Agenda packet — Ontario City Council, August 20, 2024 (part 4 of 10)

16. STORAGE FACILITIES
The City of Ontario will not be providing storage facilities throughout the duration of this contract.

A. SIGNS
Contractor shall not post signs or advertising matter upon the areas under maintenance or improvements thereon, unless prior written approval is obtained from the Parks and Maintenance Director, or his authorized agent.

Contractor shall, always, remove all unauthorized signs and advertising matter such as, but not limited to, garage sale signs, yard sale signs, campaign signs and personal business signs in the area under maintenance.

17. LOCK AND KEYS
A. Where City of Ontario locks and keys are required as part of this contract, the Contractor shall:

Not duplicate any coded City key furnished by the city.

Surrender all keys furnished by the Parks and Maintenance Director or his authorized agent promptly at the end of the contract period, or at any time-deemed necessary by the Parks and Maintenance Director, or his authorized agent, to prevent loss to the City of Ontario.

Protect the security of City property by keeping controller cabinets and enclosure doors always locked.

Contact the City immediately if a security lock is non-functional and needs repair. Refrain from using premises behind locked doors for storage of materials, supplies or tools except as approved by the Parks and Maintenance Director or his authorized agent. In the event that the contractor staff who has been assigned keys to the facilities resigns from his position, it is the 578
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sole responsibility of the contractor to retrieve the keys assigned to such staff member and return to the City.

18. UTILITIES
The City of Ontario shall pay for the maintenance related to water and electrical utilities.

When needed, water usage shall not exceed the budgeted amount to comply with the City Water Conservation efforts. A water budget may be provided by the City and shall be reviewed and adhered to by the Contractor. Water budget shall be approved by the Parks and Maintenance Director, or his authorized agent.

The Contractor may be charged for all excessive utility usage (using the current utility rate) due to the contractor's failure to manage and or monitor irrigation system malfunctions or unauthorized increases in water usage. The excess cost will be determined by comparing the current utility usage with historical usage data for the same period.

The excess cost factor shall be deducted from payments to the Contractor. However, the Contractor will be allowed three (3) working days, upon receiving notice, to explain in written documentation the cause of the increase in utility usage in question. A final determination (after review of Contractor's explanation) of the deduction will be assessed by the Parks and Maintenance Director or his authorized agent.

19. NON-INTERFERENCE
The Contractor shall not interfere with the public use of the premises and shall conduct their operations so as to offer the least possible obstruction and inconvenience to the public, nor disrupt the peace and quiet of the area within which the services are performed.

20. PARKING
A. The Contractor shall park their vehicles and equipment within designated parking areas or in such a location to ensure normal vehicular traffic.

B. The Contractor's vehicles and equipment shall not be parked or set in such a manner that they block pedestrian access or vehicular right-of-way except as required to comply with all safety standards of OSHA or CAL-OSHA. Failure to perform proper traffic control will result in a formal warning (first time), deduction of $500.00 per instance after formal warning has been given and contractor fails to comply.
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Ex. A - 13 (BB&K 2020)

21. EMERGENCY CALLS
A. The Contractor shall have the capability to receive and respond immediately to calls of an emergency nature during normal working hours and outside of normal working hours. Calls of an emergency nature received by the Parks and Maintenance Director or his authorized agent, shall be referred to the worksite Contractor for immediate disposition. If the work site Contractor cannot be reached within two (2) hours, the City will deduct from the monthly billing the cost of City forces, or other sources, used to repair the emergency. The Contractor shall not receive additional compensation for responding to emergencies for work included in these general conditions at contract work sites.

22. EXTRAORDINARY SERVICES
A. The Contractor shall be responsible for providing extraordinary maintenance and/or repairs to existing landscape and new landscape areas outside of their contract areas.

Extraordinary services shall be defined as work not included in these general conditions or work required at a site for which there is no contract. Extraordinary maintenance shall include answering emergency calls as required. Contractors shall respond to an emergency call within two (2) hours. Contractors shall maintain a 24 hours per day, seven days per week, on-call service for emergency calls. The Contractor shall notify the Parks and Maintenance Director, or his authorized agent, by telephone within 24 hours of any emergency extraordinary work that is performed. Non-emergency extraordinary work requires written approval before the work is performed. Submission of an EWA and approval by the Parks and Maintenance Director, or his authorized agent will be necessary. The Contractor shall be compensated for extraordinary work as defined in Section 9.

B. In situations involving emergency repair work after normal work hours, Contractors shall dispatch qualified personnel and equipment to reach the site within two (2) hours. The Contractor's vehicle shall carry sufficient equipment to effect safe control of traffic. When the work site Contractor arrives at the site, the Contractor shall set up traffic warning and control devices, if deemed necessary and proceed to repair on a temporary/permanent basis.

C. If a City Representative is still at the site when the work site contractor arrives, the Contractor shall quickly evaluate the situation and discuss it with the City Representative. If the repair will take only a few minutes, the City Representative may stay to continue to direct traffic while the Contractor makes the repairs. If the repair will take longer than the City Representative 580
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Ex. A - 14 (BB&K 2020)
can wait, the Contractor shall immediately set up temporary traffic control devices and all other necessary warning devices and relieve the City Representative.

D. An emergency may be called by the following individuals or agencies at anytime for extraordinary services involving repair work:

1. City Manager

2. Police Department

3. Fire Department

4. Parks and Maintenance Director
E. The following emergency phone numbers are listed for the convenience of the Contractors:

Fire Department (Dispatch) (909) 983-5911
Fire Department (Emergency) 911
Police Department (Dispatch) (909) 986-6711
Police Department (Emergency) 911
Southern California Edison (800) 655-4555
Southern California Gas (800) 427-2200
Dig Alert (800) 422-4133

23. REPORTING DAMAGE OR MALFUNCTION
Any damage to, or malfunction of, any facility not specifically stated in this Agreement shall be promptly reported to the Parks and Maintenance Director, or his authorized agent.

24. COMPENSATION FOR ROUTINE MAINTENANCE
The City shall compensate Contractors based upon the total dollar amount of a bid or the total dollar amount of a combination of bids, if applicable, in monthly installments beginning 30 days after the commencement of work. Billing adjustments may be made where authorized by this Agreement.
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Ex. A - 15 (BB&K 2020)

25. ADDITION OR DELETION OF LANDSCAPE AREAS
The Contractors shall maintain, at a unit price comparable to other existing landscape areas and subject to the Parks and Maintenance Director approval or his authorized agent's approval, additional landscape areas that the city adds to this contract. If notification is made of a new installation other than at the beginning of a monthly period, the unit cost negotiated and agreed upon by the parties, shall be prorated from the day the Contractor is notified to start maintenance. The City may elect to delete work sites, or portions thereof, within this Agreement at a unit price comparable to the bid price of said work sites.

26. DISCREPANCIES OR OMISSIONS
Should a bidder find discrepancies or omissions in the specifications or other documents, or be in doubt as to their true meaning, he may request a written interpretation from the Parks and Maintenance Director, or his authorized agent. Any interpretation, or change in the proposed documents, will be made only by addendum issued to each person to whom bid forms have been issued and shall become a part of the bid.

27. MINOR MODIFICATION
The Parks and Maintenance Director, or his authorized agent, may modify these specifications with the joint approval of the Contractor.

28. CONTRACTOR NON-COMPLIANCE
If the Parks and Maintenance Director, or his authorized agent, determines that there are deficiencies in the performance of this Agreement, the Parks and Maintenance Director, or his authorized agent, will provide a written inspection notice to the Contractor stating the deficiencies and specifying a time frame to correct the specified deficiencies. This time frame shall be reasonable, as determined by the Parks and Maintenance Director, or his authorized agent, to correct the specified deficiencies but not to exceed five 5 working days from the day of the inspection punch list. If the site(s) show obvious signs of non-performance, the Parks and Maintenance Director, or his authorized agent shall have the ability to immediately enforce partial or full deduction for the site in question. Should the Contractor fail to correct all deficiencies within the stated time frame, the Parks and Maintenance Director, or his authorized agent, may exercise the following measures:
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Ex. A - 16 (BB&K 2020)
A. Deduct from the Contractor's payment the amount necessary to correct the deficiency, including City overhead and impose a deficiency deduction.

B. Withhold the entire or partial payment.

C. Utilize City forces, or an alternate source, to correct the deficiency and deduct from the Contractor's payment the total cost, including City overhead. The Parks and Maintenance Director, or his authorized agent, shall decide all questions which arise as to the manner of performance and completion per schedule, acceptable fulfillment of the contract by the Contractor, interpretation of the specifications, and compensation to include completion of work by alternate sources. In addition to the provisions of Section 3.3, Contract Documents and Section 28 (B), in event of a failure to correct a deficiency, or for any other breach of this Agreement by the Contractor, the City of Ontario may immediately terminate this Agreement. If the contractor requires extra time to complete the deficiency list due to materials/parts shortage, the contractor shall request in writing only the time needed to be added and the reasons why.

The City representative will review the request and shall respond to the contractor in writing of the decision made. Contractor shall present the request for extension within the first five (5) working days of the deficiency list.

29. PAYMENTS WITHHELD
The city may withhold entire or partial payment for reasons as follows:

A. Work required in the specifications, which is defective, incomplete, or not performed. Claims filed or reasonable evidence indicating probable filing of claims.

B. Failure of the Contractor to make payments properly to subcontractors, or for materials and/or labor. A reasonable doubt that the contract cannot be completed for the remaining balance.

C. Reports, logs, or other contractual written documentation required of the Contractor to be delivered to the Parks and Maintenance Director, or his authorized agent, which is/are incomplete or not performed.

30. WITHHELD CONTRACT FUNDS
The Contractors may, at his sole cost and expense, substitute securities equivalent to any monies withheld by the City to insure performance under the contract. Such securities shall be deposited with the City or with a State or Federally Chartered Bank as escrow agent who shall pay such monies to the Contractors upon satisfactory completion of the contract. The Contractor 583
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Ex. A - 17 (BB&K 2020)
shall be the beneficial owner of any securities substituted for monies withheld and shall receive any interest thereon. Securities eligible for investment under this section shall include those listed in Public Contract Code Section 22300. One definition of just cause for immediate contract termination is, if in the opinion of the Parks and Maintenance Director, or his authorized agent, the contract cannot or will not be completed by the Contractor in its entirety. In the event of such termination, the bonds required shall remain in effect for six (6) months after the date of termination to provide surety that any remedial work required at the time of termination will be completed.

If the Contractor fails to meet the specifications of this contract for any fifteen (15) consecutive or non-consecutive days, the Parks and Maintenance Director, or his authorized agent, may at his option terminate the balance of this contract by written notice of termination to the Contractor. Notice of such termination shall take effect three (3) days after such notice is mailed.

31. COMPLAINTS FROM CITY
The Contractor shall maintain an on-the-job a written log of all complaints which includes the date and time received and the action taken or the reason for non-action. The on-the-job log of complaints shall be available upon request from the City Representative. All complaints shall be abated as soon as possible after notification; but in all cases within 24 hours, to the satisfaction of the Parks and Maintenance Director, or his authorized agent. If any complaint is not abated within 24 hours, the Parks and Maintenance Director, or his authorized agent, shall be notified immediately of the reason for not abating the complaint, followed by a written report to the Parks and Maintenance Director or his authorized agent, within four (4) City working days.

If the complaints are not abated within the time specified, or to the satisfaction of the Parks and Maintenance Director or his authorized agent, the Parks and Maintenance Director, or his authorized agent, may correct the specific complaint and the total cost incurred by the City of Ontario shall be deducted and forfeited from the payments owing to the Contractor from the City of Ontario.

32. CONTRACTOR IS AN INDEPENDENT CONTRACTOR, INDEMNIFICATION Contractor shall act under the contract as an Independent Contractor thorough the City of Ontario and will not be an agent, or employee of the City. Contractor shall not represent or otherwise hold out itself, or any of its subcontractors, directors, officers, partners, employees, or 584
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agents, to be an agent or employee of the City. Contractors shall indemnify and otherwise hold harmless the City, its officials, officers, directors, employees, agents and other representatives, from all liability, loss, or damage, including reasonable attorney's fees and other costs of defense resulting from damage or injury to persons or property caused, or claimed to have been caused, by acts or omissions of the Contractor, or of any of its subcontractors, directors, officers, partners, employees, or agents in the course of, or in connection with the Contractor's performance under the contract. The Parties agree to cooperate fully in the resolution of any claims for such liability, loss, or damage.

33. SUBCONTRACTOR/ASSIGNMENT OF CONTRACT
Reference is hereby made to the provisions of The Subletting and Subcontracting Fair Practices Act (Government Code Sections 4100, et. seq.), which are incorporated herein and made a part hereof by this reference.

A copy of each subcontract, if in writing, or if not in writing, then a written statement signed by the Contractor, giving the name of the subcontractor, and the terms and conditions of such subcontract, shall be filed with the City before the subcontractor begins work. Each subcontract shall contain a reference to this agreement between the City and the Contractor, and the terms of that agreement between the City and the Contractor and all parts thereof shall be made a part of such subcontract insofar as applicable to the work covered thereby. Each subcontractor shall provide for its annulment by the Contractor at the order of the City, if, in the City's opinion, the subcontractor fails to comply with the requirements of the principal contract insofar as the same may be applicable to his work. Nothing herein contained shall create any contractual relation between any subcontractor and the City or relieve the Contractor of any liability or obligation hereunder.

Contractor shall not assign, transfer, convey or otherwise dispose of this contract, or of his rights of interests in or to the same or any part hereof, without the previous consent in writing of the Parks and Maintenance Director, or his authorized agent. If the Contractor, without such previous written consent assigns, transfers, conveys, or otherwise disposes of the contract, or of his rights or interests therein, the contract may, at the option of the City, be terminated and revoked, and the City shall there upon be relieved and discharged from all liability and obligations arising out of the same to the Contractor, and to his assignee or transferee. No right under the contract, nor any right to any money to become due hereunder, shall be asserted against the City in law or equity by reason of any so-called assignment of the contract, or any 585
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Ex. A - 19 (BB&K 2020)
part thereof unless authorized by the written consent of the Parks and Maintenance Director, or his authorized agent.

34. COMPLIANCE WITH THE LAW
Contractor agrees that their performance under this contract shall comply with all applicable laws of the United States of America, the State of California, the county of San Bernardino, the City of Ontario and any other political entity having jurisdiction over the activities of the Contractors. The Contractor State License Board for the State of California has administratively determined in writing that a C-27 Contractor License is required to provide the service as set forth in the contract and specifications. Therefore, each bidder will be required to hold a valid C27 Contractor License.

35. PAYROLL
Section 1776, Chapter 1 of Division 2, from the California Labor Code requires that each Contractor and Subcontractor keep an accurate payroll record, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and each week, and the actual per diem wages paid each journeyman, apprentice or worker employed by him.

The employee's own payroll records shall be available for inspection, and a copy shall be made available to the employee or his authorized representative, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standard.

Pursuant to Labor Code Section 1778.8, the Contractor agrees to pay travel and subsistence payments to each workman needed to execute the work in accordance with the applicable collective bargaining agreements filed with the Department of Industrial Relations.

36. LABOR STRIKE
It shall be the responsibility of each contractor to provide continuous contractual services, without any interruption.

In case of any labor strikes, the Contractor shall provide other means, as its own cost, to provide a comparable continuous contractual service as if there were no strike.

Failing to do so will cause the Parks and Maintenance Director, or his authorized agent, to take whatever action is deemed necessary to provide such service and the cost will be borne by the Contractor.
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Ex. A - 20 (BB&K 2020)

37. DEBRIS DISPOSAL
Blowing and disposing of any debris into the Storm Drain system and/or streets shall not be permitted. If found, Contractor will face liquidating damages as follows; 1st violation $ 500.00, 2nd. violation $1000.00, 3rd. violation and thereafter $3000.00 and/or possible cancellation of contracts.

38. TREE CARE
A. Tree Trimming
The Contractor shall be responsible for all tree under-trimmings, including the removal of palm fronds and flower stalks (if present). All trees are to be under-trimmed to ensure public and vehicle safety or as directed by the Parks and Maintenance Director, or his authorized agent.

Contractor shall have a Certified Arborist on staff to meet the following criteria:

Contractor shall prune palm trees at no extra cost to the City (dead fronds and flower stalks) annually, removal of fruit (dates) if present shall be done twice per year as designated by the Parks and Maintenance Director or his authorized agent.

All trees in the work site shall be maintained in their natural shapes. This work shall be accomplished in a manner which will ensure that each individual tree is under-trimmed carefully to promote the tree's health and appearance.

All work shall be of the highest quality and performed in accordance with City approved tree trimming standards.

All trees shall be continually maintained free of all dead, diseased and damaged branches back to the point of breaking. In cases where the dead, diseased or damaged branches are beyond the reach of a tree pruning pole saw being operated from ground level, the Contractor is to notify the City within 24 hours. Cuts must be made flush with the collar to promote proper healing. Pruning tools shall be adequately sharpened to provide clean cuts and shall be properly sterilized to reduce spread of disease.

All sucker growth is to be removed from trees as it occurs.

The Contractor shall maintain all branches which encroach on or over sidewalks at a minimum height of ten feet (10') clearance. The Contractor shall notify the city within 24 hours of any 587
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Ex. A - 21 (BB&K 2020)
branches encroaching beyond the curb line into the street that cannot be reached with a pole saw.

All branches which encroach over private property, shall be removed as directed.

The Contractor shall not remove or disturb any tree central leader without prior written approval from the Parks and Maintenance Director, or his authorized agent.

39. WEED CONTROL
Weeds are defined in the dictionary as:

A wild plant growing where it is not wanted and in competition with cultivated plants." When classified by their gross morphological features, weeds are broken down into three major categories: grasses, sedges, and broadleaf weeds.

Full control of these 3 categories of weeds will be achieved with a combination of selective and non-selective herbicides as well as mechanical removal. Weeds should not be visible.

All areas within the specified maintenance area, including but not limited to, turf grass, shrub and ground cover areas, planters, tree wells, landscape areas, and softball/baseball infields shall be kept free of weeds at all times. . Weed removal shall consist of complete removal of all weeds, including top growth and roots.

Weed control shall be performed as needed.

Weeds shall be controlled either by hand, mechanical or chemical methods; however, the Parks and Maintenance Director, or his authorized agent, may restrict the use of chemical weed control in certain areas.

40. USE OF CHEMICALS
The Contractor shall submit a list of all chemical herbicides, pesticides, and rodenticides proposed for use under this contract for approval by the Parks and Maintenance Director or his authorized agent with the signed contract. Materials included on this list shall be limited to chemicals approved by the State of California Department of Food and Agriculture, and shall include the exact brand name and generic formulation. The use of any chemical on the list shall be based on the recommendations of a California State Licensed Pest Control Advisor where required by law.

The use of chemicals shall conform to the current San Bernardino County Agriculture Commissioner regulations. No chemical herbicide, rodenticide or pesticide shall be applied until 588
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Ex. A - 22 (BB&K 2020)
its use is approved, in writing, by the Parks and Maintenance Director, or his authorized agent as appropriate for the purpose and area proposed.

Required spray equipment will consist of at least one (1) medium spray rig of 100-gallon (minimum) capacity or more and backpack sprayers provided for each crew performing chemical landscape maintenance.

41. LITTER
All areas in the work sites shall be kept free of, but not limited to, the following items: bottles, glass, broken glass, cans, paper, cardboard, metallic items, feces, leaves, tumbleweeds and other debris on a daily basis.

The Contractor shall promptly remove from the work area, all debris generated by their performance and dispose of the debris in a legal manner. The City does not allow any dumping of debris generated by your daily work in City facilities. Illegal dumping picked up by contractors shall be brought up to the City yard for proper disposal. Excessive dumping (above and beyond reasonable) after long holiday weekends and special events shall be reported immediately to the City Representative.

Hazardous waste as well as homeless belongings shall not be picked up. Contractor shall contact City Representative to arrange proper disposal by City forces. A myOntario App service request shall be created to report the hazardous conditions.

42. GENERAL
A. Trash Removal
Remove all trash and accumulated debris from the work sites daily. In addition, any type of feces is also to be removed from the walkways, turf or ground cover areas and dumpster areas.

B. Policing of Areas
All maintained areas shall be policed based on frequencies.

C. Curb and Gutter Maintenance
The Contractor is responsible for removal of all weeds and grass growing in and around the curb and gutter area monthly. The Contractor is responsible for insuring the roadway is cleared 589
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Ex. A - 23 (BB&K 2020)
of all dirt and debris within four (4) feet of the curb and gutter in all areas adjacent to maintenance responsibilities.

D. Walkway Maintenance
Walkways shall be cleaned immediately following mowing and edging and cleaned by use of power sweeping or blower equipment. All walkway cracks and expansion joints shall be maintained weed and grass free at all times.

E. Drain Maintenance
All drains and catch basins shall be kept free of siltation and debris at all times. All V-ditches and drainage areas shall be kept clean and edged weekly by the Contractor. Cleaning of drain basins shall be done monthly, Contractor shall inspect weekly to make sure that grates are secured, if missing, Contractor shall replace at City's expense. Damaged grates due to Contractor's operations shall be replaced at Contractors expense.

F. Removal of Leaves
Accumulation of leaves shall be removed from all designated landscape areas on a monthly basis and under trees once per month or more as needed.

G. Hardscape Power Wash
All concrete areas shall be cleaned using a power washer (hot steam cleaning washer) to remove soda spills, gum and other stains that might be present. The City Representative will make the final determination if the service is needed.

The use of a biodegradable cleaner (soap) is required and permitted. Containment of contaminated soapy water shall be the responsibility of the Contractor.

43. REPAIR AND SERVICE OF WALKWAYS AND MISCELLANEOUS IMPROVEMENTS Walkways and Service Roads - All walkways and service roads, if any, shall be maintained by the Contractor so as to keep the integrity of the walking or driving surface in a safe, unimpaired condition.
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Ex. A - 24 (BB&K 2020)
The Contractor will not be responsible for total replacement of roadways or walkways as a result of normal deterioration but will be required to replace all improvements damaged by his negligence.

It will be the responsibility of the Contractor to repair or replace miscellaneous improvements such as signs and mowing strips, or any other structural improvements within the work sites, unless otherwise specified. The Contractor shall be entitled to additional compensation for these services as stated. The contractor shall communicate any improvements needed prior to repairs to the Parks and Maintenance Director or his authorized agent for proper approvals.

44. CITY OF ONTARIO myOntario App (FREE)
Contractor shall download the free myOntario App for the purpose of tracking completed specialty tasks (mulching, vandalism, vehicular damage, rose trimming, fertilizations, chemical applications, illegal dumping, hazardous waste, pruning shrubs, downed branches and rodent control, restroom issues). All specialty tasks shall be recorded as a service request using the app order system and shall be reported to the city representative when completed. City staff will close the service request.

NOTICES
Any notice, demand, request, consent, approval, or communication that either Party desires, or is required to give to the other Party or any other person, shall be in writing and either served personally, sent by prepaid, first-class mail, or by email followed by mailing of said notice. 591
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Ex. A - 25 (BB&K 2020)
As needed
As needed
As needed
As needed
As needed
24 x per year
As needed
Quiet Home Weed Abatement Sites

MAINTENANCE FREQUENCIES
TREES
Staking/Guying
Under Trimming (ISA standards)
Raking Leaves
Under Trimming

MISCELLANEOUS
Weed Removal
Weed Control
Curb and Gutter service
Trash/Litter 364 x per year
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BB&K (2024) Exhibit B-1 MAINTENANCE SERVICES AGREEMENT
EXHIBIT “B”

SCHEDULE OF SERVICES

SEE ATTACHMENT
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Exhibit B- 2 (BB&K 2020)

LANDSCAPE MAINTENANCE SERVICES FOR QUIET HOME WEED ABATEMENT BID SCHEDULE NO. 1
LANDSCAPE MAINTENANCE CONTRACT PM 2425-17
FISCAL YEAR 2024/2025 to 2026/2027 3 YEAR CONTRACT
No. Description Monthly Annual
Cost Cost

1. Quiet Home Weed Abatement $10,750.00 $129,000.00
TOTAL $10,750.00 $129,000.00
$120.00
(per individual tree/required trimming to be +/- 35% of growth per ISA) Cost for complete tree (individual) removal per inch at $60.00 DBH (diameter at breast height) stumps to
Cost for complete tree removal per inch at $45.00

FUTURE CONTRACT ADDITIONS
Landscape maintenance areas cost per sq. ft. $.037
Hardscape maintenance areas cost per sq. ft. $.027
Weed Abatement areas cost per sq. ft. $.06
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Exhibit B- 3 (BB&K 2020)

LANDSCAPE MAINTENANCE SERVICES FOR QUIET HOME WEED ABATEMENT BID SCHEDULE NO. 2
LANDSCAPE MAINTENANCE CONTRACT PM 2425-17
FISCAL YEAR 2027/2028 4th YEAR CONTRACT (OPTIONAL)
No. Description Monthly Annual
Cost Cost

1. Quiet Home Weed Abatement $11,073.00 $132,876.00
TOTAL $11,073.00 $132,876.00
$120.00
(per individual tree/required trimming to be +/- 35% of growth per ISA) Cost for complete tree (individual) removal per inch at $60.00 DBH (diameter at breast height) stumps to
Cost for complete tree removal per inch at $45.00

FUTURE CONTRACT ADDITIONS
Landscape maintenance areas cost per sq. ft. $.037
Hardscape maintenance areas cost per sq. ft. $.027
Weed Abatement areas cost per sq. ft. $.06
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Exhibit B- 4 (BB&K 2020)

LANDSCAPE MAINTENANCE SERVICES FOR QUIET HOME WEED ABATEMENT BID SCHEDULE NO. 3
LANDSCAPE MAINTENANCE CONTRACT PM 2425-17
FISCAL YEAR 2028/2029 5th YEAR CONTRACT (OPTIONAL)
No. Description Monthly Annual
Cost Cost

1. Quiet Home Weed Abatement $11,406.00 $136,872.00
TOTAL $11,406.00 $ 136,872.00
$120.00
(per individual tree/required trimming to be +/- 35% of growth per ISA) Cost for complete tree (individual) removal per inch at $60.00 DBH (diameter at breast height) stumps to
Cost for complete tree removal per inch at $45.00
DBH

FUTURE CONTRACT ADDITIONS
Landscape maintenance areas cost per sq. ft. $.037
Hardscape maintenance areas cost per sq. ft. $.027
Weed Abatement areas cost per sq. ft. $.06
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BB&K (2024) Exhibit C-1 MAINTENANCE SERVICES AGREEMENT
EXHIBIT “C”
NTE $387,000

PERFORMANCE/PAYMENT BONDS ON THE NEXT PAGE
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BB&K (2024) Exhibit C-2 MAINTENANCE SERVICES AGREEMENT

PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:

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

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

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

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

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

Whenever Contractor shall be, and is declared by the City to be, in default under the Contract Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall promptly, at the City’s option:
598
46700.00100\40935194.1
BB&K (2024) Exhibit C-3 MAINTENANCE SERVICES AGREEMENT
(1) Take over and complete the Project in accordance with all terms and conditions in the Contract Documents; or
(2) Obtain a bid or bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible bidder, arrange for a Contract between such bidder, the Surety and the City, and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
(3) Permit the City to complete the Project in any manner consistent with local, California and federal law and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.

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

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

The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project, including but not limited to the provisions of sections 2819 and 2845 of the California Civil Code.
599
46700.00100\40935194.1
BB&K (2024) Exhibit C-4 MAINTENANCE SERVICES AGREEMENT
IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__).
(Corporate Seal)
Contractor/ Principal
By
Title
(Corporate Seal)
Surety
By
Attorney-in-Fact
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached.
(Attach Attorney-in-Fact Certificate) Title
The rate of premium on this bond is ____________ per thousand. The total amount of premium charges, $_______________________________.
(The above must be filled in by corporate attorney.)

THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety)
(Name and Address of Agent or
Representative for service of
process in California, if different
from above)
(Telephone number of Surety
and Agent or Representative for
service of process in California)
NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
600
46700.00100\40935194.1
BB&K (2024) Exhibit C-5 MAINTENANCE SERVICES AGREEMENT
Notary Acknowledgment
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.

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

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

WITNESS my hand and official seal.

Signature of Notary Public

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

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

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
601
46700.00100\40935194.1
BB&K (2024) Exhibit C-6 MAINTENANCE SERVICES AGREEMENT

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

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

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

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

It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement herein above described, nor by any rescission or 602
46700.00100\40935194.1
BB&K (2024) Exhibit C-7 MAINTENANCE SERVICES AGREEMENT
attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or City and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Section 9100 of the Civil Code, and has not been paid the full amount of his claim and that Surety does hereby waive notice of any such change, extension of time, addition, alteration or modification herein mentioned and the provisions of sections 2819 and 2845 of the California Civil Code.

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

NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
603
46700.00100\40935194.1
BB&K (2024) Exhibit C-8 MAINTENANCE SERVICES AGREEMENT
Notary Acknowledgment
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.

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

WITNESS my hand and official seal.

Signature of Notary Public

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
604
Department: Public Works
Prepared By: Niles Boyer
Staff Member Presenting: Tito Haes, Executive
Director Public Works
Reviewed By: Gina Gomez, Bonnie Tam
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 19
SUBJECT: AN AMENDMENT TO THE DESIGN SERVICES AGREEMENT WITH ROBERT BORDERS

AND ASSOCIATES FOR ON-CALL ARCHITECTURAL DESIGN SERVICES FOR THE

JOHN GALVIN PARK SNACK BAR RENOVATION PROJECT

CITY OF ONTARIO
Agenda Report
August 20, 2024
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council authorize the City Manager, or his designee, to execute Amendment No. 21 to the on-call Design Services Agreement with Robert Borders and Associates, of Costa Mesa, California, to provide on-call architectural design services for the PF2307 John Galvin Park Snack Bar Renovation Project in the amount of $20,078 for a total not-to-exceed contract amount of $858,209 and extend the term to June 30, 2025.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT: The Fiscal Year 2024-25 Adopted Budget includes appropriations in the Capital Projects-Measure Q Fund for the PF2307 John Galvin Park Snack Bar Renovation Project. The recommended Amendment No. 21 will increase the total contract amount by $20,078, funded by Measure Q, for a total not-to-exceed contract amount of $858,209. The total contract amount of $858,209 for the on-call Agreement with Robert Borders and Associates includes on-call work performed for various citywide projects.

BACKGROUND & ANALYSIS: On February 20, 2024, City Council approved Amendment No. 20 to the Design Services Agreement with Robert Borders and Associates for on-call architectural design services for the Homer Briggs Park and Anthony Munoz Park concession area upgrades and roof design projects.

The recommended Amendment No. 21 will include a demolition plan for the concrete bleachers and revisions to the design of the roof for accommodation of the roof mounted Heating, Ventilation, and Air Conditioning (HVAC) System for the concession kitchen range hood exhaust system, the design of an inground grease waste interceptor at the Latimer Field concession building at John Galvin Park.

Additionally, the architectural design services include schematic design and design development, preparation of construction documents, structural and mechanical engineering, and consultant coordination.
605
46700.00100\33287662.1

Page 1 of 3 ends

BB&K 2020
AMENDMENT NO. 21 TO THE DESIGN SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO AND

ROBERT BORDERS AND ASSOCIATES

1. Parties and Date.

This Amendment No. 21 to the Agreement (as defined herein) is made and entered as of ____________, by and between the City of Ontario (“City”) and Robert Borders and Associates, a Corporation (“Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.”

2. Recitals.

2.1 Agreement. The City and Consultant have entered into an agreement entitled “Design Services Agreement” dated January 1, 2020 (“Agreement”).

2.2 Amendment Purpose. The City and Consultant desire to amend the Agreement to revise the scope of services for the Eastern Little League Latimer Baseball Field Concession Building and Bleachers Renovation Project set forth in Amendment No. 21 – Attachment “A” and increase the not-to-exceed amount by Twenty Thousand Seventy-Seven Dollars and Fifty Cents ($20,077.50). The Parties have heretofore entered into that Amendment No. 1 dated March 15, 2020, Amendment No. 2 dated June 22, 2020, Amendment No.3 dated November 19, 2020, Amendment No. 4 dated December 5, 2020, Amendment No. 5 dated January 15, 2021, Amendment No. 6 dated April 6, 2021, Amendment No. 7 dated August 11, 2021, Amendment No. 8 dated September 30, 2021, Amendment No. 9 dated September 30, 2021, Amendment No. 10 dated February 1, 2022, Amendment No. 11 dated October 1, 2022, Amendment No. 12 dated January 5, 2023, Amendment No. 13 dated May 17, 2023, Amendment No. 14 dated June 20, 2023, Amendment No. 15 dated June 20, 2023, Amendment No. 16 dated August 15, 2023, Amendment No. 17 dated September 19, 2023, Amendment No. 18 dated November 7, 2023, Amendment No. 19 dated November 7, 2023, and Amendment No. 20 date February 2, 2024.

2.3 Amendment Authority. This Amendment No. 21 is authorized pursuant to Section

3.8.1 of the Agreement.

3. Terms.

3.1 Amendment. Section 3.10.1 of the Agreement is hereby amended in its entirety to read as follows:
606
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Page 2 of 3 ends

BB&K 2020
“3.10.1 Consultant’s Compensation for Basic Services. City shall pay to Consultant, for the performance of all Services rendered under this Agreement, with the total not to exceed amount of Eight Hundred Fifty-Eight Thousand Two Hundred Eight dollars with Fifty Cents ($858,208.50) ("Total Compensation").

This Total Compensation amount shall be based upon, and may be adjusted according to, the fee schedule and related terms and conditions attached hereto as Exhibit "B" and incorporated herein by reference. The Total Compensation, as may be adjusted upon mutual agreement, shall constitute complete and adequate payment for Services under this Agreement.

Exhibit A is hereby deleted in its entirety and replaced with Attachment A attached hereto and incorporated herein by reference.

3.2 Continuing Effect of Agreement. Except as amended by this Amendment No. 21 all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 21. From and after the date of this Amendment No. 20, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 21.

3.3 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 21.

3.4 Severability. If any portion of this Amendment No. 21 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

3.5 Integration. This Amendment represents the entirety of the Parties’ understanding relating to the subject of this Amendment, including written or verbal communications between the Parties, which shall have no relevance unless expressly incorporated herein. This is an integrated amendment.
[SIGNATURES ON FOLLOWING PAGE]
607
46700.00100\33287662.1

Page 3 of 3 ends

BB&K 2020
SIGNATURE PAGE FOR AMENDMENT NO. 21 TO DESIGN SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO

AND ROBERT BORDERS AND ASSOCIATES
IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 21 as of the day and year first above written.

CITY OF ONTARIO Robert Borders and Associates
By:

Its:

Printed Name:

By:

Its:

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

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

City Clerk
608
9 August 2024
Public Works Agency
City of Ontario
1333 S. Bon View Avenue
Ontario, CA 91761
Attention : Niles Boyer, Project Manager
Parks Department
Project: Latimer Park Little League Concessions
Ontario, CA
Project No: 23017
Subject: Letter of Authorization Number One
Dear Mr. Boyer:

This Letter of Authorization (LOA) No. One is written to document our authorization to provide Additional Services under the terms of our Agreement for this project. The following services have been requested that are a change to the original Basic Services scope of work.

1. Revisions for the re-design of the roof mounted HVAC system required for the development of the Concession Stand based on the requirement for a commercial kitchen. The required equipment and hood necessitated a roof change to accommodate the equipment located on the roof.

2. Miscellaneous items including revision to add a grease waste interceptor, Path of Travel documentation and separate plan for bleacher demolition site work.

Compensation for this work will consist of the following:

Architectural
Design Development $ 4,612.50
Construction Documents $ 7,015.00
Structural Engineering: $ 3,450.00
Mechanical Engineering: $ 4,025.00
Consultant Coordination $ 975.00
Total $ 20,077.50
Total Fee LOA One $ 20,077.50
Compensation: This work will be completed on a time-and-material basis. Total compensation for Letter of Authorization (LOA) No. One will not exceed $ 20,077.50 plus any reimbursable expenses without prior approval from the City of Ontario.

This Letter of Authorization No. One authorizes the Additional Services work described above. Please execute this authorization by signing in the space provided below and return one copy for our files.

Sincerely,

BORDERS ARCHITECTS
Loren Della Marna
Principal
LDM: jg
Approved: ______________________________ Date: ________________________ "Attachment A"
609
Department: Broadband Operations
Prepared By: Judy Witrago
Staff Member Presenting: Jimmy Chang,
Broadband General Manager
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 20
SUBJECT: A CHANGE ORDER TO THE CONSTRUCTION CONTRACT WITH SECC

CORPORATION FOR ON-CALL CONDUIT AND CABLE INSTALLATION

CITY OF ONTARIO
Agenda Report
August 20, 2024
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council authorize Change Order No. 1 to Construction Contract No. BB-2022-002 with SECC Corporation of Chino, California, for on-call citywide fiber conduit installation services, in the amount of $277,403 for a revised total of $3,277,403; and authorize the City Manager, or his designee, to execute said contract and future amendments within the authorization limits.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT: The Fiscal Year 2024-25 Adopted Budget includes appropriations for construction support services for the Ontario Municipal Utilities Company (OMUC) Facility Site Security Improvement Project (WA0205). If approved, appropriations will be included in future Annual Budgets to the City Council for approval as needed to fund Change Order No. 1 for on-call citywide fiber conduit installation services.

BACKGROUND & ANALYSIS: On January 17, 2023, Construction Contract No. BB-2022-002 was awarded to SECC Corporation for on-call conduit installation services in the amount of $3,000,000.

SECC Corporation supports the Broadband Departments’ Phase 1 Fiber Broadband Expansion project, approved by the City Council on July 20, 2021, and Broadband construction projects for fiber optic conduit installation services throughout the City.

Change Order No. 1 will support unscheduled work to support City infrastructure, as stated in the Fiber Optic Master Plan (on file with the Records Department). The Fiber Optic Master Plan enables and supports future capabilities and initiatives that will reduce telecommunication costs for City facilities and represent technology improvements such as digital building access control, surveillance video services, and public safety monitoring. In addition to the extra work associated with Change Order No. 1, supplementary construction unit codes associated with fiber optic micro610 trenching will be incorporated within the current SECC construction unit table, as shown in Exhibit A. The City Engineering Department recently approved Standard Drawing 1308 for micro-trenching construction, as shown in Exhibit B. The micro-trenching construction method will support and enhance ongoing fiber optic expansion efforts citywide by reducing service delivery schedules and overall construction costs. Micro-trenching construction work unrelated to the OMUC Facility Site Security Improvement Project will be funded through existing contract funds.

OMUC has agreed to fund Change Order No. 1 to construct fiber conduit infrastructure at the following locations, however, locations are subject to change based on priority, schedule, and requirements of OMUC and the Broadband Department, as shown in Exhibit C.

OntarioNet will provide secure, reliable, and high bandwidth connectivity for OMUC's Supervisory Control and Data Acquisition (SCADA) operation system and Information Technology connectivity for surveillance property protection of the City's water production infrastructure. The surveillance property protection will include cameras and access control which will provide a level of accountability for security and integrate into the Ontario Police Department's Real-Time Information Center.

The City has purchased all conduit, fiber, network, and wireless components such as fiber optic cable, conduit, handholes, network switches, etc. SECC Corporation collects the materials from the City's warehouse and provides the labor to complete the assigned work. Having the material and equipment on hand during construction lessens supply chain delays for fiber optic material and network equipment procurement and eliminates costly overhead and markup charges.

City Staff recommends approving Change Order No. 1 to continue these services and City facility growth provided by SECC Corporation.
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(BB&K 2020)

CITY OF ONTARIO

CHANGE ORDER
Project: On-Call Citywide Fiber Conduit Installation
Services
Contract Date: 01/31/2023
Change Order Number: 1
Change Order Date: August 20, 2024
To: SECC Corporation
502 N Sheridan Sr
Corona, California 92878
THIS CHANGE ORDER FORM SHALL BE USED FOR ALL CHANGE ORDERS ASSOCIATED WITH THE WORK.

NO ADDITIONS OR DELETIONS TO THIS FORM SHALL BE ALLOWED, EXCEPT WITH PERMISSION OF THE CITY OF ONTARIO.

The Contract is changed as follows:

The City has requested the Contractor to extend limits of fiber conduit installation services to the following City facilities:

See Exhibit A.

In addition to the extra work locations associated with CCO No. 1, SECC Corporation is authorized to complete additional work throughout the City, in addition to City facilities, per the approved City Standard Drawings. This work includes micro-trenching, which is added to the project specifications. All work verified in the field by the project Inspector and Construction Manager, and within the contract limits.

Page 2 of 6 ends

(BB&K 2020)
400-A Pullbox - Flowerpot, 12"
Round
City EA 1-5 EA $193.58 6-10 EA $183.90 10+ EA $174.71
401-A Install Handhole - HH1
(Soft Surface)**
City EA 1-5 EA $294.69 6-10 EA $279.96 10+ EA $265.96
402-A Install Handhole - HH2
(Soft Surface)**
City EA 1-5 EA $576.20 6-10 EA $547.39 10+ EA $520.02
403-A Install Handhole - HH3
(Soft Surface)
City EA 1-5 EA $1,891.6
0 6-10 EA $1,797.
02 10+ EA $1,707.17
404-A Install Handhole - HH4
(Soft Surface)
City EA 1-5 EA $2,371.8
0 6-10 EA $2,253.
21 10+ EA $2,140.55
411-A Install Handhole - HH1
(Hard Surface)
City EA 1-5 EA $1,101.1
0 6-10 EA $1,046.
05 10+ EA $993.74
412-A Install Handhole - HH2
(Hard Surface)**
City EA 1-5 EA $1,319.6
1 6-10 EA $1,253.
63 10+ EA $1,190.95
413-A Install Handhole - HH3
(Hard Surface)
City EA 1-5 EA $2,381.9
8 6-10 EA $2,262.
88 10+ EA $2,149.73
414-A Install Handhole - HH4
(Hard Surface)**
City EA 1-5 EA $2,666.0
3 6-10 EA $2,532.
72 10+ EA $2,406.09
415-A Replace Type 3/5 - HH1A
(Soft Surface)
City EA 1-5 EA $383.10 6-10 EA $363.94 10+ EA $345.75
416-A Replace Type 3/5 - HH1A
(Hard Surface - Half
Panel)
City EA 1-5 EA $971.55 6-10 EA $0.00 10+ EA $0.00
417-A Replace Type 3/5 - HH1A
(Hard Surface - Full
Panel)
City EA 1-5 EA $1,560.0
0 6-10 EA $0.00 10+ EA $0.00
510 Concrete Removal &
Restoral up to 4" in depth
Contractor SQFT 1-100
FT
$47.08 101-500 FT $39.23 500+ FT $35.31
511 Concrete Removal &
Restoral over 4" in depth,
each additional inch
Contractor SQFT 1-100
FT
$9.42 101-500 FT $7.85 500+ FT $7.06
512 Asphalt Removal &
Restoral up to 4" depth
Contractor SQFT 1-100
FT
$42.40 101-500 FT $35.33 500+ FT $31.80
513 Asphalt Removal &
Restoral over 4" depth,
each additional inch
Contractor SQFT 1-100
FT
$8.48 101-500 FT $7.07 500+ FT $6.36
514 Asphalt removal & restoral
over concrete
subsurface-up to 4"
concrete
Contractor SQFT 1-100
FT
$53.00 101-500 FT $44.16 500+ FT $39.75
515 Asphalt R&R over
concrete subsurface-over
4" concrete - each
additional inch
Contractor SQFT 1-100
FT
$10.60 101-500 FT $8.83 500+ FT $7.95
520 Surface Restoration - sod Contractor SQFT 1-100
FT
$9.06 101-500 FT $8.15 500+ FT $7.34
521 Surface Restoration -
brick
Contractor SQFT 1-100
FT
$67.36 101-500 FT $60.62 500+ FT $54.56
522 Surface Restoration -
decorative rock
Contractor SQFT 1-100
FT
$12.01 101-500 FT $10.81 500+ FT $9.73
523 Surface Restoration -
decorative bark
Contractor SQFT 1-100
FT
$7.95 101-500 FT $7.16 500+ FT $6.44
402-A Install Handhole - HH2
(Soft Surface)**
City EA 1-5 EA $576.20 6-10 EA $547.39 10+ EA $520.02

UNIT DEFINITIONS
(100-101) Trench Dirt (Per Ft)
Unit consists of all labor, minor material and equipment required to open a trench in natural ground with machine trencher. Unit includes potholing existing substructures, excavation, shoring, dewatering, backfill (native backfill only) compaction, surface restoration (dirt or gravel only), and removal and disposal of all spoils from the site. Other backfill and surface materials such as sand, slurry, concrete, asphalt, decorative rock, bark or brick are covered under other units and are not a part of this unit. The installation of cable, conduit, duct, steel pipe, marker ribbon, locate wire, etc., in the trench is covered under other units and is not a part of this unit. The minimum depth of cover over the installed facilities will be as specified on the design plans, typical 36” minimum. 613
46700.00100\33457526.1

Page 3 of 6 ends

(BB&K 2020)
(287-289) Micro Trench (1 or 2 Cell Microduct) (Per Ft) Unit consists of all labor, material and equipment required to perform microtrench installation near the edge of curb/gutter, linear and crossing asphalt areas, with select backfill and approved seal of the top cap layer.

Microtrench method should be less than 2” wide cuts, with a depth of 12”-20”. Construction will use a small ditch witch or equivalent equipment, vac truck for removal and disposal of material and preform full restoration of the trench line, compaction and top seal. Unit will include the placement of (1) or (2) conduits or 16/13mm microducts or as outlined on the design plans, coupling as required with transitions, sweeps into handoles or flowerpots.

Unit includes verification of microduct path continuity. Lidar or ground penetration radar maybe required to validate utilities along the design path. Restoration must comply with City standards. (510-511) Concrete Removal and Restoration (Per Sq Ft)
Unit consists of all labor, material and equipment required to remove and restore one square foot of concrete.

Thickness of concrete will be as shown on the design plans.

Unit includes all saw cutting, breaking, removal and disposal of spoils, excavation, leveling, site preparation, forms, wire, rebar, pouring, compacting, finishing and edging the new concrete surface and final cleanup. (512-513) Asphalt Removal and Restoration (Per Sq Ft)
Unit consists of all labor, material and equipment required to remove and restore one square foot of asphalt.

Thickness of asphalt will be as shown on the design plans.

Unit includes all saw cutting, breaking, removal and disposal of spoils, excavation, leveling, site preparation laying, rolling and compacting, replacement of delineators, striping and final cleanup (514-515) Asphalt Over Concrete Removal and Restoration (Per Sq Ft) Unit is the same as Asphalt Removal and Restoration and includes removal and replacement of concrete under the asphalt surface. Thickness of concrete will be as shown on the design plans. (520-523) Surface Restoration (Per Sq Ft)
Unit consists of all labor, material and equipment required to remove and restore seeded, planted, sodded, decorative rock, decorative bark or brick surfaces.

Unit includes ground preparation, topsoils, mulch, planting, seeding, re-sodding and all fertilizers, chemicals and watering to promote initial growth.
(400-404) Handhole/Pullbox/Flowerpot (Soft Surface) (Each) Unit consists of all labor, minor material and equipment required to install one handhole or pullbox.

Unit includes excavation, pea gravel base ½” or ¾”, mesh underlay, shoring, dewatering, backfill, compaction and dirt or gravel surface restoration. Surface restoration other than dirt or gravel is covered by other units and is not a part of this unit. Unit also includes removal and disposal of all spoils removed during handhole installation.

Includes the installation of the wire terminal and locate wire termination, if required. (411-414) Handhole (Hard Surface) (Each)
Unit consists of all labor, minor material and equipment required to install one handhole as outlined by the unit.

Includes concrete surface restoration, typical to sidewalk placement or intersection work, with an estimated volume of (1) sidewalk panel, restored back to original condition and shall be doweled into existing curbing or concrete sidewalk panels as applicable. Restoration must comply with City standards.

Includes the installation of the wire terminal and locate wire termination, if required. 614
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(BB&K 2020)
(415) Handhole Replacement (Soft Surface)(Each)
Unit consists of all labor, minor material and equipment required hand dig around existing type 3 or type 5 vault, remove vault, remove dirt, gravel at base, protect existing conductor in place, install one handhole as outlined by the unit. Position half of the handhole
Unit includes excavation, pea gravel base ½” or ¾”, mesh underlay, shoring, dewatering, backfill, compaction and dirt or gravel surface restoration. Unit also includes removal and disposal of all spoils removed during handhole installation.

Includes surface restoration and soil compaction. Restoration must comply with City standards. (416) Handhole Replacement (Hard Surface – Half Panel) (Each) Unit consists of all labor, minor material and equipment required hand dig around existing type 3 or type 5 vault, remove vault, remove dirt, gravel at base, protect existing conductor in place, install one handhole as outlined by the unit. Position half of the handhole
Unit includes excavation, pea gravel base ½” or ¾”, mesh underlay, shoring, dewatering, backfill, compaction and dirt or gravel surface restoration. Surface restoration other than dirt or gravel is covered by other units and is not a part of this unit. Unit also includes removal and disposal of all spoils removed during handhole installation.

Includes concrete surface restoration, typical to sidewalk placement or intersection work, with an estimated volume of (1/2) sidewalk panel, restored back to original condition and shall be doweled into existing curbing or concrete sidewalk panels as applicable. Restoration must comply with City standards. (417) Handhole Replacement (Hard Surface – Full Panel) (Each) Unit consists of all labor, minor material and equipment required hand dig around existing type 3 or type 5 vault, remove vault, remove dirt, gravel at base, protect existing conductor in place, install one handhole as outlined by the unit. Position half of the handhole
Unit includes excavation, pea gravel base ½” or ¾”, mesh underlay, shoring, dewatering, backfill, compaction and dirt or gravel surface restoration. Surface restoration other than dirt or gravel is covered by other units and is not a part of this unit. Unit also includes removal and disposal of all spoils removed during handhole installation.

Contractor agrees to furnish all labor, materials, equipment and services to perform the Work, modified as described herein, in accordance with the Contract Documents as revised by this Change Order. 615
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(BB&K 2020)

NOT VALID UNTIL SIGNED BY OWNER
In consideration of the change(s) described above, the Contract Price is adjusted as follows:

The original Contract Price was $3,000,000_____________ Net change by previously authorized Change Orders $0____________________ The Contract Price prior to this Change Order was $3,000,000_____________ The Contract Price will be changed by this Change Order in the amount of $277,402.26____________ The new Contract Price including this Change Order will be $3,277,402.26___________ In consideration of the change(s) describe above, the Contract Time is adjusted as follows:

The Contract Time will be: increased decreased unchanged by: ___0___ Days The Contract Time prior to this Change Order was _618___ Days The new Contract Time including this Change Order will be _1096__ Days Attachments: Exhibit A – WELL SITE WATER SYSTEM LOCATIONS & MAP Contractor accepts the terms and conditions stated herein as full and final settlement of any and all claims arising from this Change Order. The adjustments to the Contract Price and Contract Time in this Change Order constitutes the entire compensation and/or adjustment thereto due to Contractor, including direct, indirect, consequential, and overhead (field and home office) costs, due to Contractor arising out of or related to the change in the Work covered by this Change Order. By signing this Change Order, Contractor agrees to accept the amount of the adjustment to the Contract Price, and the adjustment of the Contract Time, as payment in full for all costs, including direct, indirect, consequential, and overhead (field and home office) costs, related to the change in the Work covered by this Change Order.

Accepted:
(Signature) Michael Aranda Jr., Chief Financial Officer Date Approved:
(Signature) Jimmy Chang, Broadband General Manager Date Approved:
(Signature) Scott Ochoa, City Manager Date
616
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(BB&K 2020)

EXHIBIT A

EXTRA WORK AT AGREED UPON LOCATIONS
WELL # LOCATION
24 700 N. HAVEN AVE.
29 2400 E. AIRPORT DR.
30 220 S. WINEVILLE AVE.
35 625 E. MAIN STREET
36 1400 S. ARCHIBALD AVE.
37 10 FREEWAY & MILLIKEN AVE.
38 837 N. CENTER AVE.
39 10 FREEWAY & MILLIKEN AVE.
40 1335 EAST HOLT BLVD.
41 1252 N. HELLMAN AVE.
43 3650 E. AIRPORT DR.
47 4255 E. CONCOURS ST.
49 1595 S. DUPONT AVE.
1333 S BON VIEW AVE. – BROADBAND POINT OF PRESENCE
1495 S. DUPONT AVE.
1409 S. ARCHIBALD AVE.

S/W CORNER ARCHIBALD AVE. AND PHILADELPHIA ST.

W. OF MILLIKEN AVE., S. OF FRANCIS AVE
TURNER AVE SOUTH OF JURUPA AVE. N. OF TRAIN TRACKS
S/W CORNER HAVEN AVE. & FRANCIS AVE.

S/E CORNER MILLIKEN AVE & PHILADELPHIA
S/W CORNER OF MILLIKEN AVE. & RIVERSIDE DR.

HAVEN SEWER LIFT
100 YARDS WEST OF CDA-LAT C & D
617

EXHIBIT A

EXTRA WORK AT AGREED UPON UNIT PRICES
Code Description Material Unit Schedule A Schedule B Schedule C 100-(24”) Narrow Trench Dirt
(Depth) Service Drop - 1"
Contractor LINFT 1-500
FT
$39.84 501-5,000 FT $31.87 5000+
FT
$25.50
100A-
(24")
Missile/Bore (Depth)
Service Drop - 1"
Contractor LINFT 1-500
FT
$33.41 501-5,000 FT $26.73 5000+
FT
$21.38
287-A Micro Trench, Install (1 or
2) 16/13mm MD &
Restoration (12")
Contractor FT 1-500
FT
$67.48 501-5,000 FT $37.78 5000+
FT
$26.61
288-A Micro Trench, Install (1 or
2) 16/13mm MD &
Restoration (16")
Contractor FT 1-500
FT
$71.58 501-5,000 FT $41.85 5000+
FT
$33.36
288-A Micro Trench, Install (1 or
2) 16/13mm MD &
Restoration (20")
Contractor FT 1-500
FT
$72.95 501-5,000 FT $43.22 5000+
FT
$36.36
400-A Pullbox - Flowerpot, 12"
Round
City EA 1-5 EA $193.58 6-10 EA $183.90 10+ EA $174.71
401-A Install Handhole - HH1
(Soft Surface)**
City EA 1-5 EA $294.69 6-10 EA $279.96 10+ EA $265.96
402-A Install Handhole - HH2
(Soft Surface)**
City EA 1-5 EA $576.20 6-10 EA $547.39 10+ EA $520.02
403-A Install Handhole - HH3
(Soft Surface)
City EA 1-5 EA $1,891.6
0 6-10 EA $1,797.
02 10+ EA $1,707.17
404-A Install Handhole - HH4
(Soft Surface)
City EA 1-5 EA $2,371.8
0 6-10 EA $2,253.
21 10+ EA $2,140.55
411-A Install Handhole - HH1
(Hard Surface)
City EA 1-5 EA $1,101.1
0 6-10 EA $1,046.
05 10+ EA $993.74
412-A Install Handhole - HH2
(Hard Surface)**
City EA 1-5 EA $1,319.6
1 6-10 EA $1,253.
63 10+ EA $1,190.95
413-A Install Handhole - HH3
(Hard Surface)
City EA 1-5 EA $2,381.9
8 6-10 EA $2,262.
88 10+ EA $2,149.73
414-A Install Handhole - HH4
(Hard Surface)**
City EA 1-5 EA $2,666.0
3 6-10 EA $2,532.
72 10+ EA $2,406.09
415-A Replace Type 3/5 - HH1A
(Soft Surface)
City EA 1-5 EA $383.10 6-10 EA $363.94 10+ EA $345.75
416-A Replace Type 3/5 - HH1A
(Hard Surface - Half
Panel)
City EA 1-5 EA $971.55 6-10 EA $0.00 10+ EA $0.00
417-A Replace Type 3/5 - HH1A
(Hard Surface - Full
Panel)
City EA 1-5 EA $1,560.0
0 6-10 EA $0.00 10+ EA $0.00
510 Concrete Removal &
Restoral up to 4" in depth
Contractor SQFT 1-100
FT
$47.08 101-500 FT $39.23 500+ FT $35.31
511 Concrete Removal &
Restoral over 4" in depth,
each additional inch
Contractor SQFT 1-100
FT
$9.42 101-500 FT $7.85 500+ FT $7.06
512 Asphalt Removal &
Restoral up to 4" depth
Contractor SQFT 1-100
FT
$42.40 101-500 FT $35.33 500+ FT $31.80
513 Asphalt Removal &
Restoral over 4" depth,
each additional inch
Contractor SQFT 1-100
FT
$8.48 101-500 FT $7.07 500+ FT $6.36
514 Asphalt removal & restoral
over concrete
subsurface-up to 4"
concrete
Contractor SQFT 1-100
FT
$53.00 101-500 FT $44.16 500+ FT $39.75
515 Asphalt R&R over
concrete subsurface-over
4" concrete - each
additional inch
Contractor SQFT 1-100
FT
$10.60 101-500 FT $8.83 500+ FT $7.95
520 Surface Restoration - sod Contractor SQFT 1-100
FT
$9.06 101-500 FT $8.15 500+ FT $7.34
521 Surface Restoration -
brick
Contractor SQFT 1-100
FT
$67.36 101-500 FT $60.62 500+ FT $54.56
618
522 Surface Restoration -
decorative rock
Contractor SQFT 1-100
FT
$12.01 101-500 FT $10.81 500+ FT $9.73
523 Surface Restoration -
decorative bark
Contractor SQFT 1-100
FT
$7.95 101-500 FT $7.16 500+ FT $6.44
402-A Install Handhole - HH2
(Soft Surface)**
City EA 1-5 EA $576.20 6-10 EA $547.39 10+ EA $520.02

Unit includes all saw cutting, breaking, removal and disposal of spoils, excavation, leveling, site preparation, forms, wire, rebar, pouring, compacting, finishing and edging the new concrete surface and final cleanup.
(512-513) Asphalt Removal and Restoration (Per Sq Ft)
Unit consists of all labor, material and equipment required to remove and restore one square foot of asphalt. Thickness of asphalt will be as shown on the design plans.

Unit includes ground preparation, topsoils, mulch, planting, seeding, re-sodding and all fertilizers, chemicals and watering to promote initial growth.
619
(400-404) Handhole/Pullbox/Flowerpot (Soft Surface) (Each) Unit consists of all labor, minor material and equipment required to install one handhole or pullbox.

Includes the installation of the wire terminal and locate wire termination, if required. (415) Handhole Replacement (Soft Surface)(Each)
Unit consists of all labor, minor material and equipment required hand dig around existing type 3 or type 5 vault, remove vault, remove dirt, gravel at base, protect existing conductor in place, install one handhole as outlined by the unit. Position half of the handhole
Unit includes excavation, pea gravel base ½” or ¾”, mesh underlay, shoring, dewatering, backfill, compaction and dirt or gravel surface restoration. Unit also includes removal and disposal of all spoils removed during handhole installation.

Includes concrete surface restoration, typical to sidewalk placement or intersection work, with an estimated volume of (1/2) sidewalk panel, restored back to original condition and shall be doweled into existing curbing or concrete sidewalk panels as applicable. Restoration must comply with City standards. (417) Handhole Replacement (Hard Surface – Full Panel) (Each) Unit consists of all labor, minor material and equipment required hand dig around existing type 3 or type 5 vault, remove vault, remove dirt, gravel at base, protect existing conductor in place, install one handhole as outlined by the unit. Position half of the handhole
Unit includes excavation, pea gravel base ½” or ¾”, mesh underlay, shoring, dewatering, backfill, compaction and dirt or gravel surface restoration. Surface restoration other than dirt or gravel is covered 620
by other units and is not a part of this unit. Unit also includes removal and disposal of all spoils removed during handhole installation.

EXHIBIT C

S/W CORNER ARCHIBALD AVE. AND PHILADELPHIA ST.

W. OF MILLIKEN AVE., S. OF FRANCIS AVE
TURNER AVE SOUTH OF JURUPA AVE. N. OF TRAIN TRACKS
S/W CORNER HAVEN AVE. & FRANCIS AVE.

S/E CORNER MILLIKEN AVE & PHILADELPHIA
S/W CORNER OF MILLIKEN AVE. & RIVERSIDE DR.

HAVEN SEWER LIFT
100 YARDS WEST OF CDA-LAT C & D
624
Department: Economic Development
Prepared By: Charity Hernandez
Staff Member Presenting: Jennifer McLain
Hiramoto, Economic Development Director
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 21
SUBJECT: A FIRST AMENDMENT TO A REIMBURSEMENT AGREEMENT FOR PUBLIC

IMPROVEMENTS BETWEEN THE CITY OF ONTARIO AND TIPPING DEVELOPMENT, INC.

CITY OF ONTARIO
Agenda Report
August 20, 2024
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council approve a First Amendment to a Reimbursement Agreement ("Agreement") between the City of Ontario ("City") and Tipping Development, Inc. ("Developer"), and authorize the City Manager, or his designee, to execute the Agreement and all other documents required for implementation of the Agreement.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Focus Resources in Ontario's Commercial and Residential Neighborhoods Invest in the Growth and Evolution of the City's Economy FISCAL IMPACT: The Agreement will provide for reimbursement of actual documented infrastructure-related costs not to exceed $5,310,000 which represent and increase of $2,310,000.

Additional appropriations in the about of $1,612,056 will be included in the Water Capital Fund in the next quarterly budget update to City Council.

BACKGROUND & ANALYSIS: The City and Tipping Development, Inc. ("Developer'') entered into a Disposition and Development Agreement on September 21, 2021, for the development of an infill mixed-use project known as "The Vault" located at 125 West Emporia Street. The Vault is located within the Emporia Arts District which encompasses various land uses including City administrative offices, commercial, and residential uses. The Vault will include storage facilities for recreational vehicles and exotic cars, retail and restaurant pads, and future City office space to be occupied by the Community Life and Culture Agency.

Utility infrastructure is needed to support the construction of The Vault and further development in the vicinity including the Emporia Place Phase II multi-family redevelopment project. Using the Water Master Plan in conjunction with future development plans, staff identified the need to remove and upgrade approximately 3,000 linear feet of aging 4-inch to 6-inch potable water pipelines to 12-inch potable mains that provide reliable water service for the Emporia Arts District 625
area.

On August 16, 2022, to expedite the design and construction of these public improvements, the City entered into a Reimbursement Agreement where the Developer agreed to undertake certain public improvements including, but not limited to designing and permitting the public improvements, abandoning and upsizing water mains and appurtenances, installing a fire hydrant, paving, striping, construction support cost and contingency. The preliminary Financial Consideration that the City had estimated for the work as a part of the Capital Improvement Program was $3,000,000.

In early 2024, Developer completed construction bid documents, which allowed the Developer to solicit bids from regional contractors. The bidding process occurred between June and July 2024.

Due to unanticipated inflation costs for labor and material, the increased scope of roadway pavement and the high utility line density in these smaller streets and alleys, the bid came in approximately $2,310,000 higher than originally estimated in 2022. The Developer provided the bid results to City Staff and the Developers’ engineer of record to review and confirm the price with current pipeline and roadway replacement costs.

Staff reviewed the bids and construction support proposals for responsiveness and pricing, and recommends increasing the reimbursement not-to-exceed limit by $2,310,000 for a total not-toexceed amount of $5,310,000. This includes a twenty percent (20%) contingency, pursuant to the original Reimbursement Agreement.
626
EXHIBIT “A”
627
46700.12005\42546544.1 1

FIRST AMENDMENT TO

REIMBURSEMENT AGREEMENT
(THE VAULT)
This First Amendment to the Reimbursement Agreement (“First Amendment”) is entered into as of _______________, (for reference purposes only) by and between the CITY OF ONTARIO, a California municipal corporation (“City”) and TIPPING DEVELOPMENT, INC., a California corporation (“TDI”). City and TDI are sometimes collectively referred to herein as the “Parties” or individually as a “Party”.

RECITALS
A. The City and RWSS Development, LLC, a California limited liability company and an affiliate of TDI, (“Developer”) entered into a Disposition and Development Agreement on September 21, 2021, for the development of an infill mixed-use facility known as the "Vault" located at 125 West Emporia Street. The Vault is located within the boundaries of the Emporia Arts District, which encompasses various land uses including City administrative offices, commercial, and residential uses.

The Vault will include storage facilities for recreational vehicles and exotic cars, retail and restaurant pads, and future City office space to be occupied by the Community Life and Culture Agency.

B. Utility infrastructure is needed to support the construction of the Vault and further development in the vicinity including the Emporia Phase II Apartments. Using the City’s Water Master Plan in conjunction with future development plans, City staff identified the need to remove and upgrade approximately 3,000 LF of aging 4-inch to 6-inch potable water pipelines to 12-inch potable mains that would provide reliable water service for the Emporia Arts District.

C. City and TDI had entered into that certain Reimbursement Agreement dated August 16, 2022 (“Original Agreement”) whereby TDI agreed to undertake those certain public utility infrastructure improvements including, but not limited to designing and permitting the public improvements, abandoning and upsizing water mains and appurtenances, installation of a fire hydrant, paving, striping, construction support cost and contingency (“Public Improvements”) to facilitate the completion of Public Improvements which are part of the City’s Capital Improvement Program.

D. In the Original Agreement, the preliminary amount of financial consideration to be paid by the City as reimbursement for the Public Improvements was estimated to be Three Million Even Dollars and No/100 ($3,000,000.00).

E. In early 2024, TDI completed the construction bid documents and between June and July of 2024 conducted the bidding process by soliciting for bids from regional contractors. Due to unanticipated inflation costs for labor and materials, the increased scope of roadway pavement and the high utility line density in these smaller streets and alleys, the construction and construction support costs, including a 20% contingency, came in approximately Two Million Three Hundred Ten Thousand Dollars and No/100 ($2,310,000.00) higher than originally estimated in 2022. TDI provided the bid results to its engineer of record and City staff to review and confirm the price with current pipeline and roadway replacement costs.

F. The City and TDI now desire to amend the Original Agreement to increase the financial consideration by $2,310,000.00 for a total not to exceed amount of $5,310,000.00 which includes a twenty percent (20%) contingency per the Original Agreement as further set forth herein. 628
46700.12005\42546544.1 2
G. This First Amendment and the Original Agreement will hereinafter be collectively referenced as the “Agreement” unless otherwise specifically referenced individually.

NOW, THEREFORE, in consideration of the above recitals, and the representations, warranties, covenants and conditions contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, City and TDI agree as follows:

1. Incorporation of Recitals. The recitals set forth above are hereby incorporated herein as if set forth in their entirety and made a part of this Agreement.

2. Reimbursement of Costs; Selection of General Contractor; Change Orders. The first sentence in Section 2 of the Agreement shall be amended and replaced by the following:

In light of the benefit the Public Improvements will provide to the City, City intends to provide, through this Reimbursement Agreement, funding in an amount estimated at this time not exceed Five Million Three Hundred Ten Thousand Dollars and No/100 ($5,310,000.00) (“City Financial Consideration”) to offset actual documented infrastructure-related costs associated with the construction of the Public Improvements, including but not limited to funding for actual documented costs for interest on the loan TDI obtains to construct the Public Improvements, and certain actual documented costs of overhead items for the Public Improvements, as limited by this Agreement.

3. Other Terms and Conditions Remain. In the event of any inconsistencies between the Original Agreement and this First Amendment, the terms of this First Amendment shall control. Except as expressly set forth in this First Amendment, the Agreement is otherwise unmodified and remains in full force and effect.

4. Capitalized Terms. All capitalized terms used but not defined herein shall have the same meanings as defined in the Agreement.

5. Construction; Interpretation. The Agreement and any amendments are the result of negotiations between the Parties hereto, and with the advice and assistance of their respective counsel.

The fact that this Agreement and amendments were prepared as a matter of convenience by a Party shall have no importance or significance. Any uncertainty or ambiguity in this Agreement and amendments shall not be construed against the Party that prepared it in its final form.

6. Force and Effect. The effective date of this First Amendment shall be the date that this First Amendment is last executed by the Parties below.

7. Counterparts; Electronic Execution and Delivery. This First Amendment to the Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which when taken together will constitute one and the same instrument. The signature page of any counterpart may be detached therefrom without impairing the legal effect of the signature(s) thereon provided such signature page is attached to any other counterpart identical thereto except having additional signature pages executed by other parties to this First Amendment attached thereto. This First Amendment may also be executed by DocuSign or other electronic transmission of signatures, including facsimile or email transmission of a counterpart hereof in portable document format (.pdf), and each copy hereof bearing the DocuSign, facsimile or electronic transmitted signature of any party’s authorized representative shall be deemed to be an original. Upon request from either party, the parties hereto agree to exchange original signatures as soon as practical thereafter.

Signature Provisions on the Following Page(s)
629
46700.12005\42546544.1 3
IN WITNESS WHEREOF, the Parties have entered into this First Amendment as of the last date of execution by the Parties.

Dated:

TDI:

TIPPING DEVELOPMENT, INC., a California
corporation
By:

Name:

Its:

By:

Name:

Its:

Dated:

CITY:

CITY OF ONTARIO, a California municipal
corporation
By:

Scott Ochoa
City Manager
ATTEST:

By:

City Clerk
APPROVED AS TO FORM:

BEST BEST & KRIEGER LLP
By:

Ruben Duran
City Attorney
630
Department: Public Works
Prepared By: Vanny Khu
Staff Member Presenting: Tito Haes, Executive
Director Public Works
Reviewed By: Andrea Ampig, Bonnie Tam
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 22
SUBJECT: PRE-AUTHORIZE THE PURCHASE OF ANIMAL CONTROL VEHICLES

CITY OF ONTARIO
Agenda Report
August 20, 2024
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council pre-authorize the cooperative purchase and delivery of six 2024 F-350 animal control trucks for West End Animal Services Agency from PB Loader Corporation, of Fresno, California, consistent with the terms and conditions of the PB Loader Sourcewell Cooperative Contract No. 080521-PBL in the amount of $797,172 plus a 20% contingency of $159,435 for a total amount not-to-exceed amount of $956,607.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Maintain the Current High Level of Public Safety
Operate in a Businesslike Manner
FISCAL IMPACT: The total cost of the vehicles recommended for purchase is $797,172 plus a 20% contingency of $159,435 to mitigate any unforeseen issues with supply chain surcharges and manufacturer price increases, for a total not-to-exceed amount of $956,607. If approved, additional appropriations in the Equipment Services Fund will be included in future quarterly budget updates to City Council for approval.

BACKGROUND & ANALYSIS: For years, the City of Ontario has contracted with the Inland Valley Humane Society (IVHS) to provide animal services. Unfortunately, the partnership has deteriorated, leading to a noticeable decline in service quality, increased community concerns, and a continued lack of transparency, collaboration, and communication by IHVS. Despite multiple efforts over the past year by City Staff to improve relations, IVHS issued a 180-day notice on April 15, 2024, indicating they are cancelling the contract effective June 30, 2025.

On July 16, 2024, the City Council voted to establish the Joint Powers Authority (JPA) partnership with the City of Chino, named the West End Animal Services Agency (WEASA). WEASA will be a fullservice animal services agency that will provide both animal control and sheltering services to member agencies and will start providing animal services effective July 1, 2025. The animal control service will consist of follow-up on citizen reports/complaints, gathering stray animals, enforcement of all animal control laws, investigation of animal abuse reports, transportation of injured, sick or stray animals to receive veterinary care, quarantine of suspect animals, and daily patrol. 631
The City is requesting the approval for the purchase of six 2024 F-350 animal control trucks to provide field response services. Due to the lead time required by PB Loader Corporation, the City of Ontario will pre-purchase the vehicles to ensure they are delivered and fully operable by July 1, 2025. Once the vehicles are delivered and inspected, the title ownership of the vehicles will be transferred from the City of Ontario to WEASA, ensuring that the agency has the necessary equipment to commence its operations on schedule.

In general conformation with the provisions of Government Code Section 54201 through 54204, Ontario Municipal Code Section 2-6.29 allows for the purchase of supplies and equipment through cooperative purchasing programs, pursuant to California Government Code Section 6502 and City of Ontario Resolution No. 91-141. Cooperative purchasing allows the City to pool its procurement power with other public agencies to obtain lower pricing than otherwise might be possible. 632
080521-PBL
Rev. 3/2021 1
Solicitation Number: RFP #080521

CONTRACT
This Contract is between Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479 (Sourcewell) and PB Loader Corporation, 5778 W. Barstow Ave., Fresno, CA 93722 (Supplier).

Sourcewell is a State of Minnesota local government unit and service cooperative created under the laws of the State of Minnesota (Minnesota Statutes Section 123A.21) that offers cooperative procurement solutions to government entities. Participation is open to eligible federal, state/province, and municipal governmental entities, higher education, K-12 education, nonprofit, tribal government, and other public entities located in the United States and Canada.

Sourcewell issued a public solicitation for Roadway Maintenance Equipment from which Supplier was awarded a contract.

Supplier desires to contract with Sourcewell to provide equipment, products, or services to Sourcewell and the entities that access Sourcewell’s cooperative purchasing contracts (Participating Entities).

1. TERM OF CONTRACT
A. EFFECTIVE DATE. This Contract is effective upon the date of the final signature below.

B. EXPIRATION DATE AND EXTENSION. This Contract expires October 11, 2025, unless it is cancelled sooner pursuant to Article 22. This Contract may be extended one additional year upon the request of Sourcewell and written agreement by Supplier.

C. SURVIVAL OF TERMS. Notwithstanding any expiration or termination of this Contract, all payment obligations incurred prior to expiration or termination will survive, as will the following: Articles 11 through 14 survive the expiration or cancellation of this Contract. All other rights will cease upon expiration or termination of this Contract.

2. EQUIPMENT, PRODUCTS, OR SERVICES
A. EQUIPMENT, PRODUCTS, OR SERVICES. Supplier will provide the Equipment, Products, or Services as stated in its Proposal submitted under the Solicitation Number listed above.

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Supplier’s Equipment, Products, or Services Proposal (Proposal) is attached and incorporated into this Contract.

All Equipment and Products provided under this Contract must be new and the current model.

Supplier may offer close-out or refurbished Equipment or Products if they are clearly indicated in Supplier’s product and pricing list. Unless agreed to by the Participating Entities in advance, Equipment or Products must be delivered as operational to the Participating Entity’s site.

This Contract offers an indefinite quantity of sales, and while substantial volume is anticipated, sales and sales volume are not guaranteed.

B. WARRANTY. Supplier warrants that all Equipment, Products, and Services furnished are free from liens and encumbrances, and are free from defects in design, materials, and workmanship.

In addition, Supplier warrants the Equipment, Products, and Services are suitable for and will perform in accordance with the ordinary use for which they are intended. Supplier’s dealers and distributors must agree to assist the Participating Entity in reaching a resolution in any dispute over warranty terms with the manufacturer. Any manufacturer’s warranty that extends beyond the expiration of the Supplier’s warranty will be passed on to the Participating Entity.

C. DEALERS, DISTRIBUTORS, AND/OR RESELLERS. Upon Contract execution and throughout the Contract term, Supplier must provide to Sourcewell a current means to validate or authenticate Supplier’s authorized dealers, distributors, or resellers relative to the Equipment, Products, and Services offered under this Contract, which will be incorporated into this Contract by reference. It is the Supplier’s responsibility to ensure Sourcewell receives the most current information.

3. PRICING
All Equipment, Products, or Services under this Contract will be priced at or below the price stated in Supplier’s Proposal.

When providing pricing quotes to Participating Entities, all pricing quoted must reflect a Participating Entity’s total cost of acquisition. This means that the quoted cost is for delivered Equipment, Products, and Services that are operational for their intended purpose, and includes all costs to the Participating Entity’s requested delivery location.

Regardless of the payment method chosen by the Participating Entity, the total cost associated with any purchase option of the Equipment, Products, or Services must always be disclosed in the pricing quote to the applicable Participating Entity at the time of purchase.

A. SHIPPING AND SHIPPING COSTS. All delivered Equipment and Products must be properly packaged. Damaged Equipment and Products may be rejected. If the damage is not readily apparent at the time of delivery, Supplier must permit the Equipment and Products to be

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returned within a reasonable time at no cost to Sourcewell or its Participating Entities.

Participating Entities reserve the right to inspect the Equipment and Products at a reasonable time after delivery where circumstances or conditions prevent effective inspection of the Equipment and Products at the time of delivery. In the event of the delivery of nonconforming Equipment and Products, the Participating Entity will notify the Supplier as soon as possible and the Supplier will replace nonconforming Equipment and Products with conforming Equipment and Products that are acceptable to the Participating Entity.

Supplier must arrange for and pay for the return shipment on Equipment and Products that arrive in a defective or inoperable condition.

Sourcewell may declare the Supplier in breach of this Contract if the Supplier intentionally delivers substandard or inferior Equipment or Products.

B. SALES TAX. Each Participating Entity is responsible for supplying the Supplier with valid taxexemption certification(s). When ordering, a Participating Entity must indicate if it is a taxexempt entity.

C. HOT LIST PRICING. At any time during this Contract, Supplier may offer a specific selection of Equipment, Products, or Services at discounts greater than those listed in the Contract.

When Supplier determines it will offer Hot List Pricing, it must be submitted electronically to Sourcewell in a line-item format. Equipment, Products, or Services may be added or removed from the Hot List at any time through a Sourcewell Price and Product Change Form as defined in Article 4 below.

Hot List program and pricing may also be used to discount and liquidate close-out and discontinued Equipment and Products as long as those close-out and discontinued items are clearly identified as such. Current ordering process and administrative fees apply. Hot List Pricing must be published and made available to all Participating Entities.

4. PRODUCT AND PRICING CHANGE REQUESTS
Supplier may request Equipment, Product, or Service changes, additions, or deletions at any time. All requests must be made in writing by submitting a signed Sourcewell Price and Product Change Request Form to the assigned Sourcewell Supplier Development Administrator. This approved form is available from the assigned Sourcewell Supplier Development Administrator.

At a minimum, the request must:
x Identify the applicable Sourcewell contract number;
x Clearly specify the requested change;
x Provide sufficient detail to justify the requested change;

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x Individually list all Equipment, Products, or Services affected by the requested change, along with the requested change (e.g., addition, deletion, price change); and x Include a complete restatement of pricing documentation in Microsoft Excel with the effective date of the modified pricing, or product addition or deletion. The new pricing restatement must include all Equipment, Products, and Services offered, even for those items where pricing remains unchanged.

A fully executed Sourcewell Price and Product Change Request Form will become an amendment to this Contract and will be incorporated by reference.

5. PARTICIPATION, CONTRACT ACCESS, AND PARTICIPATING ENTITY REQUIREMENTS

A. PARTICIPATION. Sourcewell’s cooperative contracts are available and open to public and nonprofit entities across the United States and Canada; such as federal, state/province, municipal, K-12 and higher education, tribal government, and other public entities.

The benefits of this Contract should be available to all Participating Entities that can legally access the Equipment, Products, or Services under this Contract. A Participating Entity’s authority to access this Contract is determined through its cooperative purchasing, interlocal, or joint powers laws. Any entity accessing benefits of this Contract will be considered a Service Member of Sourcewell during such time of access. Supplier understands that a Participating Entity’s use of this Contract is at the Participating Entity’s sole convenience and Participating Entities reserve the right to obtain like Equipment, Products, or Services from any other source.

Supplier is responsible for familiarizing its sales and service forces with Sourcewell contract use eligibility requirements and documentation and will encourage potential participating entities to join Sourcewell. Sourcewell reserves the right to add and remove Participating Entities to its roster during the term of this Contract.

B. PUBLIC FACILITIES. Supplier’s employees may be required to perform work at governmentowned facilities, including schools. Supplier’s employees and agents must conduct themselves in a professional manner while on the premises, and in accordance with Participating Entity policies and procedures, and all applicable laws.

6. PARTICIPATING ENTITY USE AND PURCHASING
A. ORDERS AND PAYMENT. To access the contracted Equipment, Products, or Services under this Contract, a Participating Entity must clearly indicate to Supplier that it intends to access this Contract; however, order flow and procedure will be developed jointly between Sourcewell and Supplier. Typically, a Participating Entity will issue an order directly to Supplier or its authorized subsidiary, distributor, dealer, or reseller. If a Participating Entity issues a purchase order, it may use its own forms, but the purchase order should clearly note the applicable Sourcewell

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contract number. All Participating Entity orders under this Contract must be issued prior to expiration or cancellation of this Contract; however, Supplier performance, Participating Entity payment obligations, and any applicable warranty periods or other Supplier or Participating Entity obligations may extend beyond the term of this Contract.

Supplier’s acceptable forms of payment are included in its attached Proposal. Participating Entities will be solely responsible for payment and Sourcewell will have no liability for any unpaid invoice of any Participating Entity.

B. ADDITIONAL TERMS AND CONDITIONS/PARTICIPATING ADDENDUM. Additional terms and conditions to a purchase order, or other required transaction documentation, may be negotiated between a Participating Entity and Supplier, such as job or industry-specific requirements, legal requirements (e.g., affirmative action or immigration status requirements), or specific local policy requirements. Some Participating Entities may require the use of a Participating Addendum; the terms of which will be negotiated directly between the Participating Entity and the Supplier. Any negotiated additional terms and conditions must never be less favorable to the Participating Entity than what is contained in this Contract.

C. SPECIALIZED SERVICE REQUIREMENTS. In the event that the Participating Entity requires service or specialized performance requirements not addressed in this Contract (such as ecommerce specifications, specialized delivery requirements, or other specifications and requirements), the Participating Entity and the Supplier may enter into a separate, standalone agreement, apart from this Contract. Sourcewell, including its agents and employees, will not be made a party to a claim for breach of such agreement.

D. TERMINATION OF ORDERS. Participating Entities may terminate an order, in whole or in part, immediately upon notice to Supplier in the event of any of the following events:

1. The Participating Entity fails to receive funding or appropriation from its governing body at levels sufficient to pay for the equipment, products, or services to be purchased; or

2. Federal, state, or provincial laws or regulations prohibit the purchase or change the Participating Entity’s requirements.

E. GOVERNING LAW AND VENUE. The governing law and venue for any action related to a Participating Entity’s order will be determined by the Participating Entity making the purchase.

7. CUSTOMER SERVICE
A. PRIMARY ACCOUNT REPRESENTATIVE. Supplier will assign an Account Representative to Sourcewell for this Contract and must provide prompt notice to Sourcewell if that person is changed. The Account Representative will be responsible for:

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x Maintenance and management of this Contract;
x Timely response to all Sourcewell and Participating Entity inquiries; and x Business reviews to Sourcewell and Participating Entities, if applicable.

B. BUSINESS REVIEWS. Supplier must perform a minimum of one business review with Sourcewell per contract year. The business review will cover sales to Participating Entities, pricing and contract terms, administrative fees, sales data reports, supply issues, customer issues, and any other necessary information.

8. REPORT ON CONTRACT SALES ACTIVITY AND ADMINISTRATIVE FEE PAYMENT A. CONTRACT SALES ACTIVITY REPORT. Each calendar quarter, Supplier must provide a contract sales activity report (Report) to the Sourcewell Supplier Development Administrator assigned to this Contract. Reports are due no later than 45 days after the end of each calendar quarter. A Report must be provided regardless of the number or amount of sales during that quarter (i.e., if there are no sales, Supplier must submit a report indicating no sales were made).

The Report must contain the following fields:
x Participating Entity Name (e.g., City of Staples Highway Department); x Participating Entity Physical Street Address;
x Participating Entity City;
x Participating Entity State/Province;
x Participating Entity Zip/Postal Code;
x Participating Entity Contact Name;
x Participating Entity Contact Email Address;
x Participating Entity Contact Telephone Number;
x Sourcewell Assigned Entity/Participating Entity Number; x Item Purchased Description;
x Item Purchased Price;
x Sourcewell Administrative Fee Applied; and
x Date Purchase was invoiced/sale was recognized as revenue by Supplier.

B. ADMINISTRATIVE FEE. In consideration for the support and services provided by Sourcewell, the Supplier will pay an administrative fee to Sourcewell on all Equipment, Products, and Services provided to Participating Entities. The Administrative Fee must be included in, and not added to, the pricing. Supplier may not charge Participating Entities more than the contracted price to offset the Administrative Fee.

The Supplier will submit payment to Sourcewell for the percentage of administrative fee stated in the Proposal multiplied by the total sales of all Equipment, Products, and Services purchased

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by Participating Entities under this Contract during each calendar quarter. Payments should note the Supplier’s name and Sourcewell-assigned contract number in the memo; and must be mailed to the address above “Attn: Accounts Receivable” or remitted electronically to Sourcewell’s banking institution per Sourcewell’s Finance department instructions. Payments must be received no later than 45 calendar days after the end of each calendar quarter.

Supplier agrees to cooperate with Sourcewell in auditing transactions under this Contract to ensure that the administrative fee is paid on all items purchased under this Contract.

In the event the Supplier is delinquent in any undisputed administrative fees, Sourcewell reserves the right to cancel this Contract and reject any proposal submitted by the Supplier in any subsequent solicitation. In the event this Contract is cancelled by either party prior to the Contract’s expiration date, the administrative fee payment will be due no more than 30 days from the cancellation date.

9. AUTHORIZED REPRESENTATIVE
Sourcewell's Authorized Representative is its Chief Procurement Officer.

Supplier’s Authorized Representative is the person named in the Supplier’s Proposal. If Supplier’s Authorized Representative changes at any time during this Contract, Supplier must promptly notify Sourcewell in writing.

10. AUDIT, ASSIGNMENT, AMENDMENTS, WAIVER, AND CONTRACT COMPLETE A. AUDIT. Pursuant to Minnesota Statutes Section 16C.05, subdivision 5, the books, records, documents, and accounting procedures and practices relevant to this Agreement are subject to examination by Sourcewell or the Minnesota State Auditor for a minimum of six years from the end of this Contract. This clause extends to Participating Entities as it relates to business conducted by that Participating Entity under this Contract.

B. ASSIGNMENT. Neither party may assign or otherwise transfer its rights or obligations under this Contract without the prior written consent of the other party and a fully executed assignment agreement. Such consent will not be unreasonably withheld. Any prohibited assignment will be invalid.

C. AMENDMENTS. Any amendment to this Contract must be in writing and will not be effective until it has been duly executed by the parties.

D. WAIVER. Failure by either party to take action or assert any right under this Contract will not be deemed a waiver of such right in the event of the continuation or repetition of the circumstances giving rise to such right. Any such waiver must be in writing and signed by the parties.

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E. CONTRACT COMPLETE. This Contract represents the complete agreement between the parties. No other understanding regarding this Contract, whether written or oral, may be used to bind either party.For any conflict between the attached Proposal and the terms set out in Articles 1-22 of this Contract, the terms of Articles 1-22 will govern.

F. RELATIONSHIP OF THE PARTIES. The relationship of the parties is one of independent contractors, each free to exercise judgment and discretion with regard to the conduct of their respective businesses. This Contract does not create a partnership, joint venture, or any other relationship such as master-servant, or principal-agent.

11. INDEMNITY AND HOLD HARMLESS

Supplier must indemnify, defend, save, and hold Sourcewell and its Participating Entities, including their agents and employees, harmless from any claims or causes of action, including attorneys’ fees incurred by Sourcewell or its Participating Entities, arising out of any act or omission in the performance of this Contract by the Supplier or its agents or employees; this indemnification includes injury or death to person(s) or property alleged to have been caused by some defect in the Equipment, Products, or Services under this Contract to the extent the Equipment, Product, or Service has been used according to its specifications. Sourcewell’s responsibility will be governed by the State of Minnesota’s Tort Liability Act (Minnesota Statutes Chapter 466) and other applicable law.

12. GOVERNMENT DATA PRACTICES
Supplier and Sourcewell must comply with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13, as it applies to all data provided by or provided to Sourcewell under this Contract and as it applies to all data created, collected, received, stored, used, maintained, or disseminated by the Supplier under this Contract.

13. INTELLECTUAL PROPERTY, PUBLICITY, MARKETING, AND ENDORSEMENT A. INTELLECTUAL PROPERTY

1. Grant of License. During the term of this Contract:
a. Sourcewell grants to Supplier a royalty-free, worldwide, non-exclusive right and license to use thetrademark(s) provided to Supplier by Sourcewell in advertising and promotional materials for the purpose of marketing Sourcewell’s relationship with Supplier.
b. Supplier grants to Sourcewell a royalty-free, worldwide, non-exclusive right and license to use Supplier’s trademarks in advertising and promotional materials for the purpose of marketing Supplier’s relationship with Sourcewell.

2. Limited Right of Sublicense. The right and license granted herein includes a limited right of each party to grant sublicenses to their respective subsidiaries, distributors, dealers,

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resellers, marketing representatives, and agents (collectively “Permitted Sublicensees”) in advertising and promotional materials for the purpose of marketing the Parties’ relationship to Participating Entities. Any sublicense granted will be subject to the terms and conditions of this Article. Each party will be responsible for any breach of this Article by any of their respective sublicensees.

3. Use; Quality Control.
a. Neither party may alter the other party’s trademarks from the form provided and must comply with removal requests as to specific uses of its trademarks or logos.
b. Each party agrees to use, and to cause its Permitted Sublicensees to use, the other party’s trademarks only in good faith and in a dignified manner consistent with such party’s use of the trademarks. Upon written notice to the breaching party, the breaching party has 30 days of the date of the written notice to cure the breach or the license will be terminated.

4. As applicable, Supplier agrees to indemnify and hold harmless Sourcewell and its Participating Entities against any and all suits, claims, judgments, and costs instituted or recovered against Sourcewell or Participating Entities by any person on account of the use of any Equipment or Products by Sourcewell or its Participating Entities supplied by Supplier in violation of applicable patent or copyright laws.

5. Termination. Upon the termination of this Contract for any reason, each party, including Permitted Sublicensees, will have 30 days to remove all Trademarks from signage, websites, and the like bearing the other party’s name or logo (excepting Sourcewell’s pre-printed catalog of suppliers which may be used until the next printing). Supplier must return all marketing and promotional materials, including signage, provided by Sourcewell, or dispose of it according to Sourcewell’s written directions.

B. PUBLICITY. Any publicity regarding the subject matter of this Contract must not be released without prior written approval from the Authorized Representatives. Publicity includes notices, informational pamphlets, press releases, research, reports, signs, and similar public notices prepared by or for the Supplier individually or jointly with others, or any subcontractors, with respect to the program, publications, or services provided resulting from this Contract.

C. MARKETING. Any direct advertising, marketing, or offers with Participating Entities must be approved by Sourcewell. Send all approval requests to the Sourcewell Supplier Development Administrator assigned to this Contract.

D. ENDORSEMENT. The Supplier must not claim that Sourcewell endorses its Equipment, Products, or Services.

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14. GOVERNING LAW, JURISDICTION, AND VENUE
The substantive and procedural laws of the State of Minnesota will govern this Contract. Venue for all legal proceedings arising out of this Contract, or its breach, must be in the appropriate state court in Todd County, Minnesota or federal court in Fergus Falls, Minnesota.

15. FORCE MAJEURE
Neither party to this Contract will be held responsible for delay or default caused by acts of God or other conditions that are beyond that party’s reasonable control. A party defaulting under this provision must provide the other party prompt written notice of the default.

16. SEVERABILITY
If any provision of this Contract is found by a court of competent jurisdiction to be illegal, unenforceable, or void then both parties will be relieved from all obligations arising from that provision. If the remainder of this Contract is capable of being performed, it will not be affected by such determination or finding and must be fully performed.

17. PERFORMANCE, DEFAULT, AND REMEDIES
A. PERFORMANCE. During the term of this Contract, the parties will monitor performance and address unresolved contract issues as follows:

1. Notification. The parties must promptly notify each other of any known dispute and work in good faith to resolve such dispute within a reasonable period of time. If necessary, Sourcewell and the Supplier will jointly develop a short briefing document that describes the issue(s), relevant impact, and positions of both parties.

2. Escalation. If parties are unable to resolve the issue in a timely manner, as specified above, either Sourcewell or Supplier may escalate the resolution of the issue to a higher level of management. The Supplier will have 30 calendar days to cure an outstanding issue.

3. Performance while Dispute is Pending. Notwithstanding the existence of a dispute, the Supplier must continue without delay to carry out all of its responsibilities under the Contract that are not affected by the dispute. If the Supplier fails to continue without delay to perform its responsibilities under the Contract, in the accomplishment of all undisputed work, the Supplier will bear any additional costs incurred by Sourcewell and/or its Participating Entities as a result of such failure to proceed.

B. DEFAULT AND REMEDIES. Either of the following constitutes cause to declare this Contract, or any Participating Entity order under this Contract, in default:

1. Nonperformance of contractual requirements, or

2. A material breach of any term or condition of this Contract.

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The party claiming default must provide written notice of the default, with 30 calendar days to cure the default. Time allowed for cure will not diminish or eliminate any liability for liquidated or other damages. If the default remains after the opportunity for cure, the non-defaulting party may:
x Exercise any remedy provided by law or equity, or
x Terminate the Contract or any portion thereof, including any orders issued against the Contract.

18. INSURANCE

A. REQUIREMENTS. At its own expense, Supplier must maintain insurance policy(ies) in effect at all times during the performance of this Contract with insurance company(ies) licensed or authorized to do business in the State of Minnesota having an “AM BEST” rating of A- or better, with coverage and limits of insurance not less than the following:

1. Workers’ Compensation and Employer’s Liability.

Workers’ Compensation: As required by any applicable law or regulation.

Employer's Liability Insurance: must be provided in amounts not less than listed below:

Minimum limits:
$500,000 each accident for bodily injury by accident
$500,000 policy limit for bodily injury by disease
$500,000 each employee for bodily injury by disease

2. Commercial General Liability Insurance. Supplier will maintain insurance covering its operations, with coverage on an occurrence basis, and must be subject to terms no less broad than the Insurance Services Office (“ISO”) Commercial General Liability Form CG0001 (2001 or newer edition), or equivalent. At a minimum, coverage must include liability arising from premises, operations, bodily injury and property damage, independent contractors, products-completed operations including construction defect, contractual liability, blanket contractual liability, and personal injury and advertising injury. All required limits, terms and conditions of coverage must be maintained during the term of this Contract.

Minimum Limits:
$1,000,000 each occurrence Bodily Injury and Property Damage $1,000,000 Personal and Advertising Injury
$2,000,000 aggregate for Products-Completed operations
$2,000,000 general aggregate

3. Commercial Automobile Liability Insurance. During the term of this Contract, Supplier will maintain insurance covering all owned, hired, and non-owned automobiles in limits of liability not less than indicated below. The coverage must be subject to terms

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no less broad than ISO Business Auto Coverage Form CA 0001 (2010 edition or newer), or equivalent.

Minimum Limits:
$1,000,000 each accident, combined single limit

4. Umbrella Insurance. During the term of this Contract, Supplier will maintain umbrella coverage over Employer’s Liability, Commercial General Liability, and Commercial Automobile.

Minimum Limits:
$2,000,000

5. Network Security and Privacy Liability Insurance. During the term of this Contract, Supplier will maintain coverage for network security and privacy liability. The coverage may be endorsed on another form of liability coverage or written on a standalone policy. The insurance must cover claims which may arise from failure of Supplier’s security resulting in, but not limited to, computer attacks, unauthorized access, disclosure of not public data – including but not limited to, confidential or private information, transmission of a computer virus, or denial of service.

Minimum limits:
$2,000,000 per occurrence
$2,000,000 annual aggregate
Failure of Supplier to maintain the required insurance will constitute a material breach entitling Sourcewell to immediately terminate this Contract for default.

B. CERTIFICATES OF INSURANCE. Prior to commencing under this Contract, Supplier must furnish to Sourcewell a certificate of insurance, as evidence of the insurance required under this Contract. Prior to expiration of the policy(ies), renewal certificates must be mailed to Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479 or sent to the Sourcewell Supplier Development Administrator assigned to this Contract. The certificates must be signed by a person authorized by the insurer(s) to bind coverage on their behalf.

Failure to request certificates of insurance by Sourcewell, or failure of Supplier to provide certificates of insurance, in no way limits or relieves Supplier of its duties and responsibilities in this Contract.

C. ADDITIONAL INSURED ENDORSEMENT AND PRIMARY AND NON-CONTRIBUTORY INSURANCE CLAUSE. Supplier agrees to list Sourcewell and its Participating Entities, including their officers, agents, and employees, as an additional insured under the Supplier’s commercial general liability insurance policy with respect to liability arising out of activities, “operations,” or “work” performed by or on behalf of Supplier, and products and completed operations of Supplier. The policy provision(s) or endorsement(s) must further provide that coverage is

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primary and not excess over or contributory with any other valid, applicable, and collectible insurance or self-insurance in force for the additional insureds.

D. WAIVER OF SUBROGATION. Supplier waives and must require (by endorsement or otherwise) all its insurers to waive subrogation rights against Sourcewell and other additional insureds for losses paid under the insurance policies required by this Contract or other insurance applicable to the Supplier or its subcontractors. The waiver must apply to all deductibles and/or self-insured retentions applicable to the required or any other insurance maintained by the Supplier or its subcontractors. Where permitted by law, Supplier must require similar written express waivers of subrogation and insurance clauses from each of its subcontractors.

E. UMBRELLA/EXCESS LIABILITY/SELF-INSURED RETENTION. The limits required by this Contract can be met by either providing a primary policy or in combination with umbrella/excess liability policy(ies), or self-insured retention.

19. COMPLIANCE
A. LAWS AND REGULATIONS. All Equipment, Products, or Services provided under this Contract must comply fully with applicable federal laws and regulations, and with the laws in the states and provinces in which the Equipment, Products, or Services are sold.

B. LICENSES. Supplier must maintain a valid and current status on all required federal, state/provincial, and local licenses, bonds, and permits required for the operation of the business that the Supplier conducts with Sourcewell and Participating Entities.

20. BANKRUPTCY, DEBARMENT, OR SUSPENSION CERTIFICATION
Supplier certifies and warrants that it is not in bankruptcy or that it has previously disclosed in writing certain information to Sourcewell related to bankruptcy actions. If at any time during this Contract Supplier declares bankruptcy, Supplier must immediately notify Sourcewell in writing.

Supplier certifies and warrants that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from programs operated by the State of Minnesota; the United States federal government or the Canadian government, as applicable; or any Participating Entity. Supplier certifies and warrants that neither it nor its principals have been convicted of a criminal offense related to the subject matter of this Contract. Supplier further warrants that it will provide immediate written notice to Sourcewell if this certification changes at any time.

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21. PROVISIONS FOR NON-UNITED STATES FEDERAL ENTITY PROCUREMENTS UNDER

UNITED STATES FEDERAL AWARDS OR OTHER AWARDS
Participating Entities that use United States federal grant or FEMA funds to purchase goods or services from this Contract may be subject to additional requirements including the procurement standards of the Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards, 2 C.F.R. § 200. Participating Entities may have additional requirements based on specific funding source terms or conditions. Within this Article, all references to “federal” should be interpreted to mean the United States federal government.

The following list only applies when a Participating Entity accesses Supplier’s Equipment, Products, or Services with United States federal funds.

A. EQUAL EMPLOYMENT OPPORTUNITY. Except as otherwise provided under 41 C.F.R. § 60, all contracts that meet the definition of “federally assisted construction contract” in 41 C.F.R. § 60-

1.3 must include the equal opportunity clause provided under 41 C.F.R. §60-1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 C.F.R. §, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 C.F.R. § 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.” The equal opportunity clause is incorporated herein by reference.

B. DAVIS-BACON ACT, AS AMENDED (40 U.S.C. § 3141-3148). When required by federal program legislation, all prime construction contracts in excess of $2,000 awarded by nonfederal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. § 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 C.F.R. § 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-federal entity must report all suspected or reported violations to the federal awarding agency. The contracts must also include a provision for compliance with the Copeland “Anti-Kickback” Act (40 U.S.C. § 3145), as supplemented by Department of Labor regulations (29 C.F.R. § 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non-federal entity must report all suspected or reported violations to the federal awarding agency. Supplier must be in compliance with all applicable Davis-Bacon Act provisions.

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C. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT (40 U.S.C. § 3701-3708). Where applicable, all contracts awarded by the non-federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. §§ 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. § 5).

Under 40 U.S.C. § 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. § 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. This provision is hereby incorporated by reference into this Contract. Supplier certifies that during the term of an award for all contracts by Sourcewell resulting from this procurement process, Supplier must comply with applicable requirements as referenced above.

D. RIGHTS TO INVENTIONS MADE UNDER A CONTRACT OR AGREEMENT. If the federal award meets the definition of “funding agreement” under 37 C.F.R. § 401.2(a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the recipient or subrecipient must comply with the requirements of 37 C.F.R. § 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency. Supplier certifies that during the term of an award for all contracts by Sourcewell resulting from this procurement process, Supplier must comply with applicable requirements as referenced above.

E. CLEAN AIR ACT (42 U.S.C. § 7401-7671Q.) AND THE FEDERAL WATER POLLUTION CONTROL ACT (33 U.S.C. § 1251-1387). Contracts and subgrants of amounts in excess of $150,000 require the non-federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. § 7401- 7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. § 1251- 1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).

Supplier certifies that during the term of this Contract will comply with applicable requirements as referenced above.

F. DEBARMENT AND SUSPENSION (EXECUTIVE ORDERS 12549 AND 12689). A contract award (see 2 C.F.R. § 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 C.F.R. §180 that implement Executive Orders 12549 (3 C.F.R. § 1986 Comp., p. 189) and 12689 (3 C.F.R. § 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names

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of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. Supplier certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation by any federal department or agency.

G. BYRD ANTI-LOBBYING AMENDMENT, AS AMENDED (31 U.S.C. § 1352). Suppliers must file any required certifications. Suppliers must not have used federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Suppliers must disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal award. Such disclosures are forwarded from tier to tier up to the non-federal award. Suppliers must file all certifications and disclosures required by, and otherwise comply with, the Byrd Anti-Lobbying Amendment (31 U.S.C. § 1352).

H. RECORD RETENTION REQUIREMENTS. To the extent applicable, Supplier must comply with the record retention requirements detailed in 2 C.F.R. § 200.333. The Supplier further certifies that it will retain all records as required by 2 C.F.R. § 200.333 for a period of 3 years after grantees or subgrantees submit final expenditure reports or quarterly or annual financial reports, as applicable, and all other pending matters are closed.

I. ENERGY POLICY AND CONSERVATION ACT COMPLIANCE. To the extent applicable, Supplier must comply with the mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act.

J. BUY AMERICAN PROVISIONS COMPLIANCE. To the extent applicable, Supplier must comply with all applicable provisions of the Buy American Act. Purchases made in accordance with the Buy American Act must follow the applicable procurement rules calling for free and open competition.

K. ACCESS TO RECORDS (2 C.F.R. § 200.336). Supplier agrees that duly authorized representatives of a federal agency must have access to any books, documents, papers and records of Supplier that are directly pertinent to Supplier’s discharge of its obligations under this Contract for the purpose of making audits, examinations, excerpts, and transcriptions. The right also includes timely and reasonable access to Supplier’s personnel for the purpose of interview and discussion relating to such documents.

L. PROCUREMENT OF RECOVERED MATERIALS (2 C.F.R. § 200.322). A non-federal entity that is a state agency or agency of a political subdivision of a state and its contractors must comply with Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation

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and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R. § 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.

M. FEDERAL SEAL(S), LOGOS, AND FLAGS. The Supplier not use the seal(s), logos, crests, or reproductions of flags or likenesses of Federal agency officials without specific pre-approval.

N. NO OBLIGATION BY FEDERAL GOVERNMENT. The U.S. federal government is not a party to this Contract or any purchase by an Participating Entity and is not subject to any obligations or liabilities to the Participating Entity, Supplier, or any other party pertaining to any matter resulting from the Contract or any purchase by an authorized user.

O. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR RELATED ACTS. The Contractor acknowledges that 31 U.S.C. 38 (Administrative Remedies for False Claims and Statements) applies to the Supplier’s actions pertaining to this Contract or any purchase by a Participating Entity.

P. FEDERAL DEBT. The Supplier certifies that it is non-delinquent in its repayment of any federal debt. Examples of relevant debt include delinquent payroll and other taxes, audit disallowance, and benefit overpayments.

Q. CONFLICTS OF INTEREST. The Supplier must notify the U.S. Office of General Services, Sourcewell, and Participating Entity as soon as possible if this Contract or any aspect related to the anticipated work under this Contract raises an actual or potential conflict of interest (as described in 2 C.F.R. Part 200). The Supplier must explain the actual or potential conflict in writing in sufficient detail so that the U.S. Office of General Services, Sourcewell, and Participating Entity are able to assess the actual or potential conflict; and provide any additional information as necessary or requested.

R. U.S. EXECUTIVE ORDER 13224. The Supplier, and its subcontractors, must comply with U.S.

Executive Order 13224 and U.S. Laws that prohibit transactions with and provision of resources and support to individuals and organizations associated with terrorism.

S. PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR EQUIPMENT. To the extent applicable, Supplier certifies that during the term of this Contract it will comply with applicable requirements of 2 C.F.R. § 200.216.

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T. DOMESTIC PREFERENCES FOR PROCUREMENTS. To the extent applicable, Supplier certifies that during the term of this Contract will comply with applicable requirements of 2 C.F.R. § 200.322.

22. CANCELLATION
Sourcewell or Supplier may cancel this Contract at any time, with or without cause, upon 60 days’ written notice to the other party. However, Sourcewell may cancel this Contract immediately upon discovery of a material defect in any certification made in Supplier’s Proposal. Cancellation of this Contract does not relieve either party of financial, product, or service obligations incurred or accrued prior to cancellation.

Sourcewell PB Loader Corporation
By: __________________________ By: __________________________ Jeremy Schwartz Jason Thompson
Title: Chief Procurement Officer Title: President
Date: ________________________ Date: ________________________ Approved:

By: __________________________
Chad Coauette
Title: Executive Director/CEO
Date: ________________________

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667
Department: Economic Development
Prepared By: Jennifer Hiramoto
Staff Member Presenting: Jennifer McLain
Hiramoto, Economic Development Director
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 23
SUBJECT: CONSIDER A RESOLUTION APPROVING, PURSUANT TO THE CERTIFIED FINAL

ENVIRONMENTAL IMPACT REPORT AND ADDENDA FOR THE ONTARIO CENTER SPECIFIC PLAN (SCH NO. 89041009), THE FIRST AMENDMENT TO THE

COMMUNITY EVENTS CENTER OPERATING AGREEMENT BETWEEN THE CITY AND

SMG AMENDING TERMS FOR THE OPERATION AND MANAGEMENT OF EVENTS CENTER LOCATED AT 4000 EAST ONTARIO CENTER PARKWAY, ONTARIO, CA (APN: 0210-205-01)

CITY OF ONTARIO
Agenda Report
August 20, 2024
SECTION:

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

A. Consider and Adopt a Resolution Approving, Pursuant to the Certified Final Environmental Impact Report and Addenda for The Ontario Center Specific Plan (SCH No. 89041009), the First Amendment to the Community Events Center Operating Agreement between the City of Ontario and SMG; and
B. Authorize the City Manager, or his designee, to execute the First Amendment to the Community Events Center Operating Agreement between the City and SMG, on behalf of the City.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Invest in the Growth and Evolution of the City's Economy Focus Resources in Ontario's Commercial and Residential Neighborhoods FISCAL IMPACT: The City of Ontario is expected to generate $1M a year in new revenue as a result of this Amendment.

BACKGROUND & ANALYSIS: On July 1, 2016, the City entered into the Community Events Center Operating Agreement ("Operating Agreement") with SMG Worldwide ("Operator") for the management of 25.7-acre area that includes the 11,000 seat Toyota Arena at 4000 Ontario Center Parkway, and roughly four parking lots, all owned by the City of Ontario ("City"). As the City continues to look at capitalizing on its investment and success of the Toyota Arena, the City envisions a robust entertainment, pedestrian and residential district that will include upscale retail 668
and restaurants, vibrant entertainment venues and dense residential development.

To deliver on this vision, on July 19, 2022, the City entered into four separate development agreements with a master developer. In total, this development will include 700 new residential units and nearly 70,000 SF of new commercial. One of the agreements was with OTC Lot A Owner ("OTC") for property immediately to the east of the Toyota Arena. In addition to this private development, the City intends on developing a Public Plaza ("Plaza Area") to the east of the Toyota Arena and to the west of the Lot A development. This approximately 2-acre Plaza will create a public space that will contain retail and concession kiosks ("Kiosks"), outside furniture, and outdoor entertainment space. This amount of programming, especially the Kiosks, presents a financial opportunity for the City, and with that it will also require day-to-day management.

In order for SMG to manage activities in the Plaza Area, the City needs to amend its existing Agreement with SMG. The First Amendment to the Community Events Operating Agreement will allow for this expanded activity, as well as details the revenue share of the Kiosks.

A summary of the additions in the Amendment include the following:

Definitions were clarified or added, including the addition of the Plaza Area. This is defined as an 87,120 square foot area between the Toyota Arena and Lot A, as depicted in the Agreement.

Scope of Services were added to include that the Operator shall manage, operate and maintain both the Events Center and the Plaza Area.

Definitions for collections and payments for the Plaza Area were added, including defining operating revenue, operating expenses, and net operating income and loss for the Plaza Area.

Distribution of Net Operating Income - Plaza Area.

The Amendment introduces the concept of priority payments for the activity, including revenue from Kiosks, in the Plaza Area. The Operator shall:

Pay the first $1.62 M to OTC Lot A.

Pay the second $1 M to the City.

Pay the third $1 M to itself (Operator). These funds will cover operating expenses.

Any balance in excess of the priority payments detailed above shall be split three ways between the OTC Lot A, the Operator and the Owner.

CEQA
The City prepared and certified the Final EIR (“FEIR”) in 1990, for the Ontario Center Specific Plan (SCH No. 89041009) and Mitigation, Monitoring and Reporting Program (“MMRP”) consisting of comments received during the 45-day public review and comment period on the Draft FEIR, written responses to those comments, and revisions and errata to the Draft FEIR. On February 1, 2006, the City adopted an Addendum to the FEIR for the Community Events Center, including a Community Events Center and a multi-purpose stadium, per the standards for subsequent environmental review outlined in Public Resources Code section 21166, State CEQA Guidelines section by preparing an Initial Study and accompanying technical reports (“CEC Addendum”). Based on the CEC Addendum, the FEIR, and the other Addendum adopted by the City with regard to the FEIR, staff has concluded that the previously certified FEIR fully analyzed and mitigated, where feasible, 669
all potentially significant environmental impacts, if any, that would result from the First Amendment to the Community Events Center Operation Agreement, and therefore, no subsequent EIR or mitigated negative declaration is required.
670
RESOLUTION NO. ________

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

CALIFORNIA, APPROVING, PURSUANT TO THE CERTIFIED FINAL

ENVIRONMENTAL IMPACT REPORT AND ADDENDA FOR THE
ONTARIO CENTER SPECIFIC PLAN (SCH NO. 89041009), THE FIRST

AMENDMENT TO THE COMMUNITY EVENTS CENTER OPERATING

AGREEMENT BETWEEN THE CITY AND SMG AMENDING TERMS FOR

THE OPERATION AND MANAGEMENT OF EVENTS CENTER LOCATED
AT 4000 EAST ONTARIO CENTER PARKWAY, ONTARIO, CA (APN
0210-205-01-0000).

WHEREAS, the City of Ontario is the fee interest owner of certain real property, identified with Assessor’s Parcel Number 0210-205-01-0000, located at 4000 East Ontario Center Parkway, Ontario, CA, consisting of approximately 25.7 gross acres of land, (the “City Property”), which contains certain improvements, including a sports and entertainment arena with related office space for administrative use (the “Events Center”), commonly known as the Toyota Arena, which is situated on and generally within center point of the City Property, and presently with parking lots for use associated with the Events Center; and
WHEREAS, the City and SMG, a general partnership, (“Operator”) have entered into that certain Community Events Center Operating Agreement (the “Original Agreement”), dated as of July 1, 2016, pursuant to which Operator manages and operates the Toyota Arena Events Center for the City; and
WHEREAS, the City desires to design and construct certain improvements outside along the east side of the Events Center to create a public plaza or paseo (the “Plaza Area”) that will contain retail and concession kiosks (“Kiosks”), outside furniture, and outdoor entertainment space for use by the residents of Ontario and the regional community; and
WHEREAS, a Kiosks License Agreement and Sublicense Agreement are desired to grant a license for the locations of the Kiosks under the License Agreement and a sublicense to the Operator, or an associated entity of Operator, for the Operator, among other things, to manage, maintain and operate the Kiosks; and WHEREAS, the City has entered into Ground Leases with two associated entities to the developer, Adept, (“Adept Entities”) whereby the Adept Entities will design, plan and construct commercial, hospitality and residential development on the two lots located on the east side of the Events Center as part of the desired entertainment district; and WHEREAS, the City and Operator desire to amend the Original Agreement to, among other things, re-define the areas of management and operation control over and on portions of the City Property and to amend the financial provisions related to the Plaza Area in furtherance of creating a desired entertainment district; and 671
WHEREAS, the City and Operator as contracting parties desire to provide the special financial provisions for the collective common benefit of the overall current and prospective development on the City Property for the entertainment district; and WHEREAS, pursuant to the California Environmental Quality Act (Public Resource Code §§ 21000 et seq.) (“CEQA”), and the State CEQA Guidelines (14 Cal. Code Regs. §§ 15000 et seq.) the City previously determined that an Environmental Impact Report (“EIR”) be prepared pursuant to CEQA in order to analyze all potential adverse environmental impacts of the Ontario Center Specific Plan; and WHEREAS, the City prepared and certified the Final EIR (“FEIR”) in 1990, for the Ontario Center Specific Plan (SCH No. 89041009) and Mitigation, Monitoring and Reporting Program (“MMRP”) consisting of comments received during the 45-day public review and comment period on the Draft FEIR, written responses to those comments, and revisions and errata to the Draft FEIR. For the purposes of this Resolution, the “FEIR” shall refer to the Draft FEIR, as revised by the Final FEIR’s errata section, together with the other sections of the Final FEIR; and
WHEREAS, on February 1, 2006, the City adopted an Addendum to the FEIR for the Community Events Center, including a Community Events Center and a multi-purpose stadium, per the standards for subsequent environmental review outlined in Public Resources Code section 21166, State CEQA Guidelines section by preparing an Initial Study and accompanying technical reports (“CEC Addendum”); and WHEREAS, based on the CEC Addendum, the FEIR, and the other Addendum adopted by the City with regard to the FEIR, staff has concluded that the previously certified FEIR fully analyzed and mitigated, where feasible, all potentially significant environmental impacts, if any, that would result from the First Amendment to the Community Events Center Operation Agreement, and therefore, no subsequent EIR or mitigated negative declaration is required; and

NOW, THEREFORE, THE CITY COUNCIL FOR THE CITY OF ONTARIO DOES HEREBY RESOLVE AND DECLARE AS FOLLOWS:

SECTION 1. Recitals. The Recitals set forth above are true and correct and are incorporated into this Resolution by this reference.

SECTION 2. Findings. The City Council finds that the First Amendment to the Community Events Center Operating Agreement for the City Property pursuant to the Agreement will further the goals and purposes of the City, and is in the common interest of the City and its residents.

SECTION 3. Approval of Amendment to the Agreement. The City Council hereby approves the First Amendment to the Community Events Center Operating Agreement in substantially the form attached hereto as Exhibit A, subject to any nonsubstantive revisions which do not increase the City’s liability and are approved by the 672
City Attorney, and authorizes the City Manager to sign and enter into the Agreement and perform the obligations of the City under the Agreement.

SECTION 4. CEQA. As the decision-making body for the First Amendment to the Community Events Center Operating Agreement, City Council has reviewed and considered the previously certified FEIR and Addenda, any oral or written comments received, and the administrative record prior to making any decision on the First Amendment to the Community Events Center Operating Agreement. The Council finds that the Addenda and FEIR contain a complete and accurate reporting of all of the environmental impacts associated with the First Amendment to the Community Events Center Operating Agreement.

SECTION 5. Findings on the Necessity for a Subsequent or Supplemental Environmental Impact Report. Based on the substantial evidence set forth in the record, including but not limited to, the previously certified FEIR, the Addenda, and all related information presented to the City Council, the Council finds that the First Amendment to the Community Events Center Operating Agreement does not necessitate even minor modifications to the FEIR and Addenda. Therefore, pursuant to State CEQA Section 15164 and the City Council finds that the preparation of a subsequent or supplemental EIR is not required for the First Amendment to the Community Events Center Operating Agreement.

SECTION 6. Findings on Environmental Impacts. Having considered the Addenda, the administrative record, the previously certified FEIR and all written and oral evidence presented to the City Council, the Council finds that all environmental impacts of the First Amendment to the Community Events Center Operating Agreement have been addressed within the FEIR and the Addenda. The City Council finds that no new or additional mitigation measures or alternatives are required. The Council further finds that there is not substantial evidence in the administrative record supporting a fair argument that the First Amendment to the Community Events Center Operating Agreement may result in any significant environmental impacts beyond those analyzed in the FEIR and Addenda.

SECTION 7. Notice of Determination. The Executive Director, or designee, is hereby directed to file a Notice of Determination for the First Amendment to the Community Events Center Operating Agreement under CEQA.

SECTION 8. Severability. If any provision of this Resolution or the application of any such provision to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Resolution that can be given effect without the invalid provision or application, and to this end the provisions of this Resolution are severable. The City declares that the City would have adopted this Resolution irrespective of the invalidity of any particular portion of this Resolution. 673
SECTION 9. Effective Date. This Resolution shall become effective 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 20th day of August, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
674

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 August 20, 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 August 20, 2024. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
675
46700.12009\42391610.4
1 FIRST AMENDMENT TO THE

COMMUNITY EVENTS CENTER OPERATING AGREEMENT
This First Amendment to the Community Events Center Operating Agreement (“First Amendment”), dated as of _______________, 2024 (the “Effective Date”), is made by and between the City of Ontario, a municipal corporation organized under the laws of the State of California (“Owner” or “City”), and SMG, a Pennsylvania General Partnership, whose current address is 300 Conshohocken State Road, Suite 770, West Conshohocken, PA 19428 (“Operator”).

The Owner and Operator may sometimes hereinafter be referred to individually as the “Party” or collectively as the “Parties.”

RECITALS
WHEREAS, Owner is the fee interest owner of certain real property, identified with Assessor’s Parcel Number 0210-205-01-0000, located at 4000 East Ontario Center Parkway, Ontario, CA, consisting of approximately 25.7 gross acres of land, (the “City Property”) as depicted on Exhibit A, Depiction of City Property, which contains certain improvements, including a sports and entertainment arena with related office space for administrative use by Owner and Operator (the “Events Center”), commonly known as the Toyota Arena, which is situated on and generally within center point of the City Property, and presently with parking lots for use associated with the Events Center;
WHEREAS, the Owner and Operator have entered into that certain Community Events Center Operating Agreement (the “Original Agreement”), dated as of July 1, 2016, pursuant to which Operator manages and operates the Events Center for the Owner; WHEREAS, Owner is interested in creating an entertainment district for the residents of Ontario and regional community by facilitating future upscale retail and restaurants, entertainment venues and theater, commercial, hospitality and residential development on certain portions of the City Property;
WHEREAS, Owner has entered into certain other agreements and leases for portions of the City Property in furtherance of the aforementioned future development, including that certain Ground Lease dated July 19, 2022 (“Lot A Ground Lease”) between the Owner and OTC Lot A Owner, LLC (“OTC Lot A”) for an area east of the Events Center, referenced as “Lot A”; WHEREAS, Owner intends to design and construct improvements outside between the east side of the Events Center and the land referenced as Lot A to create a public plaza or paseo (the “Plaza Area”) that will contain retail and concession kiosks (“Kiosks”), outside furniture, and outdoor entertainment space for use by the public;
WHEREAS, the Owner and OTC Lot A intend to enter into a Kiosk License Agreement (“License”) for the Kiosks whereby OTC Lot A will be granted a license for a portion of the Plaza Area (as defined below) to implement the certain use rights granted to OTC Lot A by the Owner under the Lot A Ground Lease;
WHEREAS, concurrently or subsequent to Owner and OTC Lot A entering into the Kiosk 676
46700.12009\42391610.4
2 License Agreement, the Operator (or an associated entity of Operator) intends to enter into a Naming Rights and Kiosk Sub-License Agreement (“Sublicense”) with OTC Lot A whereby Operator will sub-license the Kiosks area (located within the Plaza Area) to manage and operate the Kiosks for OTC Lot A and will have other rights to obtain sponsor(s) for a sign that will be affixed to a Building on Lot A facing the Plaza Area;
WHEREAS, the Owner and Operator desire to amend the Original Agreement to, among other things, re-define the areas of management and operation control over and on portions of the City Property and to amend the financial provisions related to the Plaza Area in furtherance of creating the desired entertainment district;
WHEREAS, the Owner and Operator as contracting parties desire to provide the special financial provisions for the collective benefit of the overall current and prospective development on the City Property for the entertainment district and the aforementioned agreements between the Owner and Operator, the Owner and OTC Lot A, Owner and Adept Development (an entity related to OTC Lot A) and the Operator and OTC Lot A, respectively; WHEREAS, this First Amendment and the Original Agreement will hereinafter be collectively referenced as the “Agreement” unless otherwise specifically referenced individually; NOW, THEREFORE, in consideration of the above recitals, and the representations, warranties, covenants and conditions contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Owner and Operator agree as follows:

1. Incorporation of Recitals. The recitals set forth above are hereby incorporated herein as if set forth in their entirety and made a part of this Agreement.

2. Definitions. A Definitions section shall be added as Section 1.4 (to replace the previously omitted section) and the following defined terms shall have the meanings set forth below:

1.4 Definitions. Set forth below are definitions for the Events Center, Lot A, Lot B, Lot E, Parking Lots and Plaza Area to amend the terms pertaining to Sections 1.5 and 2.1 of the Agreement and to provide additional information for amending the financial provisions of the Agreement.

1.4.1 Events Center: a first-class, state-of-the-art sports and entertainment arena facility, located at 4000 Ontario Center, Ontario, California, which consists of: (a) approximately 10,500 seats, including luxury suite seats and club seats, (b) 32 suites, (c) approximately 750 club seats, (d) private membership bars and/or private membership restaurants, (e) at least 225,000 square feet of gross area and certain square feet of office space attached or integrated as part of the Arena building for administrative use by Owner and Operator, as shown in Exhibit A. In any provision of the Agreement where the capitalized term, “Arena” is referenced in this Agreement, it shall mean the Events Center.

1.4.2 Lot A: A certain portion of land located on the eastern border of the City Property, subject to Lot A Ground Lease and that certain Development Agreement entered substantially concurrently therewith between Owner and OTC Lot A, consisting of 677
46700.12009\42391610.4
3 approximately 210,250 square feet, as shown in Exhibit A-1, attached hereto and by this reference incorporated herein, whereby OTC Lot A intends to develop Lot A pursuant to the Lot A Ground Lease and it related Development Agreement.

1.4.3 Lot B: A certain portion of land located on the southeastern border of the City Property, subject to that certain Ground Lease dated July 19, 2022 between the Owner and OTC Lot B Owner, LLC (“OTC Lot B”) and that certain Development Agreement entered substantially concurrently therewith between Owner and OTC Lot B, consisting of approximately 73,640 square feet, as shown in Exhibit A-1, whereby OTC Lot B intends to develop Lot B pursuant to the Lot B Ground Lease and its related Development Agreement.

1.4.4 Lot E: A certain portion of land located on and along the southern border of the City Property and west of Lot B, subject to an exclusive negotiating agreement between the City and Adept Development (“Adept”), in which the City and Adept have commenced negotiations and desire to enter into a ground lease and development agreement concerning Lot E, as shown in Exhibit A-2, attached hereto and by this reference incorporated herein.

1.4.5 Parking Lots: Any city owned property that has been designated for parking on or adjacent to the City Property, for use during any sports, entertainment, or reserved events scheduled at the Events Center.

1.4.5 Plaza Area: the area situated adjacent to and between the Events Center and Lot A, consisting of approximately 87,120 square feet (2+/- acres) , as depicted in Exhibit A-3, attached hereto and by this reference incorporated herein.

3. Scope of Services. Section 1.5 of the Agreement is hereby amended and restated in its entirety by the following:

1.5 Scope of Services. Subject to the terms of this Agreement, Operator shall manage, operate and maintain the Events Center and the Plaza Area (excepting therefrom the portion of the Kiosks Licensed Area) during the Term under the direction of the Owner. For purposes of this Agreement between Owner and Operator, the Kiosks Licensed Area described and depicted in the Kiosk License Agreement is not a part of the Plaza Area for purposes of management, operations and maintenances by Operator on behalf of the Owner under this Agreement. Lots A and B are not part of the Scope of Services under this Agreement. Until such time that Lot B will be developed by OTC Lot B, Lot B, or a portion thereof, may be made available for Parking for the Events Center or the Plaza Area provided Owner has provided written notice to Operator confirming that Lot B, or a portion thereof, is available for use as Parking under this Operating Agreement.

Any of the provisions in the Agreement pertaining to management, operation and maintenance of the Events Center by the Operator shall also apply to the Plaza Area upon such time the improvements to be made to the Plaza Area are completed. City will provide notice to Operator when such improvements have been completed.

4. Definitions for Collections and Payments for Plaza Area. Section 2.1.1 of this Agreement 678
46700.12009\42391610.4
4 is hereby amended with a new Subsection 2.1.1.5 by the following:

2.1.1.5 Definitions for Collections and Payments for Plaza Area. Set forth below are definitions for Gross Operating Revenue, Operating Expenses, Net Operating Income and Net Operating Loss as each apply and relate to the Plaza Area. Except to the extent contrary to the express terms of such definitions, Gross Operating Revenue, Operating Expense, Net Operating Profit and Net Operating Loss shall be determined in accordance with Generally Accepted Accounting Principles promulgated by the Financial Accounting Standards Board (“GAAP”).

2.1.1.5.1 Gross Operating Revenue for Plaza Area. The term “Gross Operating Revenue” means the total revenue earned and received from the operation of the Plaza Area or any portion thereof including, but not limited to revenue received in connection with Plaza Area naming rights and official partnerships, event/program based or other sponsorships, advertising and media sales, sales of tickets/entry for any Events held at the Plaza Area, rental of the Plaza Area, and the sale of food, beverages, and merchandise operated by and under Operator’s Alcoholic Beverage Control (ABC) License.

2.1.1.5.2 Operating Expenses for Plaza Area. The term “Operating Expense” means all expenses paid or incurred by Operator in connection with the operation and maintenance of the Plaza Area.

2.1.1.5.3 Net Operating Income for Plaza Area. Net Operating Income means, with respect to the applicable time period for the terms provided in Section 2.3.4 of the Agreement, the amount by which Gross Operating Revenue exceeds Operating Expenses for the Plaza Area. For purposes of determining the Net Operating Income, Operator shall keep the accounting for the Plaza Area separate from the Events Center in order to accommodate the distribution of the Net Operating Income described in Section 2.3.4 of the Agreement.

2.1.1.5.4 Net Operating Loss for Plaza Area. The term “Net Operating Loss” means, with respect to the applicable time period for the terms provided in Section 2.3.4 of the Agreement, the amount by which Operating Expenses exceed Gross Operating Revenue, and such amount shall be expressed mathematically as a negative number, for the Plaza Area.

5. Payment of Operating Expenses; Operator’s Rights Regarding Revenues. The second sentence in Section 2.1.2 shall be amended and replaced by the following:

Except as provided in Section 2.3.2 and 2.3.4 hereof, Operator shall be entitled to keep and retain all revenues and profits from the operation of the Events Center and Plaza Area, should any amounts remain after all disbursements have been made under this Agreement.

6. Fee; Distribution of Net Operating Income. Section 2.3 of the Agreement is hereby amended to add a new Section 2.3.4 for the distribution of Net Operating Income for the Plaza Area.

2.3.4 Distribution of Net Operating Income – Plaza Area. Subject to the terms provided below in this Section 2.3.4, the audit terms described in Section 2.4 of the Agreement and on 679
46700.12009\42391610.4
5 the basis of a preliminary determination by Operator of Net Operating Income from the Plaza Area, not later than forty-five (45) days after the end of each Operating Year, the following shall occur in the described order and the sources of revenue:

2.3.4.1 Conditions Precedent. The terms in Section 2.3.4 will apply so long as all of the following conditions precedent (“Conditions”) are true and exist:

2.3.4.1.1 The License and Sublicense as described above are entered into and remain in effect; and

2.3.4.1.2 Operator (or an Operator associated entity) is the contracted operator of the Events Center and the Plaza Area; and the same is the Sub-licensee and operator of the Kiosks licensed/sublicensed area and Naming Rights Licensee under the Sublicense; and

2.3.4.1.3 Operator shall have obtained City’s prior advance written consent before exercising its right to extend the Sublicense beyond the initial term period.

2.3.4.2 Effective Date and Duration. The terms for distribution of Net Operating Income provided in Section 2.3.4 shall become effective commencing on the date that is the later of 1) three (3) years following the Effective Date of the Sublicense or 2) the date upon which OTC Lot A receives a temporary certificate of occupancy for the residential portion of the building to be constructed on Lot A (referenced as the “Lot A Building” in the Sublicense), and will continue until the end of the initial term of the Sublicense, unless amended by the parties, terminated sooner or expire by the terms stated in the Kiosk License Agreement or the Sublicense.

2.3.4.3 Priority and Use of Certain Revenue and Net Operating Income: Operator shall pay to the Owner, the OTC Lot A, or to itself, respectively, the amounts due to the aforementioned parties in the order of priority described below and shall draw from the sources as follows if applicable:

2.3.4.3.1 Payment to OTC Lot A. Operator shall pay the first One Million Six Hundred Twenty Thousand and No/100 Dollars ($1,620,000.00) annually drawn from the sources in the order described below to OTC Lot A to satisfy payment by Operator (as Sublicensee under the Sublicense) of the annual Naming Rights Fee and License Fee (“Fees”) due under Sublicense.

2.3.4.3.1.1 First Priority of Source for Payment of Fees to OTC Lot A. The Operator, as the first priority of a source of funds to make the Fees payment in full to OTC Lot A, shall use the revenue derived from sponsorship and operations under the Sublicense (Sublicense Revenue). Sublicense Revenue shall be used towards satisfying and paying the Fees to OTC Lot A under the Sublicense. Fees due under Sublicense to be treated as if it was a Sublicense operating expense except to the extent that such Fees shall be paid first from Sublicense Revenue and before any other Sublicense Operating Expenses are paid.

In the event that the Sublicense Revenue is documented as insufficient for Operator to pay the total amount of the Fees to OTC Lot A, then the Operator may utilize funds from the source described in Section 2.3.4.3.1.2 below.
680
46700.12009\42391610.4
6 2.3.4.3.1.2 Second Priority of Source for Payment to
OTC Lot A. The Operator, as the second priority of a source of funds to make the Fees payment in full to OTC Lot A, may utilize funds from Net Operating Income from the Plaza Area operations (“Plaza NOI”) to the extent such funds are available. In the event that Sublicense Revenue and the Plaza NOI sources of funds are documented as collectively insufficient to pay all the Fees due, Operator may utilize funds from the source described in Section 2.3.4.3.1.3 below.

2.3.4.3.1.3 Third Priority of Source for Payment to OTC Lot A. – The Operator, as the third priority of source of funds to make the Fees payment to OTC Lot A, may utilize funds from the remaining Net Operating Income from the Events Center operations (“Events Center Residual NOI”) as further described in Section 2.3.2(4) of the Agreement for “Operating Year Commencing July 2018, and all Subsequent Operating Years”, to the extent such funds are available. For clarification purposes, the Events Center Residual NOI means any remaining profit amount after payments have been made to satisfy the terms in Sections 2.3.2 and 2.7 of the Agreement. If and only if Sublicense Revenue and Plaza NOI sources of funds are documented as insufficient to satisfy all of the Fees due in the Initial Term under the Sublicense, Operator may utilize Events Center Residual NOI to pay towards the Fees up to the One Million Six Hundred Twenty Thousand and No/100 Dollars ($1,620,000.00) yearly, to the extent of such Events Center Residual NOI exists.

2.3.4.3.2 Payment to Owner. Operator shall pay the second One Million and No/100 Dollars ($1,000,000.00) to Owner annually drawn from the Sublicense Revenue and the Plaza NOI, to the extent there be any amounts remaining.

2.3.4.3.3 Payment to Operator. Operator shall pay to itself the third One Million and No/100 Dollars ($1,000,000.00) to cover its operating expenses annually drawn from the Sublicense Revenue.

2.3.4.3.4 Distribution of Remaining Amounts of Sublicense Revenue.

After the above three payments described in Sections 2.3.4.3.1, 2.3.4.3.2 and 2.3.4.3.3 are made, any remaining amounts from Sublicense Revenue shall be split three ways between and paid to Owner, Operator and OTC Lot A.

2.3.4.4 If Net Operating Income in an Operating Year during the Term is insufficient to make the full amount of the Payments described above in Section 2.3.4, then such shortfall shall be carried forward and added to the following year’s payments to be made to the respective parties.

2.3.4.5 At the end of the fourth year of the Initial Term of the Sublicense, City and SMG shall revisit the terms and structure for satisfying the Fees under the Sublicense for the purpose of determining feasibility and renegotiation for an extended term of the Sublicense if such extension is desired. City shall have the right to terminate the above financial terms for no cause at the end of the Initial Term of the Sublicense.

7. Parking. The first sentence in Section 3.4 of the Agreement shall be amended and replaced 681
46700.12009\42391610.4
7 by the following:

Owner shall include a sufficient number of parking spaces in Parking Lots identified and designated for the Events Center, but in no event less than 3,000 parking stalls (the “Parking”).

8. Live Performance. The fifth sentence of Section 4.1.2 shall be amended and replaced by the following:
“Event” shall include performances or exhibitions which occur in the Parking, or otherwise outside of the main Arena floor, only if Operator obtains prior written approval from Owner, such approval not to be unreasonably withheld or delayed.

9. Exhibits. Exhibit A is deleted and hereby replaced by Exhibit A, Depiction of City Property, attached hereto and by this reference incorporated herein. Exhibits A-1, A-2, A-3 and A-4 are hereby added as new exhibits to this Agreement.

10. Other Terms and Conditions Remain. In the event of any inconsistencies between the Original Agreement and this First Amendment, the terms of this First Amendment shall control. Except as expressly set forth in this First Amendment, the Agreement is otherwise unmodified and remains in full force and effect.

11. Capitalized Terms. All capitalized terms used but not defined herein shall have the same meanings as defined in the Agreement.

12. Construction; Interpretation. The Agreement and any amendments are the result of negotiations between the Parties hereto, and with the advice and assistance of their respective counsel. The fact that this Agreement and amendments were prepared as a matter of convenience by a Party shall have no importance or significance. Any uncertainty or ambiguity in this Agreement and amendments shall not be construed against the Party that prepared it in its final form.

13. Counterparts; Electronic Execution and Delivery. This First Amendment to the Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which when taken together will constitute one and the same instrument. The signature page of any counterpart may be detached therefrom without impairing the legal effect of the signature(s) thereon provided such signature page is attached to any other counterpart identical thereto except having additional signature pages executed by other parties to this First Amendment attached thereto. This First Amendment may also be executed by DocuSign or other electronic transmission of signatures, including facsimile or email transmission of a counterpart hereof in portable document format (.pdf), and each copy hereof bearing the DocuSign, facsimile or electronic transmitted signature of any party’s authorized representative shall be deemed to be an original. Upon request from either party, the parties hereto agree to exchange original signatures as soon as practical thereafter. (Signature Provisions on the Following Pages)
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46700.12009\42391610.4
8 IN WITNESS WHEREOF, the Parties have caused their duly authorized representatives to execute this First Amendment on the dates set forth below.

OWNER:

CITY OF ONTARIO, a California municipal
corporation and
By: ________________________________
Scott Ochoa
City Manager
ATTEST: Dated: ________________________
By: ___________________________
City Clerk
APPROVED AS TO FORM:

BEST, BEST & KRIEGER, LLP
By: _________________________
Ruben Duran
City Attorney
OPERATOR:

SMG, a Pennsylvania General Partnership
By: _______________________________
Name:

Title:

Dated: __________________________
683
46700.12009\42391610.4

EXHIBIT A

DEPICTION OF CITY PROPERTY
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46700.12009\42391610.4
EXHIBIT A-1

DEPICTION OF LOT A AND B
685
46700.12009\42391610.4
EXHIBIT A-2

DEPICTION OF LOT E
(Lot E is referenced as Subject Site in this depiction) 686
46700.12009\42391610.4
EXHIBIT A-3

DEPICTION OF PLAZA AREA
687
Department: Economic Development
Prepared By: Jennifer Hiramoto
Staff Member Presenting: Jennifer McLain
Hiramoto, Economic Development Director
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 24
SUBJECT: CONSIDER A RESOLUTION APPROVING A KIOSK LICENSE AGREEMENT BETWEEN

THE CITY AND OTC LOT A OWNER GRANTING A LICENSE TO USE CERTAIN

LOCATIONS WITHIN AN AREA IMMEDIATELY ADJACENT TO THE EVENTS CENTER

TO, AMONG OTHER THINGS, CONSTRUCT AND OPERATE KIOSKS AND MAKING

CERTAIN CEQA FINDINGS IN CONNECTION THEREWITH

CITY OF ONTARIO
Agenda Report
August 20, 2024
SECTION:

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

A. Consider and Adopt a Resolution Approving A Kiosk License Agreement Between The City And OTC Lot A Owner Granting A License To Use Certain Locations Within An Area Immediately Adjacent To The Events Center To, Among Other Things, Construct And Operate Kiosks And Making Certain CEQA Findings In Connection Therewith; and B. Authorize the City Manager, or his designee, to execute the Kiosk License Agreement between the City and OTC Lot A Owner, on behalf of the City.

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: Any costs associated with providing utilities to the Kiosks will be studied and presented at a future date as part of the Public Plaza Capital Improvement Project.

BACKGROUND & ANALYSIS: The City of Ontario is the owner of the 11,000 seat Ontario Events Center, known as the Toyota Arena ("Arena"), at 4000 Ontario Center Parkway. The City intends on capitalizing on its investment and the success of the Toyota Arena, which hosts over 125 events a year, by developing a robust entertainment, pedestrian and residential district that will include upscale retail and restaurants, vibrant entertainment venues and dense residential development.

To deliver on this vision, on July 19, 2022, the City entered into four separate Ground Leases with a master developer. In total, this development will include 700 new residential units and nearly 70,000 SF of new commercial. One of the four Ground Leases was with OTC Lot A Owner, LLC, 688
("OTC") for property adjacent to the east side of the Arena. In accordance with Section 4.2.2 of the Ground Lease, OTC was given the option to construct, operate, manage, maintain and license commercial kiosks ("Kiosks"), within a future location near the Arena.

Since the execution of the Ground Lease, the City has further developed its vision for an enhanced Public Plaza ("Plaza Area") to the east of the Toyota Arena and to the west of the "Lot A" development, as depicted in Exhibit 2 of the Kiosk License Agreement. This Public Plaza would be a comfortable outdoor space for patrons of the Arena, and would further support the future commercial activity proposed at OTC's development. This approximately 2-acre Plaza will create a public space that will contain opportunities for retail and concession Kiosks, outside furniture, and outdoor entertainment space, which is why OTC is electing to exercise its rights to have Kiosks in the Plaza Area.

The purpose of the Kiosk License Agreement is to provide OTC a license to establish Kiosks in certain locations within the now defined Plaza Area. The term of the Agreement is 55 years. Other terms in the Kiosk License Agreement includes the following:

This Agreement provides an exclusive license to the Operator to construct, operate, manage and maintain the Kiosks.

It defines the four types of kiosks, details utilities required for each.

It defines prohibited uses within the Kiosks.

It defines terms related to utilities and services, including that the City shall furnish utilities to the Kiosks, and that OTC shall pay for all water, gas, heat, light, power, telephone and other utilities supplied to the Kiosks.

It gives OTC the right assign or sub-license this Agreement.

CEQA
Pursuant to the California Environmental Quality Act (Public Resource Code §§ 21000 et seq.) (“CEQA”), and the State CEQA Guidelines (14 Cal. Code Regs. §§ 15000 et seq.), the Kiosk License Agreement is exempt from CEQA pursuant to CEQA Guidelines Section 15311 (Class 11) Accessory Structures as construction and operation of the Kiosks pursuant to the Kiosk License Agreement consists of the construction, or replacement of minor structures accessory to (appurtenant to) existing commercial, industrial, or institutional facilities. None of the following exceptions to categorical exemption set forth in CEQA Guidelines Section 15300.2 apply:
“(a) Location. Classes 3, 4, 5, 6, and 11 are qualified by consideration of where the project is to be located--a project that is ordinarily insignificant in its impact on the environment may in a particularly sensitive environment be significant. Therefore, these classes are considered to apply in all instances, except where the project may impact on an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies.
(b) Cumulative Impact. All exemptions for these classes are inapplicable when the cumulative impact of successive projects of the same type in the same place, over time is significant. (c) Significant Effect. A categorical exemption shall not be used for an activity where there is a 689
reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.
(d) Scenic Highways. A categorical exemption shall not be used for a project which may result in damage to scenic resources, including but not limited to, trees, historic buildings, rock outcroppings, or similar resources, within a highway officially designated as a state scenic highway.

This does not apply to improvements which are required as mitigation by an adopted negative declaration or certified EIR.
(e) Hazardous Waste Sites. A categorical exemption shall not be used for a project located on a site which is included on any list compiled pursuant to Section 65962.5 of the Government Code. (f) Historical Resources. A categorical exemption shall not be used for a project which may cause a substantial adverse change in the significance of a historical resource.” 690

KIOSK LICENSE AGREEMENT
THIS KIOSK LICENSE AGREEMENT (this “Agreement”) is entered into as of August [__], 2024 (the “Effective Date”), by and between the CITY OF ONTARIO, a California municipal corporation (“Licensor”), and OTC LOT A OWNER, LLC, a Delaware limited liability company (“Licensee”).

RECITALS
WHEREAS, pursuant to that certain Ground Lease dated as of July 19, 2022, between Licensee, as tenant, and Licensor, as landlord, as amended by that certain First Amendment to Ground Lease dated as of August [__], 2024 and as supplemented by that certain Letter Agreement re Pre-Stabilized Rent dated November 23, 2022 and that certain Letter Agreement re PreStabilization Date & Assessments dated September 8, 2023 (as amended and supplemented and as the same may be further amended, modified or supplemented from time to time, the “Ground Lease”), Licensee is the tenant of that certain real property described on Exhibit A attached hereto (“Lot A”);
WHEREAS, Licensor is the owner of the Ontario Events Center, an approximately 225,000 square foot venue located to the west of Lot A, which hosts over 125 events annually including concerts, family shows, and sporting competitions, as the same may exist now or as it may exist in the future (“Ontario Events Center”);
WHEREAS, Licensor intends to construct or cause the construction of a public plaza on land owned by Licensor immediately adjacent to the Ontario Events Center and located to the west of Lot A (the “Public Plaza”). The proposed Public Plaza is anticipated to be located in the area depicted on Exhibit B attached hereto;
WHEREAS, in accordance with Section 4.2.2 of the Ground Lease, Licensee exercised its option to construct, operate, manage, maintain, and license commercial kiosks including the placement of outdoor furniture surrounding such kiosks (collectively, the “Kiosks” and individually a “Kiosk”) within the proposed Public Plaza; and WHEREAS, Licensee desires to enter into this Agreement with Licensor to provide Licensee an exclusive license to use certain locations within the Public Plaza to construct, operate, manage, and maintain the Kiosks, subject to and in accordance with all of the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the foregoing, Ten Dollars ($10.00), and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Licensor and Licensee, intending to be legally bound, hereby agree as follows:

1. License.
(a) Subject to the terms and conditions set forth in this Agreement, including without limitation Section 1(b), Licensor grants to Licensee, and Licensee accepts from Licensor, an exclusive license to use certain locations within the Public Plaza collectively referred to herein as the “License Area” (which area is defined and described in more detail in subsection (d), below) for the sole purpose of constructing, operating, managing, and maintaining the Kiosks in accordance with all of the terms and conditions set forth in this Agreement (the “License”).

Licensor retains all rights to the Public Plaza (subject to the License) and any income and revenue 691

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derived from the Public Plaza, including, without limitation, any sponsorship and naming rights revenues but excluding income and revenue derived solely from the Kiosks during the Term of this Agreement.
(b) Licensee acknowledges and agrees that the License constitutes a limited privilege to use the License Area solely for those permitted uses and activities expressly permitted under this Agreement and subject to all of the terms and conditions set forth in this Agreement, including, without limitation, limitations on assignment and termination provisions expressly set forth in this Agreement. Licensee further acknowledges and agrees that: (1) Licensee is not a tenant or lessee of Licensor and holds no rights of tenancy or leasehold in relation to the License Area or the Public Plaza; (2) this Agreement does not create (nor shall be construed as creating) a leasehold, tenancy or any other interest in the License Area or the Public Plaza; and (3) the License shall end upon the expiration of the Term or earlier termination of this Agreement as expressly provided herein. In consideration of Licensor’s entering into this Agreement and the grant of the License, Licensee specifically and expressly waives, releases and relinquishes any and all right(s) to assert any claim of right, privilege or interest in the License Area or the Public Plaza other than the License. Licensee further acknowledges and agrees that without the representations and agreements set forth herein, Licensor would not enter into the Agreement. This Agreement and the License granted herein are subject to all outstanding easements, covenants, conditions, and rights of way over, across and upon the License Area. Licensor may grant additional easements or rights of way over, across, in and upon the License Area as necessitated to be in the public interest so long as any such easements or rights of way do not materially adversely impact or materially adversely interfere with the use of or access to the License Area and the Kiosks. (c) Intentionally Deleted.
(d) The location and placement of the Kiosks shall initially be in the locations within the Public Plaza which are mutually agreed upon by Licensor and Licensee, each in its reasonable discretion (collectively, the “License Area”). The aggregate indoor square footage of all Kiosks shall not exceed an aggregate total of 20,000 square feet of space. Following the initial Kiosk placement, the Kiosks shall not protrude or extend beyond the License Area, and the location of the Kiosks shall not be modified, changed, or altered without prior written approval of Licensor which such approval shall not be unreasonably withheld, conditioned or delayed. (e) Licensor shall have the right from time to time to adjust the License Area and/or relocate the Kiosks(in whole or in part) provided that the following conditions are satisfied:
(1) Licensor shall provide not less than one hundred twenty (120) days prior written notice to Licensee of such adjustment/relocation; (2) the new location/placement area shall be comprised of at least the same aggregate amount of square footage of the License Area prior to the adjustment/relocation unless otherwise agreed to by Licensee; (3) the new location/placement area shall not materially adversely affect the use, operation and/or revenue of the Kiosk(s) to be relocated unless such new location/placement area shall be approved by Licensee, which approval shall not be unreasonably withheld, conditioned, or delayed; (4) Licensor shall provide (or cause to be provided), at Licensor’s sole cost and expense, the same utility connections to the new location/placement as previously provided to the License Area and Kiosk(s) to be relocated; and (5) Licensor shall pay, or cause to be paid, all reasonable out-of-pocket costs and expenses reasonably incurred by Licensee and any of its permitted sub-licensees in connection with the adjustment/relocation. In addition, upon not less than sixty (60) days prior written notice from 692

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Licensor, as may be necessary for programming or other events at the Ontario Events Center and/or the Public Plaza, Licensor shall have the right to require that the moveable Kiosks not affixed to the License Area be relocated on a temporary basis to allow for such programming or other events at the Ontario Events Center and/or the Public Plaza so long as Licensor pays, or causes to be paid, all reasonable out-of-pocket costs and expenses incurred by Licensee and any of its permitted sublicensees in connection with the temporary relocation and the duration and location of such temporary relocation do not materially adversely affect the use, operation and/or revenue of the applicable Kiosks unless such temporary relocation shall be approved by Licensee, which approval shall not be unreasonably withheld, conditioned, or delayed. The duration and location of such relocation shall be as set forth in the written notice from Licensor. (f) As described in Section 4.2.2 of the Ground Lease, Licensee has exercised the option for all Kiosks contemplated by the Ground Lease in the Public Plaza on a “first come first served” basis, and no other ground tenant or owner of the other Lots (as defined in the Ground Lease) shall have the right or ability to exercise the option for kiosks in the Public Plaza. (g) Licensee accepts the License Area in its “as is” condition as of the Operating Expense Commencement Date (as defined below) and without any warranties of whatsoever nature, express or implied. Licensor makes no representation, covenant, warranty or promise that the License Area or the Public Plaza, and any fixtures thereon, are fit or suitable for any particular use, including the use for which this Agreement is made and Licensee is not relying on any such representation, covenant, warranty, or promise.
(h) Licensee shall, at its sole cost and expense, only use the License Area for constructing, operating, managing, and maintaining the Kiosks in accordance with all of the terms and conditions set forth in this Agreement, and the use of the Licensed Area or Kiosks for any other purpose shall be deemed a material default and grounds for termination of this Agreement subject to and in accordance with Section 13 (Default; Remedies) of this Agreement. Licensee shall, at its sole cost and expense, (or shall cause any permitted sub-licensee, at the sub-licensee’s sole cost and expense, to) construct, operate, manage, and maintain the License Area and Kiosks in compliance with all applicable laws, all City of Ontario municipal requirements and regulations related to the Kiosks, and all of the terms and conditions set forth in this Agreement, and for no other use or purpose. Licensee shall, at its sole cost and expense, (or shall cause any permitted sublicensee, at the sub-licensee’s sole cost and expense, to) engage a reputable, licensed and qualified architect and contractor in connection with the construction of the Kiosks. Licensee shall (or shall cause any permitted sub-licensee to) obtain, and thereafter comply with and keep in effect, all consents, permits and approvals required by governmental bodies that are necessary for the installation, construction, operation, management, and maintenance of the Kiosks. All installation and construction work shall be performed in a good and workmanlike manner and Licensee shall (or shall cause any permitted sub-licensee to) diligently prosecute such installation and construction to completion. Licensor shall not require bathrooms to be included within the Kiosks.

Licensee shall (or shall cause any permitted sub-licensee to) comply with all City of Ontario municipal requirements and regulations related to the construction/installation of the Kiosks which may require a building plan check process/permit for the permanent Kiosk structures with utility connections and a planning review/approval for the mobile/non-permanent Kiosks which may not require a permit.
(i) Licensee shall not use (or permit the use of) the License Area or Kiosks for 693

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any of the following prohibited uses:
(1) Selling, exhibiting or delivering pornographic or obscene materials; (2) Any fire, auction, lost lease, quitting business or bankruptcy sale, and any signage or advertisement for such, to the extent that this prohibition is permitted by applicable law;
(3) A massage parlor, a so-called “gentlemen’s club”, or other establishment offering nude or other adult entertainment which prohibits the admission of minors or a gaming parlor (except for bingo gaming). This shall not prohibit the operation of a national branded, high-end day spa and salon such as Burke Williams, Massage Envy, or Glen Ivy; (4) The sale of fireworks;
(5) Any noxious activity or anything which may be or becomes a nuisance, or which interferes, or which will interfere in any way, with the use of the Ontario Events Center or the Public Plaza;
(6) No window shall be covered in whole or in part, inside or outside, with aluminum foil, newspaper, paint, tint or any other material reasonably deemed inappropriate for such use by Licensor. Windows, however, may be tinted or treated provided that the color and method of tinting or treatment is approved by the City of Ontario; (7) Any activities that are or might be unsafe or hazardous to any person or property. Under no circumstances may explosives, fireworks, or highly flammable materials such as gasoline, kerosene, oil, oil-based paints, solvents or other similar materials be stored in any Kiosks, except for customary amounts of paints, solvents or other similar materials typically found in commercial businesses for use by that business in the normal course of business and in compliance with all applicable local, state, and federal laws, rules and regulations; (8) Any activity involving the use, transportation, handling, manufacture, emission or disposal of any Hazardous Materials, other than in accordance with all applicable local, state, and federal laws, rules and regulations. “Hazardous Materials” means any biologically or chemically active, or toxic or hazardous waste or materials as defined or regulated by as defined by the laws of any local government, the State of California and the United States; (9) The manufacture, refining, processing or bulk storage of Hazardous Materials;
(10) An adult business (“Adult Business”), which shall mean any business establishment or concern which operates as an “Adult Arcade”, “Adult Bookstore”, “Adult Motion Picture Theater”, “Adult Mini-Motion Picture Theater”, “Adult Theater”, “Adult Video Store”, “Class “D” Cabaret”, “Escort Agency”, “Massage Establishment” (provided that therapeutic massages or massage therapy shall be permitted as an incidental part of a medical office, health spa or salon permitted by the then applicable City of Ontario Municipal Code), 694

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“Nude Model/Figure Studio”, “Sexual Encounter/Rap Studio”, and “Sexual Novelty Store”, as said terms are currently defined in the Ontario Municipal Code; (11) A “Head Shop”, which shall mean a store that sells goods related to marijuana and/or related to any illegal drugs and their consumption, such as, without limitation, bongs, roach clips, pipes, rolling papers and rolling machines, blacklight-responsive posters, incense, cigarette lighters, products claimed to give false negative results for drugs on urine analysis tests, and whipped-cream chargers (which contain nitrous oxide); and/or (12) Any use prohibited by applicable local, state, or federal law, rule or regulation.
(j) The Kiosks may be used for any and all uses permitted by applicable law provided such uses are compatible and not in conflict with the operation and business of the Ontario Events Center and the Public Plaza, and subject to all other terms and conditions of this Agreement.
(k) Licensor acknowledges and agrees that Licensor shall reasonably cooperate with Licensee’s or any of its permitted sub-licensee’s entitlement, development, construction, installation, maintenance, operation and/or repair of the Kiosks. Without limiting the foregoing, to the extent reasonably required in connection with the entitlement, development, construction, installation, maintenance, operation and/or repair of the Kiosks as permitted by this Agreement, Licensor, as the owner of the fee title of the License Area, shall execute such documentation as is required to evidence its consent to (as licensor and not as a municipal regulatory body) (or, if required, join as a party to but only as licensor and not as a municipal regulatory body) any such permit, application, filing or other document of Licensee or a permitted sub-licensee’s so long as such consent does not impose any obligation or liability on Licensor. (l) The License includes an exclusive right to all of the Kiosks in the Public Plaza during the Term of this Agreement, subject to the terms and conditions of this Agreement, and Licensor shall not license, lease, sell, or otherwise transfer the right to construct, operate, manage, maintain, and license any of the Kiosks within the Public Plaza to any party other than Licensee during the Term of this Agreement.

2. License Fee and Expenses.
(a) Licensor and Licensee acknowledge and agree that, pursuant to Section

4.2.2 of the Ground Lease, the License granted hereunder shall be without any additional consideration from Licensee, and other than the fees set forth in Section 2(b), Licensee shall not be obligated to pay a fee for such License.
(b) Commencing on the Operating Expense Commencement Date (as defined below), Licensee shall pay (or reimburse Licensor within twenty (20) days following written notice for) all costs, fees, taxes, charges, and expenses in connection with or otherwise related to Licensee’s development, installation, construction, operation, management, maintenance, and/or repair of the Kiosks and Licensee’s use of the License Area. Licensor shall deliver written notice for such reimbursement within one hundred eighty (180) days following receipt by Licensor of any final billing or invoice for any such costs, fees, taxes, charges, and expenses and if Licensor 695

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fails to timely deliver such written notice, then Licensee shall not be obligated to reimburse Licensor for such costs, fees, taxes, charges, and expenses. (c) As used herein, the term “Operating Expense Commencement Date” means the date that is the earliest of (i) three (3) years following the Effective Date, (ii) the date on which Licensee (or its permitted sub-licensee) or any one of their agents or contractors or subcontractors enters the License Area and commences to install, develop, and/or construct any one of the Kiosks, or (iii) the date on which Licensor commences to install water, electrical and/or sewer conduit, lines, connections, or the like for any of the Kiosks.

3. Term. The term of this Agreement shall commence on the Effective Date and expire at 12:00 midnight Pacific Time on July 19, 2077 unless earlier terminated pursuant to the express terms of this Agreement or upon termination of the Ground Lease (the “Term”). Upon such expiration or termination of this Agreement, this Agreement and the License granted hereunder shall automatically terminate without need for any further act by any party.

4. Acknowledgement of Requirement as to Lot A. Licensee hereby acknowledges and agrees that at all times during the Term of this Agreement, Licensee shall be the ground lease tenant of Lot A under the Ground Lease or shall be the fee owner of Lot A if Licensee shall have purchased Lot A under and pursuant to the terms of the Ground Lease. Failure to adhere to the requirements of this requirement shall result in default under this Agreement subject to and in accordance with Section 13 (Default; Remedies) below. For the avoidance of doubt, Licensee shall have the right to assign this Agreement in strict accordance with Section 10(a) (Assignment and Sub-licensing) below.

5. Surrender. Licensee shall, upon the expiration or sooner termination of this Agreement, remove from the License Area, at Licensee’s sole cost and expense, all personal property, trade fixtures, and equipment of Licensee or its sub-licensees and occupants, and surrender the Kiosks vacant, broom clean and in good order, condition and repair, ordinary wear and tear excepted. Licensee shall repair any and all damage to the License Area and/or the Kiosks resulting from the installation, presence and removal of such personal property, trade fixtures, and equipment of Licensee or its sub-licensees and occupants. Licensee agrees that Licensor shall have all remedies available at law or in equity for Licensee’s failure to comply with this Section.

In addition to such remedies, Licensee shall be responsible for all costs expended by Licensor in performing Licensee’s obligations under this Section in the event Licensee fails to perform the same and any such reimbursement shall be paid within twenty (20) days after receipt of written demand therefor.

6. Alterations. Licensee shall have the right to make or cause to be made any structural or other alterations, additions, installations, demolitions, improvements, and/or changes (collectively, “Alterations”) in the License Area and/or the Kiosks with the prior written approval of Licensor which such approval shall not be unreasonably withheld, conditioned or delayed.

Licensee shall fully pay for all materials brought upon the License Area by or for Licensee and shall fully pay all persons who perform labor upon and/or supply materials to the License Area and shall not suffer any mechanic’s or other lien of any kind or nature to be filed against the License Area for any work done (or claimed to have been done) or materials furnished (or claimed to have been furnished) to Licensee or anyone claiming through or under it. If any such lien shall be filed, Licensee shall discharge the same of record within thirty (30) days after Licensee is 696

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Ontario City CouncilAugust 20, 2024

Ontario City Council
August 20, 2024