completed and hours of Services rendered by Consultant. The invoice shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice.
City shall, within 30 days of receiving such invoice, review the invoice and pay all non -disputed and approved charges thereon. If the City disputes any of Consultant’s fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein.
293
46700.00920\42359402.1
9 BBK: June 2024
3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit “C” of this Agreement.
3.3.4 E xtra Work . At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, “Extra Work” means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement.
Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City. For agreements authorized by the City Manager or a Department Head, the City Manager may approve Extra Work in accordance with the City ’s current purchasing policy. Any additional work in excess of this amount, or if the City Council approved the original agreement, shall be approved by the City Council.
3.3.5 R
ate Increases. In the event that this Agreement is renewed pursuant to Section 3.1.2, the rate set forth in Exhibit “C” may be adjusted each year at the time of renewal as set forth in Exhibit “C.”
3.4 California Labor Code Provisions.
3.4.1 Prevailing Wage Law . Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. Since the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Moreover, as required by Labor Code 1860, Consultant shall secure the payment of compensation to Consultant’s employees in accordance with the provisions of Labor Code Section 3700. Consultant shall obtain a copy of the prevailing rates of per diem wages at the commencement of this Agreement from the websi te of the Division of Labor Statistics and Research of the Department of Industrial Relations located at www.dir.ca.gov/dlsr/. In the alternative, Consultant may view a copy of the prevailing rates of per diem wages at the City.
Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents, and volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
3.4.2 R
egistration. Since 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 Consultant and all subconsultants must be registered with the Department of Industrial Relations, Consultant shall maintain registration for the duration of the project and require the same of any subconsultants, and this project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be consultant's sole responsibility to comply with all applicable registration and labor compliance requirements. Notwithstanding the foregoing, the 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.
3.4.3 Labor
Compliance; Stop Orders. This Project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be the Consultant’s sole responsibility to evaluate and pay the cost of complying with all labor compliance 294
46700.00920\42359402.1
10 BBK: June 2024
requirements under this Contract and applicable law. Any stop orders issued by the Department of Industrial Relations against Consultant or any subconsultant that affect Consultant’s performance of Work, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant -caused delay subject to any applicable liquidated damages and shall not be compensable by the City .
Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subconsultant.
3.5 Accounting Records.
3.5.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.6 General Provisions.
3.6.1 Termination of Agreement.
3.6.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date t hereof, at least seven (7) days before the effective date of such termination. In the event that Consultant is in default under this Agreement, City will give Consultant notice of the default giving rise to its intent to terminate the Agreement for cause, and Consultant shall have five (5) days to cure such default. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to City , and Consultant shall be entitled to no further compensation.
Consultant may not terminate this Agreement except for cause.
3.6.1.2 E
ffect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.
3.6.1.3 A
dditional 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.
3.6.1.4 De livery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Consultant: SWA Group, a California corporation
570 Glenneyre Street
Laguna Beach, CA 92651-2453
Attn: Sean O'Malley, Managing Principal
City: City of Ontario
295
46700.00920\42359402.1
11 BBK: June 2024
303 East “B” Street
Ontario, CA 91764
ATTN: Alfredo Banuelos
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.
3.6.2 Ownership of Materials and Confidentiality.
3.6.2.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data.
Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk.
3.6.2.2 C
onfidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City’s name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
3.6.2.3 C
onfidential Information. The City shall refrain from releasing Consultant’s proprietary information (“Proprietary Information”) unless the City ’s legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information.
Consultant shall have five (5) working days after receipt of the Release Notice to give City written notice of Consultant’s objection to the City ’s release of Proprietary Information. Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of the Objection Notice unless either: (1) Consultant fails to fully indemnify, defend (with City’s choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a final and non-appealable order by a court of competent jurisdiction requires that City release such information. 296
46700.00920\42359402.1
12 BBK: June 2024
3.6.2.4 City Provided Information. Consultant may reasonably rely on the accuracy of City-provided information provided to Consultant. However, it shall notify the City if it notes any inconsistency or inaccuracy in such information.
3.6.3 C ooperation; 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.
3.6.4 A ttorney’s 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 attorney’s fees and all other costs of such action.
3.6.5 I
ndemnification.
3.6.5.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City ’s choosing), indemnify and hold the City , its directors, officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant's Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant’s obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City , its officials, officers, employees, agents, or volunteers.
3.6.5.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
3.6.6 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties.
3.6.7 G overning Law . This Agreement shall be governed by the laws of the State of California. Venue shall be in Orange County.
3.6.8 Ti me of Essence . Time is of the essence for each and every provision of this Agreement.
3.6.9 Cit y ’s Right to Employ Other Consultants . City reserves right to employ other consultants in connection with this Project.
297
46700.00920\42359402.1
13 BBK: June 2024
3.6.10 Successors and Assigns. This Agreement shall be binding on th e successors and assigns of the parties.
3.6.11 A ssignment or Transfer. Consultant 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.
3.6.12 C
onstruction; References; Captions. Since the Parties or their agents hav e participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.6.13 A
mendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.6.14 W aiver . 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.
3.6.15 N
o Third- Party B eneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.6.16 I nvalidity; 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.
3.6.17 P
rohibited Interests . Consultant represents and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant represents and warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. 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.
3.6.18 E qual Opportunity Employment. Con sultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non- discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City ’s Minority Business 298
46700.00920\42359402.1
14 BBK: June 2024
Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.6.19 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.
3.6.20 A
uthority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party represents and 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.
3.6.21 C ounterparts . This Agreement may be signed in counterparts, each of which shall constitute an original.
3.7 Independent Contractors and Subcontracting.
3.7.1 Use of Independent Contractors and Subcontractors. Consultant is aware of statutory and case law regarding classification of workers as independent contractors, including California Labor Code Section 2775 and Dynamex Operations West, Inc. v. Superior Court, 4 Cal.5th 903 (2018). To ensure that Consultant is in compliance with the California Labor Code, Consultant shall only provide the Services through its employees. Consultant may not provide the services through any independent contractor, subcontractor or subconsultant (“Contractor(s)”) unless approved by the City. Consultant represents and warrants that all personnel who perform the Services on Consultant’s behalf are Consultant’s employees, and that Consultant complies with all applicable laws, rules and regulations governing its employees, including, but not limited to, the California Labor Code, Unemployment Insurance Code and all applicable Industrial Welfare Commission Wage Orders. City shall have the right to audit Consultant’s compliance with this Paragraph; upon City ’s request, Consultant shall provide within five (5) business days documents sufficient to demonstrate its compliance with this Paragraph including, but not limited to, W4s, itemized wage statements, employee handbooks, and time cards for any of Consultant personnel who provides the Services. Any provisions in this Agreement which provide, imply or suggest that Consultant may use Contractors to provide the Services are controlled by and intended to be consistent with this Paragraph. In the event that City authorizes Consultant to use a Contractor, Consultant shall enter into a written agreement with the Contractor, which must include all applicable provisions of the Agreement, including a restriction on the Contractor’s use of further independent contractors, subcontractors or subconsultants without the City ’s prior consent.
3.7.2 P
rior Approval Required. Consultant 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.
[SIGNATURES ON FOLLOWING PAGE]
299
46700.00920\42359402.1
15 BBK: June 2024
CITY OF ONTARIO SWA Group
By:
By:
Scott Ochoa
City Manager
Gerdo Aquino
CEO
ATTEST:
By:
Margaret Leonard
Secretary / Controller
By:
City Clerk
APPROVED AS TO FORM:
By:
Best Best & Krieger LLP
City Attorney
300
BB&K (2023)
46700.00100\40935196.1
Exhibit A-1
EXHIBIT “A”
SCOPE OF SERVICES
CONSULTANT SHALL RENDER THE FOLLOWING SERVICES UPON A TASK ORDER FOR SUCH SERVICES BEING EXECUTED:
1. GENERAL REQUIREMENTS.
1.1 Basic Services. Consultant agrees to perform all the necessary professional landscape architectural services mutually agreeable to the Parties and construction administration services for the Project in a timely and professional manner, consistent with the standards of the profession, including those provided for herein.
1.2 Exclusions from Basic Services. The following services shall be excluded from the basic services listed above: civil engineering, soils engineering, geotechnical services, hazardous waste or toxic substances engineering, asbestos, construction, or other SERVICES not included in Consultant's on-call project proposal.
1.3 Additional Services. Consultant shall perform the following Additional Services for the Project: N/A
1.4 Communication with City. Consultant shall participate in consultations and conferences with authorized representatives of City and/or other local, regional, or state agencies concerned with the Project, which may be necessary for the completion of the Project or the development of the drawings, specifications and documents in accordance with the applicable standards and requirements of law and the City. Such consultations and conferences shall continue throughout the planning and construction of the Project and the contractor’s warranty period. Consultant shall take direction only from the City’s Representative, or any other representative specifically designated by the City for this Project, including any construction manager hired by the City.
1.5 Coordination and Cooperation with Construction Manager. The City may hire a construction manager to administer and coordinate all or any part of the Project on its behalf. If the City does so, it shall provide a copy of its agreement with the construction manager so that the Consultant will be fully aware of the duties and responsibilities of the construction manager.
The Consultant shall cooperate with the construct ion manager and respond to any requests or directives authorized by the City to be made or given by the construction manager. The Consultant shall request clarification from the City in writing if the Consultant should have any questions regarding the authority of the construction manager.
2. INITIAL
PLANNING PHASE.
During the initial planning phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
2.1 Project Feasibility. Provide advice and assistance to City in determining the feasibility of the Project, analysis of the type and quality of materials and construction to be 301
BB&K (2023)
46700.00100\40935196.1
Exhibit A-2
selected, the site location, and other initial planning matters.
2.2 Meeting Budget and Project Goals. Consultant shall notify City in writing of potential complications, cost overruns, unusual conditions, and general needs that potentially impact the Project budget and time line, including the City’s Preliminary Construction Budget.
Consultant shall use its best judgment in determining the balance between the size, type and 302
BB&K (2023)
46700.00100\40935196.1
Exhibit A-3
quality of construction to achieve a satisfactory solution within the Project’s budget and construction allowance. It shall be the duty of the Consultant to design the Project within budget.
As discussed herein, including in Section 7.3, if the lowest responsive and responsible bid for the Project exceeds the budget by the stated amount, Consultant may be required to make the necessary changes in the drawing and specifications, to bring the bids within the required budget.
2.3 Permits, Approvals and Authorizations. As indicated in Section 3.5.4 of the Agreement, Consultant shall assist City in securing easements, encroachment perm its, rights of way, dedications, infrastructures and road improvements, as well as coordinating with utilities and adjacent property owners.
3. SCHEMATIC PLAN PHASE.
During the schematic plan phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
3.1 Funding Documents. Consultant shall provide a site plan and all other Project - related information necessary and required for an application by City to any federal, state, regional, or local agencies for funds to finance the construction Project.
3.2 Schematic Plans. In cooperation with City, Consultant shall prepare preliminary plans and studies, schematic drawings, site utilization plans, and phasing plans showing the scale and relationship of the components of the Project, the plot plan development at the site, and the proposed landscape architectural concept (“Schematic Plans”). Consultant shall incorporate the functional requirements of City into the Schematic Plans. The Schematic Plans shall meet all laws, rules and regulations of the State of California. The Schematic Plans shall show the Project in a single-line drawing, and shall include all revisions required by City or by any federal, state, regional or local agency having jurisdiction over the Project. All landscape architectural drawings for the Project shall be in a form suitable for reproduction.
3.3 Preliminary Project Budget. Consultant shall use the City’s Preliminary Construction Budget and its own expertise and experience with the Project to establish a preliminary project budget or allowance in a format required by City (“Consultant’s Preliminary Project Budget”). The purpose of the Consultant’s Preliminary Project Budget is to show the probable Project cost in relation to City’s Preliminary Construction Budget and the construction standards of any applicable funding agency. If Consultant perceives site considerations which render the Project expensive or cost prohibitive, Consultant shall disclose such conditions in writing to City immediately. As discussed herein, including in Section 7.3, if the lowest responsive and responsible bid for the Project exceeds the budget by more than the stated amount, Consultant may be required to make the necessary changes in the drawings and specifications, at its sole cost and expense, to bring the bids within the required budget Consultant shall provide a preliminary written time schedule for the performance of all construction work on the Project.
3.4 Copies of Schematic Plans and Other Documents. Consultant shall provide a complete set of the Schematic Plans described herein for City’s review and approval. Additionally, at City’s expense, Consultant shall provide such documents as may be required by any federal, state, regional or local agencies concerned with the Project. Any additional copies required by City shall be provided at actual cost to City.
303
BB&K (2023)
46700.00100\40935196.1
Exhibit A-4
4. DESIGN DEVELOPMENT PHASE.
During the design development phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
4.1 Design Development Documents. Once City provides Consultant with specific written approval of the Schematic Plans described herein, Consultant shall prepare design development documents consisting of: (1) site plans; (2) elevations; and (3) any other drawings and documents sufficient to fix and describe the types and makeup of materials, as well as the size and character of the Project’s structural, mechanical and electrical systems, and to outline the Project specifications (“Design Development Documents”). The Design Development Documents shall be prepared in sufficient form to present to the City Council for approval.
4.2 Copies of Design Development and Other Documents. Consultant shall provide a complete set of the Design Development Documents described herein for City’s review and approval. Additionally, at City’s expense, Consultant shall provide such documents as may be required by any federal, state, regional or local agencies concer ned with the Project. Any additional copies required by City shall be provided at actual cost to City.
4.3 Updated Project Budget. Consultant shall use its Preliminary Project Budget and expertise and experience with the Project to establish an updated estimat e of probable construction costs, containing detail consistent with the Design Development Documents as set forth herein and containing a breakdown based on types of materials and specifications identified herein (“Consultant’s Updated Project Budget”).
4.4 Timetable. Consultant shall provide a written timetable for full and adequate completion of the Project to City.
4.5 Application for Approvals. Consultant shall assist City in applying for and obtaining required approvals from all federal, state, regional or local agencies concerned with the Project. Consultant shall furnish and process all landscape architectural and information required to prepare and process applications to applicable utilities in order to secure priorities and materials, to aid in the construction of the Project and to obtain final Project approval and acceptance by any of the above agencies as may be required.
4.6 Color and Other Aesthetic Issues. Consultant shall provide, for City’s review and approval, a preliminary schedule of all color materials and selections of textures, finishes and other matters involving an aesthetic decision about the Project.
5. FINAL
WORKING DRAWINGS AND SPECIFICATIONS.
During the final working drawings and specifications phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
5.1 Final Working Drawings and Specifications. Once City provides Consultant with specific written approval of the Design Development Documents described herein, Consultant shall prepare such complete working drawings and specifications as are necessary for developing complete bids and for properly executing the Project work in an efficient and thorough manner (“Final Working Drawings and Specifications”). Such Final Working Drawings and Specifications shall be developed from the Schematic Plans and Design Development Documents approved by City. The Final Working Drawings and Specifications shall set forth in 304
BB&K (2023)
46700.00100\40935196.1
Exhibit A-5
detail all of the following: (1) the Project constructi on work to be done; (2) the materials, workmanship, finishes, and equipment required for the landscape architectural work. As indicated in Section 3.9.2 of the Agreement, City may be requested to supply Consultant with the necessary information to determine the proper location of all improvements on and off site, including record drawings (“as-built drawings”) in City’s possession. Consultant will make a good -faith effort to verify the accuracy of such information by means of a thorough interior and exterior visual survey of site conditions. City shall also make a good- faith effort to verify the accuracy of the as -built drawings and provide any supplemental information to Consultant which may not be shown on the as-built drawings.
5.2 Form. The Final Working Drawings and Specifications must be in such form as will enable Consultant and City to secure the required permits and approvals from all federal, state, regional or local agencies concerned with the Project. In addition, the Final Working Drawings and Specifications must be in such form as will enable City to obtain, by competitive bidding, a responsible and responsive bid within the applicable budgetary limitations and cost standards. The Final Working Drawings and Specifications shall be clear and legible so that uniform copies may be on standard architectural size paper, properly indexed and numbered, and shall be capable of being clearly copied and assembled in a professional manner by Consultant.
5.3 Approval and Revisions. City shall review, study, and check the Final Working Drawings and Specifications presented to it by Consultant, and request any necessary revisions or obtain any necessary approvals by the City Council, subject to the approval of all federal, state, regional or local agencies concerned with the Project. Consultant shall make all City-requested changes, additions, deletions, and corrections in the Final Working Drawings and Specifications at no additional cost, so long as they are not in conflict with the requirements of public agencies having jurisdiction or prior approval, or inconsistent with earlier City direction or Consultant’s professional judgment. Consultant shall bring any such conflicts and/or inconsistencies to the attention of City. The Parties agree that Consultant, and not the City, possesses the requisite expertise to determine the constructability of the Final Working Drawings and Specifications.
However, the City reserves the right to conduct one or more constructability review processe s with the Final Working Drawings and Specifications, and to hire an independent architect or other consultant to perform such reviews. Any such independent constructability review shall be at City’s expense. Consultant shall make all City -requested changes, additions, deletions, and corrections in the Final Working Drawings and Specifications which may result from any constructability review, at no additional cost to the City, so long as they are not in conflict with the requirements of public agencies having jurisdiction or prior approval, or inconsistent with earlier City direction or Consultant’s professional judgment. If such changes, additions, deletions or corrections are inconsistent with prior City direction, Consultant shall make such alterations and be compensated therefore pursuant to the Additional Services provision of this Agreement.
5.4 Costs of Construction. It is understood by Consultant that should the Final Working Drawings and Specifications be ordered by City, City shall specify the sum of money set aside to cover the total cost of construction of the work, exclusive of Consultant’s fees. Should it become evident that the total construction cost will exceed the specified sum, Consultant shall at once present a statement in writing to the City’s Representative setting forth this fact and giving a full statement of the cost estimates on which the conclusion is based.
5.5 Copies of Final Working Drawings and Specifications and Other Documents.
Consultant, at its own expense, shall provide a complete set of the Final Working Drawings and Specifications described herein for City’s review and approval. Additionally, at City’s expense, 305
BB&K (2023)
46700.00100\40935196.1
Exhibit A-6
Consultant shall provide such documents as may be required by any federal, state, regional or local agencies concerned with the Project. Any additional copies required by City shall be provided at actual cost to City.
6. CONSTRUCTION CONTRACT DOCUMENTS.
During the construction contract documents phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
6.1 Bid and Contract Documents. If so required by City, Consultant shall assist City in the completion of all bid and construction documents, including but not limited to, the Notice Inviting Bids, Instructions to Bidders, Contract Bid Forms (including Alternate Bids as requested by City), `Contract, General Conditions, Supplementary General Conditions, Special Conditions, DVBE and other applicable affirmative action documents, Performance Bond, Payment Bond, Escrow Agreement for Security Deposits, and any other certifications and documents required by federal, state and local laws, rules and regulations which may be reasonably required in order to obtain bids responsive to the specifications and drawings. All such documents shall be subject to the approval of City and City’s legal counsel.
6.2 Final Estimate. At the time of delivery of these bid and construction documents, which shall include the Final Working Drawings and Specifications (collectively referred to herein as the “Construction Documents”), Consultant shall provide City with its final estimate of probable construction cost (“Consultant’s Final Estimate”). As discussed herein, including in Section 7.3, it shall be the Consultant’s duty to design the Project within budget.
7. BID PHASE.
During the bid phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
7.1 Reproducible Construction Documents. Once City provides Consultant with specific written approval of the Construction Documents and Consultant’s Final Estimate, Consultant shall provide to City one set of reproducible Construction Documents.
7.2 Distribution of Contract Documents and Review of Bids. Consultant shall assist City in distributing the Construction Documents to bidders and conducting the opening and review of bids for the Project.
7.3 Over Budget. If the apparent lowest responsive and responsible bid on the Project exceeds the Consultant’s Final Estimate by more than five percent (5%), City may request Consultant to amend, at Consultant’s sole cost and expense, the Final Drawings and Specifications in order to rebid the Project and receive a lowest responsive and responsible bid equal to or less than the Consultant’s Final Estimate. All revisions necessary to bring the lowest responsible and responsive bid within the Consultant’s Final Estimate, including any omissions, deferrals or alternates, shall be made in consultation with, and subject to the approval of, the City.
8. CONSTRUCTION
PHASE.
During the construction phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
306
BB&K (2023)
46700.00100\40935196.1
Exhibit A-7
8.1 Observation. The Project Consultant shall observe work executed from the Final Working Drawings and Specifications in person, provided that City may, in its discretion, consent to such observation by another competent representative of Consultant.
8.2 General Administration. Consultant shall provide general administration of the Construction Documents and the work performed by the contractors.
8.3 Pre-Construction Meeting. Consultant shall conduct one or more pre- construction meetings, as the City determines is needed for the Project, with all interested Parties.
8.4 Site Visits of Contractor’s Work. Consultant shall conduct site visits to observe each contractors’ work for general conformance with the Construction Documents and with any approved construction schedules or milestones. Such site visits shall be conducted as often as are necessary and appropriate to the stage of construction, according to the City’s sole discretion, but in no event less than weekly.
8.5 Site Visits of Inspector’s Work. Consultant shall conduct site visits to communicate and observe the activities of the City inspectors. Such site visits shall be conducted as often as is mutually acceptable to Consultant and City. Consultant shall direct the City inspectors and the Project contractors to coordinate the preparation of record drawings indicating dimensions and location of all “as-built” conditions, including but not limited to, underground utility lines.
8.6 Coordination of Subconsultants. Consultant shall cause all subconsultants hired by Consultant, to observe the work completed under their disciplines as required, and approve and review all test results for general conformance with the Construction Documents.
8.7 Reports. Consultant shall make regular reports as may be required by applicable federal, state or local laws, rules or regulations, as well as the federal, state, regional or local agencies concerned with the Project.
8.8 Construction Meetings; Minutes. Consultant shall attend all construction meetings and provide written reports/minutes to the City after each construction meeting in order to keep City informed of the progress of the work. Such meetings shall occur at a frequency necessary for the progress of the Project work, according to the City’s sole discretion, but no less than weekly.
8.9 Written Reports. Consultant shall make written reports to City as necessary to inform City of problems arising during construction, changes contemplated as a result of each such problems, and progress of the Project work.
8.10 Written Records. Consultant shall keep accurate written records of the progress and quality of the Project work and the time schedules, and shall advise the contractors and City of any deviations from the time schedule which could delay timely completion of the Project.
8.11 Material and Test Reports. Consultant shall check and process, in a timely manner, all required material and test reports for the Project work. In addition, Consultant shall provide notice of any deficiencies in material or work reflected in such r eports, as well as its recommendation for correction of such deficiencies, to the contractors and City. 307
BB&K (2023)
46700.00100\40935196.1
Exhibit A-8
8.12 Review and Response to Submissions. Consultant shall review and respond, in a timely manner, to all schedules, submittals, shop drawings, samples, information requests, change requests, and other submissions of the contractor and subcontractors for compliance with, or alterations and additions to, the Construction Documents. Consultant’s review and response shall be done in such a manner so as to ensure the timely and uninterrupted progress of the Project work.
8.13 Rejection of Work. Consultant shall promptly reject, as discussed with City, work or materials which do not conform to the Construction Documents. Consultant shall immediately notify the City and contractor(s) of such rejections. Consultant shall also have the authority to recommend to the City that additional inspection or testing of the work be performed, whether or not such work is fabricated, installed or completed.
8.14 Substitutions. Consultant shall consult with City, in a timely manner, with regard to substitution of materials, equipment and laboratory reports thereof, prior to the City’s final written approval of such substitutions. Consultant’s consultation shall be done in such a manner so as to ensure the timely and uninterrupted progress of the Project work.
8.15 Revised Documents and Drawings. Consultant shall prepare, at no additional expense to City, all documents and/or drawings made necessary by errors and omissions in the originally approved Construction Documents.
8.16 Change Requests and Material Changes. Consultant shall evaluate and advise City, in a timely manner and in writing, of any change requests and material change(s) which may be requested or necessary in the Project plans and specifications. Consultant shall provide the City with its opinion as to whether such change requests should be approved, denied or revised.
If the City has not hired a construction manager or other person to do so, the Consultant shall prepare and execute all change orders and submit them to the City for authoriz ation. If the City has designated a construction manager or other person to prepare all change orders, the Consultant shall review all change orders prepared by such person, execute them and deliver them to the City for authorization if they meet with the Consultant’s approval, or submit them to the City with recommendations for revision or denial if necessary. Consultant shall not order contractors to make any changes affecting the contract price without approval by City of such a written change order, pur suant to the terms of the Construction Documents. Consultant may order, on its own responsibility and pending City Council approval, changes necessary to meet construction emergencies, if written approval of City’s Representative is first secured.
8.17 Applications for Payment. Consultant shall examine, verify and approve contractor’s applications for payment, and shall issue certificates for payment in amounts approved by the City’s inspector.
8.18 Final Color and Product Selection. Consultant shall coordinate final color and product selection with City’s original design concept.
8.19 Substantial Completion. Consultant shall determine the date of substantial completion, in consultation with the City.
8.20 Punch List. After determining that the Project is substantially complete, Consultant shall participate in the inspection of the Project and shall review all remaining deficiencies and minor items needed to be corrected or completed on the Project, including those identified on the punch list prepared by the contractor (“Punch List Items”). Consultant shall notify 308
BB&K (2023)
46700.00100\40935196.1
Exhibit A-9
contractor in writing that all Punch List Items must be corrected prior to final acceptance of the Project and final payment. Consultant shall also notify City of all Punch List Items.
8.21 Warranties. Consultant shall review materials assembled by the contractor and subcontractors with regard to all written warranties, guarantees, owners’ manuals, instruction books, diagrams, record “as built” drawings, and any other materials required from the contractors and subcontractors pursuant to the Construction Documents. Consultant shall coordinate and provide these materials to the City.
8.22 Certificate of Completion. Consultant shall participate in any further inspections of the Project necessary to issue Consultant’s Certificate of Completion and final certificate for payment.
8.23 Documents for Project Close-Out. Consultant shall cause subconsultants hired by Consultant, to file any and all required documentation with the City or other governmental authorities necessary to close out the Project. Consultant shall assist the City in obtaining such documentation from all other architects, engineers, or other consultants.
9. AS-BUILT
DRAWINGS.
During the as-built drawings phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
9.1 As-Built Drawings and Specifications. Not later than thirty (30) days after substantial completion of the Project, before receipt of final payment, Consultant shall review and forward the Final Working Drawings and Specifications, indicating on them all changes made by change orders or otherwise pursuant to the Construction Documents, as well as all information called for on the specifi cations, thus producing an “as -built” set of Final Working Drawings and Specifications (“As-Built Drawings and Specifications”). The As-Built Drawings and Specifications shall show, among other things, the location of all concealed pipe, buried conduit runs and other similar elements within the completed Project. Consultant shall personally review and certify that the As-Built Drawings and Specifications are a correct representation of the information supplied to Consultant by any inspectors and the contractor, and shall obtain certifications from any inspectors and the contractor that the drawings are correct.
9.2 Approval. Once City provides Consultant with specific written approval of the As- Built Drawings and Specifications, Consultant shall forward to City the complete set of original As- Built Drawings and Specifications or a complete set of reproducible duplicate As -Built Drawings and Specifications. The tracing shall be of such quality that clear and legible prints may be made without appreciable and objectionable loss of detail.
9.3 Documents for Final Payment. Prior to the receipt of Consultant’s final payment, Consultant shall forward to City all of the following: (1) one clear and legible set of reproductions of the computations; (2) the original copy of the specifications; (3) the As -Built Drawings and Specifications as required herein; and (4) Consultant’s Certificate of Completion.
10. WARRANTY PERIOD.
During the warranty period phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
309
46700.00920\42359402.1
BBK: June 2024
10.1 Advice. Consultant shall provide advice to City on apparent deficiencies in the Project during any applicable warranty periods for the Project.
310
46700.00920\42359402.1
BBK: June 2024
EXHIBIT “B”
SCHEDULE OF SERVICES
[TO BE ESTABLISHED IN EACH TASK ORDER]
311
EXHIBIT “C”
COMPENSATION
1. HOURLY COMPENSATION RATES.
Managing Principal $375
Principal in Charge $290
Associate Principal $220
Associate $185
Field Specialist $210
Landscape Design Staff $140
2. REIMBURSABLE EXPENSES
THE FOLLOWING AT COST PLUS 10%:
• Copies of drawings
• In-house prints & plots
• Reprographic services
• Reports or documents furnished/prepared in connection with the contracted work • Parking
• Car rental (if needed for City tours)
• Shipping expenses other than first class mail
Private automobile travel billed at the IRS-allowable rate at the time of traveling
3. ADDITIONAL SERVICES.
Additional Services shall be computed at the actual hourly rates listed above.
4. ADDITIONAL CONSULTANTS.
If City requires Consultant to hire consultants to perform any Additional Services, Consultant shall be compensated therefore at the Consultant’s actual hourly rates plus not to exceed 20% in excess actually and reasonably incurred. Owner shall have the authority to review and approve the rates of any such consultants.
312
EXHIBIT ''D''
TASK ORDER FORM
SAMPLE TASK ORDER NO. ____
This Task Order No. ____ (“Task Order”) is entered into this ___ day of __________, 20___, by and between City of Ontario (“City”) and SWA Group, a California corporation (“Consultant”).
RECITALS
A. On or about _______________, 20___ the City and Consultant executed a [***INSERT NAME OF AGREEMENT***] (“Agreement”).
B. The Agreement provides that the parties would enter into a Task Order to make changes to or authorize certain work set forth in the Scope of Services (as defined in the Agreement). The purpose of this Task Order is to make changes to or authorize work on the terms and conditions set forth herein.
NOW, THEREFORE, the parties hereto hereby agree:
1. The Consultant is directed to perform the work listed on Exhibit “1” attached hereto and by this reference incorporated herein (“Task Order Work”).
2. The amount to be paid by the City to Consultant for the Task Order Work shall be in accordance with the unit prices listed in Exhibit “1.” In no event shall Consultant shall be paid an amount in excess of ______________ for work authorized pursuant to this Task Order.
3. Consultant shall complete the Task Order Work no later than ________ calendar days from issuance of this Task Order.
4. Consultant acknowledges that the compensation (time and cost) set forth herein comprises the total compensation due for the work defined in this Task Order. The signing of this Task Order acknowledges full mutual accord and satisfaction for the work and that the stated time and/or cost constitute the total equitable adjustment owed the Consultant as a result of the authorized work.
5. Except as amended or supplemented herein or in previous task orders, the terms and conditions of the Agreement shall remain in full force and effect. Notwithstanding the immediately preceding sentence, the Agreement shall be interpreted in a manner consistent with the intent of this Task Order.
[SIGNATURES ON FOLLOWING PAGE]
313
SIGNATURE PAGE FOR TASK ORDER NO. ___
IN WITNESS WHEREOF, the City and Consultant have caused this Task Order No. ____ to be executed as of the day and year first above written.
SWA Group CITY OF ONTARIO
By: By:
Name: Name:
Its: Its:
314
Department: Public Works
Prepared By: Vivian Quintana
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: 12
SUBJECT:
A MAINTENANCE SERVICES AGREEMENT WITH GUARANTEED JANITORIAL SERVICES, INC. FOR CUSTODIAL MAINTENANCE SERVICES AT VARIOUS CITYWIDE
LOCATIONS
CITY OF ONTARIO
Agenda Report
June 18, 2024
SECTION:
CONSENT CALENDAR
RECOMMENDATION:
That the City Council authorize the City Manager or his designee to execute a Maintenance Services Agreement with Guaranteed Janitorial Services, Inc., of Chino, California, to provide Custodial Maintenance Services for a total contract amount not-to-exceed $1,888,790 for up to five (5) years.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Operate in a Businesslike Manner
Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT:
The recommended contract award to Guaranteed Janitorial Services, Inc. is for $359,748 per year plus contingency of $17,987, for a total of $1,079,244 plus a contingency in an amount of $53,962 for a total contract amount of $1,133,206 over a three-year term. Two (2) one- year extensions may be exercised at the City’s sole discretion for an additional contract amount of $719,604 plus a contingency in an amount of $35,980 for a total contract amount not-to-exceed $1,888,790 over a five-year term. The Fiscal Year 2024-25 Adopted Budget includes appropriations in the Facility Maintenance Fund for Custodial Maintenance Services at various citywide locations.
BACKGROUND & ANALYSIS:
The City has historically deployed a balance of in-house custodial staff supplemented by outside contractor services. This staffing model ensures that regular service needs are covered by core City Staff while allowing for fluctuations in workload to be managed by contract service providers. This eliminates any cyclical hiring due to separation of employees that may otherwise occur. The scope of work provides for regularly scheduled custodial maintenance services at the following facilities:
315
Anthony Munoz Community Center
Dorothy A. Quesada Community Center
Armstrong Community Center
Ovitt Family Community Library
208 W. Emporia-Community Improvement
Ontario Senior Center
De Anza Community Center
Westwind Community Center
In addition, the contract includes a weekend day porter at the following facilities:
Anthony Munoz Community Center
Ontario Police Department - Main Building
City Hall Annex
Ontario Police Department - Mills Substation
Dorothy A. Quesada Community Center
Ontario Senior Center
C-Block Parking Structure
Westwind Community Center
Ovitt Family Community Library
In May 2024, the City solicited bids for Bid No. 1791 for Custodial Maintenance Services. Five (5) responses were received, four (4) responses met the bid criteria and pricing for all services and one (1) was deemed non-responsive. The bid results are summarized below:
Name
Location
Amount
Guaranteed Janitorial Services,
Inc.
Chino, CA
$359,748
JJ Property Maintenance
Network, Inc.
Pasadena, CA
$440,879
Merchants Building
Maintenance
Pomona, CA
$491,515
JoncoWest, LLC
Corona, CA
$563,997
BMS Staffing Services, Inc
Los Angeles, CA
Invalid
Guaranteed Janitorial Services, Inc., of Chino, California, submitted a bid that met all the required specifications with a total contract cost of $1,079,244, over a three-year term. Based on the proposal, credentials, pricing, and favorable reference checks, Staff recommends awarding the Maintenance Services Agreement to Guaranteed Janitorial Services, Inc. for Custodial Maintenance Services at various citywide locations.
316
- 1 - MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
CIT
Y OF ONTARIO
MAINTENANCE SERVICES AGREEMENT
1. PAR
TIES 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 Guaranteed Janitorial Services, Inc., a Corporation, with its principal place of business at 13039 Eleventh St, Chino CA 91710 ("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 Custodial Maintenance services to public clients, that it and its employees or subcontractors have all necessary licenses and permits to perform the Services in the State of California, and that is familiar with the plans of City.
2.2 Project.
City desires to engage Contractor to render such services for the Custodial Maintenance 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.
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. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than two (2) additional one - year terms. 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. 317
- 2 - MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
3.2 Compensation.
3.2.1 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “C” attached hereto and incorporated herein by reference. The total compensation shall not exceed One Million Seventy -Nine Thousand Two Hundred Forty- Four Dollars and Zero Cents ($1,079,244) without written approval of City’s 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 P ayment 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 D
eductions . 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 R
eimbursement for Expenses. Contractor shall not be reimbursed for any expenses unless authorized in writing by City.
3.2.5 E xtra Work . At any time during the term of this Agreement, City may request that Contractor perform Extra Work. As used herein, “Extra Work” means any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement.
Contractor shall not perform, nor be compensated for, Extra Work without written authorization from City’s Representative.
3.3 Responsibilities of Contractor.
3.3.1 Control and Payment of Subordinates; Independent Contractor . The Services shall be performed by Contractor or under its supervision. Contractor will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Contractor on an independent contractor basis and not as an employee.
Contractor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Contractor shall also not be employees of City and shall at all times be under Contractor’s exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
318
- 3 - MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
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 C
onformance to Applicable Requirements . All work prepared by Contractor shall be subject to the approval of City.
3.3.4 Cit y’s Representative. The City hereby designates Vivian Quintana, Facilities 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 C
ontractor’s Representative. Contractor hereby designates Martha E. Ortiz, Administrator 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 S tandard of Care; Performance of Employees. Contractor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Services. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Contractor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Contractor’s failure to comply with the standard of care provided for herein. Any employee of the Contractor or its sub-contractors who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Contractor and shall not be re-employed to perform any of the Services or to work on the Project. 319
- 4 - MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
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 Eight Hundred Twenty- One Dollars with Zero Cents ($821) per day for each and every calendar day of delay beyond the Performance Time or beyond any completion schedule or Project milestones established pursuant to this Agreement.
3.3.8.2 Neither City nor Contractor shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non- performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the Services, only to the extent such strikes and other organized labor action are beyond the control of Contractor and its subconsultants, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the Services and Agreement.
3.3.8.3 Should a Force Majeure Event occur, the non- performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events and/or delays, regardless of the Party responsible for the delay, shall not entitle Contractor to any additional compensation. Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
3.3.9 Disputes. Should any dispute arise respecting the true value of any work done, of any work omitted, or of any extra work which Contractor may be required to do, or respecting the size of any payment to Contractor during the performance of this Contract, Contractor shall continue to perform the Work while said dispute is decided by the City. If Contractor disputes the City’s decision, Contractor shall have such remedies as may be provided by law.
3.3.10 Laws and Regulations; Employee/Labor Certifications.
3.3.10.1 Compliance with Laws. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with Services. If the Contractor performs any work 320
- 6 - MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
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 sub- sections.
3.3.10.3 E
mployment 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 E mployment Eligibility; Failure to Comply . Each person executing this Agreement on behalf of Contractor verifies that they are a duly authorized officer of Contractor, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Contractor or its subcontractors, sub- subcontractors or consultants to meet any of the requirements provided for in Sections 3.3.10.1 or 3.3.10.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Contractor under Section 3.3.10.2); or (3) failure to immediately remove from the Project any person found not to be in compliance with such requirements.
3.3.10.5 E qual 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, 321
- 7 - MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
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 W
ater 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) Tr
aining. In addition to any other standard of care
requirements set forth in this Agreement, Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them without impacting water quality in violation of the laws, regulations and policies described in this Section. Contractor further warrants that it, its employees and subcontractors will receive adequate training, as determined by City, regarding the requirements of the laws, regulations and policies described in this Section as they may relate to the Services provided under this Agreement. Upon request, City will provide Contractor with a list of training programs that meet the requirements of this paragraph.
3.3.11 Insurance.
3.3.11.1 Time for Compliance. Contractor shall not commence Services under this Agreement until it has provided evidence satisfactory to the City that it has secured all 322
- 8 - MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
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) M
inimum 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) M inimum 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) N
otices; Cancellation or Reduction of Coverage . At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or materially reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be promptly reimbursed by Contractor or the City may withhold amounts sufficient to pay premium from Contractor payments. In the alternative, the City may suspend or terminate this Agreement. (D) A
dditional 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. 323
- 9 - MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
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) G eneral 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) A
utomobile 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 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. 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) W
orkers’ Compensation and Employer’s Liability Coverage.
The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents, and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Contractor. (D) A
ll 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 324
- 10 - MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
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 D
eductibles 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 S
ubcontractor 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 A
cceptability 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 V erification of Coverage. Contractor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
3.3.11.9 R
eporting 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 S
afety . 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 325
- 11 - MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
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 P
ayment 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 B ond 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 S
urety Qualifications . Only bonds executed by an admitted surety insurer, as defined in Code of Civil Procedure Section 995.120, shall be accepted. The surety must be a California- admitted surety with a current A.M. Best’s rating no less than A:VIII and satisfactory to the City. If a California-admitted surety insurer issuing bonds does not meet these requirements, the insurer will be considered qualified if it is in conformance with Section 995.660 of the California Code of Civil Procedure, and proof of such is provided to the City.
3.3.14 W ork Site.
326
- 12 - MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
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 Fi eld 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 Los
s 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 W
arranty . Contractor warrants all Services under the Contract (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year (or the period of time specified elsewhere in the Contract or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by the City of any defect in the Services or non- conformance of the Services to the Contract, commence and prosecute with due diligence all Services necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act sooner as requested by the City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the work (or work of other contractors) damaged by its defective Services or which becomes damaged in the course of repairing or replacing defective work. For any work so corrected, Contractor’s obligation hereunder to correct defective work shall be reinstated for an additional one year period, commencing with the date of acceptance of such corrected work. Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of the Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any portion of the work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the City, regardless of whether or not such warranties and guarantees have been transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Contract, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non -conforming work and any work damaged by such work or the replacement or correction thereof at Contractor's sole expense. Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand. 327
- 13 - MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
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 R egistration/DIR Compliance. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor’s performance of Services, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor.
3.4.4 Labor
Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
328
- 14 - MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
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 A
dditional 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 A
dditional Indemnity Obligations. Contractor shall defend, with counsel of City’s choosing and at Contractor’s own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against City or its officials, employees, agents and volunteers. In addition, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Contractor shall also reimburse City for the cost of any settlement paid by City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for City’s attorney’s fees and costs, including expert witness fees. Contractor shall reimburse City and its officials, employees, agents and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor’s obligation to indemnify shall survive expiration or termination of this Agreement, and shall not be 329
- 15 - MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
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 I ndependent 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 P
rior 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 De livery 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:
Guaranteed Janitorial Service, Inc.
13039 Eleventh St
Chino, CA 91710
Attn: Martha E Ortiz, Administrator
City: City of Ontario
303 East “B” Street
Ontario, CA 91764
Attn: Vivian Quintana, Facilities Maintenance Manager
330
- 16 - MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
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 A ttorneys’ 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 Ti me of Essence . Time is of the essence for each and every provision of this Agreement.
3.7.7 C ity’s Right to Employ Other Contractors . City reserves right to employ other contractors in connection with this Project.
3.7.8 S uccessors and Assigns . This Agreement shall be binding on the successors and assigns of the parties.
3.7.9 A ssignment 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 C onstruction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Contractor include all personnel, employees, agents, and subcontractors of Contractor, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement.
3.7.11 A
mendment; Modification. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 331
- 17 - MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
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 N o 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 I nvalidity; 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 P rohibited 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 C
ooperation; 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 A uthority 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 C
ounterparts . This Agreement may be signed in counterparts, each of which shall constitute an original.
3.7.19 E ntire Agreement . This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties.
SIGNATURES NEXT PAGE
332
- 18 - MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
SIGNATURE PAGE FOR MAINTENANCE SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO
AND GUARANTEED JANITORIAL SERVICES, INC.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
CITY OF ONTARIO GUARANTEED JANITORIAL 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
333
Ex. A- 1 (BB&K 2020)
46700.00100\33865500.l
EXHIBIT "A"
PROPOSED SCOPE OF SERVICES
CITY OF ONTARIO
SPECIFICATIONS FOR CUSTODIAL MAINTENANCE
SERVICES
I. COMPENSATION, FEES, PAYMENTS, REIMBURSEMENT AND EXTRA WORK A. Fees and Payments
1. Compensation, Payment of Compensation, Reimbursement of Expanses and Extra Work are described in the Maintenance Service Agreement (MSA) Section 3.3.
2. Invoices shall be sent to:
City of Ontario - Public Works Agency
Attention: Municipal Services
1425 S. Bon View Ave.
Ontario, CA 91761-4406
The invoice shall include the contract number, City purchase order number, period of service, and price. Price shall be at the stated cost in the MSA.
II. RESPONSIBILITIES
A. Bidder Responsibilities
1. The contractor shall provide all management, supervision, labor, equipment, supplies and paper products necessary to accomplish custodial and floor care services at City facilities as defined in the Maintenance Service Agreement and this document.
2. Square footage of each facility is provided for reference purposes only.
Potential bidders should verify square footage and other facility characteristics by personal on -site inspection. Square footage is not the primary indicator of required service levels; bidders should read the specific facility requirements.
3. By submitting the Bidder acknowledges it has performed inspections of each work site and has evaluated the extent to which the physical condition thereof will affect the contract services to be provided. Bidder, if awarded the contract, accepts the premises in their present physical condition and agrees to make no demands upon the City for any improvements or alterations thereof.
4. Site examinations are permitted as explained in the RFP Section II, Letter H.
5. Bid Bond is explained in the RFP.
B. City Responsibilities
1. The City of Ontario will provide all potential bidders with the following:
334
Ex. A- 2 (BB&K 2020)
46700.00100\33865500.l
Ill.
• A mandatory meeting with City representatives with site visits to several locations
• Will provide access to other facilities upon request and by appointment so bidders can perform more detailed inspections for bid purposes. During such inspections, bidder representatives may discuss facility characteristics with on-site City staff, but only the designated contract administrator can make decisions regarding the service levels specified in this bid.
• Contract administration and contact information
• To communicate changes, modifications, or updates to all potential bidders during the bidding process and review period.
PERFORMANCE REQUIREMENTS
A. These performance standards are the City's expectations of cleanliness, but are not meant to replace or supersede the latest industry standards or materials and equipment manufacturers' recommendations.
B. Each of the Contractor's Employee's shall be equipped with the necessary equipment to carry out the proper performance of the cleaning as specified. This equipment shall be available and/or in possession of the Contractor's Employee's at all times while carrying out their duties.
C. Performance Standards:
Service Level (Acceptable Quality): The level of services as outlined in these Specifications shall consistently be maintained.
1. Blinds: Blinds shall be cleaned using tools or equipment designed for cleaning these types of furnishings.
Standard: Blinds shall be free of dust and give an overall clean appearance.
2. Metal/Stainless Steel Surfaces: Cleaning metal surfaces requires the removal of mineral deposited, surface spots, fingerprints, smudges, etc., with the appropriate cleaner/polish.
Standard: Surfaces will present a clean uniform shining appearance free of all mineral deposits, soil, marks, smudges, streaks.
3. Damp Mopping: Damp mopping requires the use of a flat microfiber wet mop system (preferred method) or string type mop (24 oz.) that have been mechanically wrung/squeezed to remove excess solution for purposes of removing light soil, dirt, liquid or other foreign material from a floor that does not require the complete mopping of the area or when the area is not soiled sufficiently to require wet mopping. Standard: A damp mopped floor shall be free of all dirt, debris soil, liquids or other foreign material; with no streak marks. All splash marks/spots on walls and furniture/fixtures shall be removed before completion of the damp mopping task. All items moved to accomplish this task shall be returned to their original positions.
4. Disinfecting: Disinfecting is the application of a germicidal solution to surfaces to kill or neutralize 99.9% of the material containing or supporting the growth of bacterial/viral organisms. Surfaces should remain "wet" for a minimum of 10 minutes or per manufacturer's recommendation.
335
Ex. A- 3 (BB&K 2020)
46700.00100\33865500.l
Standard: Surfaces shall be as free of material containing living bacteria, viruses, or other contaminations that are capable of causing infections.
5. Dispenser Cleaning and Service: Dispenser cleaning/service requires damp wiping dispensers with a disinfectant, checking/refilling of all towel, toilet tissue, seat covers, soap, or any other dispensers which may be identified by the Contract Administrator.
Standard: Dispensers will be disinfected, present a clean uniform shining appearance free of all soil, marks, smudges, streaks and will have an adequate supply of the applicable dispensed products.
6. Dusting: Normal or low dusting includes all levels up to eight (8) feet or the height of common/office spaces. All high dusting will be above eight (8) feet high.
Standard: Items shall be free of any laden airborne materials, streaks, smudges, and cobwebs. Laden airborne matter shall be removed by either mechanical, chemical, or manual means. Devices, which merely displace or redistribute the matter, such as feather dusters, will not be used, unless treated to attract and hold the matter. All items moved to accomplish this task shall be returned to their original position.
7. Entrance Glass: Cleaning of glass is cleaning the inside and outside glass surfaces and the surrounding boundary of the applicable entrance area.
Standard: Glass shall be free of streaks, smudges, fingerprints, etc. Surfaces surrounding the entrance shall be free of dirt, dust, fingerprints, and have a clean appearance.
8. Entrance Mats: Carpet mats shall be vacuumed with a commercial vacuum before spot cleaning. Entrance mats made of rubber or polyester shall be swept, shaken, vacuumed or washed. Entrance mats shall be lifted, moved to remove soil and moisture underneath, and replaced.
Standard: There shall be no dirt left on surfaces.
9. Fixtures: Cleaning of restroom & kitchen fixtures and fountains require the removal of dust, dirt, debris, spots, stains, and smears from sinks, slop sinks, toilets, urinals, and fountains with a germicidal solution.
Standard: Fixtures will be disinfected and there shall be no dust, dirt, spots or debris on the fixtures.
10. Furniture: Cleaning of furniture and tables requires dusting and/or damp wiping.
Standard: Surfaces are to be free of dirt, dust, debris, marks, and film.
11. Upholstered Furniture Deep Cleaning: Cleaning requires the removal of odors, dirt, soil, debris, liquid stains, or other foreign materials from Upholstered Furniture using the best cleaning method available with a cleaning solution which will not discolor or damage the fabric.
Standard: Upholstered Furniture cleaning shall remove completely any odor, dirt, soil, debris, liquid stains, or other foreign materials from fabric areas and return the finish of the fabric to clean condition.
12. Glass Windows and Mirrors: Glass window and mirror cleaning requires the removal of dirt, soil, smudges, fingerprints, and other foreign material. This includes glass on doors, partitions, or any other items, which may consist in whole or part of glass, or similar material including mirrors.
336
Ex. A- 4 (BB&K 2020)
46700.00100\33865500.l
Standard: Glass surfaces shall be free of all dirt, soil, smudges, streaks, smears, film, or any other foreign substances. All excess spray/solution must be removed from any surrounding trim or surfaces and glass/window surfaces shall have a uniformly bright appearance. Any items moved to accomplish this task must be returned to their original positions.
13. Policing: Policing is picking up paper, trash, empty bottles, containers, and other discarded materials; spillages, accidents, plumbing failures, and inclement weather. Standard: Area(s) being policed shall be free of debris. Area(s) shall present an overall clean appearance.
14. High Speed Buffing/Polishing: Buffing/Polishing requires the use of a high- speed; 1500 RPM of higher floor machine and a clean pad designed for polishing or buffing. Standard: The floor should have a "non-yellowed" high-gloss appearance.
15. Receptacle Cleaning: Cleaning and disinfecting receptacles is defined as wiping or washing containers with a germicidal solution and replacing plastic liners.
Standard: Receptacles shall be considered properly cleaned when both the inside and outside are clean, free of stains, dried refuse and odors, and a plastic liner replaced, if necessary.
16. Refrigerators: Requires cleaning outside surfaces, especially the handles with a germicidal detergent solution.
Standard: Outside surfaces shall present an overall clean appearance.
17. Restrooms: Cleaning of restrooms requires the removal of trash, cleaning of floors, fixtures, urinals, toilets, receptacles, faucets, handles, dispensers, walls, partition stalls, and doors with a germicidal solution. All glass, chrome, and stainless-steel surfaces shall be cleaned and buffed to a shine. Some restrooms are equipped with waterless urinals; they are to be cleaned with manufacturer- recommended products and cartridges serviced or replace on a regular basis.
Standard: Restrooms shall be considered properly cleaned when floors are mopped and fixtures, urinals, toilets, waste receptacles, wash basins, faucets, handles, dispensers, partition stalls, and doors are cleaned with a germicidal solution. All glass, chrome, and stainless-steel surfaces shall be cleaned and buffed to a shine, waste receptacles emptied, and dispensers refilled.
18. Scrubbing: Machine scrubbing requires the use of mechanized scrubbing/ vacuum machines to be more aggressive than wet mopping; this may include large areas such as multi-purpose rooms, hallways, lobbies, garages, ramps, or similar large areas which would otherwise require extensive labor to complete in a reasonable time period. Standard: Machine scrubbing shall be held to the same quality standard as wet mopping and shall remove all scuff marks.
19. Shower Curtain/Doors: Cleaning of curtains/doors requires washing curtains with an approved cleaner that will eliminate fungus and green mold.
Standard: Washed with a germicidal solution with no mold and/or odor remaining.
20. Shower Stalls: Cleaning of shower stalls is defined as the removal of soap scum, mold, stains, and odors from surfaces (including grout) and cleaning the entire enclosure with a germicidal solution or steam cleaning. 337
Ex. A- 5 (BB&K 2020)
46700.00100\33865500.l
Standard: Walls, ceiling, enclosures, grout, and fixtures are cleaned with a germicidal solution and metal surfaces are buffed to shine. There shall be no mold and/or odor remaining.
21. Smoking Area: City of Ontario facilities are designated as smoke -free facilities. Ash butt containers outside any buildings shall be cleaned by Contractor's employees once per week as well as the designated area where smoking is allowed to be free from cigarette butts and debris.
Standard: Smoking area is to be policed and free of cigarette butts and debris.
22. Spot Cleaning of Upholstered Furniture and Carpets: Spot shall be any soiled area Spot cleaning requires the removal of dirt, soil, debris, liquids, stains, or other foreign materials from carpeted areas which can be accomplished by cleaning only the immediately affected area where cleaning the whole area would not be necessary. Spot cleaning may be accomplished by any of the methods contained herein and as dictated by the circumstances of the soiling. Carpet spots shall be removed immediately with an approved carpet cleaning solution in such a manner, which will not leave rings or discoloration.
Standard: Spot cleaning shall remove completely any evidence of the soiling which necessitated the cleaning, and return the finish of the area affected to its pre- soiled condition without evidence of occurrence or cleaning.
23. Carpet Cleaning: Cleaning requires the removal of dirt, soil, debris, liquids, stains, or other foreign materials from carpeted areas which can be accomplished by cleaning only. Carpet cleaning shall be to manufactures recommendations or if not available by an industry standard method. Carpet cleaning shall be completed with an approved carpet cleaning solution in such a manner, which will not leave rings or discoloration. Standard: Carpet cleaning shall remove completely any dirt, soil, debris, liquids, stains, or other foreign materials from carpeted areas and return the finish of the area to clean condition.
24. Sweeping or Dust Mopping: Sweeping/dust mopping requires the removal of loose dirt, dust, debris, and other foreign material through either manual or mechanized methods, as appropriate for the location and situation. For gym floors use a properly treatment microfiber dust mop
Standard: A swept/dust mopped area shall be free of all loose dirt, grit, lint, dust, debris, or other foreign material with no build up in corners, crevices, under or around furniture parts. All items moved to remove dirt shall be returned to their original location.
25. Trash/Waste Removal: Trash/waste removal requires the collection of all materials, which have been placed into appropriate containers, and taken to a specified site for disposal.
Standard: All trash/waste and soiled liners shall be removed from all trash/waste containers, and a new trash/waste liner shall be fitted into all such containers.
26. Recycle Removal: Recycle removal requires the collection of all materials, which have been placed into appropriate containers, and taken to a specified site for discarding.
Standard: All recycled material shall be removed from all recycled containers, and a new liner shall be fitted into such containers as necessary. 338
Ex. A- 6 (BB&K 2020)
46700.00100\33865500.l
27. Vacuuming: Vacuuming requires the mechanical removal of loose dust, dirt, soil, debris, and other foreign material from carpeted floors and other items (e.g. couches, chairs, walls, curtains/drapes), which require this method of cleaning.
Standard: There shall be no evidence of any dust or dirt or any other loose foreign material. Materials shall be left in a lint free state. All items moved during this process shall be returned to their original positions.
28. Wet Mopping: Wet mopping requires the removal of built-up dirt, soil, liquids, or other foreign materials from a floor using a flat microfiber wet mop system (preferred method) or a clean string type mop (24 oz.) and mechanically wrung out so as to have sufficient neutral detergent and water solution or disinfecting detergent and water solution. This shall include rinsing if required or as recommended by the detergent manufacturer.
Standard: A wet mopped floor shall be free of all dirt, debris, soil, liquids, or other foreign material. It will present a uniform appearance free of streaks, smudges, heel marks, or any other marks, which can be reasonably removed through this cleaning method. All splash marks/spots on walls and furniture/fixtures shall be removed before completion of the wet mopping task. All items moved to accomplish this task shall be returned to their original positions.
D. The performance standards are to be applied to all cleaning tasks listed in the specifications. If a specific task is not mentioned in the performance standards, the contractor will still be expected to perform the task to a level consistent with the industry standards. Sub-standard performance may be cause to enforce the deficiency correction clause; Section VI.
E. Deficiencies such as broken glass, doors, dispensers, lights etc. noticed during the course of normal work are to report to the City Custodial Supervisor or his designee by phone at (909) 395- 2454 or email at [email protected]; include a full
description and location of the deficiency and pictures if emailing. A list of alternate contacts will be provided when agreement is awarded.
F. Within the performance specifications, where a specific service is designated to be performed at a pre- determined interval (e.g. "every six months"), and is accompanied by the phrase "or as needed", that phrase shall mean the service is to be performed at least as often as specified, but may be performed more often at the direction of the City. Such supplemental effort is subject to additional reasonable compensation and shall be mutually agreed to prior to initiating the work.
G. A copy of the performance specifications for each facility will be kept in the janitorial closet at each building. Cleaning crews will check off each task as it is completed. Electronic copies of the specifications will be provided to the successful bidder, who will make copies at its own expense for this purpose. A copy of the completed checklists will be provided to the City.
H. All cleaning equipment shall be of the type necessary to properly perform the work, and shall be maintained in proper operating condition. Contractor shall have a sufficient inventory of equipment and supplies so as to avoid any interruption or delay in service due to breakdowns or shortages. Before making a bid award, the City reserves the right to request a list of equipment and supplies that would typically be used to complete the work as specified.
339
Ex. A- 7 (BB&K 2020)
46700.00100\33865500.l
IV. SCOPE OF WORK
The items in this section will be required in all City facilities except where noted that additional work at specific locations are needed. All tasks are to be completed to the standards list above in Section I or to the latest industry standards.
A. DAILY SERVICE:
Common Areas to include but not limited to all office space, hallways, stairways, lobby areas, exit stairwells, patio areas, employee lounges, workout/fitness rooms, elevators, meeting and conference rooms.
• Sweep all hard-surfaced floors with treated dust mop
• Damp mop all hard-surfaced floors
• Vacuum carpet areas
• Remove spillage spots and gum from carpets
• Empty all waste containers, recyclable containers, and place in pick-up areas • Dust and wipe clean desks, chairs, counters and all office furniture • Spot clean walls, doors and door hardware
• Clean all entry glass, doors, and metal thresholds
• Clean all glass on interior doors and including metal thresholds • Clean all security glass/plexiglass including metal thresholds • Clean and polish drinking fountains
• Return furniture to a neat and orderly position
• Replace wastebaskets liners as necessary
• Remove all black marks from gym floors, dust mop and damp mop floor • Sweep or vacuum stairs, clean hand rails, and wet mop hard-surfaced stairs • Clean elevators
• Clean and disinfect fitness equipment
• Sweep and pick-up outside trash and empty trash containers at entrance approaches
Restrooms, Showers and Locker Rooms
• Remove trash and empty sanitary napkin dispensers, replace liners • Replenish soap, towel, tissue, and seat cover dispensers • Clean and disinfect sinks, toilet bowls, urinals, control valves, showers, partitions, counter tops, shelves, dispensers, and floors • Clean and polish chrome and stainless steel
• Remove soap scum from showers, shower curtains
• Clean mirrors
Kitchens and Employee Lunchrooms
• Clean and disinfect all table tops and counter tops
• Clean chairs, metal surfaces, sinks and dispensers
• Replenish all soap(s) and paper towel dispensers
• Empty trash and recycle containers replacing liners on appropriate receptacles • Clean stove tops, hoods, refrigerator doors, kitchen appliances, cupboard doors, and microwave ovens
• Clean under all raised kitchen appliances
Gymnasiums and Multi-Purpose Room Floors
340
Ex. A- 8 (BB&K 2020)
46700.00 I 00\33865500.1
• Use a properly treatment microfiber dust mop
5. Outside Trash and Recycle Bins/Enclosures
• Clean up trash from ground in and around these areas
6. WEEKLY SERVICES
1. Common Areas
• Dust/wipe baseboards, ledges, and windowsills
• High speed buff all waxed hard surface floors
• Light scrub of all vinyl non-waxed hard surface floors • Dust picture frames, shelves, bookcases, file cabinets, and window blinds • Perform high dusting of high reach areas including partition tops, door tops, clocks, vents and air return grills and diffusers
• Remove spider webs
• Wipe clean vinyl/leather chairs and couches
• Vacuum upholstered furniture
• Clean and disinfect trash/recycle containers
• Dust ledges, and windowsills in the Atrium Areas at PD • Clean Windows in the Atrium Areas at PD
2. Restrooms, Showers and Locker Rooms
• Wash and scrub down walls, partitions and floors
• Dust and Wipe down ceilings
• Pour clean water down all floor drains to prevent sewer gases • Dust and wipe clean lockers (including the top)
3. Gymnasiums and Multi-Purpose Rooms
• Maintain all wooden floors per manufacture/refinishing company's recommend treatment or an agreed upon method (Bi-Weekly)
• Facilities with gym floors used for basketball and other games; the refinishing company recommends using a weighted bar with a treated towel that is dragged across the floor (Quick-Pass by Hillyard). The cleaning crew will use the Quick Pass nightly and spot mop floor as needed.
• Vinyl floor care - Scrubber should be used with the chemicals recommend by the manufacturer.
4. CUSTODIAL CLOSETS/STORAGE AREAS
1. The contractor shall keep all tools, equipment, and supplies left on the job site in the janitor's storage closets or assigned storage area and not in any other parts of the buildings. These areas shall be kept in a neat and orderly manner at all times and shall be part of the regular inspection.
341
Ex. A- 9 (BB&K 2020)
46700.00100\33865500.l
2. Any and all flammable liquids shall be kept off premises. Rags and other flammable solids shall be kept in State Fire Marshall approved containers. All containers shall be labeled as to contents. If any toxic materials must be stored, they shall be labeled with name and proper antidotes. All buckets, wringers, mop sinks, and other tools and equipment shall be kept clean and free of objectionable odors. The floor/wall sinks, whether porcelain or stainless steel are to be kept clean and polished at all times.
Some custodial closets/storage areas may contain water heaters and/or electrical panels. All materials MUST be stored at least 36" away from these water heaters or panels.
V. INSPECTION
A. One of our Agencies Departmental Key Performance Indicators is the inspections of our Facilities as so all inspection will be scored using a City rating system.
B. During the contract period the Custodial Services Supervisor or his assigned designee will conduct bi- weekly inspections along with the Contractors' Supervisor of the facilities; further random inspections will be conducted by the Custodial Supervisor.
C. Inspections are based on the differing criteria for each site. Total there are 39 qualifying factors; not all sites have all factors. Example; most sites do not have a gym floors, elevators (etc.) to be evaluated. Each sites scoring is based only on the factors of that site.
D. Scoring; Evaluation of completed work is based on the Performance Standards and the Scope of Work listed above. The scoring will be detailed with the awarded firm.
E. Any deficiencies will be handled as described below.
VI. DEFICIENCY CORRECTION/NON- PERFORMANCE
A. In the event the work specified in this contract is either not performed or found to be unsatisfactory, the contractor will be given four (4) hours from time of notification to remedy the deficient work.
B. If the contractor fails to correct the deficient work within the four (4) hour time period, the City reserves the right to have the work performed by an alternate source at contractor expense.
C. If the contractor fails to correct the deficient work within the four (4) hour time period and the City opts not to have the work performed by another source, the City will deduct the value of the work from the monthly invoice.
D. In cases where the City deducts the value of the work from the monthly invoice, the amount deducted shall be one (1) percent of the base monthly cost, per occurrence per day, until the contractor corrects the deficiency.
E. Non-adherence to any of the specifications and regulations made clear in this contract, including the items below, will be considered deficient work and subject to penalties identified in the Maintenance Services Agreement.
1. Non-compliance to any City specified and/or Contractor supplied job schedules, without proper notification of disruption in schedule; 342
46700.00100\33865500.l
2. Non-responsiveness to requests for such items as, time sheets, inspection reports, management system access;
3. Failure to show completed/scheduled tasks within three days of scheduled completion date through any means; paper or electronic.
F. Non-compliance to Performance Standards per Section 111, Letter C, Numbers 1 to 29 at repeated locations.
G. The City may employ other methods to determine deficient work as stated above in letter A. These methods are not limited to communication with City employees or the Public, the use of video monitoring security cameras, unannounced inspections during cleaning shifts, and other such means as the City deems necessary.
H. Repeated instances of non-performance by the contractor will be grounds for termination of the contract by the City per Maintenance Services Agreement section 3.4.
VII. RECYCLABLES
A. Contractor shall comply with State Recycling Mandates in the placement of collected recyclable material in the appropriate containers.
Contractor shall place, maintain, and empty recyclable materials from the specified containers from all City government offices and buildings on a daily basis or on the same schedule of refuse removal. All recyclable materials collected by the contractor must be placed into the correct receptacle for appropriate handling. This material shall not be mixed with refuse or other material that would cause contamination of such material. The material for collection includes but is not limited to commingled recycling of paper, aluminum, glass, and plastic.
B. Fluorescent tubes, and batteries are not to be placed in with the recycled materials or trash containers, these items are to be collected and/or stored for proper disposal; contact the Custodial Maintenance Supervisor.
C. Contractor shall notify City staff of any issues regarding this program in order to maintain the integrity.
VIII. BACKGROUND/SECURITY CHECKS
A. All contractor personnel engaged in the performance of the work as part of the work in the CMA shall be employees of the contractor and as such shall be warranted to possess sufficient experience and have security clearance to perform this work.
B. Security Clearances shall be as follows:
1. All contractor personnel working in any City facility (excluding the Police sites) are required to have passed a basic "Livescan" background check. This check may take up to two weeks to be completed. A list of employees scheduled to work as part of this agreement with the Livescan results are to be provided 2 weeks prior to the agreement start date for City approval. Contractor will have a sufficient number of employees who have passed the Livescan process to ensure coverage in cases of vacations, sickness, or employee terminations.
Ex. A- 10 (BB&K 2020)
343
46700.00100\33865500.l
C. Police Department Facilities Security Requirements. All contractor personnel working in an Ontario Police facility will be required to undergo a City Police background check. The Police Department will supply the contractor with all necessary documents and schedule interviews upon Notification of Intent to Award. Contractor's staff with this clearance shall be one (1) supervisor and the number of employees required to maintain the facilities plus two (2) additional employees to ensure coverage in cases of vacation, sickness, employee termination or additional work.
1. The background check will consist of the following:
a. A brief personal history statement which includes at least three references, last employer, relatives etc.
b. Fingerprints
c. A neighborhood canvass (investigator talking to their neighbors) d. A pre-polygraph questionnaire, may be subject to a polygraph examination on a case-by-case basis
e. Criminal History
2. The contractor shall submit a new cleared employee list when personnel is added or deleted and as requested by the City.
3. The contractor further agrees to remove from the City's premises any employee who, in the opinion of the City, does not meet minimum security requirements.
IX. BUILDING SECURITY/KEYS
A. The contractor shall not admit anyone into a building who is not a direct employee of the contractor and not actively engaged in the performance of the work. This prohibition includes custodians' children or other relatives. At no time shall the contractor or its employees enter areas of a facility not specifically included in this contract for custodial services.
B. Some facilities are protected by limited access security systems. The contractor will schedule all work in these facilities to be done after City staff opens the facilities.
C. The City will issue keys/security cards as necessary for access to work areas. The contractor shall assume full responsibility for any theft or loss of these items and shall pay for the replacement and/or re-keying all locks operated by these keys. Keys shall not be duplicated. Keys shall not be loaned to unauthorized personnel.
D. Keys for all custodial work in the Police Station will be checked out from the Watch Commander.
E. Certain facilities have alarm and lighting controls with which contractor's personnel will need to become familiar. Contractor agrees to make its employees available for training on such systems during the City's normal business hours. Ex. A- 11 (BB&K 2020)
344
46700.00100\33865500.l
X. EMPLOYMENT STANDARDS - EMPLOYEES
A. Staff: The contractor agrees the custodial services covered by this contract shall be performed by employees who have been hired in conformity with the contractor's personnel selection policies, and trained to perform to accepted janitorial standards, practices, and these specifications. The contractor agrees to provide the City with a steady, dependable work force while keeping employee turnover to a minimum. Contractor is to submit their personnel hiring polices as part the submittal.
B. Conduct: No person shall be employed for this work who is found to be incompetent, disorderly, troublesome, under the influence of alcohol or drugs, who fails or refuses to perform the specified work properly or acceptably, or is otherwise objectionable, has been found have said or used inappropriate language or actions as determined by the City of Ontario. Anyone found to be objectionable will be prohibited from working in City facilities immediately.
The contractor shall not allow any employee under the influence of alcohol or drugs on the premises or in any buildings. The contractor shall not allow the use or presence of alcohol or drugs on the premises or in any buildings.
Smoking is prohibited in all City facilities at all times.
C. Training: The contractor shall have an ongoing training program for its entire staff. The contractor shall provide only personnel that have been fully trained for the performance of this work. Supervisors shall have been trained in supervision as well as technical training in janitorial services. The City may ask for copies of training materials and verification of employee training.
D. Identification:
1. Company and personal recognition requirement:
• All personnel shall wear uniforms, furnished by the contractor with their names or their ID badge with their name visible at all times when performing work as part of this agreement.
• Staff assigned to PD sites must be in uniform with their City issued ID visible at all times when performing work as part of this agreement. • The contractor and/or supervisory personnel may wear badges in lieu of uniforms. Badges must be visible at all times.
Ex. A- 12 (BB&K 2020)
345
46700.00100\33865500.l
XI. SUPERVISION AND COMMUNICATION
The contractor shall provide to the City, upon execution of this agreement, the names and contact information of the contractor's supervisory personnel responsible for execution of work in this agreement. A designated supervisor shall be on site and available at the times when the majority of the contractor's crews are working in the City to respond personally to requests for information or instructions concerning the execution of the work. If for any reason the supervisor must leave the job site during the execution of the work, a foreman/lead person shall be designated and able to make decisions on behalf of the supervisor. The supervisor and the foreman/lead person shall be able to communicate in both written and verbal English. Under no circumstances will the designated on-site supervisor be considered a "working supervisor" who is assigned routine cleaning duties. The supervisor's primary duty will be to inspect the cleaning statrs work and ensure any deficiencies are corrected in a timely manner. The supervisor may provide limited cleaning services to correct a deficiency or on an emergency basis, (for example, if a regular custodian must leave work due to illness, and a timely replacement cannot be found).
During times when the designated supervisor is not on-site, the contractor will ensure a supervisor is available to respond to calls within two hours. The designated supervisor and
the City must be able to effectively
communicate with all employee or teams performing services under this contract; preferably through a company supplied cell phone. This allows communication with their base of operation, City staff and emergency services.
XII. SAFETY/ENVIRONMENTAL
A. All material, parts, equipment, and chemicals used or furnished pursuant to the specifications of this contract shall be in compliance with the laws and regulations of OSHA, the State of California and the City of Ontario.
B. The contractor shall provide to the City the Safety Data Sheet (SDS) for all the chemicals that will be used in the performance of their work prior to the start of this agreement. A binder with the SDS for all chemicals per location will be located in all area they are stored. The contractor is responsible for updating the information in the binders as City approved items are added or deleted. At no time shall a chemical be used or stored at a City facility that has not been approved.
C. The contractor agrees to take all reasonable steps and precautions to prevent accidents and preserve the life and health of their own staff, the public or any property damage during the performance and execution of the work in this contract.
D. Where applicable, contractor will comply with all federal, state, regional, and local environmental regulations in force during the period of this contract, (e.g. NPDES compliance for washing down facility exteriors). This includes requirements to maintain a LEED
(Leadership in Energy and Environmental Design) building.
Ex. A- 13 (BB&K 2020)
346
Ex. A- 14 (BB&K 2020)
46700.00100\33865500.l
E. Any violation of these rules and requirements, unless promptly corrected as directed by the City, shall be grounds for termination of this contract.
F. Contractor shall use a minimum of 75 percent "Green Seal" certified cleaning products and paper products with similar certifications.
XIII. HOURS OF WORK
A. The contractor and any subcontractor shall comply with and be governed by the laws of the State of California having to do with all laborers, workers, or custodians employed in the execution of this contract.
B. The work shall generally be performed between the hours of 6:00 p.m. to 3:00 a.m., Monday through Saturday at most facilities. Some weekend, after hours, or evening work may be required to accomplish tasks such as carpet cleaning, hard floor maintenance and window cleaning.
C. The City reserves the right to inspect or audit the contractor's time cards and other documentation to verify the number of hours worked at City facilities. Such inspection may take place during contractor's normal business office hours without prior notification from the City.
D. For emergency and after-hours needs, the contractor will respond with an appropriate crew within four hours of being notified. The contractor will provide a 24-hour toll-free telephone number for after-hours contact purposes.
E. The successful bidder will be required to submit its crew schedule for the City's approval before commencing work. The schedule will include the days and hours when the crews will be in each building and the number of custodians per crew. It should be noted that where service times are specified in these contract documents, they must be followed due to facility programming needs. If there are scheduled extended hours events at any facility that conflict with custodial crews the City will notify the contractor primary contact(s) by email.
XIV. ADDITIONAL WORK AND DAY PORTER
A. There may be requirements for additional or day porter services above and beyond the routine daily service levels. Multiple porters may be required to complete these services. Although it is not anticipated this will be requested very often, an hourly rate for additional/day porter services is to be quoted as a line item and on Bid Forms 1 B, 28, 38.
B. Weekend Day Porter Services will require staff with PD security clearance. It is anticipated to be a six (6) hour shift on Saturday and a four (4) hour shift on Sunday with the responsibilities to included but not limited to the tasks listed below.
1. A specific schedule will be prepared by the Custodial Services Supervisor for regular and event generated tasks. The daily schedule will be supplied and is to be completed and returned to the Custodial Services Supervisor.
347
Ex. A- 15 (BB&K 2020)
46700.00100\33865500.l
xv.
2. Normal tasks will include inspecting and service all restrooms, especially all public use restrooms, to ensure floors and walls remain clean and free from debris, and to ensure all dispensers are full.
3. Report any general maintenance deficiencies directly to the Custodial Services Supervisor at 909-957-2192. The Day Porter shall give a full description and location of the work required. On occasion, the Day Porter may be required to assist City personnel with cleaning up during or after an emergency.
Weekend day porter services is to be quoted as a line item on Bid Forms 3A, 38 & 3C
RESTRICTIONS
A. General: Contractor personnel shall not disturb papers on desks, open drawers or cabinets, use radios, computers, television sets, coffee pots, microwave ovens, stoves, or refrigerators, nor shall they tamper with any personal or City property.
B. Telephones: Telephones shall not be used by the contractor or its employees for personal or business reasons with the following exceptions:
1. report the need of medical aid, fire or the need for law enforcement, press 9-911.
C. Radios: The contractor or its employees shall not use any of the City's two-way radios or special telecommunications equipment under any circumstances. No exceptions will be made to this rule.
Violation is grounds for immediate termination of any of the contractor's employees that is so engaged.
D. City Equipment: The contractor or its employees shall not use any of the City's equipment such as: printers, copy machines, fax machines or computers at any time.
XVI. TRANSPORTATION
The contractor shall provide whatever transportation is necessary to move its employees or supplies among facilities.
XVII. MEETINGS
Contractor will make available representatives with the proper authority to discuss contractual issues for periodic or urgent meetings with the City's contract management staff, at regular intervals or when deemed necessary by the City to ensure contract compliance.
XVIII. MANAGEMENT SYSTEMS/TRACKING
A. If available, submit an example of your company's
Management System.
B. Management System should be able to monitor all tasks at the intervals in the MSA with completion dates and the ability to view job schedules on a continuous basis.
348
Ex. A- 16 (BB&K 2020)
46700.00100\33865500.l
C. If no management system is available the Contractor shall provide the City within the first week of each month the finalized monthly work scheduled, which is to be located in the Janitor's closet, with completed tasks dates at the intervals in the MSA from the prior month. A monthly schedule will be given to the awarded firm.
XIX. PAPER PRODUCTS, SOAP DISPENSERS, VENDING MACHINES AND
WATERLESS URINALS
A. The contractor will provide paper and soap products to the quality of the brands listed in section XXI; the City will determine if the provided items are of equal quality.
B. Feminine Supplies: Most women's restrooms contain feminine hygiene product vending machines. The custodial contractor will supply and maintain all machines. Any money collected as a result of sales will become the property of the custodial contractor. Contractor will supply the jail with feminine supplies as needed.
XX. UNS ANITARY CONDITIONS
A. Contractor shall clean and dispose of any unsanitary and unsightly conditions caused by persons and animals using the public areas at the City's request, or as the Day Porters or night crews find during regular cleanings.
Such areas shall be immediately cleaned during his or her regular work and at any time such a condition is identified by either the Contract
Administrator or other occupants/users of the facilities.
B. Crews are to be trained in the removal of unsanitary items.
C. In the event any custodian finds hazardous materials, toxic chemicals, or highly corrosive liquids, he or she shall immediately notify their Supervisor, City's representative and the Fire Department for removal.
XXI. SITE LOCATIONS, HOURS AND FACILITIES REFERENCE LIST (Contractor shall be responsible for accurate paper product estimates)
1. Code Enforcement & Housing {14,976 sq. ft.)
Business Hours: Monday - Friday 7:30 am to 5:30 pm.
Restrooms 5
Kitchens 2
Sinks 11
Urin�s
Toilets
Multifold towel dispensers
Roll towel dispensers
Percentage of Carpet
Percentage of Vinyl Flooring
4 9
10 1
85%
10%
Percentage of Ceramic Flooring 5%
Paper Products Approximate Monthly Usage
Paper
towels Roll
Towels
2.5 cases- 2010 Kleen line White
Multifold 1 case- 02001 Scott Roll Towel
349
Ex. A- 17 (BB&K 2020)
46700.00100\33865500.l
Toilet Paper Seat
Covers Hand
HandSoap Liquid
1 case - 13217 Scott Roll Bathroom Tissue
¾ case- Health Gards Green 5000
3 gallons- Dial Basic
2. Police Department (167,735 sq. ft.)
Business Hours: 24 Hour Facility
Restrooms 14
Kitchens 8
Sinks 56
Urinals
Toilets
Multifold towel dispensers
Roll towel dispensers
Percentage of Carpet
Percentage of Vinyl Flooring
12 31
28 18
65%
25%
Percentage of Ceramic Flooring 10%
Paper Products Approximate Monthly Usage
Paper towels Roll
Towels Toilet
Paper Seat
Covers Hand
Soap Liquid
15 cases - 2010 Kleenline White Multifold 14
case - 02001 Scott Roll Towel
15 cases - 13217 Scott Roll Bathroom Tissue
5 cases- Health Gards Green 5000
3 gallons - Dial Basic
3. Police Department Sub-Station Mills Mall (1,000 sq. ft.) Business Hours: Daily 11:30 am to 9:00 pm.
Restrooms 2
Kitchens 1
Sinks 3
Urinals
Toilets
Multifold towel dispensers
Roll towel dispensers
Percentage of Carpet
0 2
2 2
90%
Percentage of Vinyl Flooring 10%
Paper Products Approximate Monthly Usage
Paper towels Roll
Towels Toilet
Paper Seat
Covers Hand
Soap Liquid
1 cases - 2010 Kleenline White Multifold
½ case - 02001 Scott Roll Towel
1 case - 13217 Scott Roll Bathroom Tissue
¾ case- Health Gards Green 5000
1 gallon- Dial Basic
4. Senior Center (13,964 sq. ft.)
Business Hours: Monday - Friday 8:00 am to 8:00 pm
Restrooms 4
Kitchens 1
Sinks 9
Urinals 2
Toilets 9
Multifold towel dispensers 5
Roll towel dispensers 2
Percentage of Carpet 20%
350
Ex. A- 18 (BB&K 2020)
46700.00100\33865500.l
Percentage of Vinyl Flooring
Percentage of Ceramic Flooring
20%
20%
Percentage of Wood Flooring 40%
Paper Products Approximate Monthly Usage
Paper towels Roll
Towels Toilet
Paper Seat
Covers Hand
Soap Liquid
Library (65,DDD sq. ft.)
4 cases - 2010 Kleenline White Multifold
1 case - 02001 Scott Roll Towel
4 cases - 13217 Scott Roll Bathroom Tissue
1 case - Health Gards Green 5000
3 gallons - Dial Basic
Business Hours: Sunday 1pm - 4pm
Monday - Thursday 1Dam - 9pm
Friday - Saturday 1Dam - 6pm
Restrooms 8
Kitchens 2
Sinks 18
Urinals
Toilets
Multifold towel dispensers
Roll towel dispensers
Percentage of Carpet
Percentage of Vinyl Flooring
4 15
8 5
75%
10%
Percentage of Ceramic Flooring 15%
Paper Products Approximate Monthly Usage
Paper towels Roll
Towels Toilet
Paper Seat
Covers Hand
Soap Liquid
8 cases - 2010 Kleenline White Multifold
2 case - 02001 Scott Roll Towel
15 cases - 13217 Scott Roll Bathroom Tissue
4 cases - Health Gards Green 5000
3 gallons - Dial Basic
6. De Anza Teen Center (23,683 sq. ft.}
Business Hours: Monday-Friday 8:DD am - 8:DD pm
Saturday 12:DD pm--4:DD pm
Restrooms
Kitchens
Sinks
Urinals
Toilets
Multifold towel dispensers
Roll towel dispensers
Percentage of Carpet
Percentage of Vinyl Flooring
Percentage of Waxed Vinyl Flooring
Percentage of Ceramic Flooring
Percentage of Wood Flooring
5 1 15
3 10
7 2
10%
40%
10%
10%
30%
Paper Products Approximate Monthly Usage
Paper towels
Roll Towels
Toilet Paper
Seat Covers
13 cases - 2010 Kleenline White Multifold
2 cases- 02001 Scott Roll Towel
6 cases 13217 Scott Roll Bathroom Tissue
1.5 cases - Health Gards Green 5000
351
Ex. A- 19 (BB&K 2020)
46700.00100\33865500.1
Hand Soap Liquid 3 gallons - Dial Basic
7. Dorothy Quesada Center (18,154 sq. ft.)
Business Hours: Monday - Friday 8:00 am - 8:00 pm
Saturday As Required
Restrooms 5
Kitchens 1
Sinks 10
Urin�s
Toilets
Multifold towel dispensers
Roll towel dispensers
Percentage of Carpet
Percentage of Vinyl Flooring
1 9
6 0
5%
85%
Percentage of Ceramic Flooring 10%
Paper Products Approximate Monthly Usage
Paper towels Roll
Towels Toilet
Paper Seat
Covers Hand
Soap Liquid
8 cases - 2010 Kleenline White Multifold
0 case - 02001 Scott Roll Towel
2 cases - 13217 Scott Roll Bathroom Tissue
1 case - Health Gards Green 5000
3 gallons - Dial Basic
8. Anthony Munoz Center (13,894 sq. ft.)
Business Hours: Monday - Friday 8:00 am - 8:00 pm
Saturday 11am-3pm
Restrooms 4
Kitchens 1
Sinks 5
Urinals
Toilets
Multifold towel dispensers
Roll towel dispensers
Percentage of Carpet
Percentage of Vinyl Flooring
2 5
4 1
10%
80%
Percentage of Ceramic Flooring 10%
Paper Products Approximate Monthly Usage
Paper towels Roll
Towels Toilet
Paper Seat
Covers Hand
Soap Liquid
1.5 cases - 2010 Kleenline White Multifold
2 cases- 02001 Scott Roll Towel
1 case - 13217 Scott Roll Bathroom Tissue
½ case - Health Gards Green 5000
1 gallon - Dial Basic
9. Westwind Center (26,260 sq. ft.)
Business Hours: Monday-Friday 8:00 am - 8:00 pm
Saturday 11:00 am-4:00 pm
Restrooms 4
Showers 2
Kitchens 1
Sinks 19
Urinals 5
352
Ex. A- 20 (BB&K 2020)
46700.00100\33865500.1
Toilets 11
Multifold towel dispensers 11
Roll towel dispensers 0
Percentage of Carpet 10%
Percentage of Vinyl Flooring 20%
Percentage of Ceramic Flooring 20%
Percentage of Wood Flooring 50%
Paper Products Approximate Monthly Usage
Paper towels Roll
Towels Toilet
Paper Seat
Covers Hand
Soap Liquid
2 cases - 2010 Kleenline White Multifold
0 case - 02001 Scott Roll Towel
2 cases - 13217 Scott Roll Bathroom Tissue
¾ case - Health Gards Green 5000
3 gallons - Dial Basic
10. Armstrong Community Center (13,500 sq. ft.)
Business Hours: Monday - Friday 8:00 am - 9:30 pm
Restrooms 2
Kitchens 1
Sinks 7
Urinals
Toilets
Multifold towel dispensers
Roll towel dispensers
Percentage of Carpet
1 3
11 5
20%
Percentage of Vinyl Flooring 80%
Paper Products Approximate Monthly Usage
Paper towels Roll
Towels Toilet
Paper Seat
Covers Hand
Soap Liquid
2 cases - 2010 Kleenline White Multifold 2
cases- 02001 Scott Roll Towel
1 case - 13217 Scott Roll Bathroom Tissue
½ case - Health Gards Green 5000
2 gallons - Dial Basic
11. Colony High School Library (14,806 sq. ft.)
Cleaned Bi-Monthly on Sundays
Restrooms 0
Kitchens 1
Sinks 1
Urinals
Toilets
Multifold towel dispensers
Roll towel dispensers
Percentage of Carpet
0 0
2 0
95%
Percentage of Vinyl Flooring 5%
Paper Products Approximate Monthly Usage
Paper towels Roll
Towels Toilet
Paper Seat
Covers Hand
Soap Liquid
1.5 cases - 2010 Kleenline White Multifold
0 case - 02001 Scott Roll Towel
0 case - 13217 Scott Roll Bathroom Tissue
0 case - Health Gards Green 5000
½ gallon - Dial Basic
353
Ex. A- 21 (BB&K 2020)
46700.00100\33865500.l
XXI. LICENSES, INSURANCE AND BONDS
A. The successful bidder shall, at bidders own expense, obtain all necessary permits and licenses, (including a City of Ontario Business License), give all necessary notices, pay all fees required by law, and comply with all laws, ordinances, rules and regulations relating to work and to the preservation of public health and safety. Copies of all suc h per
mits and licenses must be provided to and be accepted by the City of Ontario before award of the contract. All appropriate permits and licenses must be maintained during the t
erm of the contract.
B. The successful bidder shall carry and require all subcontractors to carry insurance in limits or amounts not less than listed in the Maintenance Service Agreement.
Certificates of Insurance shall be furnished to the City of Ontario and approved by the Risk Management Department before a contract is entered into with the successful bidder.
C. A Bid Bond in the amount of not less than ten percent (10%) of the total bid amount shall accompany each bid.
D. 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 i n
t
his Agreement, and in the contractor's surety firm form 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.
E. Contractor shall execute and provide to City concurrently with this Agreement a P
ayment Bond in the amount of the total, not -to-exceed compensation indicated in this Agreement, and in the contractor's surety firm form 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. These funds will be used to continue service in the event the contractor fails to comply with the specifications, terms and conditions. If any subcontractors are to be used in the performance of this contract, the subcontractors must furnish their ow n
per
formance bonds or security checks.
XXII. NON -COLLUSION DECLARATION
All bidders will execute the Non-Collusion Declaration, attachment in bid documents, and return it with their bids. Bids submitted without a properly executed affidavit will be considered non- responsive.
XXI. Mandatory Pr e-Bid Meeting
A Mandatory Pre-Bid Meeting and site review to ensure the accuracy of the bid will be conducted on Wednesday, May 1st, 2024 from 11 :00 am to 1 :00 pm, at 303 E.
B
St. Ontario, CA 91764. It is required that all bidders attend the walk-through.
Vendors should be prepared to review facilities; it is important that vendors s end qual
ified personnel to participate in this walk -through. The site review will require approximately two (2) hours. A sign-in sheet will be made available to all prospective bidders through the on-line bid system.
354
Ex. A- 22 (BB&K 2020)
46700.00 I 00\33865500.1
BID SCHEDULE NO. 1A
CUSTODIAL MAINTENANCE CONTRACT-REGULAR DAILY SERVICES
INITIAL 3 YEAR CONTRACT
355
BID SCHEDULE NO. 2A
CUSTODIAL MAINTENANCE CONTRACT-
OTHER SERVICES INITIAL 3 YEAR CONTRACT
46700.00100\33865500.1
Ex. A- 23 (BB&K 2020)
356
BID SCHEDULE NO. 1B
CUSTODIAL MAINTENANCE CONTRACT-REGULAR DAILY SERVICES
FIRST OPTION YEAR
46700.
00 I 00\33865500.1
Ex. A- 24 (BB&K 2020)
357
BID SCHEDULE NO. 2B
CUSTODIAL MAINTENANCE CONTRACT-OTHER SERVICES
FIRST OPTION YEAR
46700.00100\33865500.1
Ex. A- 25 (BB&K 2020)
358
BID SCHEDULE NO.1C
CUSTODIAL MAINTENANCE CONTRACT-REGULAR DAILY SERVICES
SECOND OPTION YEAR
46700.00 I 00\33865500.1
Ex. A- 26 (BB&K 2020)
359
BID SCHEDULE NO. 2C
CUSTODIAL MAINTENANCE CONTRACT-
OTHER SERVICES SECOND OPTION YEAR
46700.00100\33865500.1
Ex. A- 27 (BB&K 2020)
360
Exhibit B-1 MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
EXHIBIT “B”
SCHEDULE OF SERVICES
JULY 1, 2024 - JUNE 30, 2027
361
Exhibit C-1 MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
EXHIBIT “C”
COMPENSATION
NOT TO EXCEED $1,079,244
PERFORMANCE/PAYMENT BONDS ON THE NEXT PAGE
362
Exhibit C-2 MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:
THAT WHEREAS, the City of Ontario (hereinafter referred to as “City”) has awarded to , (hereinafter referred to as the “Contractor”)
an agreement for
(hereinafter referred to as the “Project”).
WHEREAS, the work to be performed by the Contractor is more particularly set forth in t
he Contract Documents for the Project dated , (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and
WHEREAS, the Contractor is required by said Contract Documents to perform the terms thereof and to furnish a bond for the faithful performance of said Contract Documents.
NOW, THEREFORE, we, , the undersigned Contractor and as Surety, a corporation organized and
duly authorized to transact business under the laws of the State of California, are held and firmly bound unto the City in the sum of DOLLARS,
($ ), 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:
363
Exhibit C-3 MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
(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.
364
Exhibit C-4 MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
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-Fac t 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:
NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
(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)
365
Exhibit C-5 MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
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 p roved 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
366
Exhibit C-6 MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
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 367
Exhibit C-7 MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
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.
368
Exhibit C-8 MAINTENANCE SERVICES AGREEMENT BB&K (2023)
46700.00100\40935194.1
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 p roved 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
369
Department: Public Works
Prepared By: Vivian Quintana
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: 13
SUBJECT:
A GOODS AND SERVICES AGREEMENT WITH CONSOLIDATED ELECTRICAL
DISTRIBUTORS FOR THE PURCHASE OF STREETLIGHT POLES AND LUMINARIES
CITY OF ONTARIO
Agenda Report
June 18, 2024
SECTION:
CONSENT CALENDAR
RECOMMENDATION:
That the City Council authorize the City Manager or his designee to execute a Goods and Services Agreement with Consolidated Electrical Distributors, of Ontario, California, for a total contract amount not-to-exceed $1,398,485 for up to five (5) years.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Maintain the Current High Level of Public Safety
Operate in a Businesslike Manner
FISCAL IMPACT:
The recommended contract award to Consolidated Electrical Distributors is for a total not-to-exceed contract amount of $839,091 over the three-year term. Two (2) one-year extensions may be exercised at the City’s sole discretion for an additional contract amount of $559,394 for a total contract amount not-to-exceed $1,398,485 over a five-year term. The Fiscal Year 2024-25 Adopted Budget includes appropriations in the General Fund for the purchase of Streetlight Poles and Luminaries.
BACKGROUND & ANALYSIS:
The Public Works Agency maintains an estimated 14,000 streetlights.
It is necessary to maintain an inventory of streetlight poles and luminaries due to unexpected accidents that damage streetlight poles throughout the City.
In May 2024, the City solicited bids for Bid No. 1790 for streetlight poles and luminaires. Three (3) responses were received, one (1) response met the bid criteria and pricing for all items and two (2) did not meet the bid criteria. The bids are summarized below:
Name
Location
Amount
Consolidated Electrical
Distributors
Ontario, CA
$279,697
Morgan Ingland, LLC
Morgan Hill, CA
$281,475
Optima Energy, Inc.
Artesia, CA
$311,892
370
Consolidated Electrical Distributors, of Ontario, California, submitted a bid that met all the required specifications with a total contract cost of $839,091, over a three-year term. Based on the proposal, credentials, pricing, and favorable reference checks, Staff recommends awarding the Goods and Services Agreement to Consolidated Electrical Distributors. 371
- 1 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
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 Consolidated Electrical Distributors, a Corporation with its principal place of business at 1241 W Brooks St., Ontario, CA 91762 (“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 Streetlight Poles and Luminaries 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 here to and 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 July 1, 2024 to June 30, 2027 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 Ag reement if necessary to complete the work.
372
- 2 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
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 “C” attached hereto and incorporated herein by reference. The total compensation shall not exceed Eight Hundred Thirty-Nine Thousand Ninety-One Dollars and Zero Cents ($839,091) 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 obl igations respecting such 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 “B” 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 373
- 3 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
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 no n- 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 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.
4.5 Coordination of Services . Vendor agrees to work c losely 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 374
- 4 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
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 addi tion 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 ar e 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 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 muni cipality 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 375
- 5 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
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 t his 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 t his 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 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 B usiness Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
376
- 6 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
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 requirement s’ 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 a gency 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 exten t 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 Pollut ion 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 Po rter-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 non - compliance with the laws, regulations and policies described in this Section, unless such non - compliance is the result of the s ole 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 subc ontractors 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 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 Vivian Quintana, Facilities 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. Vendor shall not accept direction or orders from any person other than the City’s Representative or his or her designee. 377
- 7 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
5.2 Vendor’s Representative. Vendor hereby designates Brad Mullen, Inside Sales, or his or her designee, to act as its representative for the performance of this Agreement (“Vendor’s Represe ntative”). 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 dur ation 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 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 genera l 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.
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 coverag e 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 378
- 8 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
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 O ntario, 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 b e 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, 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 s et 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.
379
- 9 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
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 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 380
- 10 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
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 Cit y 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.
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 381
- 11 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
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 failur e 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 subcontracto rs 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 c onsidered 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 ne cessary 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.
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 fo r a period of three (3) years from the date of final payment under this Agreement.
382
- 12 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
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 wi thout 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:
City:
Consolidated Electrical Distributors
1241 W Brooks St.
Ontario, CA 91762
Attn: Brad Mullen, Inside Sales
City of Ontario
303 East “B” Street
Ontario, CA 91764-4196
Attn: Vivian Quintana, Facilities 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.
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. 383
- 13 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
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 r equirements 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 Agre ement 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 e ase 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.
384
- 14 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
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 obligatio n 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.
12.18 Federal Provisions When funding for the Services and Goods is provided, in whole or in part, by an agency of the federal government, Vendor shall also fully and adequately comply with the provisions included in Exhibit “D” (Federal Requirements) attached hereto and incorporated herein by reference (“Federal Requirements”). With respect to any conflict between such Federal Requirements and the terms of this Agreement and/or the provisions of state law, the more stringent requirement shall control.
SIGNATURES ON NEXT PAGE
385
- 15 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
SIGNATURE PAGE FOR GOODS & SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO
AND CONSOLIDATED ELECTRICAL DISTRIBUTORS
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the day and year first above written.
CITY OF ONTARIO CONSOLIDATED ELECTRICAL
DISTRIBUTORS
By:
Its:
Printed Name:
By:
Its:
Printed Name:
Approved By:
Scott Ochoa
City Manager
Approved as to Form:
Best Best & Krieger LLP
City Attorney
Attested By:
Assistant City Clerk
386
(BB&K 2023)
46700.00100\40935206.1
Exhibit A-1 Goods and Services Agreement
EXHIBIT “A”
SCOPE OF SERVICES
Scope of Services
Purchase of Street Poles and Accessories.
387
(BB&K 2023)
46700.00100\40935206.1
Exhibit B-1 Goods and Services Agreement
EXHIBIT “B”
SCHEDULE OF SERVICES
JULY 1, 2024 – JUNE 30, 2024
388
(BB&K 2023)
46700.00100\40935206.1
Exhibit C-1 Goods and Services Agreement
EXHIBIT “C”
COMPENSATION
NOT TO EXCEED $839,091
389
Department: Public Works
Prepared By: Vivian Quintana
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: 14
SUBJECT:
A GOODS AND SERVICES AGREEMENT WITH SCP DISTRIBUTORS, LLC DBA
LINCOLN AQUATICS FOR THE PURCHASE OF SWIMMING POOL CHEMICALS
CITY OF ONTARIO
Agenda Report
June 18, 2024
SECTION:
CONSENT CALENDAR
RECOMMENDATION:
That the City Council authorize the City Manager, or his designee, to execute a Goods and Services Agreement with SCP Distributors, LLC dba Lincoln Aquatics, of Concord, California, for a total contract amount not-to-exceed $500,000 for up to five (5) years.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Maintain the Current High Level of Public Safety
Operate in a Businesslike Manner
FISCAL IMPACT:
The recommended contract award to SCP Distributors, LLC dba Lincoln Aquatics, is for $100,000 per year for a total not-to-exceed contract amount of $300,000 over the three-year term. Two (2) one-year extensions may be exercised at the City’s sole discretion for an additional contract amount of $200,000 for a total contract amount not-to-exceed $500,000. The Fiscal Year 2024-25 Adopted Budget includes appropriations in the Facility Maintenance Fund for the purchase of swimming pool chemicals.
BACKGROUND & ANALYSIS:
The Public Works Agency maintains three (3) swimming pools located at the Anthony Munoz Community Center, Dorothy Quesada Community Center, and Westwind Community Center, and one (1) historic water fountain located at the Museum of History and Art.
The purchase of swimming pool chemicals is necessary for the health and safety of pool users, life expectancy of equipment, and regulatory compliance.
In May 2024, the City solicited bids for Bid No. 1789 for swimming pool chemicals. Two (2) responses were received. One (1) response met the bid criteria and pricing for all items and one (1) did not meet the bid criteria. The bids are summarized below:
Name
Location
Amount
SCP Distributors, LLC dba
Lincoln Aquatics
Ontario, CA
$31,116
Waterline Technologies, Inc.
Santa Ana, CA
$29,955
390
SCP Distributors, LLC dba Lincoln Aquatics, of Concord, California, submitted a bid that met all the required specifications with a total contract cost of $300,000, over a three-year term. Based on the proposal, credentials, pricing, favorable reference checks, and having a neighboring facility, Staff recommends awarding the Goods and Services Agreement to SCP Distributors, LLC dba Lincoln Aquatics.
391
- 1 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
CIT
Y 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 SCP Distributors LLC, dba Lincoln Aquatics, a Corporation with its principal place of business at 1848 Arnold Industrial Pl, Concord, CA 94520 (“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 Swimming Pool Chemical 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. V endor 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 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 July 1, 2024 to June 30, 2027 unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion to renew this Agreement automatically for no more than Two Additional One-Year Terms. 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 nec essary to complete the work. 392
- 2 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
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 “C” attached hereto and incorporated herein by reference. The total compensation shall not exceed Three Hundred Thousand Dollars and Zero Cents ($300,000) 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. V endor 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 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 S
ervices.
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 “B” 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 393
- 3 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
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 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 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 C
onformance to Applicable Requirements . All work prepared by Vendor shall be subject to the approval of City.
4.4 Acceptance. The G oods 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.
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 394
- 4 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
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 W
arranty . 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 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) hour
s during any one calendar day except as permitted by law. Vendor shall defend, indemnify 395
- 5 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
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 E mployment 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 Eligi b ility; 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 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.
396
- 6 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
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 Q
uality.
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 Lia
bility 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 non- compliance with the laws, regulations and policies described in this Section, unless such non- compliance 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 Trai ning. 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 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 Vivian Quintana, Facilities 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. Vendor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.
397
- 7 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
5.2 Vendor’s Representative. Vendor hereby designates Debbie Graham, National Accounts and Gov’t Bids Salesperson, 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 Com pliance. 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. C overage 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 L
imits of Insurance. Vendor 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.
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; C ancellation 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 398
- 8 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
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 A
dditional 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 for th 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, 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.
399
- 9 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
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 C overages. 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. A ll 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 -I
nsurance Ret entions. 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 I ns urance 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 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 I
nsurers. 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 Cit
y.
6.8 V erification 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 400
- 10 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
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 R eporting 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.
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 401
- 11 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
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 R
egistration. 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. Thi s 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 or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.
10. A
CCOUNTING 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.
402
- 12 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
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 Te
rmination. 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:
S
CP Distributors, LLC dba Lincoln Aquatics
1848 Arnold Industrial Pl
Concord, CA 94520
Attn: Debbie Graham, National Accounts and Gov’t Bids
Salesperson
City:
City of Ontario
303 East “B” Street
Ontario, CA 91764-4196
Attn: Vivian Quintana, Facilities 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. 403
- 13 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
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. Thi s 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 reques ts 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 Rig ht to Employ Other Vendors. City reserves right to employ other Vendors in connection with the Goods and Services provided under this Agreement.
12.6 S uccessors 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 of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement.
12.9 Amendment; Modification. N
o 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.
404
- 14 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
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 I nvalidity; 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 P rohibited 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 C
ooperation; 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 A uthority 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 C ounterparts . This Agreement may be signed in counterparts, each of which shall constitute an original.
12.17 E ntire Agreement . This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties.
SIGNATURES ON NEXT PAGE
405
- 15 - Goods and Services Agreement (BB&K 2023)
46700.00100\40935206.1
SIGNATURE PAGE FOR GOODS & SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO
AND SCP DISTRIBUTORS LLC DBA LINCOLN AQUATICS
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the day and year first above written.
CITY OF ONTARIO SCP DISTRIBUTORS LLC DBA LINCOLN
AQUATICS
By:
Its:
Printed Name:
By:
Its:
Printed Name:
Approved By:
Scott Ochoa
City Manager
Approved as to Form:
Best Best & Krieger LLP
City Attorney
Attested By:
Assistant City Clerk
406
(BB&K 2023)
46700.00100\40935206.1
Exhibit A-1 Goods and Services Agreement
EXHIBIT “A”
SCOPE OF SERVICES
Scope of Service
Purchase of swimming pool chemical and supplies
407
(BB&K 2023)
46700.00100\40935206.1
Exhibit B-1 Goods and Services Agreement
EXHIBIT “B”
SCHEDULE OF SERVICES
JULY 1, 2024 – JUNE 30, 2027
408
(BB&K 2023)
46700.00100\40935206.1
Exhibit C-1 Goods and Services Agreement
EXHIBIT “C”
COMPENSATION
NOT TO EXCEED $300,000
409
Department: Utilities
Prepared By: Joline Neal
Staff Member Presenting: Scott Burton, Utilities
General Manager
Reviewed By: Dennice Raygoza, Albert G
Gastelum, Michael Sigsbee
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 15
SUBJECT:
A PROFESSIONAL SERVICES AGREEMENT WITH WEST YOST & ASSOCIATES INC.
FOR ON-CALL CROSS-CONNECTION INSPECTION AND TESTING SERVICES
CITY OF ONTARIO
Agenda Report
June 18, 2024
SECTION:
CONSENT CALENDAR
RECOMMENDATION:
That the City Council approve and authorize the City Manager, or designee, to execute a one-year Professional Services Agreement with West Yost & Associates Inc., of Davis, California, for on-call cross-connection inspection and testing services in the amount of $250,000 for Fiscal Year 2024-25, with the option to extend the Agreement for up to four successive one-year periods (Fiscal Year 2025-26 to Fiscal Year 2028-29), with up to a 5% increase per Fiscal Year, for a total not-to-exceed amount of $1,250,000.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Operate in a Businesslike Manner
FISCAL IMPACT:
The Fiscal Year 2024-25 Adopted Budget includes appropriations from the Water Operating Fund for on-call cross-connection inspection and testing services.
The recommended
Agreement amount is for a total-not-to-exceed amount of $250,000 for the initial term, which will be from July 1, 2024 to June 30, 2025. At the City’s discretion, up to four additional one-year extensions may be executed. Should the City exercise all four successive one-year extensions, the projected total amount to be spent for the five years (July 1, 2024 to June 30, 2029) would amount to a not-to-exceed of $1,250,000. Actual expenses will be based on listed prices and the actual need for services, consistent with the City Council approved budgets for the Water Operating Fund.
Prices for the first year are fixed, and after the first year, any proposed increases in fees will be negotiable annually but will not exceed 5% per year. There is no impact to the General Fund.
BACKGROUND & ANALYSIS:
On December 19, 2023, the California State Water Resources Control Board (State Water Board) adopted new regulations on cross-connection control and backflow prevention. These regulations require the City to inspect commercial and industrial facilities and test recycled water locations for the presence of cross-connections. Cross-connections are physical connections made between a drinking water system and a non-drinking water supply, such as recycled water. Backflow prevention devices are designed to prevent water used at commercial and industrial facilities from coming back into the drinking water system and contaminating it. 410
The City is required to ensure its drinking water system is protected from any contamination that could be introduced through a cross-connection, and that backflow prevention devices are installed at commercial and industrial facilities and recycled water locations; this also ensures the protection of individual customers utilizing recycled water. These services will support staff in inspecting 40,000 plus drinking water connections and testing over 550 recycled water locations to meet new state regulations and requirements. Additional services include preparing reports for state approval to use recycled water for landscape irrigation, agricultural farming, and new development construction.
On February 20, 2024, the City requested competitive bids for on-call cross-connection inspection and testing services. Over 1,000 vendors were notified through PlanetBids. The request for services was based on the ability to perform:
recycled water system inspections and testing at multi-family residences, landscape irrigation premises, and commercial and industrial locations where drinking water is also used on-site, prepare state required reports to receive state approval to use recycled water at multi-family residences, commercial, and industrial locations, and
identify and evaluate hazardous water user activities and ensure the drinking water system is protected from such hazards.
On April 2, 2024, only one proposal was received for Bid No. 1768 for On-call Cross-Connection Inspection and Testing Services, which was by West Yost & Associates Inc. from Davis, CA. West Yost & Associates Inc. just completed a successive five-year contract with the City for similar services.
The company’s staff is reliable and knowledgeable with the City of Ontario’s recycled water customers and State Water Board regulations and policies on cross-connection prevention. 411
412
413
414
415
416
417
418
419
420
421
422
423
424
425
426
427
428
429
430
431
432
433
434
435
436
437
438
439
440
441
442
443
444
445
446
447
448
449
450
451
452
453
Department: Utilities
Prepared By: Courtney Jones
Staff Member Presenting: Scott Burton, Utilities
General Manager
Reviewed By: Dennice Raygoza, Albert G
Gastelum, Michael Sigsbee
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 16
SUBJECT:
A PROFESSIONAL SERVICES AGREEMENT WITH NOSSAMAN LLP FOR LEGAL AND
TECHNICAL SERVICES PERTAINING TO WATER AND WASTEWATER MATTERS
CITY OF ONTARIO
Agenda Report
June 18, 2024
SECTION:
CONSENT CALENDAR
RECOMMENDATION:
That the City Council approve and authorize the City Manager, or designee, to execute a two-year Professional Services Agreement with Nossaman LLP of Los Angeles, California, on file with the Records Management Department, for legal and technical services relating to water supply, water rights, and wastewater matters in the amount of $1,200,000 for FY 2024-25 and $1,200,000 for FY 2025-26 for a total not-to-exceed contract amount of $2,400,000, and a term from July 1, 2024 thru June 30, 2026.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Invest in the Growth and Evolution of the City's Economy Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Operate in a Businesslike Manner
Pursue City's Goals and Objectives by Working with Other Governmental Agencies FISCAL IMPACT:
The Fiscal Year 2024-25 Proposed Budget includes appropriations in the Water and Sewer Operating Funds for legal and technical services relating to water supply, water rights, and wastewater matters. Appropriations will also be included in future year budgets presented to city council for approval. There is no impact to the General Fund.
The recommended Agreement is for $1,200,000 for FY 2024-25 and $1,200,000 for FY 2025-26 for a total not-to-exceed contract amount of $2,400,000. Expenditures will be based on a negotiated billing rate sheet, and proposals will be requested per specific tasks between Nossaman LLP (Nossaman) and the City. Any increases to the billing rates will be negotiated at the City’s discretion.
454
BACKGROUND & ANALYSIS:
The City has historically used Nossaman for legal and technical representation regarding water supply, water rights matters, and wastewater matters. Nossaman's involvement will be critical for the continuation of several multi-year efforts and emerging regional topics anticipated over the next few years. The Agreement will ensure the continuity of legal services necessary in preserving and managing Ontario's utility resources and services to it's community as these multi-year efforts are concluded.
The City is undertaking multi-year efforts to achieve several goals, including ensuring the protection of our local water supply to meet the needs of the community, mitigating impacts on consumer costs, preserving and enhancing water and recycled water rights, and maintaining recycled water rights through collaboration with the Inland Empire Utilities Agency (IEUA) and the Chino Basin Watermaster (Watermaster).
The Agreement's primary efforts include the Meter Equivalent Unit (MEU) charge, the regional sewage contract, administering of Watermaster activities and Court approved agreements, and regional projects. The proposed action on these efforts is consistent with the City Council's direction to the City Manager to engage in settlement discussions and pursue legal actions if necessary and as appropriate.
455
Department: Fire Department
Prepared By: Belinda Negrete
Staff Member Presenting: Mike Gerken, Fire
Chief
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 17
SUBJECT:
A RESOLUTION APPROVING FIRE DEPARTMENT CLASSIFICATIONS BE ADDED TO
THE CALIFORNIA FIRE AND RESCUE MUTUAL AID SYSTEM
CITY OF ONTARIO
Agenda Report
June 18, 2024
SECTION:
CONSENT CALENDAR
RECOMMENDATION:
That the City Council adopt a Resolution approving additional Fire Department classifications to the terms and conditions for Fire Department responses to the California Fire and Rescue Mutual Aid System requests to assist State of California and Federal Fire agencies.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Operate in a Businesslike Manner
Pursue City's Goals and Objectives by Working with Other Governmental Agencies FISCAL IMPACT:
There is no direct fiscal impact associated with this action. However, approval of the proposed Resolution will ensure that the City's Fire Department recovers the maximum amount of reimbursable costs when assigned to emergency incidents through the mutual aid system.
BACKGROUND & ANALYSIS:
The intent of the California Fire Assistance Agreement ("CFAA") is to compensate California Fire and Rescue Mutual Aid System Agencies for the cost of when assigned to emergency incidents through the Mutual Aid system. Eligible expenses that may be reimbursed though the CFAA include personnel time, equipment, car rental, fuel, lodging, and meals. A Resolution adopted by the governing body must be on file with the California Govenor's Office of Emergency Services (CalOES) for the Fire Department's employees to qualify for reimbursement from the time of initial dispatch from their home base, to the time of return to home base ("portal- to-portal") when assigned to an emergency incident through the Mutual Aid system. Without this Resolution, reimbursement would be limited to only actual hours worked while on the incident scene itself.
Resolution No. 2015-039 (approved by the City council on May 19, 2015), specified the positions of Fire Chief, Senior Deputy Fire Chief, Deputy Fire Chief, Battalion Chief, Fire Captain, Fire Engineer, Firefighter, and Nurse Administrator as eligible classifications for portal-to-portal reimbursement when assigned to emergency incidents through the Mutual Aid system. Resolution No. 2022-011 (approved by City Council on March 1, 2022) added the classifications of Fire Administrative Director, Emergency Manager, Fire Communications Manager, Fire Dispatch Supervisor, Senior Fire 456
Dispatcher, and Fire Dispatcher as being eligible for portal-to-portal reimbursement when assigned to an emergency incident through the Mutal Aid system.
The Fire Department is requesting to add the following classifications to be eligible for portal-to- portal reimbursement when assigned to an emergency incident through the Mutual Aid system in various administrative and support roles: Administrative Officer, Senior Management Analyst, Emergency Management Coordinator, Management Analyst, Emergency Medical Services ("EMS") Director, and EMS Nurse.
This item was previously approved by the City Council on May 7, 2024, and is being re-introduced to amend Resolution language pursuant to CalOES recommendations. 457
RESOLUTION NO. ________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,
CALIFORNIA, AMENDING THE TERMS AND CONDITIONS FOR FIRE
DEPARTMENT RESPONSE AWAY FROM THEIR OFFICIAL DUTY
STATION AND ASSIGNED TO AN EMERGENCY INCIDENT.
WHEREAS the City of Ontario (”City”) Fire Department is a public agency providing fire protection services located inthe County of San Bernardino, State of California; and
WHEREAS, the Fire Department responds to California Fire and Rescue Mutual Aid System requests to assist State of California and Federal Fire agenci es as a mutual aid provider under the California Fire Assistance Agreement; and WHEREAS, the City adopted Resolution No. 2024-025 which specified the positions of Administrative Officer, Senior Management Analyst, Management Analyst, Emergency Medical Services (“EMS”) Director, and EMS Nurse as eligible classifications; and
WHEREAS, the City desires to ensure its employees are compensated portal-to-portal while in the course of their employment and away from their official duty station and assigned to an emergency incident, in support of an emergency incident, or pre-positioned for emergency response.
NOW THEREFORE, be it resolved by the City Council that the following shall become effective immediately upon adoption :
1. Incorporation of Recitals. The recitals listed above are true and correct, and they are hereby incorporated herein by this reference.
2. Amendment. Resolution 2024-025 is hereby amended as follows:
a. The parenthetical “(“outside emergency support”)” in the second recital is deleted in its entirety.
b. The words “for reimbursement from the time of initial dispatch from their home base to the time of return to home base (“portal- to-portal”) when providing outside emergency support” in the fourth (4th) recital are deleted in their entirety.
c. The words “when providing outside emergency support” in the fifth (5th) recital are deleted in their entirety; and are replaced with the words “while in the course of their employment and away from their official duty station and assigned to an 458
emergency incident, in support of an emergency incident, or pre- positioned for emergency response; and”.
d. The words “when providing outside emergency support” in the seventh (7th) recital are deleted in their entirety; and are replaced with the words “while in the course of their employment and away from their official duty station and assigned to an emergency incident, in support of an emergency incident, or pre - positioned for emergency response”.
e. The words “outside emergency support” in the eighth (8th) recital are deleted in its entirety; and are replaced with the words “portal-to-portal reimbursement while in the course of their employment and away from their official du ty station and assigned to an emergency incident, in support of an emergency incident, or pre-positioned for emergency response”.
The City Mayor shall sign this Resolution, and the City Clerk shall attest and certify to the passage and adoption thereof.
The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.
PASSED, APPROVED, AND ADOPTED this 18th day of June, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________
SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________
BEST BEST & KRIEGER LLP
CITY ATTORNEY
459
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2024- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held June 18, 2024 by the following roll call vote, to wit:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
____________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
The foregoing is the original of Resolution No. 2024- duly passed and adopted by the Ontario City Council at their regular meeting held June 18, 2024. _____________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
460
Department: Financial Services
Prepared By: Stephanie Castro
Staff Member Presenting: Armen Harkalyan,
Executive Director of Finance
Reviewed By: Claudia Hernandez, Armen
Harkalyan
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 18
SUBJECT:
A PUBLIC HEARING TO CONSIDER A RESOLUTION REGARDING THE FORMATION OF THE CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 68 (RICH HAVEN INDUSTRIAL SERVICES); AND INTRODUCTION OF AN ORDINANCE
LEVYING SPECIAL TAXES
CITY OF ONTARIO
Agenda Report
June 18, 2024
SECTION:
PUBLIC HEARINGS
RECOMMENDATION:
That the City Council consider and:
A
.
Adopt a Resolution of Formation of Community Facilities District No. 68 (Rich Haven Industrial Services), proposing that the community facilities district be authorized to levy a special tax and proposing that an appropriations limit of the community facilities district be established; B
.
Adopt a Resolution calling a special election for City of Ontario Community Facilities District No. 68 (Rich Haven Industrial Services);
C
.
Adopt a Resolution declaring the results of the special election and directing the recording of a Notice of Special Tax Lien; and
D
.
Introduce and waive further reading of an ordinance levying special taxes within City of Ontario Community Facilities District No. 68 (Rich Haven Industrial Services).
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Operate in a Businesslike Manner
Focus Resources in Ontario's Commercial and Residential Neighborhoods Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in Ontario Ranch
FISCAL IMPACT:
The use of Mello-Roos financing in the Rich Haven Industrial Services development is projected to generate approximately $251,085 annually, at buildout, to fund administrative fees and municipal services. Approval from the City Council will be required in future years to process annual special tax levies.
BACKGROUND & ANALYSIS:
The Mello-Roos Community Facilities Act of 1982 provides local government, with the consent from a majority of the property owners, the authority to establish 461
community facilities districts for the purpose of levying special taxes to finance municipal services.
Municipal services that may be funded by a community facilities district include: police protection services, fire protection and suppression services, ambulance and paramedic services, maintenance and lighting of parks, parkways, streets, roads and open space, flood and storm protection services, maintenance and operation of fiber optic telecommunication, wireless communication and public safety camera systems and maintenance and operation of any real property or other tangible property with an estimated useful life of five or more years that is owned by the City. Under the Mello-Roos Act, the initial steps in the formation of a community facilities district to finance municipal services are to adopt resolutions decla
ring the intention to establish a community
facilities district and authorize the levy of special taxes. Accordingly, on May 7, 2024, the City Council approved Resolution No. 2024-024, a Resolution of Intention to establish City of Ontario Community Facilities District No. 68 (Rich Haven Industrial Services) and authorize the levy of special taxes within the district.
The Resolution of Intention set the public hearing date for the regularly scheduled City Council meeting on June 18, 2024, to consider formation matters.
The Rich Haven Industrial Services project addresses the development of approximately 52.97 gross acres located south of Schaefer Avenue, north of Ontario Ranch Road, west of Hamner Avenue, and east of Mill Creek Avenue. At build out, the project is expected to include 1,003,918 square feet of industrial space.
Included, as part of the Resolution of Formation is the proposed Rate and Method of Apportionment of Special Tax for the District. The term and structure of the Rate and Method of Apportionment of Special Tax for the Rich Haven Industrial Services project is consistent with those of previously adopted Rates and Methods of Apportionment for the Ontario Ranch community facilities districts. This ensures that the special tax rates levied on all residential property owners in the Ontario Ranch community facilities districts are developed in a consistent and equivalent manner. In addition, under the provisions of the Mello-Roos Act, to ensure that home buyers are making an informed decision, all residential builders in the Ontario Ranch districts will be required to disclose the maximum annual special tax amount to each homeowner before entering into a sales contract.
Attached are three Resolutions and an Ordinance. The first attached Resolution establishes the community facilities district, with the rate and method of apportionment of special taxes and authorizes the levy of special taxes within the district. The second attached Resolution calls for a special landowner election to be held on June 18, 2024. The third attached Resolution declares the results of the election, including a statement from the City Clerk as to the canvass of ballots, and directs the recording of the Notice of Special Tax Lien. The attached Ordinance authorizes the levying of special taxes.
462
RESOLUTION NO. ________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,
CALIFORNIA, OF FORMATION OF CITY OF ONTARIO COMMUNITY
FACILITIES DISTRICT NO. 68 (RICH HAVEN INDUSTRIAL SERVICES),
PROPOSING THAT THE COMMUNITY FACILITIES DISTRICT BE
AUTHORIZED TO LEVY A SPECIAL TAX AND PROPOSING THAT AN
APPROPRIATIONS LIMIT OF THE COMMUNITY FACILITIES DISTRICT
BE ESTABLISHED
WHEREAS, on May 7, 2024, the City Council (the “City Council”) of the City of Ontario (the “City”), pursuant to the Mello-Roos Community Facilities Act of 1982 (the “Act”), adopted a resolution entitled “A Resolution of the City Council of the City of Ontario, California, of Intention to Establish a Community Facilities District Proposed to be Named City of Ontario Community Facilities District No. 68 (Rich Haven Industrial Services) and to Authorize the Levy of a Special Tax Therein” (the “Resolution of Intention”), stating its intention to establish City of Ontario Community Facilities District No. 68 (Rich Haven Industrial Services) (the “Community Facilities District”), to authorize the Community Facilities District to levy a special tax within the Community Facilities District for the purpose of financing certain services and setting the date for a public hearing to be held on the establishment of the Community Facilities District; and WHEREAS, pursuant to the Resolution of Intention, notice of said public hearing was published in the Inland Valley Daily Bulletin , a newspaper of general circulation published in the area of the Community Facilities District, in accordance with the Act; and
WHEREAS, on this date, the City Council opened, conducted and closed said public hearing; and
WHEREAS, pursuant to the Resolution of Intention, each officer of the City who is or will be responsible for providing one or more of the proposed types of services to be financed by the Community Facilities District was directed to study, or cause to be studied, the proposed Community Facilities District and, at or before said public hearing, file a report with the City Council containing a brief description of the services by type that will in his or her opinion be required to adequately meet the needs of the Community Facilities District, and his or her estimate of the cost of providing such services; such officers were also directed to estimate the fair and reasonable cost of the incidental expenses proposed to be paid; and
WHEREAS, said report was so filed with the City Council and made a part of the record of said public hearing; and
WHEREAS, at the hearing, the testimony of all persons for or against the establishment of the Community Facilities District, the extent of the Community Facilities District and the furnishing of the specified types of services was heard; and 463
WHEREAS, written protests against the establishment of the Community Facilities District, the furnishing of any specified type or types of services within the Community Facilities District or the levying of a specified special tax were not made or filed at or before said hearing by 50% or more of the registered voters, or six registered voters, whichever is more, residing within the territory proposed to be included in the Community Facilities District, or the owners of one-half or more of the area of land in the territory proposed to be included in the Community Facilities District and not exempt from the special tax; and
WHEREAS, there has been filed with the City Clerk of the City a letter from the Registrar of Voters of the County of San Bernardino indicating that no persons were registered to vote within the territory of the proposed Community Facilities District as of May 13, 2024, which demonstrates that 12 or more persons have not been registered to vote within the territory of the proposed Community Facilities District for each of the 90 days preceding the close of said public hearing;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ontario as follows:
Section 1. The foregoing recitals are true and correct, and the City Council so finds and determines.
Section 2. The Community Facilities District is hereby established.
Section 3. The name for the Community Facilities District is “City of Ontario Community Facilities District No. 68 (Rich Haven Industrial Services).” Section 4. The services (the “Services”) proposed to be financed by the Community Facilities District pursuant to the Act are described under the caption “Services” on Exhibit A hereto. The incidental expenses proposed to be incurred are identified under the caption “Incidental Expenses” on Exhibit A hereto. No facilities are proposed to be financed by the Community Facilities District.
Section 5. The proposed special tax to be levied within the Community Facilities District has not been precluded by majority protest pursuant to Section 53324 of the Act.
Section 6. The City Council proposes that, except where funds are otherwise available, the Community Facilities District be authorized to annually levy within the Community Facilities District a special tax (the “Special Tax”) sufficient to pay for all Services, secured by recordation of a continuing lien against all nonexempt real property in the Community Facilities District. The rate, method of apportionment and manner of collection of the Special Tax, in sufficient detail to allow each landowner or resident within the proposed Community Facilities District to estimate the maximum amount that he or she will have to pay, is specified in the Rate and Method of Apportionment of Special Tax (the “Rate and Method”) attached hereto as Exhibit B, which is by this reference incorporated herein. The obligation to pay the Special Tax may not be prepaid and permanently satisfied. The Special Tax will be collected in the 464
same manner as ordinary ad valorem property taxes or in such other manner as the City Council shall determine, including direct billing of the affected property owners.
Section 7. The Special Tax may only finance the Services to the extent that they are in addition to those provided in the territory of the Community Facilities District before the date the Community Facilities District is created. The Services may not supplant services already available within that territory when the Community Facilities District is created.
Section 8. The name, address and telephone number of the office, department or bureau that will be responsible for preparing annually a current roll of Special Tax levy obligations by assessor’s parcel number and that will be responsible for estimating further Special Tax levies pursuant to Section 53340.2 of the Act are as follows:
Management Analyst, Financial Services, City of Ontario, 303 East B Street, Ontario, California 91764, (909) 395-2341.
Section 9. Upon recordation of a notice of special tax lien pursuant to Section 3114.5 of the California Streets and Highways Code, a continuing lien to secure each levy of the Special Tax shall attach to all nonexempt real property in the Community Facilities District and this lien shall continue in force and effect until the Special Tax obligation is canceled in accordance with law or until the Special Tax ceases to be levied and a notice of cessation of the Special Tax is recorded in accordance with Section 53330.5 of the Act.
Section 10. The boundary map of the Community Facilities District has been recorded in San Bernardino County in Book 91 at Page 63 of Maps of Assessments and Community Facilities Districts in the San Bernardino County Recorder’s Office (Document No. 2024-0108529).
Section 11. The City Council proposes that the annual appropriations limit, as defined by subdivision (h) of Section 8 of Article XIII B of the California Constitution, of the Community Facilities District be established at $13,400,000.
Section 12. Pursuant to the provisions of the Act, the propositions to authorize the Community Facilities District to levy the Special Tax and to establish the appropriations limit of the Community Facilities District specified above shall be subject to the approval of the qualified electors of the Community Facilities District at a special election. The City Council hereby finds and determines that no persons were registered to vote within the territory of the proposed Community Facilities District as of May 13, 2024, and that 12 or more persons have not been registered to vote within the territory of the Community Facilities District for each of the 90 days preceding the close of the public hearing held by the City Council on the establishment of the Community Facilities District. Accordingly, pursuant to Section 53326 of the Act, the vote shall be by the landowners of the Community Facilities District and each person who is the owner of land as of the close of said public hearing, or the authorized representative thereof, shall have one vote for each acre or portion of an acre that he or she owns within the Community Facilities District not exempt from the Special Tax. The voting procedure shall be by mailed or hand-delivered ballot.
465
Section 13. The City Council hereby finds and determines that all proceedings up to and including the adoption of this Resolution were valid and in conformity with the requirements of the Act. In accordance with Section 53325.1 of the Act, such finding shall be final and conclusive.
Section 14. All actions heretofore taken by the officers, employees and agents of the City with respect to the establishment of the Community Facilities District, or in connection with or related to any of the matters referred to herein, are hereby approved, confirmed and ratified.
Section 15. The officers, employees and agents of the City are hereby authorized and directed to take all actions and do all things that they, or any of them, may deem necessary or desirable to accomplish the purposes of this Resolution and not inconsistent with the provisions hereof.
Section 16. This Resolution shall take effect immediately upon its adoption.
The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.
PASSED, APPROVED, AND ADOPTED this 18th day of June, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________
SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________
BEST BEST & KRIEGER LLP
CITY ATTORNEY
466
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2024- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held June 18, 2024 by the following roll call vote, to wit:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
____________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
The foregoing is the original of Resolution No. 2024- duly passed and adopted by the Ontario City Council at their regular meeting held June 18, 2024. _____________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
467
EXHIBIT A
SERVICES AND INCIDENTAL EXPENSES
Services
The types of City services to be financed by the Community Facilities District are police protection services, fire protection and suppression services, ambulance and paramedic services, maintenance and lighting of parks, parkways, streets, roads and open space, flood and storm protection services, maintenance and operation of fiber optic telecommunication, wireless communication and public safety camera systems and maintenance and operation of any real property or other tangible property with an estimated useful life of five or more years that is owned by the City.
Incidental Expenses
The incidental expenses proposed to be incurred include the costs associated with the creation of the Community Facilities District, determination of the amount of taxes, collection of taxes, payment of taxes, or costs otherwise incurred in order to carry out the authorized purposes of the Community Facilities District. 468
EXHIBIT B
RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX
469
City of Ontario CFD No. 68 1 March 25, 2024
CITY OF ONTARIO
COMMUNITY FACILITIES DISTRICT NO. 68
(RICH HAVEN INDUSTRIAL SERVICES)
RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX
A Special Tax shall be levied on all Assessor’s Parcels in the City of Ontario Community Facilities District No. 68 (Rich Haven Industrial Services) (“CFD No. 68”) and collected each Fiscal Year commencing in Fiscal Year 2024-25, in an amount determined by the City Council of the City of Ontario through the application of the Rate and Method of Apportionment, as described below. All of the real property in CFD No. 68, unless exempted by law or by the provisions hereof, shall be taxed for the purposes, to the extent, and in the manner herein provided.
A. DEFINITIONS
The terms as may hereinafter be set forth have the following meanings:
“Act” means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter
2.5 of Part 1 of Division 2 of Title 5 of the California Government Code.
“Administrative Expenses” means the following actual or reasonably estimated costs directly related to the administration of CFD No. 68: the costs of computing the Special Taxes and preparing the annual Special Tax collection schedules (whether by the City or CFD No. 68 or both); the costs of collecting the Special Taxes (whether by the County or otherwise); the costs associated with preparing Special Tax disclosure statements and responding to public inquiries regarding the Special Taxes; the costs of the City or CFD No. 68 related to an appeal of the Special Tax; the City’s administration fees and third party expenses; the costs of City staff time and reasonable overhead related to CFD No. 68; and amounts estimated or advanced by the City or CFD No. 68 for any other administrative purposes of CFD No. 68, including attorney’s fees and other costs related to commencing and pursuing to completion any foreclosure of delinquent Special Taxes.
“Assessor’s Parcel” means a lot or parcel shown on an Assessor’s Parcel Map with an assigned Assessor’s Parcel Number.
“Assessor’s Parcel Map” means an official map of the Assessor of the County designating parcels by Assessor’s Parcel Number.
“Assessor’s Parcel Number” means, with respect to an Assessor’s Parcel, that number assigned to such Assessor’s Parcel by the County for purposes of identification.
“CFD Administrator” means an official of the City responsible for determining the Special Tax Requirement, providing for the levy and collection of the Special Tax, and performing the other duties provided for herein.
470
City of Ontario CFD No. 68 2 March 25, 2024
“CFD No. 68” means City of Ontario Community Facilities District No. 68 (Rich Haven Industrial Services).
“City” means the City of Ontario, California.
“City Council” means the City Council of the City, acting as the legislative body of CFD No. 68.
“County” means the County of San Bernardino.
“Fiscal Year” means the period starting July 1 and ending on the following June 30.
“Gated Community Attached Dwelling Unit” means a Unit within any residential building containing two or more dwelling units (including attached condominiums, townhouses, duplexes, triplexes, and apartments) within a gated community that, within such community, is primarily served by private interior streets.
“Land Use Class” means any of the classes listed in Table 1 below.
“Lower Income Household Welfare Exemption Property” means, for each Fiscal Year, an Assessor’s Parcel within the boundaries of CFD No. 68 that is subject to a welfare exemption under subdivision (g) of Section 214 of the California Revenue and Taxation Code (or any successor statute), as indicated in the most recent County assessor’s roll finalized prior to such Fiscal Year.
“Maximum Special Tax” means, with respect to an Assessor’s Parcel of Taxable Property, the maximum Special Tax determined in accordance with Section C below that can be levied in any Fiscal Year on such Assessor’s Parcel of Taxable Property.
“Multiple Family Dwelling Unit” means a Unit within any residential building containing two or more dwelling units, including attached condominiums, townhomes, duplexes, triplexes, and apartments, but excluding Gated Community Attached Dwelling Units.
“Non-Residential” means any buildings that are for commercial lodging use, commercial retail use, institutional use (e.g., churches, private schools), commercial restaurant use, office use, or industrial use.
“Non-Residential Property” means, for each Fiscal Year, an Assessor’s Parcel for which a building permit for new construction was issued after January 1, 2022, and before May 1 of the prior Fiscal Year, for a Non-Residential use.
“Property Owner Association Property” means, for each Fiscal Year, property within the boundaries of CFD No. 68 that was owned by a property owner association, including any master or sub-association, as of January 1 of the prior Fiscal Year.
471
City of Ontario CFD No. 68 3 March 25, 2024
“Proportionately” means that the ratio of the actual Special Tax levy to the Maximum Special Tax is equal for all Assessor's Parcels of Taxable Property.
“Public Property” means, for each Fiscal Year, property within the boundaries of CFD No. 68 that is (a) owned by, irrevocably offered to, or dedicated to the federal government, the State, the County, the City, or any local government or other public agency or (b) encumbered by an easement for purposes of public or utility right-of-way that makes impractical its use for any purpose other than that set forth in such easement, provided that any property leased by a public agency to a private entity and subject to taxation under Section 53340.1 of the Act shall be taxed and classified according to its use.
“Rate and Method of Apportionment” means this Rate and Method of Apportionment of Special Tax.
“Residential Property” means, for each Fiscal Year, an Assessor’s Parcel for which a building permit for new construction of one or more Units was issued after January 1, 2022, and before May 1 of the prior Fiscal Year.
“Services” means the services authorized to be financed, in whole or in part, by CFD No. 68, including: police protection services; fire protection and suppression services; ambulance and paramedic services; maintenance and lighting of parks, parkways, streets, roads, and open space; flood and storm protection services; and maintenance and operation of any real property or other tangible property with an estimated useful life of five or more years that is owned by the City.
“Single Family Detached Dwelling Unit” means any residential building containing only one Unit on one legal lot, including single family residences and single family detached residential condominium units.
“Special Tax” means the special tax authorized by the qualified electors of CFD No. 68 to be levied within the boundaries of CFD No. 68.
“Special Tax Requirement” means the amount necessary in any Fiscal Year to pay the cost of the Services, Administrative Expenses, and an amount equal to Special Tax delinquencies based on the historical delinquency rate for Special Taxes, as determined by the CFD Administrator.
“Square Footage” or “Sq. Ft.” means, with respect to a building of Non-Residential Property, the gross floor area square footage reflected on the original construction building permit, or as set forth in other official records maintained by the City’s Building Department or other appropriate means selected by CFD No. 68, for such building, plus any square footage subsequently added to a building of Non-Residential Property after issuance of a building permit for expansion or renovation of such building.
“State” means the State of California.
472
City of Ontario CFD No. 68 4 March 25, 2024
“Taxable Property” means, for each Fiscal Year, all Assessor’s Parcels of Residential Property and Non-Residential Property within the boundaries of CFD No. 68 which are not exempt from the Special Tax pursuant to law or Section E below.
“Unit” means an individual single-family detached or attached home, townhome, condominium, apartment unit, or other residential dwelling unit, including each separate living area within a half-plex, duplex, triplex, fourplex, or other residential structure.
B. ASSIGNMENT TO LAND USE CATEGORIES
Each Fiscal Year, beginning with Fiscal Year 2024-25, all Taxable Property within CFD No. 68 shall be classified as Residential Property (Single Family Detached Dwelling Unit, Multiple Family Dwelling Unit, or Gated Community Attached Dwelling Unit) or Non- Residential Property and shall be subject to Special Taxes in accordance with the Rate and Method of Apportionment as determined pursuant to Sections C and D below.
C. MAXIMUM SPECIAL TAX
The Maximum Special Tax for each Assessor’s Parcel classified as Taxable Property shall be determined by reference to Table 1 below.
TABLE 1
MAXIMUM SPECIAL TAX
Land Use Class Maximum Special Tax
Fiscal Year 2024-25
Residential Property:
Single Family Detached Dwelling Unit $1,501.46 per Unit Multiple Family Dwelling Unit $1,301.19 per Unit
Gated Community Attached Dwelling Unit $1,091.19 per Unit Non-Residential Property $0.273800 per Sq. Ft.
On January 1 of each Fiscal Year, commencing January 1, 2025, the Maximum Special Tax to be applied in the next Fiscal Year shall be subject to an automatic increase at a rate equal to 4.0% of the amount in effect for the prior Fiscal Year.
In some instances an Assessor’s Parcel of Taxable Property may contain more than one Land Use Class. The Maximum Special Tax levied on such Assessor’s Parcel shall be the sum of the Maximum Special Tax for all Units of Residential Property and Square Footage of Non- Residential Property (based on the applicable building permits, final subdivision map, parcel map, condominium plan, or other recorded County map) located on that Assessor’s Parcel. 473
City of Ontario CFD No. 68 5 March 25, 2024
D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX
Each Fiscal Year, beginning with Fiscal Year 2024-25, the CFD Administrator shall determine the Special Tax Requirement. The Special Tax shall then be levied Proportionately on each Assessor’s Parcel of Taxable Property up to 100% of the applicable Maximum Special Tax for such Assessor’s Parcel, until the Special Tax Requirement is satisfied. However, the Special Tax levied in any Fiscal Year shall not increase by more than 4.0% of the amount of the Special Tax levied in the prior Fiscal Year.
E. EXEMPTIONS
Notwithstanding anything in this Rate and Method of Apportionment to the contrary, no Special Tax shall be levied on Public Property or Property Owner Association Property.
No Special Tax shall be levied on Lower Income Household Welfare Exemption Property; provided, however, that if, in any Fiscal Year, applicable law does not require that Lower Income Household Welfare Exemption Property be exempt from some portion, or all, of the Special Tax, such portion, or all, of the Special Tax shall be levied on such property in accordance with this Rate and Method of Apportionment based on the Land Use Class to which the Assessor’s Parcel is assigned.
F. APPEALS
Any property owner may file a written appeal of the Special Tax with CFD No. 68 claiming that the amount or application of the Special Tax is not correct. The appeal must be filed not later than one calendar year after having paid the Special Tax that is disputed, and the appellant must be current in all payments of Special Taxes. In addition, during the term of the appeal process, all Special Taxes levied must be paid on or before the payment date established when the levy was made.
The appeal must specify the reasons why the appellant claims the Special Tax is in error.
The CFD Administrator shall review the appeal, meet with the appellant if the CFD Administrator deems necessary, and advise the appellant of its determination.
If the property owner disagrees with the CFD Administrator’s decision relative to the appeal, the owner may then file a written appeal with the City Council, whose subsequent decision shall be final and binding on all interested parties. If the decision of the CFD Administrator or subsequent decision by the City Council requires the Special Tax to be modified or changed in favor of the property owner, then the CFD Administrator shall determine if sufficient Special Tax revenue is available to make cash refund. If a cash refund cannot be made, then an adjustment shall be made to credit future Special Tax levy(ies).
This procedure shall be exclusive and its exhaustion by any property owner shall be a condition precedent to filing any legal action by such owner. 474
City of Ontario CFD No. 68 6 March 25, 2024
G. MANNER OF COLLECTION
The Special Taxes shall be collected in the same manner and at the same time as ordinary ad valorem property taxes; provided, however, that the Special Taxes may be collected in such other manner as the City Council shall determine, including direct billing of affected property owners.
H. TERM OF SPECIAL TAX
The Special Tax shall continue to be levied indefinitely on an annual basis on all Taxable Property in CFD No. 68.
475
RESOLUTION NO. _________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,
CALIFORNIA, CALLING SPECIAL ELECTION FOR CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 68 (RICH HAVEN INDUSTRIAL
SERVICES)
WHEREAS, on this date, the City Council (the “City Council”) of the City of Ontario (the “City”), pursuant to the Mello-Roos Community Facilities Act of 1982 (the “Act”), adopted a resolution entitled “A Resolution of the City Council of the City of Ontario, California, of Formation of City of Ontario Community Facilities District No. 68 (Rich Haven Industrial Services), Proposing that the Community Facilities District be Authorized to Levy a Special Tax and Proposing that an Appropriations Limit of the Community Facilities District Be Established” (the “Resolution of Formation”), establishing City of Ontario Community Facilities District No. 68 (Rich Haven Industrial Services) (the “Community Facilities District”), proposing that the Community Facilities District be authorized to levy a special tax (the “Special Tax”) within the Community Facilities District for the purpose of financing certain services and proposing that an appropriations limit of the Community Facilities District be established at $13,400,000; and WHEREAS, pursuant to the provisions of the Act and the Resolution of Formation, the propositions to authorize the Community Facilities District to levy the Special Tax and to establish such appropriations limit of the Community Facilities District are to be submitted to the qualified electors of the Community Facilities District at a special election; and
WHEREAS, the City Council desires to designate the City Clerk of the City (the “City Clerk”) as the election official for such special election; and WHEREAS, there has been filed with the City Clerk a letter from the Registrar of Voters of the County of San Bernardino indicating that no persons were registered to vote within the territory of the Community Facilities District as of May 13, 2024, which demonstrates that 12 or more persons have not been registered to vote within the territory of the Community Facilities District for each of the 90 days preceding the close of the public hearings on the establishment of the Community Facilities District; and WHEREAS, there has been filed with the City Clerk consents and waivers of all of the landowners of record in the Community Facilities District consenting to the waiver of, and waiving, any time limit specified by Section 53326 of the Act and any requirement pertaining to the conduct of said special election, consenting to the holding of said special election on June 18, 2024 and consenting to the waiver of, and waiving, any impartial analysis, arguments or rebuttals, as set forth in Sections 53326 and 53327 of the Act; and WHEREAS, the City Clerk has concurred in said waivers and has concurred in holding said special election on June 18, 2024;
476
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ontario as follows:
Section 1. The foregoing recitals are true and correct, and the City Council so finds and determines.
Section 2. Pursuant to Sections 53326 and 53325.7 of the Act, the propositions to authorize the Community Facilities District to levy the Special Tax and to establish the appropriations limit of the Community Facilities District shall be submitted to the qualified electors of the Community Facilities District at an election called therefor as provided below.
Section 3. The City Clerk is hereby designated as the official to conduct said election.
Section 4. As authorized by Section 53353.5 of the Act, the propositions to authorize the Community Facilities District to levy the Special Tax and to establish such appropriations limit of the Community Facilities District shall be combined into one ballot proposition.
Section 5. The City Council hereby finds and determines that no persons were registered to vote within the territory of the Community Facilities District as of May 13, 2024, and that 12 or more persons have not been registered to vote within the territory of the Community Facilities District for each of the 90 days preceding the close of the public hearings heretofore held by the City Council on the establishment of the Community Facilities District. Accordingly, pursuant to Section 53326 of the Act, the vote shall be by the landowners of the Community Facilities District and each person who is the owner of land as of the close of said public hearings, or the authorized representative thereof, shall have one vote for each acre or portion of an acre that he or she owns within the Community Facilities District not exempt from the Special Tax.
Section 6. The City Council hereby finds and determines that the qualified electors of the Community Facilities District have (a) unanimously consented to the waiver of, and have waived, any time limit specified by Section 53326 of the Act and any requirement pertaining to the conduct of said election, (b) unanimously consented to the holding of said election on June 18, 2024, and (c) unanimously consented to the waiver of, and have waived, any impartial analysis, arguments or rebuttals, as set forth in Sections 53326 and 53327 of the Act. The City Council hereby finds and determines that the City Clerk has concurred in said waivers and has concurred in holding said election on June 18, 2024.
Section 7. The City Council hereby calls a special election to submit to the qualified electors of the Community Facilities District the combined ballot proposition to authorize the Community Facilities to levy the Special Tax and to establish the appropriations limit of the Community Facilities District at $13,400,000, which election shall be held at 303 East B Street, Ontario, California, on June 18, 2024, provided, that, in the event the June 18, 2024 City Council meeting is held via teleconference and/or 477
videoconference only, the means by which the public may observe such public hearings and offer public comment would be as prescribed in the notice and agenda for such City Council meeting. The City Council has caused to be provided to the City Clerk, as the official to conduct the election, the Resolution of Formation, a certified map of sufficient scale and clarity to show the boundaries of the Community Facilities District and a sufficient description to allow the City Clerk to determine the boundaries of the Community Facilities District.
The voted ballots shall be returned to the City Clerk not later than 7:30 p.m. on June 18, 2024; provided, however, that if all of the qualified electors have voted prior to such time, the election may be closed with the concurrence of the City Clerk.
Section 8. Pursuant to Section 53326 of the Act, the election shall be conducted by mail or hand-delivered ballot pursuant to Section 4000 et. seq. of the California Elections Code. Except as otherwise provided in the Act, the provisions of law regulating elections of the City, insofar as they may be applicable, shall govern the election.
Section 9. The form of the ballot for the election, which sets forth the measure to be submitted to the voters, is attached hereto as Exhibit A and by this reference incorporated herein, and such form of ballot is hereby approved. The City Clerk shall cause to be delivered to each of the qualified electors of the Community Facilities District a ballot in said form, together with all supplies and written instructions necessary for the use and return of the ballot. The number of votes to be voted by a particular landowner shall be specified on the ballot provided to that landowner.
The identification envelope for return of a ballot shall be enclosed with such ballot, shall have the return postage prepaid, and shall contain: (a) the name and address of the landowner, (b) a declaration, under penalty of perjury, stating that the voter is the owner of record or the authorized representative of the landowner entitled to vote and is the person whose name appears on the identification envelope, (c) the printed name and signature of the voter, (d) the date of signing and place of execution of the declaration described in clause (b) above, and (e) a notice that the envelope contains an official ballot and is to be opened only by the canvassing board.
Analysis and arguments with respect to the measure submitted to the voters are hereby waived, as provided in Section 53327 of the Act.
Section 10. The City Clerk shall accept the ballots of the qualified electors in the office of the City Clerk at 303 East B Street, Ontario, California, to and including 7:30 p.m. on June 18, 2024, whether said ballots be personally delivered or received by mail.
The City Clerk shall have available ballots that may be marked at said location on the election day by said qualified electors.
Section 11. The City Council hereby determines that the services financed by the Community Facilities District are necessary to meet increased demands placed 478
upon local agencies as a result of development occurring in the Community Facilities District.
Section 12. All actions heretofore taken by the officers, employees and agents of the City with respect to the special election called pursuant hereto, or in connection with or related to any of the matters referred to herein, are hereby approved, confirmed and ratified.
Section 13. The officers, employees and agents of the City are hereby authorized and directed to take all actions and do all things that they, or any of them, may deem necessary or desirable to accomplish the purposes of this Resolution and not inconsistent with the provisions hereof.
Section 14. This Resolution shall take effect immediately upon its adoption.
The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.
PASSED, APPROVED, AND ADOPTED this 18th day of June, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________
SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________
BEST BEST & KRIEGER LLP
CITY ATTORNEY
479
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2024- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held June 18, 2024 by the following roll call vote, to wit:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
____________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
The foregoing is the original of Resolution No. 2024- duly passed and adopted by the Ontario City Council at their regular meeting held June 18, 2024. _____________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
480
EXHIBIT A
OFFICIAL BALLOT
CITY OF ONTARIO
June 18, 2024
SPECIAL ELECTION
This ballot is for a special, landowner election. The number of votes to be voted pursuant to this ballot is ____.
INSTRUCTIONS TO VOTERS:
To vote on the measure, mark a cross (+ or X) in the voting square after the word “YES” or after the word “NO”. All distinguishing marks or erasures are forbidden and make the ballot void. If you wrongly mark, tear or deface this ballot, return it to the City Clerk of the City of Ontario and obtain another.
CITY OF ONTARIO
COMMUNITY FACILITIES DISTRICT NO. 68
(RICH HAVEN INDUSTRIAL SERVICES)
MEASURE: Shall the measure to authorize City of Ontario Community Facilities District No. 68 (Rich Haven Industrial Services) (the “Community Facilities District”) to levy a special tax in order to finance certain services and to establish the annual appropriations limit of the Community Facilities District at $13,400,000, as specified in the resolution adopted by the City Council of the City of Ontario on June 18, 2024 entitled “A Resolution of the City Council of the City of Ontario, California, of Formation of City of Ontario Community Facilities District No. 68 (Rich Haven Industrial Services), Proposing that the Community Facilities District Be Authorized to Levy a Special Tax and Proposing that an Appropriations Limit of the
Community Facilities District Be Established,” be adopted? Yes:
No:
481
RESOLUTION NO. ________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,
CALIFORNIA, DECLARING RESULTS OF SPECIAL ELECTION AND
DIRECTING RECORDING OF NOTICE OF SPECIAL TAX LIEN
WHEREAS, on June 18, 2024, the City Council (the “City Council”) of the City of Ontario (the “City”), pursuant to the Mello-Roos Community Facilities Act of 1982 (the “Act”), adopted a resolution entitled “A Resolution of the City Council of the City of Ontario, California, Calling Special Election for City of Ontario Community Facilities District No. 68 (Rich Haven Industrial Services)” (the “Resolution Calling Election”), calling a special election to submit to the qualified electors of City of Ontario Community Facilities District No. 68 (Rich Haven Industrial Services) (the “Community Facilities District”) the combined ballot proposition to authorize the Community Facilities District to levy a special tax and to establish the appropriations limit of the Community Facilities District; and
WHEREAS, pursuant to the terms of the Resolution Calling Election and the provisions of the Act, the special election was held on June 18, 2024; and WHEREAS, the City Clerk of the City (the “City Clerk”) has certified the canvass of the returns of the election and has filed a Canvass and Statement of Results of Election (the “Canvass”), a copy of which is attached hereto as Exhibit A; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ontario as follows:
Section 1. The foregoing recitals are true and correct, and the City Council so finds and determines.
Section 2. The City Council has received, reviewed and hereby accepts the Canvass.
Section 3. The City Council hereby finds and declares that the ballot proposition submitted to the qualified electors of the Community Facilities District pursuant to the Resolution Calling Election has been passed and approved by such electors in accordance with Section 53328 and Section 53325.7 of the Act.
Section 4. The City Clerk is hereby directed to execute and cause to be recorded in the office of the County Recorder of the County of San Bernardino a notice of special tax lien in the form required by the Act, said recording to occur no later than 15 days following adoption by the City Council of this Resolution. 482
Section 5. All actions heretofore taken by the officers, employees and agents of the City with respect to the special election, or in connection with or related to any of the matters referred to herein, are hereby approved, confirmed and ratified.
Section 6. The officers, employees and agents of the City are hereby authorized and directed to take all actions and do all things that they, or any of them, may deem necessary or desirable to accomplish the purposes of this Resolution and not inconsistent with the provisions hereof.
Section 7. This Resolution shall take effect immediately upon its adoption.
The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.
PASSED, APPROVED, AND ADOPTED this 18th day of June, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________
SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________
BEST BEST & KRIEGER LLP
CITY ATTORNEY
483
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2024- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held June 18 2024 by the following roll call vote, to wit:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
____________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
The foregoing is the original of Resolution No. 2024- duly passed and adopted by the Ontario City Council at their regular meeting held June 18, 2024. _____________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
484
EXHIBIT A
[See attached]
485
CITY OF ONTARIO
COMMUNITY FACILITIES DISTRICT NO. 68
(RICH HAVEN INDUSTRIAL SERVICES)
CANVASS AND STATEMENT OF RESULTS OF ELECTION
I hereby certify that on June 18, 2024, I canvassed the returns of the special election for City of Ontario Community Facilities District No. 68 (Rich Haven Industrial Services) held on June 18, 2024, that the total number of ballots cast in said Community Facilities District and the total number of votes cast for and against the combined ballot proposition submitted to the qualified electors of the Community Facilities District are as follows and that the totals as shown for and against such proposition are true and correct:
Qualified
Landowner
Votes
Votes
Cast YES NO
City of Ontario Community Facilities
District No. 68 (Rich Haven Industrial
Services) Special Election, June
18, 2024
53 ___ ___ ___
MEASURE: Shall the measure to authorize City of Ontario Community Facilities District No. 68 (Rich Haven Industrial Services) (the “Community Facilities District”) to levy a special tax in order to finance certain services and to establish the annual appropriations limit of the Community Facilities District at $13,400,000, as specified in the resolution adopted by the City Council of the City of Ontario on June 18, 2024 entitled “A Resolution of the City Council of the City of Ontario, California, of Formation of City of Ontario Community Facilities District No. 68 (Rich Haven Industrial Services), Proposing that the Community Facilities District Be Authorized to Levy a Special Tax and Proposing that an Appropriations Limit of the Community Facilities District Be Established,” be adopted?
IN WITNESS WHEREOF, I HAVE HEREUNTO SET MY HAND this 18th day of June, 2024.
By:
SHEILA MAUTZ, CITY CLERK
486
ORDINANCE NO. ________
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO,
CALIFORNIA, LEVYING A SPECIAL TAX WITHIN CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 68 (RICH HAVEN INDUSTRIAL
SERVICES)
WHEREAS, on May 7, 2024, the City Council (the “City Council”) of the City of Ontario (the “City”), pursuant to the Mello-Roos Community Facilities Act of 1982 (the “Act”), adopted a resolution entitled “A Resolution of the City Council of the City of Ontario, California, of Intention to Establish a Community Facilities District Proposed to be Named City of Ontario Community Facilities District No. 68 (Rich Haven Industrial Services) and to Authorize the Levy of a Special Tax Therein” stating its intention to establish City of Ontario Community Facilities District No. 68 (Rich Haven Industrial Services) (the “Community Facilities District”) and to authorize the Community Facilities District to levy a special tax (the “Special Tax”) within the Community Facilities District for the purpose of financing certain services (the “Services”); and
WHEREAS, on June 18, 2024, the City Council held a noticed public hearing on the establishment of the Community Facilities District, as required by the Act; and WHEREAS, subsequent to the close of said hearing, the City Council adopted resolutions entitled “A Resolution of the City Council of the City of Ontario, California, of Formation of City of Ontario Community Facilities District No. 68 (Rich Haven Industrial Services), Proposing that the Community Facilities District Be Authorized to Levy a Special Tax and Proposing that an Appropriations Limit of the Community Facilities District Be Established” (the “Resolution of Formation”) and “A Resolution of the City Council of the City of Ontario, California, Calling Special Election for City of Ontario Community Facilities District No. 68 (Rich Haven Industrial Services),” which resolutions established the Community Facilities District, proposed that the Community Facilities District be authorized to levy the Special Tax within the Community Facilities District, proposed that an appropriations limit of the Community Facilities District be established and called a special election to submit to the qualified electors of the Community Facilities District the combined ballot proposition to authorize the Community Facilities District to levy the Special Tax and to establish the appropriations limit of the Community Facilities District; and WHEREAS, on June 18, 2024, an election was held in which the qualified electors of the Community Facilities District approved said proposition by more than the two-thirds vote required by the Act; and
WHEREAS, the City Council is the legislative body of the Community Facilities District;
487
THE CITY COUNCIL OF THE CITY OF ONTARIO DOES ORDAIN AS
FOLLOWS:
Section 1. The City Council hereby authorizes and levies the Special Tax within the Community Facilities District pursuant to Sections 53328 and 53340 of the Act, at the rate and in accordance with the method of apportionment set forth in Exhibit B to the Resolution of Formation (the “Rate and Method”). The Special Tax is hereby levied commencing in fiscal year 2024-25 and in each fiscal year thereafter until the last fiscal year in which the Special Tax is authorized to be levied pursuant to the Rate and Method.
Section 2. The City Council may, pursuant to subdivision (b) of Section 53340 of the Act, provide, by resolution, for the levy of the Special Tax in the current tax year or in future tax years at the same rate or at a lower rate than the rate provided by this Ordinance. In no event shall the Special Tax be levied on any parcel within the Community Facilities District in excess of the maximum tax specified therefor in the Rate and Method.
Section 3. The Special Tax shall be levied on all of the parcels in the Community Facilities District, unless exempted by law or by the Rate and Method.
Section 4. The proceeds of the Special Tax shall only be used to pay, in whole or in part, the cost of providing the Services and incidental expenses pursuant to the Act.
Section 5. The Special Tax shall be collected in the same manner as ordinary ad valorem property taxes are collected and shall be subject to the same penalties and the same procedure, sale and lien priority in the case of delinquency as is provided for ad valorem taxes or in such other manner as the City Council shall determine, including direct billing of the affected property owners.
Section 6. If for any reason any portion of this Ordinance is found to be invalid, or if the Special Tax is found inapplicable to any particular parcel within the Community Facilities District, by a court of competent jurisdiction, the balance of this Ordinance and the application of the Special Tax to the remaining parcels within the Community Facilities District shall not be affected.
Section 7. The Mayor shall sign this Ordinance and the City Clerk shall certify as to the adoption and shall cause a summary thereof to be published at least once, in a newspaper of general circulation in the City of Ontario, California within fifteen (15) days of the adoption. The City Clerk shall post a certified copy of this ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933.
The City Clerk of the City of Ontario shall certify as to the adoption of this Ordinance.
PASSED, APPROVED, AND ADOPTED this ________ day of _________ 2024. 488
_____________________________________
PAUL S. LEON, MAYOR
ATTEST:
_________________________________
SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________
BEST BEST & KRIEGER LLP
CITY ATTORNEY
489
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Ordinance No. _______ was duly introduced at a regular meeting of the City Council of the City of Ontario held _____________ and adopted at the regular meeting held ___________, 2024 by the following roll call vote, to wit:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
_________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
I hereby certify that the foregoing is the original of Ordinance No. _______ duly passed and adopted by the Ontario City Council at their regular meeting held ____________ and that Summaries of the Ordinance were published on ___________ and _____________, in the Inland Valley Daily Bulletin newspaper. __________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
490
Department: Planning
Prepared By: Diane Ayala
Staff Member Presenting: Scott Murphy,
Executive Director Community Development
Reviewed By: Kimberly Ruddins, Henry Noh
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 19
SUBJECT:
A PUBLIC HEARING TO CONSIDER AN ORDINANCE ADOPTING A DEVELOPMENT
CODE AMENDMENT ESTABLISHING HISTORIC PRESERVATION - ADAPTIVE REUSE PLANS, FILE NO. PDCA24-002
CITY OF ONTARIO
Agenda Report
June 18, 2024
SECTION:
PUBLIC HEARINGS
RECOMMENDATION:
That the City Council introduce and waive further reading of the Ordinance Approving File No. PDCA24-002, a Development Code Amendment revising Table 2.02-1: Reviewing Matrix of Chapter 2 (Administration and Procedures) to include the Fire Marshal as an Approving Authority, and Chapters 4 (Permits Actions and Decision) and 7 (Historic Preservation) to establish Historic Preservation - Adaptive Reuse Plan of the City of Ontario Development Code.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
Focus Resources in Ontario's Commercial and Residential Neighborhoods FISCAL IMPACT:
There is not a direct fiscal impact associated with this action.
BACKGROUND & ANALYSIS:
Staff has initiated a Development Code Amendment to allow for the establishment of Historic Preservation - Adaptive Reuse Plans and processing procedures, generally described as follows:
(1) Amend Division 2.02 (Application Filing and Processing), revising Table 2.02-1: Reviewing Matrix to include the Fire Marshal as an Approving Authority;
(2) Amend Division 4.03 (Ministerial Permits and Decision) by adding processing procedures, requirements, and eligibility for an adaptive reuse plan approval; and (3) Amend Division 7.01 (Historic Preservation) to add Historic Preservation - Adaptive Reuse Plan as an incentive.
The Amendment will target adaptive reuse (or change of building classification/occupancy) of designated historic buildings to multiple-family residential, office, commercial, work/live, or retail while removing construction barriers related to zoning, building, and fire code compliance. In turn, the adaptive reuse program will further incentivize preservation of historically significant resources, streamline the review and approval process by waiving the development plan review, reduce underutilized sites, reduce demolition, and foster sustainable community development. 491
Adaptive reuse programs rely upon the California Historic Building Code, International Existing Building Code, and California Health and Safety Code to provide the authority for the Building Official and Fire Marshal to consider alternative building standards and methods of construction while ensuring adequate health and safety protections for the new use. Relief of strict zoning requirements or allowance of nonconforming site conditions, such as setbacks, parking, open space for residential use, and height, may be considered by the Planning Director. The Fire Marshal, Building Official and Planning Director (Approving Authority) may approve Adaptive Reuse Plans through a ministerial process, however the Approving Authority shall first find that special individual reasons make the strict letter of the local codes impractical and the modification is in compliance with the intent and purpose of the local codes and that such modification does not lessen health, life and safety requirements. The proposed provisions of the Development Code Amendment are shown in Attachment A (Development Code Amendment) of the appended Ordinance. Any provisions proposed for deletion are shown in red strikeout text ( Abcdefg
) and all
additions are shown in blue text (
Abcdefg
).
PLANNING COMMISSION REVIEW AND ACTION
: On May 28, 2024, the Planning Commission
conducted a public hearing to consider the proposed Development Code Amendment. Upon conclusion of the public hearing, the Planning Commission voted unanimously (5-0) to approve Resolution No. PC24-016, recommending the City Council approve the proposed Development Code Amendment.
COMPLIANCE WITH THE ONTARIO PLAN:
The proposed project is consistent with the principles, goals and policies contained within the Vision, Governance, Policy Plan (General Plan), and City Council Priorities components of TOP. Goals and policies of TOP that are furthered by the proposed Development Code Amendment are addressed in the attached Planning Commission backup material.
ENVIRONMENTAL REVIEW:
The proposed Development Code Amendment is exempt from the requirements of the California Environmental Quality Act (CEQA) and the guidelines promulgated thereunder, pursuant to Section 15061(b)(3) of the CEQA Guidelines, in that the activity is covered by the commonsense exemption (general rule) that CEQA applies only to projects that have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.
492
ATTACHMENT A:
Development Code Amendment
File No. PDCA23-001
PART I. Division 2.02—Application Filing and Processing Revise Table 2.02-1 (Review Matrix) as follows:
493
Attachment A
File No. PDCA24-002
2 Table 2.02-1: Review Matrix
Applications, Actions, Decisions
and Processes
Reviewing Authorities [4]
Planning Director
City Engineer
Fire Marshal
Building Official
Zoning Administrator [2]
Development Advisory
Board
Historic Preservation
Subcommittee [2] [11]
Historic Preservation
Commission [11]
Planning Commission [11]
City Council [11]
Ontario International
Airport Authority
A. LEGISLATIVE ACTIONS
1. Airport Land Use Compatibility Plan and
Amendments [1] (Ref: ODC Section 4.01.010)
R X
2. Development Agreements [1] (Ref: ODC
Section 4.01.015)
R X
3. Development Code Amendments [1] (Ref:
ODC Section 4.01.020)
R X
4. Amendment to the Policy Plan (General Plan)
Component of The Ontario Plan [1] (Ref: ODC Section
4.01.025)
R X
5. Planned Unit Developments and Amendments
[1] (Ref: ODC Section 4.01.030)
R X
6. Specific Plans and Amendments [1][12] (Ref:
ODC Section 4.01.035)
R X
7. Williamson Act Contract Cancellations [1] (Ref:
GC Section 51200 et.seq.)
R X
8. Zone Changes [1] (Ref: ODC Section 4.01.040) R X
B. DISCRETIONARY PERMITS AND ACTIONS
1. Billboard Relocation Agreements [1] (Ref: ODC
Section 4.02.010)
R X
2. Conditional Use Permits (Ref: ODC Section
4.02.015)
a. Hotels, Motels and Residence Inns [1] R X
b. Use established in conjunction with a
Development Plan [1]
R X A
c. Use established within an existing structure
[1]
X A A
d. Modification or revocation per ODC
Division 2.05 (City Initiated Modification or Revocation) [1]
X A
e. Revocation due to abandonment of use
per ODC Division 2.05 (City Initiated Modification or
Revocation) [1]
X A A
3. Density Bonus and Other Incentives per ODC
Section 6.01.010.G (Density Bonus and Other Incentives) [1]
R X
4. Development Plans, except within the ONT
zoning district (Ref: ODC Section 4.02.025)
494
Attachment A
File No. PDCA24-002
3 Table 2.02-1: Review Matrix
Applications, Actions, Decisions
and Processes
Reviewing Authorities [4]
Planning Director
City Engineer
Fire Marshal
Building Official
Zoning Administrator [2]
Development Advisory
Board
Historic Preservation
Subcommittee [2] [11]
Historic Preservation
Commission [11]
Planning Commission [11]
City Council [11]
Ontario International
Airport Authority
a. Residential developments totaling 5 or
more dwelling units or the development of 3 or more
dwelling units on a single lot or parcel
R X A
b. Commercial developments, and
developments in the CIV, OS-R, OS- C and UC zoning
districts, greater than 500 SF in area
X A A
c. Industrial developments equal to or less
than 0.45 FAR
X A A
d. Industrial developments exceeding 0.45
FAR
R X A
e. Wireless telecommunications facilities
pursuant to Section 5.03.415 (Wireless
Telecommunications Facilities) of this Development
Code
(1) Tier 2 facilities X A A
(2) Tier 3 facilities [2] X A A
f. All others X A A
5. Extensions of Legal Nonconforming Status [1]
(Ref: ODC Section 4.02.030)
X A A
6. Historic Preservation
a. Certificates of Appropriateness(Ref: ODC
Section 4.02.050)
(1) Designated Historic Landmarks and
Contributors, and Architectural Conservation Areas;
and Demolition of an Historic Resource [1]
R X A
(2) Deferral of Replacement Structure [1] R X A
(3) Eligible Historic Resources [1] X A A
(4) Modification or revocation per ODC
Division 2.05 (City Initiated Modification or Revocation) [1]
R X A
(5) Waivers for Minor Improvements X A[6] A[6]
b. Certificates of Economic Hardship [1] (Ref:
ODC Section 4.02.055) [1]
R X A
c. Certificates of Economic Hardship—
Modification or revocation per ODC Division 2.05 (City
Initiated Modification or Revocation) [1]
R X A
d. Conservation Plans (Ref: ODC Section
4.02.060)
X A A
495
Attachment A
File No. PDCA24-002
4 Table 2.02-1: Review Matrix
Applications, Actions, Decisions
and Processes
Reviewing Authorities [4]
Planning Director
City Engineer
Fire Marshal
Building Official
Zoning Administrator [2]
Development Advisory
Board
Historic Preservation
Subcommittee [2] [11]
Historic Preservation
Commission [11]
Planning Commission [11]
City Council [11]
Ontario International
Airport Authority
e. Historic Resource Tiering (Ref: ODC
Section 4.02.040), including Rescinding or Amending
Status (Ref: ODC Section 4.02.045)
X A A
f. Local Historic Landmark and Local District
Designations, and Architectural Conservation Areas
(Ref: ODC Section 4.02.040), including Rescinding or
Amending Status (Ref: ODC Section 4.02.045)
R R X
g. Mills Act Contracts (Ref: ODC Section
4.02.065)
R R X
h. Mills Act Cancellations [1] (Ref: ODC
Section 4.02.065)
R R X
i. Addition/Removal of Resources to/from
the Ontario Register (Ref: ODC Section 4.02.045)
(1) At the request of the property owner,
or upon City initiation if the most recently prepared
Historic Resource Survey evaluating the resource is more than 5 years old.
X A A
(2) Loss of all historic and/or cultural
significance due to a catastrophe causing a loss of
integrity, or due to extensive legally performed
alterations performed after the property was initially
surveyed.
X A A
7. Master Plans and Amendments [1] (Ref: ODC
Section 4.02.070)
R X
8. Minor Adjustments/Alterations (Ref: ODC
Section 4.02.020.C)
X A A
9. Nonconforming Structure Reconstruction [1]
(Ref: ODC Section 3.01.020)
X A
10. Parking Reduction (Ref: ODC Section 6.03.025) X A
11. Sign Programs (Ref: ODC Section 4.02.075) X A A
12. Specific Plan Minor Adjustments/Alterations
[12] (Ref: ODC Section 4.02.080)
X A A
13. Stays of Permit Approval Time Limit (Ref: ODC
Section 2.02.025.A.8)
X[5] X[5] X[5] X[5] X[5] X[5]
14. Subdivisions
a. Lot Merger (Merger of Contiguous
Parcels) [1] (Ref: ODC Section 4.02.085)
R X A
b. Reversions to Acreage [1] (Ref: ODC
Section 4.02.090)
R X A
496
Attachment A
File No. PDCA24-002
5 Table 2.02-1: Review Matrix
Applications, Actions, Decisions
and Processes
Reviewing Authorities [4]
Planning Director
City Engineer
Fire Marshal
Building Official
Zoning Administrator [2]
Development Advisory
Board
Historic Preservation
Subcommittee [2] [11]
Historic Preservation
Commission [11]
Planning Commission [11]
City Council [11]
Ontario International
Airport Authority
c. Tentative Tract and Parcel Maps, and
Vesting Maps [1] (Ref: ODC Section 4.02.095)
R X A
d. Tentative Tract and Parcel Map Time
Extensions (Ref: ODC Section 2.02.025.A.3 & 4)
R X A
15. Time Extensions, excepting tentative
subdivision maps (Ref: ODC Section 2.02.025)
X A A
16. Variances (Ref: ODC Section 4.02.020.D)
a. Homeowner [1] X A A
b. Other [1] R X A
C. MINISTERIAL (ADMINISTRATIVE) PERMITS AND
DECISIONS
1. Historic Preservation- Adaptive Reuse Plans
(Ref: ODC Section 4.03.010)
X X X
2. Administrative Exceptions (Ref: ODC Section
4.03.050)
X A A
3. Administrative Use Permits (Ref: ODC Section
4.03.015)
X
4. Business License - Zoning/Land Use
Compliance (Ref: OMC 3-1.129 (Zoning Compliance)
X A A
5. Development Plans within the ONT zoning
district (Ref: ODC Section 4.02.025)
X A A
6. Fair Housing and Reasonable
Accommodation Ref: ODC Section 4.02.035)
X A A
7. Interpretations and Land Use Determinations
(Ref: ODC Section 1.02.010)
X A A
8. Landscape and Irrigation Plans (Ref. ODC
Section 6.05.005)
X A A
9. Off-Site (Public) Improvement Plans (Ref: ODC
Section 6.08.040)
X A A
10. ONT ALUCP Interagency Review [7] (Ref: ONT
ALUCP)
X A[8]
11. Other Plan Checks and actions required by this
Development Code
X A A
12. Shopping Cart Retention Plans (Ref: ODC
Section 6.11.020)
X A A
13. Sign Plans (Ref: ODC Section 4.03.020) X A A
497
Attachment A
File No. PDCA24-002
6 Table 2.02-1: Review Matrix
Applications, Actions, Decisions
and Processes
Reviewing Authorities [4]
Planning Director
City Engineer
Fire Marshal
Building Official
Zoning Administrator [2]
Development Advisory
Board
Historic Preservation
Subcommittee [2] [11]
Historic Preservation
Commission [11]
Planning Commission [11]
City Council [11]
Ontario International
Airport Authority
14. X A A
15. Subdivisions
a. Certificates of Compliance (Ref: ODC
Section 4.03.025)
X A A
b. Final Tract and Parcel Maps, and Vesting
Maps (Ref: ODC Section 4.03.030)
X
c. Lot Line Adjustments (Ref: ODC Section
4.03.035)
X A A
d. Map Corrections and Amendments (Ref:
ODC Section 4.03.040)
X A A
e. Street Address Numbering (Ref. ODC
Section 6.06.010)
X A A
f. Street Name Assignment (Ref. ODC
Section 6.06.010)
X A A
g. Subdivision Improvement Agreement
(Ref: ODC Section 6.08.040.G)
X A A
h. Urban Lot Split (Ref: ODC Section 6.08.060 X A A
16. Tier 1 wireless telecommunications facility
pursuant to ODC Section 5.03.420 (Wireless
Telecommunications Facilities)
X A A
17. Wall, Fence, and Obstructions Plans not
associated with a Development Plan (Ref. ODC Section
6.02.005)
X A A
D. ENVIRONMENTAL DETERMINATIONS AND ACTIONS
1. Environmental Impact Reports (EIRs) (Ref: CCR
Section 15080 et seq.)
X[3] X[3]
2. Exempt Projects (Ref: CCR Section 15300 et
seq.)
X[3] X[3] X[3] X[3] X[3] A A
3. Ministerial Projects (Ref: CCR Section 15268) Ministerial projects are exempt from the requirements of CEQA [10]
4. Negative Declarations (NDs) and Mitigated
Negative Declarations (MNDs) (Ref: CCR Section 15070
et seq.)
X[3] X[3] X[3] X[3] X[3] X[3]
5. Addendums to previously certified EIRs and
previously adopted NDs and MNDs (Ref: CCR Section
15164)
X[3] X[3] X[3] X[3] X[3] X[3]
6. Environmental review for projects located
within the ONT zoning district [9]
X
498
Attachment A
File No. PDCA24-002
7 PART II. Division 4.03 —Ministerial Permits and Decision Add Section as follows:
Sections:
4.03.010: Historic Preservation—Adaptive Reuse Plan
4.03.010: Historic Preservation—Adaptive Reuse Plan
A. Purpose. The purpose of this Section is to establish a procedure by which Adaptive Reuse Plans may be approved by the City, while at the same time:
1. Provide a more efficient way for qualified historic buildings and adaptive reuse projects to meet development, building, and fire protection standards;
2. Promote adaptive reuse as part of broader goals supporting historic preservation, economic development, environmental sustainability and resilience, and recognize the social value of historic buildings;
3. Incentivize building reuse to encourage activation of Downtown Ontario where there is a large collection of commercial and industrial historic buildings that are worthy of preservation;
4. Eliminate or allow nonconformance with certain development regulations that would make adaptive reuse of qualified historic buildings infeasible, including such standards related to parking and loading, height, density, floor-area ratio, and open space; and
5. Allow alternative building and fire code compliance for qualified adaptive reuse projects able to demonstrate an alternative means or method of protecting public health, safety, and welfare.
B. Applicability.
1. Pursuant to Table 2.02-1 (Review Matrix) of this Development Code, the Approving Authority is hereby empowered to approve, approve in modified form, or deny an Adaptive Reuse Plan application, and to impose reasonable conditions upon the approval of the application.
2. Adaptive Reuse Plan approval shall allow for those land uses identified in Table
5.02-1 (Land Use Matrix) of this Development Code which allows for a broad range of land uses of the underlying zoning district in which the site is located. However, no new uses that emits noxious odors or excessive noise shall be allowed, unless the it can be demonstrated to the satisfaction of the Planning Director that the use will not cause adverse impacts to nearby residential land uses.
3. Qualifying buildings include those listed on the National Register of Historic Places, on the California Register of Historic Resources, Ontario Register of Historic Resources as designated local landmarks or contributors to designated local historic districts located within the Adaptive Reuse Plan Area.
4. Adaptive Reuse projects are construction and remodeling projects that reconfigure existing spaces within existing buildings to accommodate a new use or purpose other 499
Attachment A
File No. PDCA24-002
8 than what it was originally designed for. Adaptive Reuse projects require a change of use and building occupancy from office or commercial to residential, industrial to work/live, residential to office or commercial, or assembly to residential, office or commercial.
5. Application Filing and Processing. An Adaptive Reuse Plan application shall be filed, processed, and acted upon pursuant to Division 2.02 (Application Filing and Processing) of this Development Code and the provisions of this Section. Plans and reports prepared for an Adaptive Reuse Plan shall be prepared by a California licensed architect meeting the minimum qualifications standards of The Secretary of the interior Professional Qualifications (Code of Federal Regulations, 36 CFR Part 61).
C. Adaptive Reuse Plan Area. This area consists of the City’s original downtown, and extends north to include the historic districts adjacent to Euclid Avenue, the boundary of which is as follows:
Beginning at the intersection of the centerlines of State Street and San Antonio Avenue, thence north to the northernmost city boundary, thence east to the centerline of Sultana Avenue, thence south to the centerline of I Street, thence east to the centerline of Campus Avenue, thence south to the centerline of State Street, thence west to the point of beginning.
D. Alternative Building and Fire Code Regulations. The alternative building and fire codes regulations adopted in this Section are applicable to qualified buildings and adaptive reuse projects.
1. Alternative Codes. Use of the California Historic Building Code, International Existing Building Code, California Health and Safety Code and the Ontario Adaptive Reuse Plan Technical Manual shall provide a process and the ability for the Building Official and Fire Marshal to consider alternative building standards while ensuring adequate health and safety protections.
2. In permitting repairs, alterations, and additions necessary to accommodate adaptive reuse projects, the alternative code regulations shall impose requirements that will, in the determination of the Building Official and the Fire Marshal, protect the public health, safety, and welfare.
3. Nothing in this Section shall be construed to allow the reduction of existing seismic or fire and life-safety elements of an eligible building where such elements provide a greater level of protection than the minimum requirements established by this Section.
4. Subject to the approval of the Building Official and Fire Marshal, the use or occupancy type of a qualified building shall be allowed to be changed as part of an adaptive reuse project without conforming to all requirements of Title 8, Building Regulations, and Title 4, Chapter 4, Fire Code of the City of Ontario Municipal Code provided the new or proposed occupancy is equally or less hazardous, based on life and fire risk, than the existing use.
5. Whenever there are practical difficulties involved in carrying out the provisions of Title 8, Building Regulations, and Title 4, Chapter 4, Fire Code of the City of Ontario Municipal Code, the Building Official and Fire Marshal shall have the authority to grant modifications for individual cases, provided the Approving Authority shall first find that special individual reasons make the strict letter of the local codes impractical and the modification is in compliance with the intent and purpose of the local codes and that such modification does not lessen health, life and safety requirements.
500
Attachment A
File No. PDCA24-002
9 E. Incentives. The Planning Director may grant the following departures from certain development standards and requirements to incentivize qualified Adaptive Reuse Plans:
1. Development Plan Waived. Approved Adaptive Reuse Plans, which may allow for new additions up to 25 percent of the existing building floor area and is not visible from the public right-of-way, shall be exempt for the requirements for Development Plan review set forth in Section
4.02.025.
2. Mezzanines. Loft spaces in joint living and work quarters, dwelling units and guest rooms which do not exceed more than 33 percent of the floor area of the space below shall not be considered new floor area. Mezzanines may be included in the calculation of floor area for the purpose of determining compliance with the standards set forth in Paragraph (E) of this subdivision.
3. Parking Reduction. New parking spaces shall not be required for any converted use within the existing footprint of the building, but expansions to floor area shall require one parking space per bedroom or one parking space per 250 square feet of gross floor area for office or commercial.
4. Setbacks. Existing building setbacks may remain and shall be considered legally nonconforming, but no further encroachments shall be permitted into any nonconforming setback.
5. Increases in Maximum Building Height. The height of the structure, if it exceeds the maximum height of the zoning district, may remain and shall be considered legally nonconforming. Any rooftop construction needed for drainage, ventilation, utilities, or passive recreation shall be included within the height exemption. This height exemption does not include new residential or commercial floor area.
6. Open Space. Private open space for residential adaptive reuse projects may be waived when it is determined by the Approving Authority that the requirement would result in exterior alterations to the existing building that would result in an adverse impact to a historic resource. A minimum of 100 square feet of common open space per residential unit or 25 percent of the building square footage, whichever is less, shall be required and may be provided on the rooftop of the building or within the building and include various type of indoor amenities such as fitness center, workstations, playrooms, etc.
7. Loading Zone. A new loading zone shall not be required if the existing building does not have an existing loading zone.
F. Standards. Adaptive Reuse Projects permitted pursuant to this subdivision shall be developed in compliance with the following standards:
1. Minimum Dwelling Units. Adaptive reuse projects that propose residential shall develop no less than 3 units . The minimum floor area for new dwelling units and joint living and work quarters shall be 450 square feet. Floor area shall not include hallways or other common areas, or rooftops, balconies, terraces, fire escapes, or other projections or surfaces exterior to the walls of the building. The floor area of both the living space and the workspace shall be combined to determine the size of joint living and work quarters. The average floor area, as defined above, of all the dwelling units and joint living and work quarters in the building, including those that existed prior to the effective date of this ordinance, shall be at least 750 square feet. That minimum average size shall be maintained and not reduced.
501
Attachment A
File No. PDCA24-002
10 2. Storefront. Ground floor of an existing multiple level commercial building shall contain street frontage and shall be used as a commercial storefront. Residential on ground may occur at the rear of the building behind the storefront.
3. Exterior or Interior (Public Space) Alterations. A Certificate of Appropriateness pursuant to Section 4.02.050: Historic Preservation—Certificates of Appropriateness and Demolition of Historic Resources is required for any alteration, addition, restoration, rehabilitation, remodeling, relocation, repainting, and/or resurfacing of an historic resource.
4. Other Provisions. Floor Area Ratio (FAR), Landscaping, Lot Coverage, and any other development standard of the underlying zone may be waived by the Approving Authority.
G. Conditions of Approval.
1. In approving an Adaptive Reuse Plan, the Planning Director may impose certain safeguards and standards to ensure that the purposes of this Development Code are maintained; ensure that the permit will not endanger the public health, safety or general welfare; ensure that the permit will not result in any significant environmental impacts; ensure that the permit will be in harmony with the area in which it is located; and ensure that the permit will be in conformity with The Ontario Plan and any applicable specific and/or area plan(s).
2. The standards and requirements authorized by this Section are enforceable in the same manner and to the same extent as any other applicable requirement of this Development Code.
H. Findings and Decision . An Adaptive Reuse Plan, or any amendment thereto, shall be acted upon by the Approving Authority based upon the information provided in the submitted application, evidence presented in the Planning Department’s written report, only after considering and clearly establishing all of the below-listed findings, and giving supporting reasons for each finding. The application shall be denied if one or more of the below-listed findings cannot be clearly established.
1. That the use(s) of the property will not be detrimental to the public health, safety and general welfare surrounding the project location;
2. That the Adaptive Reuse Project complies with the standards set forth in Section
4.03.010 (F) of this Development Code; and
3. A Certificate of Appropriateness has been approved or Waived for the Adaptive Reuse Plan.
PART II. Division 7.01 —Historic Preservation
Revise Section 7.01.025 (C) Types of Incentives, as follows:
C. Types of Incentives. The below-listed incentives may be used for the eligible projects identified in Subsection B (Applicability) of this Section.
1. Economic and Financial Incentives. The following economic and financial incentives may be applied to a project following approval by the Historic Preservation Commission or the Historic Preservation Trust Board of Trustees, as applicable, and approval by the City Manager or the City Council, as applicable:
502
Attachment A
File No. PDCA24-002
11 a. Grants or loans approved through the Historic Preservation Trust pursuant to Section 7.01.030 (Historic Preservation Trust Fund) of this Division; b. Approval of a Mills Act contract pursuant to Section 4.02.070 (Historic Preservation—Mills Act Contracts) of this Development Code; c. Approval of funding through the Historic Rehabilitation Financing Program pursuant to Section 7.01.015 (California Historical Building Code) of this Division; d. Grants or loans through other City funding sources, including, but not limited to, redevelopment and housing funds;
e. Preservation easements;
f. Reduction or elimination of building plan check or permit fees; g. Reduction or elimination of development impact fees; h. Reduction or elimination of any other applicable City fees; or i. Federal rehabilitation tax credits (applied through the California Office of Historic Preservation).
2. Development Incentives. The following development incentives to be applied to the project:
a. California Historical Building Code. Use of the CHBC pursuant to Section
7.01.015 (California Historical Building Code) of this Division. b. Parking Reduction. For existing single-family dwellings with a one-car garage, the Planning Director may waive the requirement for 2 off-street parking spaces within a garage when adding floor area, if an existing one-car garage contributes to the significance of the property and/or district, and the existing garage is in good condition, or, if deteriorated, will be returned to good condition as part of the work to add new living space to the residence. c. Setback Reductions and Increases in Maximum Building Height. The Planning Director may grant reductions in required building setbacks or increases in the maximum allowed building height when the setback reduction or increase in allowed building height allows for the restoration of a character-defining feature, or allows character-defining features to be replicated in additions to historic structures. In no case, however, shall a reduction in a setback be granted when the reduction will cause an adverse effect to the property or neighboring property, or cause an adverse effect to the character of the neighborhood or district.
d. Adaptive Reuse. Departures from certain development standards may be waived to encourage adaptive reuse of qualified historic buildings pursuant to, and in accord with, the provisions of Section 4.03.010 of this Development Code.
503
Case Planner: Diane Ayala Hearing Body Date Decision Action Planning Director
Approval:
PC 5/28/2024 Approval Recommend
CC 1st reading 6/18/2024 Introduction
Submittal Date: N/A CC 2nd reading 7/2/2024 Final Action F
ILE NO.: PDCA24-002
SU
BJECT: A Development Code Amendment to establish Historic Preservation— Adaptive Reuse Plans. City initiated. City Council action is required.
R
ECOMMENDED ACTION: That the Planning Commission consider and adopt the Resolution recommending the City C ouncil approve the Development Code Amendment, File No. PDCA24 -002, pursuant to the facts and reasons contained in the staff report and attached Resolution.
P
ROJECT SETTING: The Development Code Amendment affects approximately 1.7 square miles (533 acres) of land, which is generally bordered by the Interstate 10 Freeway to the north, State Street to the south, San Antonio Avenue to the west and Sultana Avenue and Campus Avenue to the east, and is depicted in Exhibit A, Adaptive Reuse Plan Area.
P
ROJECT ANALYSIS:
T
he proposed Development Code Amendment will allow for the establishment of Historic Preservation— Adaptive Reuse Plans and processing procedures, generally described as follows:
(
1) Amend Division 2.02 (Application Filing and Processing) , revising Table 2.02-1:
Reviewing Matrix to include the Fire Marshal as an Approving Authority; (
2) Amend Division 4.03 (Ministerial Permits and Decision) by adding processing procedures, requirements, and eligibility for an adaptive reuse plan approval; and (
3) Amend Division 7.01 (Historic Preservation) to add Historic Preservation— Adaptive Reu
se Plan as an incentive.
T
he Amendment will target adaptive reuse (or change of building classification/occupancy) of designated historic buildings to multiple-family residential, office, commercial, work/live, or retail while removing construction barriers related to zoning, building, and fire code compliance . In turn, the adaptive reuse program will further incentivize preservation of historically significant resources , streamline the review and approval process by waiving the development plan review , reduce underutilized sites, reduce demolition, and foster sustainable community development. 303 East B Street, Ontario, California 91764 Phone: 909.395.2036 / Fax: 909.395.2420
PLANNING COMMISSION
AGENDA REPORT
May 28, 2024
504
Planning Commission Agenda Report
File No.: PDCA24-002
May 28, 2024