Ontario City Council
October 15, 2024

Department: Public Works
Prepared By: Cynthia Heredia-Torres
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: 8
SUBJECT:

A CHANGE ORDER TO THE CONSTRUCTION CONTRACT WITH RESOURCE ENVIRONMENTAL, INC. FOR THE EMERGENCY DEMOLITION OF THE PROPERTY AT 9155/9381 E. RIVERSIDE DRIVE

CITY OF ONTARIO
Agenda Report
October 15, 2024
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council take the following actions:

A
.

Authorize the City Manager, or his designee, to execute Change Order No. 1 to the Construction Contract with Resource Environmental, Inc., of Cerritos, California, in the amount of $1,422,409 for a total not-to-exceed contract amount of $3,163,409; and B
.

Authorize the City Manager, or his designee, to execute all documents required for the completion of the project including, but not limited to, contracts, agreements, assessments, easements, reduction of retention accounts and filing a notice of completion at the conclusion of all construction related activities.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT:

The Fiscal Year 2024-25 Adopted Budget includes appropriations in the Capital Projects-Measure Q Fund for the PA2416 Regional Sports Complex- Baseball Stadium project. The proposed Change Order No. 1 to the Construction Contract with Resource Environmental, Inc. is in the amount of $1,422,409 for a total not-to-exceed contract amount $3,163,409.

BACKGROUND & ANALYSIS:

The Construction Contract with Resource Environmental, Inc. for the emergency demolition of the property at 9155/9381 E. Riverside Drive was approved by the City Council on September 17, 2024. The project included immediate demolition of the property due to the state of disrepair and building code violations. The condition of the site posed an immediate risk to public safety. Due to unanticipated surface conditions and site requirements to improve soil condition, there is a need to increase the cost of the construction contract to cover overall mitigation measures in the amount of $1,422,409.
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CITY OF ONTARIO

CHANGE ORDER
Project: D&C24-005 Emergency Dairy & Residence
Abatement & Demolition
Contract Date: 9/17/24
Change Order Number: 1
C
hange Order Date:

T
o: Resource Environmental
13100 Alondra Blvd, Suite 108
Cerritos, CA 90703
Attn: Jim Rawson
T
HIS CHANGE ORDER FORM SHALL BE USED FOR ALL CHANGE ORDER S ASSOCIATED WITH THE WORK.

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

T
he Contract is changed as follows:

C
hange in scope due to site requirements
# Description Amount
PCO1 Remove and dispose of 37 Acres of Grass and vegetation $1,422,409 C
ontractor 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.

NO

T VALID UNTIL SIGNED BY OWNER
I
n consideration of the change(s) described above, the Contract Price is adjusted as follows:

T
he original Contract Price was $ 1,741,000.00
Net change by previously authorized Change Orders $ 0 The Contract Price prior to this Change Order was $ 1,741,000.00 The Contract Price will be changed by this Change Order in the amount of $ 1,422,409.00 The new Contract Price including this Change Order will be $ 3,163,409.00 I
n consideration of the change(s) describe above, the Contract Time is adjusted as follows:

T
he Contract Time will be: increased decreased unchanged by 15 Days The Contract Time prior to this Change Order was 30 Days The new Contract Time including this Change Order will be 45 Days 207
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Attachments:

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 c hange in the Work covered by th is 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) Cynthia Skiff, President Date

Approved:

(Signature) Tito Haes, Executive Director Public Works Date

Approved:

(Signature) Scott Ochoa, City Manager Date

208
Department: Public Works
Prepared By: Cynthia Heredia-Torres
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: 9
SUBJECT:

AWARD A CONSTRUCTION CONTRACT TO OPTIMA RPM, INC. FOR THE WELLNESS

CAMPUS PROJECT AND AMENDMENTS TO THE DESIGN SERVICES AGREEMENT

WITH HMC ARCHITECTS FOR THE DESIGN OF THE WELLNESS CAMPUS PROJECT AND TITLE 24 COMMISSIONING SERVICES FOR THE CITY SERVICES BUILDING

PROJECT

CITY OF ONTARIO
Agenda Report
October 15, 2024
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council take the following actions:

A
.

Reject Spec 7 Con’s bid for Bid No. 1846 - D&C24-011 Ontario Motor Inn Renovation as being nonresponsive, and
B
.

Authorize the City Manager, or his designee, to execute a Construction Contract Bid No. 1846 - D&C24-011 Ontario Motor Inn Renovation with Optima RPM, Inc., of Irvine, California, for the renovation of a City-owned motel for emergency and temporary housing units located at 1522 W. Mission Blvd. in the amount of $4,098,000 and authorize a 20% contingency of $819,600 for a total not-to-exceed contract amount of $4,917,600, and C
.

Authorize the City Manager, or his designee, to execute Amendment No. 5 to the Design Services Agreement with HMC Architects, of Ontario, California, to provide on-call architectural services for the design of the Wellness Campus Project in the amount of $1,141,485 for a total not-to-exceed contract amount of $9,236,815; D
.

Authorize the City Manager, or his designee, to execute Amendment No. 6 to the Design Services Agreement with HMC Architects, of Ontario, California, to provide Title 24 Commissioning Services for the City Services Building Project in the amount of $44,510 for a total not-to-exceed contract amount of $9,281,325; and
E
.

Authorize the City Manager, or his designee, to execute all documents required for the completion of the project including, but not limited to, contracts, agreements, assessments, easements, reduction of retention accounts and filing a notice of completion at the conclusion of all construction related activities.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
209
Encourage, Provide or Support Enhanced Recreational, Educational, Cultural and Healthy City Programs, Policies and Activities
FISCAL IMPACT:

The proposed Construction Contract with Optima RPM, Inc. is in the amount of $4,098,000 plus a 20% contingency of $819,600 for a total not-to-exceed contract amount of $4,917,600.

The proposed Amendment No. 5 to the Design Services Agreement with HMC Architects (HMC) is in the amount of $1,141,485 for a total not-to-exceed contract amount of $9,236,815. The total contract amount of $9,236,815 includes on-call work performed for various citywide projects. The total cost of the proposed actions for the Wellness Campus Project is in an amount of $6,059,085.

The Fiscal Year 2024-2025 Adopted Budget includes appropriations in the Capital Projects- Measure Q Fund for the PF2423 Continuum of Care – West Mission Temporary Campus.

The proposed Amendment No. 6 to the Design Services Agreement with HMC is in the amount of $44,510 for a total not-to-exceed contract amount of $9,281,325. The total contract amount of $9,281,325 includes on-call work performed for various citywide projects. The Fiscal Year 2024-2025 Adopted Budget includes appropriations in the Capital Projects Fund for PF2310 Civic Center Expansion – City Services Building.

BACKGROUND & ANALYSIS:

As the City focuses on resources on expanding services as part of the Continuum of Care, the City needs a space to house individuals as the current access center is too small to accommodate the needs of the City’s unhoused and at-risk community.

As part of this effort, the City acquired the Ontario Motor Inn, a 12,250 sq ft motel located at 1522 West Mission Blvd that will require renovation and modernization to accommodate offices and emergency and temporary housing units.

On September 24, 2024, 14 bids were received for Bid No. 1846 - D&C24-011 Ontario Motor Inn Renovation. The bids ranged from $16,800 to $6,939,800. The bids are summarized below:

Bidder
Location
Amount
Spec 7 Con
Lakeside, CA
$16,800
Optima RPM, Inc.

Irvine, CA
$4,098,000
R2BUILD
Laguna Hills, CA
$4,460,000
IPI Construction
Panorama City, CA
$4,488,988

PERERA CONSTRUCTION
Ontario, CA
$4,493,386
Tovey/Shultz Construction, Inc.

Lake Elsinore, CA
$4,826,752
Wakeco, Inc.

Temecula, CA
$4,949,000
Cal-City Construction, Inc.

Cerritos, CA
$5,142,020
AWI Builders, Inc.

Burbank, CA
$5,291,911
Morillo Construction Inc.

Pasadena, CA
$5,398,000
PUB Construction, Inc.

Diamond Bar, CA
$5,666,000
210
Woodcliff Corporation
Los Angeles, CA
$5,785,000
Nationwide Contracting
Services, Inc.

Huntington Beach, CA
$6,785,000
Golden Gate Steel, Inc.

Norwalk, CA
$6,939,800

During Staff’s review of Spec 7 Con’s bid, it was revealed that Spec 7 Con failed to submit a digital and original bid bond to the City prior to bid closing in accordance with the project specifications, which renders their bid non-responsive. Based on Spec 7 Con’s failure to adhere to the project specifications, Staff recommends the City Council reject the bid submitted by Spec 7 Con as non- responsive. Staff reviewed the bids and recommend that the City Council award the contract to Optima RPM Inc., as the lowest responsible bidder submitting a responsive bid that met all the required specifications, credentials, pricing, favorable reference checks, ability to perform the work in a timely manner, and their successful completion of this type of work in the past.

Staff is recommending executing Amendment No. 5 to the Design Services Agreement with HMC for the Design Development Services for the Wellness Campus Project. HMC has divided the project into 3 tasks: The first task is to provide a conceptual design package previously completed to fit the new site and accommodate the renovated motel. The second task is to prepare plans and specifications for the Motor Inn remodel. The third task is the new buildings and site work for the new campus that will incorporate the motel into the new campus.

Staff is also recommending executing Amendment No. 6 to the Design Services Agreement with HMC to include Title 24 commissioning for the new City Services Building. HMC's original contract for the City Services Building did not include Title 24 commissioning which is required by code, for all new commercial buildings over 10,000 square feet.
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AM
ENDMENT NO. 5 TO THE DESIGN SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO AND HMC GROUP DBA HMC ARCHITECTS

1. P
arties and Date.

Th
is Amendment No. 5 to the Agreement (as defined herein) is made and entered as of ____________, by and between t he City of Ontario (“City”) and HMC Group dba HMC Architects, a Corporation “Consultant”. City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.”

2. R
ecitals.

2.1 A greement. T he City and Consultant have entered into an agreement entitled “Design Service Agreement” dated January 1, 2020 (“Agreement”).

2.2 A mendment Purpose. T he City and Consultant desire to amend the A greement and add the design scope for D&C24-011 Ontario Motor Inn Renovation and increase the not to exceed amount by One Million One Hundred Forty-One Thousand Four Hundred Eighty-Five Dollars ($1,141,485). The parties have heretofore entered into Amendment No. 1 dated July 22, 2022, Amendment No. 2 dated March 21, 2023, Amendment No. 3 dated September 5, 2023, and Amendment No. 4 dated July 16, 2024.

2.3 A mendment Authority. This Amendment No. 5 is authorized pursuant to Section

3.37 of the Agreement.

3. T
erms.

3.1 Amendment . Section 3.1.1 and 3.10.1 of the Agreement is hereby amended in its entirety to read as follows:
“3.1.1 Scope of Services. Consultant promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the profe ssional architectural and related services necessary for the full and adequate completion of the Project consistent with the provisions of this Agreement (hereinafter referred to as "Services"). The Services are more particularly described throughout 212
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BB&K 2020

this Agreement, including Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, any exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. All Services performed by Consultant shall be subject to the sole and discretionary approval of the City, which approval shall not be unreasonably withheld. Additionally, Consultant shall comply with all Federal requirements applicable to the Services as set forth in Exhibit "A-I."

“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 Nine Million Two Hundred Thirty-Six Thousand Eight Hundred Fifteen Dollars ($9,236,815) (“ Total Compensation” ). This Total Compensation amount shall be based upon, and may be adjusted according to, the fee schedule and related terms and conditions attached hereto as Exhibit “ A” and incorporated herein by reference. The total compensation, as may be adjusted upon mutual agreement, shall constitute complete and adequate payment for Services under this Agreement.”

T
ask list and not to exceed fees are included in Exhibit “A”.

3.2 C
ontinuing Effect of Agreement . Except as amended by this Amendment No. 5, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 5. From and after the date of this Amendment No. 5, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 5.

3.3 A
dequate Consideration. The Parti es hereto irrevocably stipula te 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. 5.

3.4 S
everability. If any portion of this Amendment No. 5 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 I
ntegration. This Amendment represents the entirety of the Parties’ understanding relating to the subject of this Amendment, including written or verbal communications between the Parties, which shall have no relevance unless expressly incorporated herein. This is an integrated amendment.

[
SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR AMENDMENT NO. 5 TO THE DESIGN SERVICES

AGREEMENT BETWEEN THE CITY OF ONTARIO

AND HMC GROUP DBA HMC ARCHITECTS
IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 5 as of the day and year first above written.

CITY OF ONTARIO HMC GROUP dba HMC ARCHITECT
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
A
ttested By:

City Clerk
214
July 24, 2024
Mrs. Helen McAlary
Executive Director Community Life & Culture
City of Ontario
208 W. Emporia Street
Ontario, CA 91761
[email protected]
Regarding: Proposal for Architectural & Engineering Services City of Ontario
Access Center (AC)
HMC #2518004-100, #2254004-200, #2518004-300
Dear Mrs. McAlary:

HMC Group (HMC) is pleased to submit the following Proposal to provide Architectural, Engineering, and Specialty Consultant Services for the above-mentioned Project.

A. Proposed Project:

The Project will consist of a new campus with three main components:
- A modernization of an existing motel of approximately 12,250 SF to accommodate offices, Emergency and Temporary Housing units.
- A new two-story Access Center and Emergency Housing building of approximately 29,000 SF.
- A new OSHPD 3 Recuperative Care building with medical rooms, medication and pharmacy room, and physician room of approximately 5,000 SF. - New two-story Temporary Housing units of approximately 28,000 SF. - The campus will include outdoor gathering spaces, dog park, fitness area, playground, and community gardens, and associated site improvements including paving, parking, accessible path of travel and landscape.
- The Scope of Services will be divided into Tasks; Task 1 shall be Programming and Conceptual Design, Task 2 shall be Schematic Design through Contract Administration of the Modernization of Existing Motel, and Task 3 shall be Schematic Design through Contract Administration of the New Buildings and Site.

B. Site Description:

The Project is located at 1502-1522 W. Mission Blvd., Ontario CA, 91761.

C. Scope of Services:

Task 1: Programming and Conceptual Design (#2254004-100)

1. Programming:
a. Work with the City to understand current and future needs for the Access Center. b. Prepare space program by category with square footages and quantity. c. Prepare room data sheets for each type of space indicating unique requirements.

Exhibit "A"
215
Helen McAlary
City of Ontario
July 24, 2024

2 d. Prepare a conceptual adjacency diagram.
e. Facilitate a maximum of five (5) Stakeholder Eng agement Workshop to engage user groups to listen and gather feedback about current facilities and future needs. Review and discuss findings with the City and confirm final program. f. Develop a Cost Plan for the Project based on the program. g. Compare the Cost Plan with the Project budget an d if necessary, modify the Scope of Work with Owner to reconcile the Cost Plan and Project budget.

2. Conceptual Site Planning:
a. Prepare a site analysis diagram, incorporating e xisting site conditions, environmental conditions, and unique opportunities identified by the stakeholder group.
b. Prepare up to three site concept options.
c. Prepare one final conceptual site plan.

3. Preliminary Design:
a. Prepare up to three preliminary massing concept options. b. Develop one massing concept into a final prelimi nary design. c. Develop a maximum of five (5) perspective render ings for public presentations; renderings will be preliminary vignettes illustrating the general look and feel of the Access Center, rather than photorealistic rendering s, due to the amount of information at this stage of development

4. Cost Estimate:
a. Prepare a cost estimate of the preliminary desig n.

5. Final Deliverables:
a. Programming and Conceptual Design package will i nclude program summary, program room data sheets, adjacency diagram, preliminary floor plans, preliminary site plans, preliminary massing concept, and prelim inary renderings.

6. Topographic Survey:
a. Provide Topographic and ALTA Survey with boundar ies and easements, b. Provide Ground Penetrating Radar (GPR) and Utili ty Mapping

7. Geotechnical Report:
a. Provide Geotechnical Report
b. Provide Phase 1 Environmental Site Assessment (E SA)

8. Civil Engineering:
a. Provide preliminary hydrology and drainage study necessary for Environmental Review.
b. Provide preliminary stormwater quality managemen t plan necessary for Environmental Review.
c. Provide preliminary earthwork calculations with final import or export soil quantities.

9. Environmental Documentation:
a. Coordinate with lead agency on Environmental Rev iew. b. Provide Initial Study (IS) and Negative Declarat ion (ND) or Mitigated Negative Declaration (MND).
c. Provide technical analysis required for IS/MND, including Air Quality IS/MND Assessment, Construction and Operation HRA, GHG IS/ MND Assessment, Energy IS/MND Assessment, Noise Assessment, Traffic VMT, and Transportation Assessment.

216
Helen McAlary
City of Ontario
July 24, 2024

3 Task 2: Existing Building Modernization (#2254004 -200)

1. At each phase of design, HMC shall facilitate a Milestone Page Turn meeting with the Owner to review milestone deliverables and gather feedback. At the conclusion of each meeting, Owner to provide Notice to Proceed into ne xt phase, which represents an understanding and approval of Scope, Schedule and B udget as indicated in the Submittal.
a. HMC to provide 100% Schematic Design Submittal, which includes design drawings and rough order of magnitude cost estimate . Attachment “D” HMC Production Document Deliverables does not apply to this Scope of Work. b. HMC to provide 100% Design Development Submittal , which includes design drawings. Attachment “D” HMC Production Document Deliverables does not apply to this Scope of Work.
c. HMC to provide 100% Construction Document Submit tal, which includes design drawings and specifications. Attachment “D” HMC Pro duction Document Deliverables does not apply to this Scope of Work.

2. Obtain City of Ontario Planning and Building Dep artment approval for the Project.

3. Assist with Bidding, which include answering pre -bid RFIs, providing addenda as required, and evaluation of contractor bids.

4. Provide Contract Administration services, HMC an ticipates the following:
a. Attending one (1) preconstruction meeting with C ity & General Contractor. b. Attending approximately twelve (12) weekly Owner , Architect, Contractor (OAC) meetings.
c. Attending approximately six (6) Construction Obs ervation visits from the A/E team (if attending OACs in-person, construction observat ion visits will coincide with OACs).
d. Responding to approximately thirty (30) Submitta ls (shop drawings, product data, etc.).
e. Responding to approximately eighty (80) Requests for Information (RFI). f. Reviewing and approving monthly contractor Pay A pplications. g. Preparing one (1) A/E Punch List of the construc tion prior to Owner occupancy. h. Reviewing contractor-prepared Closeout Documents (subcontractor and material provider warranties, operations & maintenance manua ls, contractor’s as-built drawings).

Task 3: New Buildings and Site (#2254004-300)

1. Facilitate a Design Workshop to review floor pla n concepts from prior planning phase, engage stakeholders, and build consensus on final d irection.

2. At each phase of design, HMC shall facilitate an all-day Milestone Page Turn meeting with the Owner to review milestone deliverables and gather feedback. HMC shall provide a cost estimate, and if necessary, steps to reconcile the estimate with the Project budget. At the conclusion of each meeting, Owner to provide Notice to Proceed into next phase, which represents an understanding and approval of Scope, Schedule and Budget as indicated in the Submittal.
a. HMC to provide 100% Schematic Design Submittal, which includes design drawings, Architecture/Engineering (A/E) basis of d esign narratives, and cost estimate. Refer to Attachment “D” HMC Production Do cument Deliverables for additional information.
b. HMC to provide 100% Design Development Submittal , which includes design drawings and an updated cost estimate. Refer to Attachment “D” HMC Production Document Deliverables for additional information. 217
Helen McAlary
City of Ontario
July 24, 2024

4 c. HMC to provide 100% Construction Document Submit tal, which includes design drawings, specifications, and an updated cost estim ate. Refer to Attachment “D” HMC Production Document Deliverables for additional information.

3. Obtain City of Ontario Planning and Building Dep artment approval for the Project.

4. Assist with Bidding, which include answering pre -bid RFIs, providing addenda as required, and evaluation of contractor bids.

5. Provide Contract Administration services, HMC an ticipates the following:
a. Attending one (1) preconstruction meeting with C ity & General Contractor. b. Attending approximately ninety (90) weekly Owner , Architect, Contractor (OAC) meetings.
c. Attending approximately sixty (60) Construction Observation visits from the A/E team (if attending OACs in-person, construction observation visits will coincide with OACs).
d. Responding to approximately two hundred (200) Su bmittals (shop drawings, product data, etc.).
e. Responding to approximately four hundred (400) R equests for Information (RFI). f. Reviewing and approving monthly contractor Pay A pplications. g. Preparing one (1) A/E Punch List of the construc tion prior to Owner occupancy. h. Reviewing contractor-prepared Closeout Documents (subcontractor and material provider warranties, operations & maintenance manua ls, contractor’s as-built drawings).

D. Preliminary Schedule:

Refer to Attachment “E” for the Preliminary Project Schedule. This is intended to provide a rough timeline of the project based on known information at this time but is subject to change as additional information is discovered as the project moves forward through the subsequent phases.

Note: The Owner and Architect agree and acknowledge that the performance of the Architect’s services may depend upon other parties and circumstances which the Architect cannot control. The schedule and fee, therefore, may be extended by agreement between the Owner and Architect, except where the Architect is solely responsible for Project delays.

E. Assumptions / Exclusions:

a. Services
a. Task 1 Services include:
• Architectural
• Civil Engineering
• Landscape Architecture
• Cost Estimation
• Topographic, Utility, & Alta Survey(s), Geotechnic al Report, CEQA/Entitlements Services
b. Task 2 Basic Services include:
• Architectural
• Civil Engineering
218
Helen McAlary
City of Ontario
July 24, 2024

5 • Structural Engineering
• Mechanical, Plumbing, and Electrical Engineering
c. Task 2 Supplemental Services include:
• Fire Alarm Engineering
• Fire Protection Engineering
• Data/Telecom/Low Voltage Engineering
• Security (Intrusion/CCTV) Engineering
• Cost Estimation
• Fundamental Commissioning
• Furniture, Fixtures, and Equipment (FF&E)
• Topographic Survey
d. Task 3 Basic Services include:
• Architectural
• Civil Engineering
• Landscape Architecture
• Structural Engineering
• Mechanical, Plumbing, and Electrical Engineering
e. Task 3 Supplemental Services include:
• Fire Alarm Engineering
• Fire Protection Engineering
• Acoustical Engineering
• Data/Telecom/Low Voltage Engineering
• Security (Intrusion/CCTV) Engineering
• Food Service Consultant
• Photovoltaic and Battery Storage Design
• Cost Estimation
• Fundamental Commissioning
• Furniture, Fixtures, and Equipment (FF&E)
• Signage and Wayfinding Design
• Lighting Design
• Branding/Identity Design
f. Specialty consultants other than those listed in this Proposal are excluded. b. Energy and Sustainability
a. LEED, WELL, Zero Energy Building, or other susta inable certification(s) of any type related to this Project are excluded.
b. Fundamental Commissioning, as required by the 20 22 California Energy Code and the CALGreen Code, is included.
c. Design of photovoltaics and battery storage syst em, per 2022 California Energy Code, is included.
d. Commissioning or training of systems are exclude d.
e. Detailed on-site renewable energy and/or IAQ man agement plans are excluded. f. QSP monitoring services; horizontal control plan s; Standard Urban Stormwater Mitigation Plan (SUSMP), and off-site work is excluded. g. QSD services for development of Storm Water Poll ution Prevention Plan (SWPPP) is included. Fees for submission of SWPPP shall be paid for by Owner. c. Construction
a. It is assumed that project delivery method is De sign-Bid-Build for Task 2 and CM Multi-Prime (CMMP) for Task 3.
219
Helen McAlary
City of Ontario
July 24, 2024

6 b. Construction duration is preliminarily estimated at a maximum of four (4) calendar months for Task 2 and twenty-two (22) cale ndar months for Task 3.

Should the construction schedule be extended throug h no fault of the architect, additional services for extended Contract Administration services shall apply. c. It is assumed Task 2 and Task 3 will be construc ted at different times, but that Task 3 will be constructed in one phase by the same CM Multi-Prime entity. d. Construction staking during construction is excl uded and shall be provided by General Contractor.
d. Fees
a. Agency and permit fees are excluded.
b. Testing and inspection fees are excluded.
e. Deliverables
a. Development of Record Drawings from Contractor’s As-Builts is excluded. b. Hard copy prints of Construction Documents and S pecifications are excluded.

F. Compensation:

HMC will provide the services listed in the Scope of Work above for a fixed fee of as follows:

Task 1 shall be a fixed fee of Four Hundred Ninety-Seven Thousand, Nine Hundred Si xty- Nine Dollars ($497,969) based on consultants’ proposals and HMC’s estimate d hours to complete the Scope of Services listed in Section C. Refer to Section H for Additional Services.

Task 1: Programming and Conceptual Design
Architectural $181,610

Topographic Survey / GPR $82,961
Civil Engineering (incl. CEQA Support) $81,828
Geotechnical Report (inc. CEQA Support) $39,456
Environmental Consultant $84,514
Cost Estimation $27,600
Task 1 Total Fee $497,969

Task 2 shall be a fixed fee of Five Hundred Ninety-Three Thousand, Five Hundred Si xteen Dollars ($593,516) based on consultants’ proposals and HMC’s estimate d hours to complete the Scope of Services listed in Section C. Refer to Section H for Additional Services.

Task 2: Existing Building Modernization
Architectural $281,776

Civil Engineering / Topographic Survey $34,100
Structural Engineering $15,400
Mechanical/Plumbing/Electrical Engineering $123,750
Fire Alarm/Fire Protection Engineering $39,820
Data/Telecom/Low Voltage/Security Engineering $51,3 70
Cost Estimation $8,800
Fundamental Commissioning $5,500
Furniture, Fixtures, and Equipment (FF&E) $33,000
Task 2 Total Fee $593,516
220
Helen McAlary
City of Ontario
July 24, 2024

7 Task 3 shall be a fixed fee, based on estimated construction cost of the Project. Task 3 fee shall be reconciled through Contract Amendment after comp letion of conceptual design estimate at the end of Task 1.

G. Additional Services:

If Additional Services are required beyond the orig inal Scope of Work, such services described in Attachment “B”, HMC will bill on an ho urly basis per Attachment “A”, HMC Standard Hourly Rate Schedule.

H. Reimbursable Expenses:

Reimbursable expenses are preliminarily estimated n ot to exceed Fifty Thousand Dollars ($50,000) . Reimbursable expenses are in addition to compensation for Consulting Services, including printing, plotting, delivery, and other e xpenses related to Agency review, Bidding, Construction or other Owner requested costs. Expense of fees paid for securing approval of authorities having jurisdiction over the Project. T he Architect's compensation shall be computed based on one and one fifteenth (1.15) times the amounts invoiced to the Architect.

Please review this Proposal and if it meets with yo ur approval, please send HMC your Standard Form of Agreement for signature.

If you have any questions or need additional information, please contact me at (626) 826-9108.

Sincerely,

Brandon Gullotti AIA, NCARB, Assoc. DBIA
Principal In Charge
HMC Architects

Encl.: Attachment “A” – Standard Rate Schedule
Attachment “B” – Additional Services List
Attachment “D” – HMC Production Deliverables
Attachment “E” – Preliminary Project Schedule

cc: Sarah Gradillas, File -02 Contracts Information -03 AOA \PROPOSALS

221

Standard Hourly Rate Schedule

HMC Rate Schedule
Hourly Rate by Professional Category
(Not all categories need apply to this contract)

Description Rates
Principal in Charge $ 370
Sr Project Manager/Sr Project Architect/Sr Technical Manager $ 270 Project Manager/Project Architect/Technical Manager $ 255 Job Captain/Technical Leader $ 215
Project Coordinator $ 185
Senior Construction Administrator $ 275 Construction Administrator $ 255
Project Administration Support $ 150
Design Principal $ 370
Senior Project Designer $ 270
Project Designer $ 255
Design Leader $ 215
Designer II $ 165
Designer $ 150
Sustainability Director $ 305
Specifications Writer $ 235
Visualization Arts $ 215

These are the current hourly rates effective July 1, 2024, through June 30, 2025 and are subject to change one time annually effective July 1st

ATTACHMENT "A"
222
ATTACHMENT "A"

ADDITIONAL SERVICES
The Additional Services described in this Attachment are not included in Basic Services and they shall be paid for by the Owner as provided in this Agreement, in addition to the compensation for Basic Services, Additional Services may only be provided if authorized or confirmed in writing by the Owner and Architect.

Project Representation Beyond Basic Services:

1. Revisions: Making revisions in Drawings, Specifications, Project Manual or other documents when such revisions are:
a. Inconsistent with approvals or instructions previously given by the Owner; b. Required by the enactment, revised interpretation, jurisdictional differences in interpretation, or revision of codes, laws or regulations subsequent to the preparation of such documents, or additional costs caused by delays resulting from such.

2. Project Changes: Providing services required because of changes in the Project including, but not limited to, size, quality, complexity, the Owner's schedule, or the method of bidding or negotiating and contracting for construction.

3. Change Orders: Preparing Drawings, Specifications and other documentation, analysis and supporting data, evaluating Contractor's proposals, and providing other services in connection with Change Orders and directives.

4. Default: Providing services made necessary by the default or termination of the Contractor, by defects or deficiencies in the Work of the Contractor, or by failure of performance of either the Owner, Contractor or others performing services or providing work on the Project.

5. Contractor's Submittals: Reviewing a Contractor's submittal out of sequence from the submittal schedule agreed to by the Architect.

6. Contractor's RF/: Responding to the Contractor's requests for information where such information is available to the Contractor from a careful study and comparison of the Contract Documents, field conditions, Contractor-prepared coordination drawings, or prior Project correspondence or documentation.

7. Claims: Providing services in connection with claims submitted by Contractor or others.

8. Hearings, Proceedings: Providing services in connection with the preparation for, or attendance at, public hearings or other meetings, or legal proceedings, except where the Architect is a party thereto.

Contingent Additional Services

1. Existing or Other Facilities: Providing services to investigate facilities or existing conditions or to make measured drawings thereof.

2. Detailed Estimates: Providing detailed estimates of Construction Cost.

3. Providing Other Consultants: Providing services of consultants, if any other than those specified as Basic Services under this Agreement.

4. Post Completion/Extended Construction: Providing services after the original completion date not due to the fault of the Architect/Engineer or after issuance to the Owner of the final Certificate for Payment, or thirty (30) days after the date of Substantial Completion of the Work, whichever is earlier.

5. Project Hold/Resumption: If the Project is placed on hold by the Owner for more than 90 days due to circumstances beyond the direct control of the Architect, the schedule shall be adjusted and the Architect's compensation shall be equitably adjusted to provide for expenses incurred in the interruption and resumption of the Architect's services.

6. Other Additional Services: Providing any other services not otherwise included in this Agreement.

ATTACHMENT "B" 223

ATTACHMENT “D”

HMC PRODUCTION DELIVERABLES

100% Schematic Design Submittal

▪ Project Schedule
▪ Program & Budget
▪ Design, Energy Conservation, Code Analysis
▪ Architectural Requirements

Site Civil and Landscape Drawings
o Site demolition.
o Locations of existing site utilities.
o Overall dimensions of proposed new or altered buildings, property lines, setbacks, roadways and distance from site features. Indicate service drives, easements, parking patterns, walks, stairs, ramps, retaining walls, fences, fire hydrants, above and below ground storage (dry & wet), and equipment.
o Topography and proposed finished elevations of building entrances and major access ways. o Method of site drainage and retention.
o Site profile sections as necessary to depict grade breaks. o Landscape design and features of green and hardscaped areas. o Narrative Report documenting findings and design impacts from site investigations, geotechnical and environmental reports.

Floor Plans
o Room names with cross reference to sizes required by project program. o Overall dimensions, grid, partition, and column layouts with door & window openings. o Demolition plan if required by the project.

Elevations and Sections
o Exterior elevations depicting height and relationship to natural and graded ground contours. o Sections as needed to explain the structure or its design features.

Code Analysis
o Allowable building area calculations in accordance with construction type, side yards, setbacks, fire sprinkler increases, zoning code floor area ratios if applicable and building height compliance. o Floor plans depicting exit system, occupancy and area separations. o Mixed occupancy ratios if applicable.
o Calculated plumbing fixture counts.

Architectural Narrative
o General description of architectural materials and building systems

▪ Structural Requirements
o Written description of the recommended structural system and the basis of recommendation over other approaches.
o Conceptual foundation and framing plans.

▪ Plumbing Requirements
o Written analysis of the calculated load demands and capacity of existing systems and available utility services – including fire service, sanitary systems, natural gas, domestic water, storm retention and release.
o Plumbing plans with diagrammatic water service, storage, roof drainage, fire risers if applicable and invert elevations at points of connection with site utilities. 224

▪ HVAC Requirements
o Written analysis of the calculated loads of systems. Description of recommended system and the basis of recommendation over other approaches.
o Conceptual single-line mechanical diagram showing major ducts and equipment. Identification and sizes of primary service ducts, locations and weights of major equipment items including cooling towers, chillers, pumps, fans, air-handling units, compressors and related items. o Capacity of existing systems if applicable based on record drawings, field inspections and/or test reports.
o Description of hoods and ducting with relationship between exhaust and fresh air supply.

▪ Electrical & Telecommunications Requirements
o Site electrical plan, indicating method of service for electrical power, telecommunications, and fire alarm systems.
o Single line diagram showing:

1. Method of service.

2. Major transformers and transformer substations.

3. Major switchboards, motor control centers, panels and distribution boards.

4. Major components of emergency power.

5. Major components of telecommunications systems – BDF, IDF, point of connection to existing backbone if applicable.
o Basis of design narrative report for lighting approach and other applicable systems such as public address, fire alarm, security, call systems and pneumatic tube. .

100% Design Development Submittal

▪ Updated Project Schedule
▪ Updated Program & Budget
▪ Updated Design, Energy Conservation, Code Analysis
▪ Expanded Architectural Requirements

Site Civil and Landscape Drawings
o Site demolition, with location of existing structures and utilities abandoned and to remain. o Composite site utility plan with invert elevations to utility service points of connection. o Off-site improvements.
o Overall dimensions of proposed new or altered buildings, property lines, setbacks, roadways and distance from site features. Indicate service drives, easements, parking layouts, walks, stairs, ramps, retaining walls, fences, fire hydrants, above and below ground storage (dry & wet), and equipment with reference to a benchmark or datum point. o Topography and proposed finished elevations of building entrances and access ways, walks, stairs, ramps, retaining walls, fences.
o Method of site drainage and retention, design details and hydrology calculations. o Site profile sections as necessary to depict grade breaks and transition details. o Landscape design with plant & tree selections, pedestrian and green space features - hardscaped design, patterns and details to explain the concept.
o Updated Narrative Report documenting findings and design impacts from site investigations, geotechnical and environmental reports.

Floor Plans
o Room names with cross reference to sizes required by project program with defined corridors, lobbies, stairs, elevators, toilet rooms, janitors’ closets, and mechanical/electrical equipment rooms. o Overall dimensions, grid, partition, and column layouts with door & window openings with provisions for making facilities accessible to and usable by the disabled. o Location of plumbing fixtures such as floor drains, drinking fountains, showers, fire-hose cabinets, fire extinguisher cabinets, fume & exhaust hoods.
o Major built-in features such as fixed seating, food service equipment, display cases, counters, shelves, lockers, laboratory workspaces, and casework.
o Contract or movable furniture systems layouts indicating differences between fixed and movable furniture systems and equipment.
o Floor and wall finish patterns and accents.
225

o Demolition plan if required by the project.

Reflected Ceiling Plans
o Lighting layouts, ceiling systems and design elements such soffits, troughs, vaults, and coffers.

Roof Plans
o Indicating roof mounted equipment, slopes, ridges, drains, roof screens, parapet heights, roofing material, roof hatches and other associated equipment.

Elevations and Sections
o Exterior elevations depicting height and relationship to natural and graded ground contours. o Depict all building elements including penthouses, entrances, canopies, windows, doors, stairs, platforms, louvers, stacks, and similar items with indicated finish of materials. o Sections as needed to explain the structure or its design features. Including longitudinal and traverse sections for each major area, indicating floor elevations, ceiling heights, tunnels and unexcavated areas, basements, rooflines, and parapets, passages between buildings if applicable – sections cross referenced to floor plans.
o Coordinate and indicate HVAC distribution and hood venting.

Interior Elevations
o Elevations of all major rooms and design features with details to explain concept and design.

Schedules
o Door Schedule denoting size, type, frame, rating assembly, material and special comments. o Window Schedule denoting size, type, frame, glazing, window covering if applicable and special comments.
o Finish Schedule denoting material finish of floor, floor base, wall & ceiling.

Updated Code Analysis
o Allowable building area calculations in accordance with construction type, side yards, setbacks, fire sprinkler increases, zoning code floor area ratios if applicable and building height compliance. o Floor plans depicting exit system, occupancy and area separations. o Mixed occupancy ratios if applicable.
o Calculated plumbing fixture counts.
o Illustrate code implications from preliminary review and interpretations of agencies.

Enlarged Room Plans
o Equipment rooms indicating layout of equipment to ensure sufficient space has been allocated. o Toilet Rooms and support services rooms.
o Special design feature rooms.

Outline Specifications
o Updated and more detailed description for all finishes and materials, building components and systems as compared with the schematic design documents submittal - including specifications for structural, mechanical, plumbing, electrical/telecommunications and building support systems. o Division 01- General Requirements.

▪ Structural Requirements
o Updated written description of the recommended structural system and the basis of recommendation over other approaches.
o Foundation and framing plans based on load calculations and seismic analysis.

▪ Plumbing Requirements
o Updated written analysis of the calculated load demands and capacity of existing systems and available utility services – including fire service, sanitary systems, natural gas, domestic water, storm retention and release.
o Plumbing plans with diagrammatic water service, storage, roof drainage, fire risers if applicable and invert elevations at points of connection with site utilities, including sizes based on calculations. o Riser diagrams if applicable.
226

▪ HVAC Requirements
o Updated written analysis of the calculated loads of systems. Description of recommended system and the basis of recommendation over other approaches.
o Double line mechanical plan showing primary duct layout and single line secondary supply and return distribution. Identification of sizes and bottom of duct elevations of primary service ducts, locations and weights of major equipment items including cooling towers, chillers, pumps, fans, air- handling units, compressors and related items.
o Supply and return zones for each occupancy.
o Capacity of existing systems if applicable based on record drawings, field inspections and/or test reports.
o Hoods, exhaust fans and ducting with destination points of exhaust. o Equipment schedules.
o Mechanical rooms depicting equipment demonstrating that sufficient space has been allocated.

▪ Electrical & Telecommunications Requirements
o Site electrical plan, indicating method of service for electrical power, telecommunications, and fire alarm systems.
o Updated Single line diagram showing:

1. Method of service.

2. Major transformers and transformer substations.

3. Major switchboards, motor control centers, panels and distribution boards.

4. Major components of emergency power.

5. Major components of telecommunications systems – BDF, IDF, point of connection to existing backbone if applicable.
o Electrical floor plan indicating distribution layout of electrical power, signal and telecommunications. o Lighting plan and fixture schedule.
o Updated basis of design narrative report for lighting approach and other applicable systems such as public address, fire alarm, security, call systems and pneumatic tube.

100% Construction Documents Submittal

Production

The following outline of documents represent the minimum construction document phase submittals which shall include working drawings and specifications from all disciplines with updated estimates of probable cost reflecting current work to date.

Narrative
o Summary of reports, code analysis, and reconciliation of governmental agency requirements and applicable regulations.

Statement of Sustainable Design
o Documentation of compliance with California Energy Code. o Statement demonstrating application of environmentally responsible design.

Estimate of Probable Cost
o Updated estimate from design development phase

Civil Drawings
o Existing civil survey
o Site demolition plan where project applicable
o Site plan
o Over excavation, grading and drainage plan
o Site profile sections
o Details
o Composite site utilities plan
o Horizontal control plans

227

Landscape Drawings
o Finished grading plan
o Irrigation plans
o Irrigation details
o Planting plan
o Planting details
o Hardscape (paving) plan
o Site amenity and feature details

Architectural Drawings
o Title Sheet
o Site & building demolition plan where project applicable o Site Plan
o Phasing site and floor plans where project applicable o Life/Safety plans including applicable code analysis and tabulations o Key, reference and enlarged floor plans
o Reflected ceiling plans
o Roof Plans
o Exterior elevations and building sections
o Furniture and equipment plans where project applicable o Wayfinding, signage plans where project applicable
o Interior and casework elevations
o Partition, ceiling, and design feature details
o Door, window and interior finish schedules
o Enlarged wall sections
o Stair and elevator plans, sections and details where project applicable o Materials board – updated from design development phase. o Finish and Furniture Sample Binders
o Detail of anchorage for all fixed equipment in accordance with building code requirements. o Stamp all drawings and specifications as required by law by architect of record.

Structural Drawings
o Foundation plans.
o Framing plans.
o Building sections.
o Framing and column schedules.
o Details of connections, special assemblies and expansion, drift and seismic joints. o Details of structural framing systems for support of nonstructural components and equipment. o Structural drawings accompanied with computations, stress diagrams, and other pertinent data.

Plumbing Drawings
o Site utility sewer lines sized with invert elevations at points of connection. o Building waste line layouts, sized with vent stacks and connections to drains, fixtures and equipment.
o Building hot & cold water supply layouts, sized with circulation mains, tanks, branches, risers and connections to fixtures and equipment.
o Riser diagrams for supply and waste systems.
o Fire extinguishing equipment, risers and standpipes where project applicable. o Plumbing fixtures, tanks, and pumps with drainage and supply connections. o Layout and size of natural gas, vacuums and medical gas systems where project applicable. o Detail sections demonstrating coordination of structural, HVAC and piping systems. o Plumbing drawings indicating complete plumbing system in detail and shall include methods for fastening equipment to the structure to resist seismic forces.

HVAC Drawings
o Schedules and legends
o Floor plans, sections indicating air and piping systems including all branch distribution. o Sections, details and enlarged floor plans depicting layouts of mechanical equipment rooms. o Air balance schedule for outside, supply, return, and exhaust air and sections demonstrating sufficient clearances and volumes for air flows and access of equipment where project applicable. 228

o Flow diagrams for chilled water, condenser water, and boilers where project applicable. o Air riser diagrams where project applicable.
o Plans and detail sections depicting HVAC systems and branches with duct and pipe sizes for heating, steam, refrigeration, exhaust and ventilation where project applicable. o Auxiliary HVAC required for 24/7 operating equipment service systems where project applicable. o Energy calculations.
o HVAC drawings shall indicate the complete heating, ventilating, and air-conditioning systems in detail and shall include methods for fastening equipment to the structure to resist seismic forces.

Electrical and Telecommunication Drawings
o Electrical service to building from public utility, with size of feeders o Site and building transformers locations
o Main switchboard power panels, light panels and associated equipment. o Feeder and conduit sizes.
o Site and building light fixtures, receptacles, switches and power outlets. o Telecommunication system, routing, distribution, terminal cabinets, backboards and coordinated mechanical requirements.
o Fire alarm system and connection to existing system where project applicable. o Emergency power, generator, transfer switches, fuel tanks and auxiliary service where project applicable.
o Electrical drawings shall indicate sufficient level of detail to illustrate connections, routings, and other items in complex areas. All wiring shall be final sized. Detailed methods for fastening equipment to the structure to resist seismic forces shall be indicated – drawings shall indicate feeder and conduit sizes, schedule of feeder breakers or switches, light fixtures, receptacles, switches, and power outlets, BDF & IDF terminal racks/cabinets and/or backboards, cabling/wiring risers and routing.

Specifications
o CSI format specifications from each respective discipline including Division- 01, General Conditions and Supplementary Conditions. Specifications shall demonstrate adherence with client’s standards and contracted vendors and suppliers where project applicable. o Bidding Requirements, Notice to Bidders and Bid Forms.

229
ID Task Name Duration Start Finish
1 Task 1a: Programming and Conceptual Design 75 days Mon 7/29/24 Fri 11/8/24 2 Notice to Proceed 0 days Mon 7/29/24 Mon 7/29/24
3 Programming 4 wks Mon 7/29/24 Fri 8/23/24
4 Concept Development 8 wks Mon 8/19/24 Fri 10/11/24
5 Cost Estimate & Final Package 5 wks Mon 10/7/24 Fri 11/8/24 6 City Review & Approval 0 wks Fri 11/8/24 Fri 11/8/24
7 Task 1b: Environmental Review 100 days Mon 11/11/24 Fri 3/28/25 8 Topographic Survey / GPR 5 wks Mon 1/6/25 Fri 2/7/25
9 Geotechnical Report 5 wks Mon 1/6/25 Fri 2/7/25
10 Initial Study 20 wks Mon 11/11/24 Fri 3/28/25
11 (Mitigated) Negative Declaration 0 days Fri 3/28/25 Fri 3/28/25 12 Task 2: Existing Building Modernization 110 days Mon 7/15/24 Fri 12/13/24 13 Schematic Design 3 wks Mon 7/15/24 Fri 8/2/24
14 City Review & Approval / NTP into DD 0 wks Fri 8/2/24 Fri 8/2/24 15 Design Development 1 wk Mon 8/5/24 Fri 8/9/24
16 City Review & Approval / NTP into CD 0 wks Fri 8/9/24 Fri 8/9/24 17 Construction Documents 6 wks Mon 8/12/24 Fri 9/20/24 18 Agency Review & Approval 8 wks Mon 9/23/24 Fri 11/15/24 19 Bidding & Negotiations 4 wks Mon 11/18/24 Fri 12/13/24 20 Task 2 Contract Administration (Estimated) 6 mons Mon 12/16/24 Fri 5/30/25 21 Task 3: New Buildigs and Site 465 days Tue 4/1/25 Mon 1/11/27 22 Schematic Design 14 wks Tue 4/1/25 Mon 7/7/25
23 Cost Estimate 2 wks Tue 7/8/25 Mon 7/21/25
24 City Review & Approval / NTP into DD 0 wks Mon 7/21/25 Mon 7/21/25 25 Design Development 16 wks Tue 7/22/25 Mon 11/10/25
26 Cost Estimate 3 wks Tue 11/11/25 Mon 12/1/25
27 City Review & Approval / NTP into CD 0 wks Mon 12/1/25 Mon 12/1/25 28 Construction Documents 20 wks Tue 12/2/25 Mon 4/20/26 29 Cost Estimate 4 wks Tue 4/21/26 Mon 5/18/26
30 Agency Review & Approval 20 wks Tue 5/19/26 Mon 10/5/26 31 Bidding & Negotiations 12 wks Tue 10/20/26 Mon 1/11/27 32 Task 3 Contract Administration (Estimated) 24 mons Tue 1/12/27 Mon 11/13/28 7/29
11/8
3/28
8/2
8/9
7/21
12/1

M J S N J M M J S N J M M J S N J M M J S N J M M J S N J Half 1, 2024 Half 2, 2024 Half 1, 2025 Half 2, 2025 Half 1, 2026 Half 2, 2026 Half 1, 2027 Half 2, 2027 Half 1, 2028 Half 2, 2028 Half 1, 2029 ATTACHMENT "E"

PRELIMINARY PROJECT SCHEDULE

230
D&C24-011 Ontario Motor Inn Renovation 1

CONTRACT FOR CONSTRUCTION
This Contract for Construction (“Contract”), No. ________ is made and entered as of ____________, by and between City of Ontario, with its principal place of business at 303 East “B” Street, Ontario, CA 91764, sometimes hereinafter called the “City” and Optima RPM Inc., sometimes hereinafter called “Contractor.”
WITNESSETH: That the parties hereto have mutually covenanted and agreed, and by these presents do covenant and agree with each other as follows:

ARTICLE 1. SCOPE OF WORK.

The Contractor shall perform all Work within the time stipulated in the Contract, and shall provide all labor, materials, equipment, tools, utility services, and transportation to complete all of the Work required in strict compliance with the Contract Documents as specified in Article 5, below, for the following Project:

D&C24-011 ONTARIO MOTOR INN RENOVATION
Contractor is an independent contractor and not an agent of the City. The Contractor and its surety shall be liable to the City for any damages arising as a result of the Contractor’s failure to comply with this obligation.

ARTICLE 2. TIME FOR COMPLETION.

Time is of the essence in the performance of the Work. The Work shall be commenced on the date stated in the City’s Notice to Proceed. The Contractor shall complete all Work required by the Contract Documents within 250 calendar days from the commencement date stated in the Notice to Proceed. By its signature hereunder, Contractor agrees the time for completion set forth above is adequate and reasonable to complete the Work.
231
D&C24-011 Ontario Motor Inn Renovation 2
ARTICLE 4. LIQUIDATED DAMAGES.

Contractor acknowledges that the City will susta in actual damages for each and every Day completion of the Project is delayed beyond the Contract Time. Because of the nature of the Project, it would be impracticable or extremely difficult to determine the City’s actual damages.

Accordingly, in accordance with Government Code section 53069.85, it is agreed that the Contractor will pay the City the sum of $500 for each and every calendar day of delay beyond the time prescribed in the Contract Documents for finishing the Work, as Liquidated Damages and not as a penalty or forfeiture. In the event this is not paid, the Contractor agrees the City may deduct that amount from any money due or that may become due the Contractor under the Contract. This Section does not exclude recovery of other damages specified in the Contract Documents. Liquidated damages may be deducted from progress payments due Contractor, Project retention or may be collected directly from Contractor, or from Contractor's surety. These provisions for liquidated damages shall not prevent the City, in case of Contractor's default, from terminating the Contractor.

ARTICLE 5. COMPONENT PARTS OF THE CONTRACT.

The “Contract Documents” include the following:

Notice Inviting Bids
Instructions to Bidders
Bid Forms
Bid Acknowledgement
Bid Schedule
Bid Guarantee
Designation of Subcontractors
Information Required of Bidders
Non-Collusion Declaration Form
Iran Contracting Act Certification
Public Works Contractor DIR Registration Certification
Performance Bond
Payment (Labor and Materials) Bond
Contract for Construction
General Conditions
Special Conditions
Specifications
Addenda
Construction Plans and Drawings
Standard Specifications for Public Works Construction “Greenbook”, latest edition, Except Sections 1-9
Applicable Local Agency Standards and Specifications, as last revised The City shall pay to the Contractor as full compensation for the performance of the Contract, subject to any additions or deductions as provided in the Contract Documents, and including all applicable taxes and costs, the sum of Four Million Ninety -Eight Thousand Dollars ($4,098,000.00). Payment shall be made as set forth in the General Conditions. The City will pay to Contractor compensation based upon the prices set forth in the Bid Schedule.

ARTICLE 3. CONTRACT PRICE.
232
D&C24-011 Ontario Motor Inn Renovation 3
the various Contract Documents will be given effect in the order set forth in the General Conditions. This Contract shall supersede any prior agreement of the parties.

ARTICLE 6. PROVISIONS REQUIRED BY LAW AND CONTRACTOR COMPLIANCE.

Each and every provision of law required to be included in these Contract Documents shall be deemed to be included in these Contract Documents. The Contractor shall comply with all requirements of applicable federal, state and local laws, rules and regulations, including, but not limited to, the provisions of the California Labor Code and California Public Contract Code which are applicable to this Work.

ARTICLE 7. INDEMNIFICATION.

Contractor shall provide indemnification and defense as set forth in the General Conditions.

ARTICLE 8. PREVAILING WAGES.

Contractor shall be required to pay the prevailing rate of wages in accordance with the Labor Code which such rates shall be made available at the City’s Office or may be obtained online at http://www.dir.ca.gov and which must be posted at the job site.

ARTICLE 9. FALSE CLAIMS.

Contractor acknowledges that if a false claim is submitted to the City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that the False Claims Act, California Government Code sections 12650, et seq., provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include within their scope false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of the information. In the event the City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorneys’ fees. Contractor hereby acknowledges that the filing of a false claim may the Contractor to an administrative debarment proceeding wherein Contractor may be prevented from further bidding on public contracts for a period of up to five (5) years. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
Permits
Any other documents contained in or incorporated into the Contract The Contractor shall complete the Work in strict accordance with all of the Contract Documents.

All of the Contract Documents are intended to be complementary. Work required by one of the Contract Documents and not by others shall be done as if required by all. In the event of conflict, Reference Specifications
Approved and fully executed Change Orders
233
D&C24-011 Ontario Motor Inn Renovation 4
IN WITNESS WHEREOF, this Contract has been duly executed by the above-named parties, on the day and year above written.

CITY OF ONTARIO
By:

Scott Ochoa
City Manager
ATTEST
:

By:

Sheila Mautz, City Clerk

APPROVED
AS TO FORM:

By:

Best Best & Krieger LLP
City Attorney
Optima RPM Inc.

By:

Its:

Printed Name:
[DELETE THE FOLLOWING SIGNATURE
LINE IF NOT REQUIRED]
By:

Its:

Printed Name:
____________________________________
Contractor’s License Number and
Classification
____________________________________
DIR Registration Number
[IF CORPORATION, TWO SIGNATURES,

PRESIDENT OR VICE PRESIDENT AND

SECRETARY OR TREASURER
REQUIRED]

END OF CONTRACT
234
46700.00100\33287662.1

BB&K 2020

AM
ENDMENT NO. 6 TO THE DESIGN SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO AND HMC GROUP DBA HMC ARCHITECTS

1. P
arties and Date.

Th
is Amendment No. 6 to the Agreement (as defined herein) is made and entered as of ____________, by and between t he City of Ontario (“City”) and HMC Group dba HMC Architects, a Corporation “Consultant”. City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.”

2. R
ecitals.

2.1 A greement. T he City and Consultant have entered into an agreement entitled “Design Service Agreement” dated January 1, 2020 (“Agreement”).

2.2 A mendment Purpose. T he City and Consultant desire to amend the A greement and add scope of services to provide Title 24 Commissioning Services for the City Services Building and increase the not to exceed amount by Forty-Four Thousand Five Hundred Ten Dollars ($44,510).

The parties have heretofore entered into Amendment No. 1 dated July 22, 2022, Amendment No. 2 dated March 21, 2023, Amendment No. 3 dated September 5, 2023, Amendment No. 4 dated July 16, 2024, and Amendment No. 5 dated October 15, 2024.

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

3.37 of the Agreement.

3. T
erms.

3.1 Amendment . Section 3.1.1 and 3.10.1 of the Agreement is hereby amended in its entirety to read as follows:
“3.1.1 Scope of Services. Consultant promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional architectural and related services necessary for the full and adequate completion of the Project consistent with the provisions of this Agreement (hereinafter referred to as "Services"). The Services are more particularly described throughout this Agreement, including Exhibit "A" attached hereto and incorporated 235
46700.00100\33287662.1

BB&K 2020

herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, any exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. All Services performed by Consultant shall be subject to the sole and discretionary approval of the City, which approval shall not be unreasonably withheld. Additionally, Consultant shall comply with all Federal requirements applicable to the Services as set forth in Exhibit "A-I."

3.10.1 Consultant’ s Compensation for Basic Services . City shall pay to Consultant, for the performance of all Services rendered under t his Agreement, with the total not to exceed amount of Nine Million Two Hundred Eighty-One Thousand Three Hundred Twenty- Five Dollars ($9,281,325) (“Total Compensation”). This Total Compensation amount shall be based upon, and may be adjusted according to, the fee schedule and related terms and conditions attached hereto as Exhibit “ A” and incorporated herein by reference. The total compensation, as may be adjusted upon mutual agreement, shall constitute complete and adequate payment for Services under this Agreement.

Task list and not to exceed fees are included in Attachment “A”.

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

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

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

3.5 In tegration. 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.
[S
IGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR AMENDMENT NO. 6 TO THE DESIGN SERVICES

AGREEMENT BETWEEN THE CITY OF ONTARIO

AND HMC GROUP DBA HMC ARCHITECTS
I
N WITNESS WHEREOF, the Parties have entered into this Amendment No. 6 as of the day and year first above written.

CITY OF ONTARIO HMC GROUP dba HMC ARCHITECT
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
At
tested By:

City Clerk
237
March 25, 2024
Dan Beers
Design & Construction Principal Project Manager, City of Ontario 1333 S Bon View Ave
Ontario, CA 91761
Regarding: Proposal for Amendment Revision
City of Ontario: City Services Building
Amendment 1 – Title 24 Commissioning Services
HMC #2518003000
Dear Dan:

HMC Architects submits this Proposal to provide Architectural, Engineering and Design Services for work incurred to include:
1) Title 24 Commissioning Services (Cx)

1. Scope of Work
The City of Ontario has requested the Title 24 Commissioning Services for the City Services Building be included in the Architect’s contract. The consultant will provide Cx services related to all HVAC systems/controls, indoor light systems/controls, water heating systems/controls and processes required by Title 24. See also Exhibit A for detailed tasks and scope. This scope does not include Fundamental, Building Enclosure or Enhanced Commissioning.

2. Design Requirements and Deliverables
The Design team will coordinate with the Cx Agent providing them with the 50% CD progress prints for review and comment and guiding their efforts during the remaining design and construction phases.

3. Schedule
The activities of the Cx Agent will be parallel with the project’s progress.

4. Compensation
The following are the proposed fees for the above Amendment:

We
hope this proposal is acceptable to the City of Ontario. Please let us know if you have any additional questions or need further information.

Sincerely,
HMC Architects
Sandra Howard, Principal Architect
Exhibit.: A – Design West Engineering proposal
CC: Brandon Gullotti, Andrew Cartwright, Simon Solis, Sarah Gradillas (HMC) Architecture - HMC 8,810$
Commissioning - DWE 35,700$
Sub Total 44,510$
Expenses -$
TOTAL 44,510$
Attachment "A"
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412 E. Vanderbilt Way | San Bernardino, CA 92408
Pacific Northwest 425.458.9700 | Southern California 909.890.3700 | DesignWestEng.com Date: March 14, 2024

Company: HMC Architects
3546 Concours Street
Ontario, CA 91764

Attention:

Sandra Corazzelli

Subject:

Ontario City Hall Annex Cx
Our Proposal #P-2316272

PROJECT SCOPE
To provide services as the Commissioning Authority (CxA) for Title 24 Commissioning of the Ontario City Hall Annex Cx project located in Ontraio, CA. Design West Engineering, Inc. will act as CxA to meet the requirements of Title 24 Commissioning for the proposed building and to verify and ensure that the building is designed, constructed, and calibrated to operate as intended. The primary role of the CxA is to develop and coordinate for the building systems, a comprehensive review of the construction documents, the execution of a testing plan, and observe and document performance. Design West Engineering, Inc. will verify and document that specified systems are functioning in accordance with the Design Intent and in accordance with the Contract Documents.

COMMISSIONING APPROACH
Design West Engineering has developed a scope of work specific to this project which we believe maximizes the value to the client. Our main driver will be satisfying the criteria of Title 24. Through careful review of this project’s specific needs versus typical commissioning activities we have been able to eliminate tasks and activities which do not suit the HVAC and lighting systems common to this building type. Please carefully review each item in the Inclusion/Exclusion list. Those items required by Title 24 are identified as such. If any item in the exclusion list is desired by the Owner/Architect please let us know.

PROVIDED BY CLIENT
Deliverables and submittals will be consistent with the project requirement design guidelines. It is the responsibility of the respective contractors to demonstrate operation, and document proper operation of their systems and equipment, throughout the commissioning process. Additional fees will be required if Design West Engineering, Inc. is to provide services beyond the design and construction phase tasks described in this proposal.

EXHIBIT A
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SERVICES INCLUDED
Systems subject to commissioning under this proposal include all HVAC systems and controls, indoor lighting systems and controls, water heating systems and controls, and Irrigation Systems and controls, and covered processes as required by Title 24. For these systems and components, the CxA services include those listed in the following table.

Task Description
Owner’s Project Requirements Title 24 requires deve lopment of the Owner’s Project Requirements during Schematic Design. The CxA will assist the Owner in development of the Owner’s Project Requirements document.

Commissioning Plan Development of, and update to, the pr oject’s Commissioning Plan.

The Cx plan details each aspect of the commissioning process, how commissioning will impact the design and construction phase of the project and the responsibilities of each team member in the commissioning process, as required by Title 24.

Commissioning Specifications Development of, and update to, the project’s Commissioning Measures. Cx measures will be incorporated into the construction documents to ensure each contractor can understand, and therefore accurately bid, their roles and responsibilities in the commissioning process, as required by Title 24.

Cx Design Review – 90% CDs Perform a focused review of the design drawings and specifications for all commissioned systems per Title 24. Comments back to the design team are focused on clarifying sequences of operation, increasing the operability and maintainability of the building and ensuring the design meets each aspect of the OPR.

Title 24 Forms Complete all required Title 24 forms fo r plan approval.

Cx Coordination Meetings Coordinate and host commissioning meetings throughout the construction process to resolve issues discovered during site inspections and functional testing.

Site Inspections – Qty (3) Site inspections are inten ded to identify installation issues at the earliest point possible to avoid change orders and impacts to the construction schedule.

Functional Performance Testing Thoroughly test all mode s of operation for the major HVAC, indoor lighting and water heating systems, as required by Title 24. The intent will be to verify and document intended performance of equipment and systems in accordance with system design criteria in the contract documents.
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Mechanical I Electrical I Plumbing I Commissioning I Fire Protection I Technology I Energy Re-Testing of Deficient Systems The CxA will function ally test the installed equipment and identify any issues in the Cx Issues Log. Suggestions on correction of the deficiency and coordination of the repair will be completed through the Cx Issues Log Resolution process. Re-testing of deficient equipment will be completed by the Cx Agent.

Cx Issues Log Resolution Site inspections and functional testing typically lead to a list of unresolved issues. The CxA will coordinate the resolution of these issues with the design and construction team to ensure the requirements of the contract documents are delivered.

Systems Manual Development Document the operational asp ects of the building to ensure the building can be operated and maintained by the Owner’s facility’s team in a manner that meets the Owner’s Project Requirements, as required by Title 24.

Owner Training - Systems Train the Owner’s facility staff on the use and functionality of the Systems Manual as required by Title 24.

Commissioning Report Develop a Commissioning Report, as re quired by Title 24, detailing each aspect of the commissioning process. Recommendations are provided to the Owner for the subject project as well as future projects.

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SERVICES EXCLUDED
The following describes those services that are to be provided by others and/or have been eliminated from the commissioning scope of work to optimize the cost to the Owner.

Task Description
Completion of the Certificate(s)
of Installation
Per Title 24, Certificate(s) of Installation are to be completed by the installing contractor. Each contractor is responsible for maintaining these forms in an orderly manner to facilitate review by the building inspector. The CxA will copy the contractor’s forms for inclusion in the Systems Manual.

Completion of the Certificate(s)
of Acceptance
Per Title 24, Certificate(s) of Acceptance are to be completed by the Certified Acceptance Technician. Each contractor is responsible for maintaining these forms in an orderly manner to facilitate review by the building inspector. The CxA will copy the contractor’s forms for inclusion in the Systems Manual.

LEED related Tasks and
Activities
This proposal excludes LEED related tasks and activities. LEED commissioning services and related LEED credits can be provided if the project chooses to pursue LEED certification.

Testing of Systems not required
by Title 24
Any and all systems not required by Title 24 are excluded from the Cx scope of work. This exclusion applies to, but is not limited to: building envelope, vertical transport, security systems, data and communication systems, cold domestic and process water systems and life safety systems. Testing of these systems can be provided by the CxA at the hourly rate detailed below.

Opposite Season Testing Opposite season testing is test ing that occurs during actual weather conditions. This eliminates the need for overrides during construction-phase functional performance testing. Simple HVAC systems do not typically require actual weather conditions to test system functionality. However, this testing can be provided by the CxA at the hourly rate detailed below. An additional site visit from both the CxA and the installing contractor will be required.

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We propose to provide Title 24 Commissioning services for the proposed project as follows:

Title 24 Cx Fee
Design Phase $5,440.00
Construction Phase $30,260.00
Total $35,700.00

NOTES
1) Additional commissioning services can be provided at the rate of $180.00 per hour. 2) Attendance at on-site meeting(s), other than listed above, will be performed for the additional fee of $500.00 per trip for up to two hours. Site meeting time in excess of two hours will be billed at $180.00 per hour.
3) Design West Engineering shall be provided by the client such information as is available to the client and the clients’ consultants and contractors and shall be entitled to rely upon the accuracy and completeness thereof.
4) Design West Engineering’s fees are based on the understanding that the existing utilities and equipment have adequate capacity unless noted otherwise above. Any additional engineering required for upgrade will be provided at our regular hourly rates. Any services required during construction, outside of those listed previously, will be performed at our regular hourly rates. 5) If either party to this contract brings action to enforce this contract, the prevailing party shall recover its attorney’s fees and cost from the losing party.

TERMS AND CONDITIONS
Project will be billed on a progressive billing schedule, invoices due net 30 days.

The following Terms and Conditions will govern all services performed on behalf of Client and are hereby incorporated into the Services Fee Proposal.
1)
Design Services. Design documents including plans, specifications and reports represent Design West Engineering’s (“DWE”) judgment as a design professional with respect to the proper commissioning of equipment and components of the work. It is recognized, however, that DWE does not have control over contractor’s proper performance of the work, including but not limited to the contractor’s means, methods, techniques, sequences and procedures of construction. Accordingly, DWE cannot and does not warrant or represent that equipment and components of the work will not vary from the requirements of the contract documents or comply with applicable codes. DWE does not perform any work of a contractor and its Design Services are limited to design, plans, and oversight only. No withholding, deductions or offsets shall be made from DWE’s compensation for any reason unless DWE has been found to be legally liable for such amounts. Payment of DWE’s fees shall be a condition precedent to bringing any action or suit against DWE.
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Mechanical I Electrical I Plumbing I Commissioning I Fire Protection I Technology I Energy than 30 days after the date of invoice. Payment to DWE will not be withheld, postponed or made contingent on the construction, completion or success of the project or upon receipt by the Client of project funds, offsetting reimbursements, or credits from other parties. 3) Additional Services. Any services not explicitly described as being performed by DWE or its subconsultants are excluded. If agreed to in writing by Client and DWE, DWE will provide additional services. Client will pay DWE for such additional services in accordance with DWE’s current fee schedule or as otherwise agreed by Client and DWE in writing. These Terms and Conditions will apply to all additional services provided by DWE. In the case of additional services added to the Engineering Fee Proposal, DWE’s liability shall be limited to the extent of the additional fee for the specific additional services added.
4) Professional Standards. Subject to all conditions set forth herein, DWE will only be liable for breaching its obligation to perform its services to the level of competency maintained by other practicing engineering professionals in the same or similar community performing the same services at the same time as they were performed by DWE. DWE makes no warranties, either express or implied. DWE does not guarantee the completion or quality of performance of contracts by the construction contractor or subcontractors, or other third parties, nor accepts responsibility for their acts, omissions or any safety precautions.
5) Independent Contractor. The relationship of DWE to Client shall at all times be that of an independent contractor. DWE shall not be liable for the acts of Client or its agents in performing Work. 6) Document Ownership. DWE holds copyright for all tracings, calculations, and other original documents produced by DWE and such documents shall be the property of DWE, except when otherwise provided by law, governmental requirement, or by prior agreement, these documents become public property or the property of the Client. A limited license is granted to use the documents for the specific purposes and project covered by the Agreement. Reproduction of these documents either in hard copy or soft copy (including posting on the web) is prohibited without copyright permission. No right to create modifications or derivatives of DWE documents is granted pursuant to this limited license. You may not remove any copyright or other proprietary notices contained in the documents and information. Any product, process or technology described in the documents may be the subject of other Intellectual Property rights reserved by DWE. The drawings, specifications, and reproductions thereof are instruments of service to be used only for the specific project covered by the Agreement between the Client and DWE. DWE assumes no liability for misinterpretation, modification, or misuse by others of any instruments of service prepared by DWE in accordance with its services. 7) Electronic Documents. If DWE provides Client any design documents, including but not limited to plans and specifications, in electronic form (“Electronic Documents”), acceptance and use of the Electronic Documents by Client shall be at Client’s sole risk and Client will: (a) Waive and covenant not to sue DWE alleging any inaccuracy or defect in the Electronic Documents; (b) Agree that DWE makes no representation with regard to the compatibility of the Electronic Documents with Client’s software or hardware; and (c) to the fullest extent permitted by law, indemnify, hold harmless, reimburse and defend DWE from, for and against any alleged claim, damage, liability, or cost, including but not limited to attorneys’ fees, that may arise from Client’s use of the Electronic Documents or any subsequent modification of the Electronic Documents by any person or entity. 8) Schedule. DWE will perform its services with reasonable diligence consistent with sound professional practice as ordinarily provided by engineers practicing in the same or similar locality under the same or similar circumstances. Client will require its other consultants and contractors to incorporate into their schedule’s reasonable periods of time for DWE to perform its services and will require that they 244
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Mechanical I Electrical I Plumbing I Commissioning I Fire Protection I Technology I Energy coordinate their services with DWE’s services. Client is aware that many factors outside DWE’s control may affect DWE’s ability to timely perform and complete its services and Client agrees that DWE is not responsible for damages arising directly or indirectly from any delays, including but not limited to liquidated damages.
9) Cost Estimates. Any cost estimates provided by DWE will be based on DWE’s professional experience and judgment. However, Client agrees that DWE has no control over market conditions or bidding procedures and, as a result, DWE does not warrant that bids or construction costs will not vary from DWE’s cost estimates.
10) Construction Support. If specifically included in the scope of DWE’s services, construction support services will be performed solely for the purpose of reviewing portions of the work for general conformance with the design concept set forth in the contract plans and specifications. These services are different from inspection or other quality-control services. The Client shall coordinate the contractor’s involvement in any DWE construction support services and shall provide DWE all necessary contracts and documents to perform the same. DWE will not provide any administration of the contract between the contractor and the Client. DWE is not a contractor and does not provide the services of a contractor under any circumstances. DWE will not supervise, direct or have control over any contractor’s work, nor will DWE have any responsibility for the means, methods, techniques, sequences or procedures of construction selected by the contractor, nor will DWE be responsible for the contractor’s safety precautions and programs in connection with the work, nor will DWE be responsible for the contractor’s failure to perform the work in accordance with the requirements of the contract documents or applicable building or structural codes, nor will DWE be responsible for the acts or omissions of the Contractor or of any other persons or entities performing portions of the work, all of which are the sole responsibility of the contractor or its agents. 11) Submittal Review. DWE will review and render appropriate services on shop drawings, product data, samples, and other submittals required by the contract documents. Such review shall be solely for general conformance with the design concept and the information shown on the contract documents.

DWE’s review will not include review of the accuracy or completeness of details, such as quantities, dimensions, weights or gauges, fabrication processes, construction means or methods, compliance with applicable building or structural codes, coordination of the work of other trades or construction safety precautions, all of which are the sole responsibility of the contractor. DWE’s review will be conducted with reasonable promptness while allowing sufficient time in DWE’s judgment to permit adequate review. Review of a specific item shall not indicate acceptance of an assembly of which the item is a part. DWE will not review and will not be responsible for any deviations from the contract documents not clearly identified in writing on the submittal by the contractor, nor will DWE be required to review partial submissions or those for which submissions for correlated items have not been received. 12) Property Release. Client hereby irrevocably grants to DWE, its employees, agents, licensees, independent contractors and assigns, permission to use, reuse, display, broadcast, perform, reproduce, distribute, transmit, reprint and commercialize, in any manner or media now known or later developed, photographs or artwork depicting property for which DWE performs services (“Content”) for any purpose (excluding defamation) which may include, among others, advertising, promotion, marketing and packaging for DWE’s products or services. Client agrees that the Content may be combined with other content, text and graphics and cropped, altered or modified. 13) Copyright License. Client hereby irrevocably grants to DWE, its employees, agents, licensees, independent contractors and assigns the perpetual, assignable, royalty-free, worldwide right and license to use any photograph depicting property for which DWE performs services (“Content”), in whole or in 245
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Mechanical I Electrical I Plumbing I Commissioning I Fire Protection I Technology I Energy part, including the rights to reproduce, sublicense, transfer, publish, distribute, publicly display, broadcast, download, transmit, modify and prepare derivative works, in any manner or media now known or later developed, for the marketing and sale of DWE products or services and for any other business purpose or activity relating to DWE. Client waives any right to inspect or approve DWE’s use of the Content, including written copy that may be created in connection therewith. 14) Termination for Convenience. Either DWE or Client may terminate this Agreement at any time with or without cause upon giving the other party seven (7`) calendar days’ prior written notice. Client will pay DWE for all services rendered and all costs incurred up to the date of termination, along with all other reasonable termination costs, including but not limited to expenses directly attributable to termination for which the Architect is not otherwise compensated, plus an amount for the DWE’s anticipated profit on the value of the services not performed by DWE. If no notice of termination is given, DWE’s obligations created by this Agreement will be terminated upon completion of the services. 15) Notice of Deficiencies. Client shall provide prompt written notice within thirty (30) days of when Client becomes aware or should have reasonably been aware of any fault or defect in the project, including errors, omissions or inconsistencies in the services and work product provided by DWE. 16) Indemnity. Subject to all provisions of this Agreement and to the fullest extent permitted by law, Client shall indemnify, hold harmless, reimburse and defend (with counsel of DWE’s choice) DWE, its employees, officers, directors and agents from, for and against all actual or alleged claims, losses, damages, costs and expenses arising from or related to the work, the Project, or this Agreement (with the sole exception that Client will have no duty to indemnify DWE from claims or losses to the extent those claims or losses are caused by the fault or negligence of DWE or its employees as adjudicated by a court of competent jurisdiction). Under no circumstances shall DWE be liable for any actual or alleged claims, losses, damages, costs and expenses arising from or related to the work, fault, or negligence of its subconsultants.
17) Modifications. No change, modification, or amendment to this Agreement will be valid unless agreed to by both of the parties hereto in writing.
18) Successors and Assigns. This Agreement shall inure to the benefit of and shall be binding upon each of the parties hereto and such parties’ partners, successors, executors, administrators, and assigns. 19) Severability. In the event any clause or portion thereof in this Agreement is deemed invalid or unenforceable by a court or arbitrator of competent jurisdiction, then that clause or portion thereof will be treated as if it were omitted at the time of execution, and the remaining terms of this Agreement shall survive and be enforceable.
20) Arbitration. Client agrees that any claim, damage, or dispute arising out of these Terms and Conditions or any services performed by DWE will be resolved by binding and confidential arbitration before a single arbitrator in the place where the project is located. The parties shall mutually select the arbitrator and the rules applicable to the arbitration process. Unless the parties mutually agree otherwise, the arbitration shall be administered by the American Arbitration Association in accordance with its Construction Industry Arbitration Rules in effect on the date of this Agreement. As a condition precedent to serving a demand for arbitration, Client agrees that it will obtain a written certificate executed by an independent design professional with similar experience on similar projects and licensed in the jurisdiction in which the project is located certifying that DWE failed to meet the applicable standard of care. Client will provide DWE with a copy of the certificate and all written analysis supporting the certificate’s findings at least 30 days before serving a demand for arbitration. Client and DWE agree that any party hereto shall commence all claims and causes of action within the period specified by applicable law but in any case not more than Seven (7) years after the date of substantial 246
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Mechanical I Electrical I Plumbing I Commissioning I Fire Protection I Technology I Energy completion of the project. Client and DWE waive all claims and causes of action not commenced or noticed in accordance with the time periods in this section. 21) Governing Law: The laws of the State that the project is constructed will govern the validity of this Agreement, its interpretation and performance. Any dispute arising in any way from this Agreement shall be subject to the jurisdiction of the courts of that State. 22) Client’s Terms. Any terms and conditions set forth or referenced in Client’s purchase order, requisition, or other notice of authorization to proceed are inapplicable to the services provided under this proposal or any related agreement, except when specifically accepted or confirmed in writing and signed by DWE.
23) No Third Party Beneficiaries. DWE’s responsibilities under this Agreement run only to Client. DWE’s responsibilities do not extend to any third party including, without limitation, the successors and assigns of Client, any Client’s Association or any individual unit owner associated with Client. To the fullest extent permitted by law, no party has any third-party beneficiary or other rights arising from or related to the services provided by DWE.
24) Limitation of Liability. Client agrees that, in recognition of the relative risks and benefits of the project, DWE’s aggregate joint, several and individual liability, whether for breach of contract, breach of warranty, negligence, professional malpractice, strict liability or otherwise will be limited to an amount no greater than $1 million or DWE’s fee, whichever amount is lesser. This provision will survive the termination or expiration of this Agreement.
25) Limitation of Remedy. Client covenants that it will not, under any circumstances, bring a lawsuit, arbitration demand, or claim of any kind against DWE’s individual employees, officers, directors, or agents and that Client’s sole remedy will be against DWE, Inc. 26) Waiver of Consequential Damages. Neither DWE nor any of its officers, directors, employees or agents will be liable for any indirect, punitive, consequential, liquidated, or exemplary damages of any nature, including but not limited to fines, penalties or lost profits, whether said claim is based upon contract, warranty, tort (including negligence and strict liability) indemnity or any other theory of law, and the Client expressly waives all rights and remedies with respect to the same. 27) Entire Agreement. This Agreement contains all terms and conditions agreed on by the parties hereto, and no other agreements, oral or otherwise, regarding the subject matter of this Agreement, shall be deemed to exist, or bind any of the parties hereto.

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Mechanical I Electrical I Plumbing I Commissioning I Fire Protection I Technology I Energy We reserve the right to present a “Seven Day Notice of Cancellation of Services” and suspend all work on this project should the terms be in default, until receipt of all delinquent items.

If above stated terms are agreeable, please sign and return one copy of this proposal to our office. If this agreement is not signed and returned and we are asked to proceed with the project, all conditions contained herein shall constitute a contract for services. Design West Engineering reserves the right to revise the fee stated herein if not accepted within a period on 60 days from the date of the proposal.

We appreciate the opportunity to work with you on this project. We look forward to your response.

Respectfully,

Darrell Johnson

DESIGN WEST ENGINEERING
Accepted by (Sign): ______________________________
Accepted by (Print): ______________________________
Date: ______________________________
Client Job Number: ______________________________
DWE Proposal Number: P-2316272

Bill To: (If different from client listed on proposal)
Company:_________________________________
Name: _________________________________
Address: _________________________________
Email: _________________________________
Phone: _________________________________

248
Department: Human Resources
Prepared By: Amanda Elias
Staff Member Presenting: Angela C. Lopez,
Executive Director Human Resources
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 10
SUBJECT:

AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT WITH GALLAGHER BENEFIT SERVICES INC. FOR SPECIALIZED RECRUITMENT SUPPORT

CITY OF ONTARIO
Agenda Report
October 15, 2024
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council authorize the City Manager, or his designee, to execute Amendment No. 2 to the Professional Services Agreement with Gallagher Benefit Services Inc., of Berkeley, California, for specialized recruitment services in the amount of $100,000 for a total a not- to-exceed amount of $342,885.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
FISCAL IMPACT:

The Fiscal Year 2024-25 Adopted Budget includes, and any subsequent Proposed Budget will consist of, appropriations from the General Fund for these services, as necessary. The proposed Amendment No. 2 increases the Agreement amount by $100,000 for a revised total not- to-exceed amount of $342,885.

Each City Agency will assume fiscal responsibility to ensure that departmental expenditures related to specialized recruitment services remain within the Agency’s annual budgets.

BACKGROUND & ANALYSIS:

On January 18, 2022, the City Council authorized a Professional Services Agreement with Gallagher Benefit Services Inc. for Classification and Compensation Study services following a competitive Request for Proposals process. Gallagher Benefit Services Inc. was the top candidate. At the time the agreement was executed, the not-to-exceed compensation amount was set at $141,933 for the duration of the Agreement term.

On December 6, 2022, the City Council approved Amendment No. 1 to extend the Agreement's term to December 22, 2025, increase the not-to-exceed amount to $242,885, and expand its scope to include specialized support for Citywide recruitment-related activities.

The Human Resources/Risk Management Agency has identified a need for specialized recruitment support. Gallagher Benefit Services Inc. will provide targeted services to attract and retain top talent for specialized positions, helping the City remain competitive. Due to a competitive labor market, enhanced recruitment services are required to fill specialized positions. Gallagher Benefit Services Inc.'s expertise is essential for managing recruitments effectively, including creating candidate 249
profiles, developing job bulletins, facilitating screening processes, and conducting background checks for hard-to-fill and critical roles throughout the City.

City Staff recommends that the City Council approve Amendment No. 2 to increase the not-to- exceed amount and continue using Gallagher Benefit Services Inc. to deliver high-quality and timely specialized recruitment support.
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PAUL S. LEON
MAYOR
D

EBRA PORADA

MAYOR PRO TEM
A
LAN D. WAPNER
JIM W. BOWMAN

RUBEN VALENCIA

COUNCIL MEMBERS

SHEILA MAUTZ

CITY CLERK
JA
MES R. MILHISER

TREASURER
S

COTT OCHOA

CITY MANAGER
AMENDMENT NO. 2 TO THE PROFESSIONAL

SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO AND
GALLAGHER BENEFIT SERVICES, INC.

1. P
arties and Date.

Th
is Amendment No. 2 to the Agreement (as defined herein) is made and entered as of ____________, by and between the City of Ontario (“City”) and Gallagher Benefit Services, Inc., a Corporation (Consultant). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.”

2. R
ecitals.

2.1 A greement. T he City and (Consult ant) have entered into an agreement entitled “Classification and Compensation Study” dated December 21, 2021 (“Agreement”).

2.2 A mendment Purpose. T he City and Consultant desire to amend the A greement to increase compensati on. The Parties have heretofore entered into Amendment No. 1 , dated December 22, 2022.

2.3 A mendment Authority. This Amendment No. 2 is authorized pursuant to Section

3.7.14 of the Agreement.

3. T
erms.

3.1 Amendment . Section 3.2.1 of the Agreement is hereby amended in its entirety to read as follows:
“Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "A" attached hereto and incorporated herein by reference. The total compensation shall not exceed three hundred forty -two thousand, eight hundred and eighty- five dollars ($342,885) without the written approval of the City Council or City Manager, as applicable.

Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.”

3.2 C
ontinuing Effect of Agreement . Except as amended by this Amendment No. 2, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the 251
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parties under this Amendment No. 2. From and after the date of this Amendment No. 2, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 2.

3.3 A dequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 2.

3.4 S everability. If any portion of this Amendment No. 2 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

3.5 I ntegration. This Amendment represents the entirety of the Parties’ understanding relating to the subject of this Amendment, including written or verbal communications between the Parties, which shall have no relevance unless expressly incorporated herein. This is an integrated amendment.
[
SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR AMENDMENT NO. 2 TO PROFESSIONAL SERVICES

AGREEMENT BETWEEN THE CITY OF ONTARIO
AND GALLAGHER BENEFIT SERVICES, INC.

IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 2 as of the day and year first above written.

CITY OF ONTARIO GALLAGHER BENEFIT SERVICES, INC.

By:

Its:

Printed Name:

By:

Its:

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

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

City Clerk
253

RECRUITMENT SERVICES FOR CITY OF ONTARIO

PRICING PROPOSAL
Note: Expenses do not include candidate travel.

Optional: Recruitment Video
In addition to the standard recruitment brochure, K&A can develop a Recruitment Video to better highlight the positive elements of the organization and community. These videos have proven to attract more job seekers and effectively expand the talent pool. Videos run approximately three-minutes in length and highlight the workplace environment, local landscape, and include interviews with selected staff. This video is optional and costs $3,500.

Placement Guarantee
K&A Recruiting is committed to recommending only the most qualified candidates who meet all the necessary requirements and qualifications and are also a cultural fit for the City. We proactively recruit for each search effort until a successful candidate is placed.

Therefore, we promise to present to the Hiring Authority a selective pool of candidates that met or exceeded our standards during the thorough screening processes and have been identified as ideal matches for the position. Should the Hiring Authority disapprove of all final candidates or should none pass the final interview and reference check process, we will work to find a new slate of candidates at no added cost, with the possible exception of necessary advertising.

In addition, for full recruitments for executive and mid-management positions, should the incumbent leave the position or be terminated from employment within 12 months of hire due to performance issues, we commit to conducting a one-time additional executive search to identify a replacement and only charge related expenses as described in the Pricing Proposal.

Overall, K&A Recruiting’s retention rate during the first 12 months of hire is robust and has been above 95% over the last 37 years.

Project
• ecruitment Services
Professional Fee and Expenses
• Total not-to-exceed professional fee of $25, 00 , which includes all professional services and expenses, including brochure development and design, advertising, printing and shipping, associated consultant travel if required, and background. • Invoices will be billed monthly in four equal increments of $6, .

EXHIBIT "A"

SCOPE OF SERVICES
254

RECRUITMENT SERVICES FOR CITY OF ONTARIO
Recruiting Process During Covid-19 Crisis
We will work to counterbalance market forces and build a pipeline of potential candidates through strong marketing and branding efforts, including videos, job postings, and a social media campaign. Our ongoing communication with candidates helps with reputation and keeps them engaged; so, when there is an opportunity that matches their background, we reduce the time-to-hire. As always, communication is key.

Candidates who experience a warm, communicative recruitment experience are more likely to maintain their interest and are more likely to feel welcomed into the organization. The recruitment experience is the first impression your employee receives and is a crucial factor in employee engagement and tenure.

We have embraced the virtual interview. The push into virtual technologies due to the pandemic was generally new for many public agencies. Our crystal ball tells us that virtual interviewing is not going away regardless of how the public sector world evolves going forward beyond the pandemic. Although virtual interviewing may have become necessary during this crisis, it is not a temporary strategy that should fall to the wayside; how we communicate in virtual interviews is essential and will continue to be as we move forward.

To conduct an effective virtual interview, simple steps can be taken to ensure a predictable and high-quality process. We will be clear on exactly how the interview process will go and what candidates should expect. We are savvy at navigating the technology and can help with technical challenges on the fly. Coaching panel members to maintain a professional demeanor during virtual interviews and eliminate smartphone or other competing screen distractions, just as you would in person, can also help the process.

K&A Recruiting Organizational Diversity Statement
This statement reaffirms our commitment to affirmative action efforts and providing equal employment opportunities to all employees and applicants for employment in accordance with equal opportunity and affirmative action laws.

We affirm our personal and official support of these policies, which provide that K&A Recruiting is committed to implementing the affirmative action policies, programs, and procedures included in this plan to ensure that employment practices are free from discrimination. Employment practices include but are not limited to the following: hiring, promotion, demotion, transfer, recruitment or recruitment advertising, layoff, disciplinary action, termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. We will provide reasonable accommodation to applicants and employees with disabilities. 255

RECRUITMENT SERVICES FOR CITY OF ONTARIO
OTHER: PROFESSIONAL SERVICES AGREEMENT ACKNOWLEDGEMENT
We will be pleased to sign the City’s professional services agreement for recruitment services, however we respectfully request that the City will allow for a period of negotiation of certain terms in the professional services contract related to liability, indemnity, insurance, and other terms. We have found that we have always come to an agreement with all of our clients in the past and appreciate the City’s flexibility in reviewing certain terms in a collaborative fashion between our legal counsels.

INSURANCE ACKNOWLEDGEMENT
Gallagher shall at all times during the term of this Agreement and for a period of two (2) years thereafter, obtain and maintain in force the following minimum insurance coverages and limits at its own expense:

Commercial General Liability (CGL) insurance on an ISO form number CG 00 01 (or equivalent) covering claims for bodily injury, death, personal injury, or property damage occurring or arising out of the performance of this Agreement, including coverage for premises, products, and completed operations, on an occurrence basis, with limits no less than $2,000,000 per occurrence;
Workers Compensation insurance with statutory limits, as required by the state in which the work takes place, and Employer’s Liability insurance with limits no less than $1,000,000 per accident for bodily injury or disease. Insurer will be licensed to do business in the state in which the work takes place; Automobile Liability insurance on an ISO form number CA 00 01 covering all hired and non-owned automobiles with limit of $1,000,000 per accident for bodily injury and property damage; Umbrella Liability insurance providing excess coverage over all limits and coverages with a limits no less than $10,000,000 per occurrence or in the aggregate;
Errors & Omissions Liability insurance, including extended reporting conditions of two (2) years with limits of no less than $5,000,000 per claim, or $10,000,000 in the aggregate; Cyber Liability, Technology Errors & Omissions, and Network Security & Privacy Liability insurance, including extended reporting conditions of two (2) years with limits no less than $2,000,000 per claim and in the aggregate, inclusive of defense cost; and
Crime insurance covering third-party crime and employee dishonesty with limits of no less than $1,000,000 per claim and in the aggregate.

All commercial insurance policies shall be written with insurers that have a minimum AM Best rating of no less than A-VI, and licensed to do business in the state of operation. Any cancelled or non-renewed policy will be replaced with no coverage gap, and a Certificate of Insurance evidencing the coverages set forth in this section shall be provided to Client upon request.
256

RECRUITMENT SERVICES FOR CITY OF ONTARIO

SIGNATURE PAGE
We thank you for your consideration of our proposal. We are committed to providing high-quality service and investing in a long-term partnership.

This proposal is valid for ninety (90) days.

Respectfully submitted,
By: KOFF & ASSOCIATES
State of California
Frank Rojas Date: 2022
Recruitment Manager
257
Department: Public Works
Prepared By: Gil H Mars
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: 11
SUBJECT:

PROFESSIONAL DESIGN SERVICES AGREEMENTS FOR ON-CALL ARCHITECTURAL

SERVICES FOR THE ONTARIO MUSEUM OF HISTORY AND ART

CITY OF ONTARIO
Agenda Report
October 15, 2024
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council take the following actions:

A
.

Reject the protest from MAAM Architects for D&C23-009 Museum On-Call Architect as the selection was based on qualifications, and
B
.

Authorize the City Manager or his designee to complete and execute the following three-year Professional Design Services Agreement for On-Call Architectural Services for a total compensation amount of $1,000,000 over three (3) years and extend the agreements for up to two (2) additional one-year periods:
1 .

Frederick Fisher & Partners, of Los Angeles, California for a total contract amount not- to-exceed $250,000;
2 .

Architectural Resources Group, of Los Angeles, California for a total contract amount not-to-exceed $150,000;
3 .

Page & Turnbull, of Los Angeles, California for a total contract amount not-to-exceed $150,000;
4 .

HMC Architects, of Ontario, California for a total contract amount not-to-exceed $150,000;
5 .

Smithgroup, of Los Angeles, California for a total contract amount not-to-exceed $150,000; and
6 .

Johnson Favaro, of Culver City, California for a total contract amount not-to-exceed $150,000; and
C. Authorize the City Manager or his designee to execute all documents required for the completion of the project including, but not limited to agreements, assessments, easements, reduction of retention accounts, contracts amendments within the authorization limits, and filing a notice of completion at the conclusion of all construction related activities.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
258
Invest in the Growth and Evolution of the City's Economy Encourage, Provide or Support Enhanced Recreational, Educational, Cultural and Healthy City Programs, Policies and Activities
Operate in a Businesslike Manner
FISCAL IMPACT:

The proposed Design Services Agreement with Frederick Fisher & Partners is in the amount of $83,333 per year for a total not-to-exceed contract amount of $250,000. The proposed Design Services Agreement with Architectural Resources Group is in an amount of $50,000 per year for a total not-to-exceed contract amount of $150,000. The Proposed Design Services Agreement with Page & Turnbull is in an amount of $50,000 per year for a total not-to-exceed contract amount of $150,000. The Proposed Design Services Agreement with HMC Architects is in an amount of $50,000 per year for a total not-to-exceed contract amount of $150,000. The Proposed Design Services Agreement with Smithgroup is in an amount of $50,000 per year for a total not-to-exceed contract amount of $150,000. The Proposed Design Services Agreement with Johnson Favaro is in an amount of $50,000 per year for a total not-to-exceed contract amount of $150,000.

BACKGROUND & ANALYSIS:

The Ontario Museum of History & Arts has the need for On-Call Architectural Services for work that cannot be provided by City Staff. Staff is recommending contracts with a total of six qualified firms that each have their own specialty consisting of adaptive reuse of historic buildings, experience in creative design spaces, exhibition specialty, and preservation expertise. This multiple firm contract process assures that a timely and cost-effective option is always available for each task order. Additionally, Staff recommends that all contracts be executed between the firms and the City, so that any city agencies can use these firms. This procedure reduces overhead charges and increases efficiency in completing critical projects, ultimately resulting in well-executed projects.

On July 8, 2024, the City solicited requests for proposals for Invitation No. 1819 for On-Call Architectural Services and responses from the following companies were evaluated:

Architectural Firm
Location
Architectural Resources Group
Los Angeles, CA
Frederick Fisher & Partners
Los Angeles, CA
Hammel Green & Associates
Santa Monica, CA
HMC Architects
Ontario, CA
Johnson Favaro
Culver City, CA
MAAM
Los Angeles, CA
Page & Turnbull
Los Angeles, CA
Smithgroup
Los Angeles, CA
TOLO Architecture
Los Angeles, CA

Utilizing a qualifications-based selection process, consistent with Gov. Code, § 4529.12, Staff reviewed the requests for proposals. MAAM protests the Notice of Intent to Award on the grounds that Staff did not select an SBE (Small Business Enterprise) or WBE (Woman Business Enterprise). 259
MAAM’s protest should be rejected because SBE status was not considered nor required to be considered under Gov. Code, § 4529.12. Even if considered, it would not change Staff’s determination that the selected firms are more qualified. WBE status was not considered because Article I, section 31 of the California Constitution (Proposition 209) prohibits such considerations in these circumstances (where there is no federal funding imposing such a mandate).

Frederick Fisher & Partners, Architectural Resources Group, Page & Turnbull, HMC Architects, Smithgroup and Johnson Favaro were deemed to be the most qualified firms. The recommendation to award Professional Design Services Agreements to these firms is based on their broad range of expertise as demonstrated by interviews and the capability to perform highly complex work in a timely manner.
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C

ITY OF ONTARIO

DESIGN SERVICES AGREEMENT

1. PARTIES AND DATE.

This Agreement is made and entered into as of ____________, by and between the City of Ontario, a municipal corporation organized and operating under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764 - 4196, County of San Bernardino, State of California (“City”), and HMC Group d ba HMC Architects a Corporation, with its principal place of business at 3546 Concours Street, Ontario, CA 91764 (hereinafter referred to as “ Consultant”). City and Consultant are sometimes individually referred to herein as “Party” and collectively as “Parties.”

2. RECITALS.

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

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

2.3 Project. City desires to engage Consultant to render such services for the Museum Improvements On -Call Architectural Services ("Project") as set forth in this Agreement.

3. T ERMS

3.1 Employment of Consultant.

3.1.1 S cope of Services . Consultant promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional architectural and related services necessary for the full and adequate completion of the Project consistent with the provisions of this Agreement (hereinafter referred to as “Services”). The Services are more particularly described throughout this Agreement, including Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, any exhibits 261
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attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. All Services performed by Consultant shall be subject to the sole and discretionary approval of the City, which approval shall not be unreasonably withheld.

3.1.2 Term. The term of this Agreement shall be from November 4, 2024, to November 4, 2027, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than two (2) additional one-year terms. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines.

3.2 Project Consultant; Key Personnel.

3.2.1 Project Architect. Consultant shall name a specific individual to act as Project Consultant, subject to the approval of City. Consultant hereby designates Kyle Peterson (License No. C-32052) to act as the Project Architect for the Project. The Project Architect shall:
(1) maintain oversight of the Services; (2) have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement; (3) supervise and direct the Services using his or her best skill and attention; (4) be responsible for the means, methods, techniques, sequences and procedures used for the Services; (5) adequately coordinate all portions of the Services; and (6) act as principal contact with City and all contractors, consultants, engineers and inspectors on the Project. Any change in the Project Architect shall be subject to the City’s prior writ ten approval, which approval shall not be unreasonably withheld. The new Project Architect shall be of at least equal competence as the prior Project Architect. In the event that City and Consultant cannot agree as to the substitution of a new Project Ar chitect, City shall be entitled to terminate this Agreement for cause.

3.2.2 Key Personnel. In addition to the Project Architect , Consultant has represented to the City that certain additional key personnel, engineers and consultants will perform the Services under this Agreement. Should one or more of such personnel, engineers or consultants become unavailable, Consultant may substitute others of at least equal competence upon written approval of the City. In the event that City and Consultant cannot agree as to the substitution of key personnel, engineers or consultants, City shall be entitled to terminate this Agreement for cause. The key additional personnel, engineers and consultants for performance of this Agreement are as follows: Samantha Eklund, Project Manager. Sergio Lechuga, Interior Design Principal.

3.3 Hiring of Consultants and Personnel.

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

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

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

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

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

3.4 Standard of Care.

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

3.4.2 P
erformance of Employees. Any employee or consultant who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee or consultant who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.
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3.5 Laws and Regulations.

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

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

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

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

3.5.5 W
ater Quality Management and Compliance. Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances 264
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regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000- 14950); and any and all regulations, policies, or permits issued pursuant to any such authority.

Consultant shall additionally comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges. Failure to comply with laws, regulations, and ordinances listed in this Section is a violation of federal and state law.

3.6 Independent Contractor.

3.6.1 Control and Payment of Subordinates . City retains Consultant on an independent contractor basis and Consultant is not an employee of City. Consultant is not an employee for state tax, federal tax or any other purpose, and is not entitled to the rights or benefits afforded to City’s employees. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City, and shall at all times be under Consultant’s exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.

3.7 Schedule of Services.

3.7.1 Consultant Services. Consultant shall fully and adequately complete the Services described in this Agreement and in Exhibit “A” attached hereto and incorporated herein by reference.

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

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

3.7.3 P
erformance Schedule. Consultant shall prepare an estim ated time schedule for the performance of Consultant ’s Services, to be adjusted as the Project proceeds.

Such schedule shall be subject to the City’s review and approval, which approval shall not be unreasonably withheld, and shall include allowances for periods of time required for City’s review and approval of submissions, and for approvals of authorities having jurisdiction over Project approval and funding. If City and Consultant cannot mutually agree on a performance schedule, City shall have the authority to immediately terminate this Agreement. The schedule shall not be exceeded by Consultant without the prior written approval of City. If the Consultant’s Services are not completed within the time provided by the agreed upon performance schedule, or any milestones established therein, it is understood, acknowledged and agreed that the City will suffer damage for which the Consultant will be responsible.
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3.7.4 Excusable Delays. Any delays in Consultant ’s work caused by the following may be added to the time for completion of any obligations of Consultant: (1) the actions of City or its employees; (2) the actions of those in direct contractual relationship with City; (3) the actions of any governmental agency having jurisdiction over the Project; (4) the actions of any parties not within the reasonable control of the Consultant; and (5) any Force Majeure Event (as defined herein) or other unforeseen occurrence not due to any fault or negligence on the part of Consultant. Neither the City nor the Consultant shall be liable for damages, liquidated or otherwise, to the other on account of such delays.

3.7.5 For ce Majeure Events. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non- performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unfor eseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the services, only to the extent such strikes and other organized labor action are beyond the control of Consultant and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the Services and Agreement. Should a Force Majeure Event occur, the non- performing Party shall, within fifteen (15) calendar days of the beginning of an Force Majeure Event, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events shall not entitle Consultant to any additional compensation. Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.

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

3.8 Additional Services.

3.8.1 Request for Services . At City’s request, Consultant may be asked to perform services not otherwise included in this Agreement, not included within the basic services 266
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listed in Exhibit “A” attached hereto, and/or not customarily furnished in accordance with generally accepted architectural practice.

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

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

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

3.9.1 Data and Information. City shall make available to Consultant all necessary data and information concerning the purpose and requirements of the Project, including scheduling and budget limitations, objectives, constraints and criteria. As part of the budget 267
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limitation information, the City shall provide the Consultant with a preliminary construction budget (“City’s Preliminary Construction Budget”).

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

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

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

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

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

3.9.7 Cit y’s Representative . The City hereby designates the City Manager, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Contract. The City Manager hereby designates Marissa Kucheck, Museum Director, or his or her designee, as the City’s contact for the implementation of the Services hereunder. Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.

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

3.10 Compensation.

3.10.1 Consultant’s Compensation for Basic Services . City shall pay to Consultant, for the performance of all Services rendered under this Agreement, the total not to exceed amount of One Hundred Fifty Thousand Dollars ($150,000) (“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. 268
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3.10.2 Payment for Additional Services . At any time during the term of this Agreement, City may request that Consultant perform A dditional Services. As used herein, Additional Services means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement . Any additional work in excess of this amount must be approved by the City. If authorized, such Additional Services will be compensated at the rates and in the manner set forth in Exhibit “C” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the Parties. If City requires Consultant to hire consultants to perform any Additional Services, Consultant shall be compensated therefore at the rates and in the manner set forth in Exhibit “C” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the Parties. City shall have the authority to review and approve the rates of any such consultants. In addition, Consultant shall be reimbursed for any expenses incurred by such consultants pursuant to the terms and conditions of Section 3.10.3.

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

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

3.10.4 P
ayment to Consultant . Consultant ’s compensation and reimbursable expenses shall be paid by City to Consultant no more often than monthly. Such periodic payments shall be made based upon the percentage of work completed, and in accordance with the phasing and funding schedule provided in Exhibit “B” and the compensation rates indicated in Exhibit “C” attached hereto and incorporated herein by reference. In order to receive payment, Consultant shall present to City an itemized statement which indicates Services performed, percentage of Services completed, method for computing the amount payable, and the amount to be paid. The statement shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement, as well as those expenses for which reimbursement is requested for that statement period. The amount paid to Consultant shall never exceed the percentage amounts authorized by the phasing and funding schedule located in Exhibit “B” attached hereto. City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon pursuant to the provisions of Civil Code Section 3320. Disputed amounts shall be resolved by the Parties in a mutually agreeable manner.

Payments made for Additional Services shall be made in installments, not more often than monthly, proportionate to the degree of completion of such services or in such other manner as the Parties shall specify when such services are agreed upon, and in accordance with any authorized fee or rate schedule. In order to receive payment, Consultant shall present to City an itemized statement which indicates the Additional Services performed, percentage of Additional Services completed, method for computing the amount payable, and the amount to be paid. The statement shall describe the amount of Additional Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within thirty (30) days of receiving such st atement, review 269
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the statement and pay all approved charges thereon pursuant to the provisions of Civil Code Section 3320. Disputed amounts shall be resolved by the Parties in a mutually agreeable manner.

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

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

3.10.6 P
revailing Wages . Consultant is aware of the requirements of California Labor Code Sections 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and If the total compensation is $1,000 or more, Consultant agrees to fully comply with and to require its consultants to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement.

Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant’s principal place of business and at the Project site. It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.

Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure of the Consultant or its consultants to comply with the Prevailing Wage Laws.
(a) R
egistration/DIR Compliance. If the Services are being performed as part of an applicable “public works project” of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such Services must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain 270
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registration for the duration of the P roject and require the same of any subconsultants. This project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the Department of Industrial Relations against Consultant or any subconsultant that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subconsultant.

3.10.7 Automated Clearing House (“ACH”) payments. It is the City’s policy to pay its consultant invoices via electronic fund transfers through the ACH network. All payments due and owing pursuant to a properly issued and correct invoice or under this Agreement shall be made through electronic ACH transfers, unless otherwise agreed upon by both Parties in writing.

Consultant shall provide the City with ACH payment details whereby the City shall initiate the ACH transfers to Consultant in the amount required pursuant to a properly issued and correct invoice or under this Agreement. Each Party shall undertake any and all required actions and execute any required documents, instruments, or agreements required to effectuate the requirements of this Section. In the event the City erroneously deposits funds into an account, or otherwise deposits funds to which Consultant is not entitled: (1) Consultant shall immediately notify the City and the financial institution; (2) Consultant shall not withdraw any of the funds which were erroneously deposited or to which Consultant is not entitled; and (3) Consultant authorizes both the City and financial institution to take all actions necessary to correct the error and return to the City all funds erroneously deposited or to which Consultant is not entitled.

3.11 Notice to Proceed.

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

3.12 Termination, Suspension and Abandonment.

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

3.12.2 C
ity’s Suspension of Work . If Consultant’s Services are suspended by City, City may require Consultant to resume such Services within ninety (90) days after written notice 271
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from City. When the Project is resumed, the Total Compensation and schedule of Services shall be equitably adjusted upon mutual agreement of the City and Consultant.

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

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

3.12.4 E
mployment of other Consultants. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.

3.13 Ownership and Use of Documents; Confidentiality.

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

3.13.2 Rig
ht to Use . Consultant grants to City the right to use and reuse all or part of the Project Documents, at City’s sole discretion and with no additional compensation to Consultant, for the following purposes:
(a) The construction of all or part of this Project.
(b) The repair, renovation, modernization, replacement, reconstruction or expansion of this Project at any time;
(c) The construction of another project by or on behalf of the City for its ownership and use;
City is not bound by this Agreement to employ the services of Consultant in the event such documents are used or reused for these purposes. City shall be able to use or reuse the Project Documents for these purposes without risk of liability to the Consultant or third parties with respect 272
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to the condition of the Project Documents, and the use or reuse of the Project Documents for these purposes shall not be construed or interpreted to waive or limit City’s right to recover for latent defects or for errors or omissions of the Consultant.

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

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

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

3.13.5 C onfidentiality . All Project Documents, either created by or provided to Consultant in connection with the performance of this Agreement, shall be held confidential by Consultant to the extent they are not subject to disclosure pursuant to the Public Records Act. All Project Documents shall not, without the written consent of City, be used or reproduced by Consultant for any purposes other than the performance of the Services. Consultant shall not disclose, cause or facilitate the disclosure of the Project Documents to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City’s name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the written consent of City.

3.14 Indemnification.

3.14.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall 273
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survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.

3.14.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.

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

3.15.1 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, Consultant shall, at its expense, procure and maintain in full force and effect for the duration of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so.

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

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

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

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

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

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

Coverage Combined Single Limit
Commercial General Liability $2,000,000 per occurrence/ $4,000,000 aggregate for bodily injury, personal
injury, and property damage
Automobile Liability $2,000,000 per occurrence for bodily injury and property damage
Employer’s Liability $1,000,000 per occurrence
Professional Liability $2,000,000 per claim and aggregate (errors and omissions)

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

3.15.8 Evidence Required
(a) Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord 276
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Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer a nd shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance.

3.15.9 Policy Provisions Required
(a) C onsultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such polic y due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration.
(b) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant ’s policy is primary insurance and that any insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
(c) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims -made policy with a retroactive date subsequent to the effective date of this Agreement.
(d) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteer s or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
(e) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability.

Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.

3.15.10 Qualifying Insurers
(a) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or 277
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otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.

3.15.11 Additional Insurance Provisions
(a) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(b) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
(c) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (d) Neither the City nor the City Council, nor any member of the City Council, nor any of the officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.

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

3.16 Records.

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

Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of five (5) years from the date of final payment under this Agreement.

3.17 Standardized Manufactured Items.

Consultant shall cooperate and consult with City in the use and selection of manufactured items on the Project, including but not limited to, paint, hardware, plumbing, mechanical and electrical equipment, fixtures, roofing materials and floor coverings. All such manufactured items 278
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shall be standardized to Ci ty’s criteria to the extent such criteria do not interfere with building design.

3.18 Limitation of Agreement.

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

3.19 Mediation.

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

3.20 Successors and Assigns.

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

3.21 Asbestos Certification.

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

3.22 No Third Party Rights.

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

3.23 Governing Law.

This Agreement shall be construed in accordance with, and governed by, the laws of the State of California. Venue shall be in San Bernardino County. 279
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3.24 Exhibits and Recitals.

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

3.25 Severability.

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

3.26 Non-Waiver.

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

3.27 Safety.

Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of its employees, consultant and subcontractors appropriate to the nature of the work and the conditions under which the work is to be performed.

3.28 Harassment Policy.

Consultant shall provide a copy of the City's Harassment Policy to each of its employees assigned to perform the tasks under this Agreement. Consultant shall submit to the City's Personnel Manager a statement signed by each of its employees who are assigned to perform the Services under this Agreement certifying receipt of City's Harassment Policy and certifying that they have read the Harassment Policy. A finding by the City that any of Consultant 's employees has harassed a City employee shall be grounds for appropriate discipline, up t o and including such employee's removal from performance of this Agreement at City's request.

3.29 Delivery of Notices.

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

CITY:

City of Ontario
303 East “B” Street
Ontario, CA 91764
Attn: Ms. Marissa Kucheck, Museum Director
CONSULTANT:

HMC Group dba HMC Architects
3546 Concours Street
Ontario, CA 91764
Attn: Kyle Peterson

Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the Party 280
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at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

3.30 Time of Essence.

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

3.31 City’s Right to Employ Other Consultants.

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

3.32 Prohibited Interests.

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

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

3.33 Equal Opportunity Employment.

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

Such non- discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City’s minority business enterprise program, affirmative action plan or other related programs or guidelines currently in effect or hereinafter enacted.

3.34 Labor Certification.

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

3.35 Subcontracting.

As specified in this Agreement, Consultant shall not subcontract any portion of the Services r equired by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to each and every provision of this Agreement.
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3.36 Supplemental Conditions.

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

3.37 Entire Agreement.

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

SIGNATURES ON FOLLOWING PAGE
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SIGNATURE PAGE FOR DESIGN SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO

AND HMC GROUP DBA HMC ARCHITECTS
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.

CITY OF ONTARIO HMC Group dba HMC Architects

By:

Its:

Printed Name:

By:

Its:

Printed Name:

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

Approved By:

Scott Ochoa
City Manager
Approved as to Form:

_____________________________________
Best Best & Krieger LLP
City Attorney

Attested By:

City Clerk

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EXHIBIT “A”

SCOPE OF SERVICES

1. GENERAL REQUIREMENTS.

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

1.2 Exclusions from Basic Services. The following services shall be excluded from the basic services listed above: To be determined on a case -by-case basis for this On- Call, as needed Architectural services

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

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

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

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

2. INITIAL PLANNING PHASE.

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

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

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

Consultant shall use its best judgment in determining the balance between the size, type and quality of construction to achieve a satisfactory solution within the Project’s budget and 284
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construction allowance. It shall be the duty of the Consultant to design the Project within budget.

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

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

3. SCHEMATIC PLAN PHASE.

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

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

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

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

3.4 Copies of Schematic Plans and Other Documents. Consultant , at its own expense, shall provide a complete set of the Schematic Plans described herein for City’s review and approval. Additionally, at City’s expense, Consultant shall provide such documents as may be required by any federal, state, regional or local agencies concerned with the Project. Any additional copies required by City shall be provided at actual cost to City. 285
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BB&K (2024) Exhibit A-3

4. DESIGN DEVELOPMENT PHASE.

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

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

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

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

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

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

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

5. FINAL WORKING DRAWINGS AND SPECIFICATIONS.

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

5.1 Final Working Drawings and Specifications. Once City provides Consultant with specific written approval of the Design Development Documents described herein, Consultant shall prepare such complete working drawings and s pecifications as are necessary for developing complete bids and for properly executing the Project work in an efficient and thorough manner (“Final Working Drawings and Specifications”). Such Final Working Drawings and Specifications shall be developed fr om the Schematic Plans and Design Development Documents approved by City. The Final Working Drawings and Specifications shall set forth in 286
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BB&K (2024) Exhibit A-4

detail all of the following: (1) the Project construction work to be done; (2) the materials, workmanship, finishes, and equipment required for the architectural, structural, mechanical, and electrical systems; and (3) the utility service connection equipment and site work. As indicated in Section 3.9.2 of the Agreement, City may be requested to supply Consultant with the necessary information to determine the proper location of all improvements on and off site, including record drawings (“as-built drawings”) in City’s possession. Consultant will make a good -faith effort to verify the accuracy of such information by means of a thorough interior and exterior visual survey of site conditions. City shall also make a good -faith effort to verify the accuracy of the as -built drawings and provide any supplemental information to Consultant which may not be shown on the as-built drawings.

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

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

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

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

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

Consultant, at its own expense, shall provide a complete set of the Final Working Drawings and Specifications described herein for City’s review and approval. Additionally, at City’s expense, 287
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Consultant shall provide such documents as may be required by any federal, state, regional or local agencies concerned with the Project. A ny additional copies required by City shall be provided at actual cost to City.

6. CONSTRUCTION CONTRACT DOCUMENTS.

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

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

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

7. BID PHASE.

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

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

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

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

8. CONSTRUCTION PHASE.

During the construction phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
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8.1 Observation. The Project Consultant shall observe work executed from the Final Working Drawings and Specifications in person, provided that City may, in its discretion, consent to such observation by another competent representative of Consultant.

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

8.3 Pre-Construction Meeting. Consultant shall conduct one or more pre- construction meetings, as the City determines is needed for the Project, with all interested Parties.

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

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

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

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

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

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

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

8.11 Material and Test Reports. Consultant shall check and process, in a timely manner, all required material and test reports for the Project work . In addition, Consultant shall provide notice of any deficiencies in material or work reflected in such reports, as well as its recommendation for correction of such deficiencies, to the contractors and City. 289
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8.12 Review and Response to Submissions. Consultant shall review and respond, in a timely manner, to all schedules, submittals, shop drawings, samples, information requests, change requests, and other submissions of the contractor and subcontractors for compliance with, or alterations and additions to, the Construction Documents. Consultant’s review and response shall be done in such a manner so as to ensure the timely and uninterrupted progress of the Project work.

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

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

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

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

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

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

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

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

8.20 Punch List. After determining that the Project is substantially complete, Consultant shall participate in the inspection of the Project and shall review all remaining deficiencies and minor items needed to be corrected or completed on the Project, including those identified on the punch list prepared by the contractor (“Punch List Items”). Consultant shall notify 290
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contractor in writing that all Punch List Items must be corrected prior to final acceptance of the Project and final payment. Consultant shall also notify City of all Punch List Items.

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

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

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

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

9. AS-BUILT DRAWINGS.

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

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

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

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

10. WARRANTY PERIOD.

During the warranty period phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
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BB&K (2024) Exhibit A-9

10.1 Advice. Consultant shall provide advice to City on apparent deficiencies in the Project during any applicable warranty periods for the Project. 292
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BB&K (2024) Exhibit B-1

EXHIBIT “B”

FEE AND PHASING/FUNDING SCHEDULES

1. FEE SCHEDULE.

Consultant will invoice City on a monthly cycle based on the following fee schedule.

Consultant will include with each invoice a detailed progress report that indicates the amount of budget spent on each phase and the total amount spent against the Total Compensati on.

Consultant will inform City regarding any out -of-scope work being performed by Consultant for which Consultant intends to seek compensation from City.

2. PHASING/FUNDING SCHEDULE.

Progress payments towards Total Compensation shall never exceed the foll owing percentages of Total Compensation as of the phase indicated:

Initial Planning Phase: ________ percent (%____)
Schematic Plan Phase: ________ percent (%____)
Design Development Phase: ________ percent (%____) Final Working Drawings & Specifications Phase: ________ percent (%____) Construction Contract Documents Phase: ________ percent (%____) Bid Phase: ________ percent (%____)
Construction Phase: ________ percent (%____)
As-Built Drawings Phase: ________ percent (%____)
Warranty Period Phase: ________ percent (%____)

Note: No Phasing/Funding Schedule is necessary until a project task is issued under the contract
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BB&K (2024) Exhibit C-1

EXHIBIT “C”

COMPENSATION RATES AND REIMBURSABLE EXPENSES

1. HOURLY COMPENSATION RATES. BELOW

2. REIMBURSABLE EXPENSES.

Reimbursable expenses shall be billed at cost plus 15% and include the typical:
-Reproduction costs, travel costs, special renderings, consultants retained with client approval

3. ADDITIONAL SERVICES.

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

4. ADDITIONAL CONSULTANTS.

If City requires Consultant to hire consultants to perform any Additional Serv ices, Consultant shall be compensated therefore at the Consultant ’s actual hourly rates plus 15%.

Owner shall have the authority to review and approve the rates of any such consultants. 294
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C

ITY OF ONTARIO

DESIGN SERVICES AGREEMENT

1. PARTIES AND DATE.

This Agreement is made and entered into as of ____________, by and between the City of Ontario, a municipal corporation organized and operating under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764 - 4196, County of San Bernardino, State of California (“City”), and Johnson Favaro, LLP , a Partnership with its principal place of business at 5898 Blackwelder Street, Culver City, CA 90232 (hereinafter referred to as “Consultant”). City and Consultant are sometimes individually referred to herein as “Party” and collectively as “Parties.”

2. RECITALS.

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

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

2.3 Project. City desires to engage Consultant to render such services for the Museum Improvement On -Call Architectural Services ("Project") as set forth in this Agreement.

3. TERMS

3.1 Employment of Consultant.

3.1.1 Scope of Services. Consultant promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional architectural and related services necessary for the full and adequate completion of the Project consistent with the provisions of this Agreement (hereinafter referred to as “Services”). The Services are more particularly described throughout this Agreement, including Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, any exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal 295
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laws, rules and regulations. All Services performed by Consultant shall be subject to the sole and discretionary approval of the City, which approval shall not be unreasonably withheld.

3.1.2 Term. The term of this Agreement shall be from November 4, 2024, to November 4, 2027, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than two (2) additional one-year terms. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines.

3.2 Project Consultant; Key Personnel.

3.2.1 Project Architect. Consultant shall name a specific individual to act as Project Consultant, subject to the approval of City. Consultant hereby designates Jim Favaro (License No. C32185) to act as the Project Architect for the Project. The Project Architect shall:
(1) maintain oversight of the Services; (2) have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement; (3) supervise and direct the Services using his or her best skill and attention; (4) be responsible for the means, methods, techniques, sequences and procedures used for the Services; (5) adequately coordinate all portions of the Services; and (6) act as principal contact with City and all contractors, consultants, engineers and inspectors on the Project. Any change in the Project Architect shall be subject to the City’s prior written approval, which approval shall not be unreasonably withheld. The new Project Architect shall be of at least equal competence as the prior Project Architect. In the event that City and Consultant cannot agree as to the substitution of a new Project Architect , City shall be entitled to terminate this Agreement for cause.

3.2.2 Key Personnel . In addition to the Project Architect , Consultant has represented to the City that certain additional key personnel, engineers and consultants will perform the Services under this Agreement. Should one or more of such personnel, engineers or consultants become unavailable, Consultant may substitute othe rs of at least equal competence upon written approval of the City. In the event that City and Consultant cannot agree as to the substitution of key personnel, engineers or consultants, City shall be entitled to terminate this Agreement for cause. The key additional personnel, engineers and consultants for performance of this Agreement are as follows: Steve Johnson, Principal Project Architect; Ingrid Dennert, As. Project Manager; Kevin Geraghty, Sr. Design Associate

3.3 Hiring of Consultants and Personnel.

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

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

3.3.2 Qualification and License. All architects, engineers, experts and other consultants retained by Consultant in performance of this Agreement shall be qualified to perform 296
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the Services assigned to them, and shall be licensed to practice in their respective professions, where required by law.

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

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

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

3.4 Standard of Care.

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

3.4.2 Performance of Employees . Any employee or consultant who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee or consultant who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.

3.5 Laws and Regulations.

3.5.1 Knowledge and Compliance. Consultant shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and regulations in any 297
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manner affecting the performance of the Services or the Project, and shall give all notices required of the Consultant by law. Consultant shall be liable, pursuant to the standard of care and indemnification provisions of this Agreement, for all violations of such laws and regulations in connection with its Services. Consultant shall defend, indemnify and hold City, its officials, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.

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

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

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

3.5.5 Water Quality Management and Compliance. Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, wi thout limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000- 14950); and any and all regulations, policies, or permits issued pursuant to any such authority.

Consultant shall additionally comply with the lawful requirements of the City, and any other 298
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municipality, drainage district, or other local agency with j urisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges. Failure to comply with laws, regulations, and ordinances listed in this Section is a violation of federal and state law.

3.6 Independent Contractor.

3.6.1 Control and Payment of Subordinates . City retains Consultant on an independent contractor basis and Consultant is not an employee of City. Consultant is not an employee for state tax, federal tax or any other purpose, and is not entitled to the rights or benefits afforded to City’s employees. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City, and shall at all times be under Consultant’s exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.

3.7 Schedule of Services.

3.7.1 Consultant Services. Consultant shall fully and adequately complete the Services described in this Agreement and in Exhibit “A” attached hereto and incorporated herein by reference.

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

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

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

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

3.7.4 Excusable Delays . Any delays in Consultant ’s work caused by the following may be added to the time for completion of any obligations of Consultant: (1) the actions of City or its employees; (2) the actions of those in direct contractual relationship with City; (3) the actions of any governmental agency having jurisdiction over the Project; (4) the actions of any 299
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parties not within the reasonable control of the Consultant; and (5) any Force Majeure Event (as defined herein) or other unforeseen occurrence not due to any fault or negligence on the part of Consultant. Neither the City nor the Consultant shall be liable for damages, liquidated or otherwise, to the other on account of such delays.

3.7.5 Force Majeure Events. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non- performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the services, only to the extent such strikes and other organized labor action are beyond the control of Consultant and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the Services and Agreement. Should a Force Majeure Event occur, the non- performing Party shall, within fifteen (15) calendar days of the beginning of an Force Majeure Event, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events shall not entitle Consultant to any additional compensation. Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.

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

3.8 Additional Services.

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

3.8.2 Definition. As used herein, “Additional Services” mean: (1) any work which is determined by City to be necessary for the proper completion of the Project, but which the 300
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Parties did not reasonably anticipate would be necessary for the Consultant to perform at the execution of this Agreement; or (2) any work listed as Additional Services in Exhibit “A” attached hereto. Consultant shall not perform, nor be compensated for, Additional Services without prior written authorization from City and without an agreement between the City and Consultant as to the compensation to be paid for such services. City shall pay Consultant for any approved Additional Services, pursuant to the compensation provisions herein, so long as such services are not made necessary through the fault of Consultant pursuant to the indemnification provision of this Agreement.

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

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

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

3.9.2 Project Survey . If required pursuant to the scope of the Project and if requested by Consultant , City shall furnish Consultant with, or direct Consultant to procure at 301
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City’s expense, a survey of the Project site prepared by a registered surveyor or civil engineer, any other record documents which shall indicate existing structures, land features, improvements, sewer, water, gas, electrical and utility lines, topographical information and boundary dimensions of the site, and any other such pertinent information.

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

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

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

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

3.9.7 City’s Representative. The City hereby designates the City Manager, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Contract. The City Manager hereby designates Marissa Kucheck, Museum Director, or his or her designee, as the City’s contact for the implementation of the Services hereunder. Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.

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

3.10 Compensation.

3.10.1 Consultant’s Compensation for Basic Services . City shall pay to Consultant, for the performance of all Services rendered under this Agreement, the total not to exceed amount of One Hundred Fifty Thousand Dollars ($150,000) (“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.

3.10.2 Payment for Additional Services . At any time during the term of this Agreement, City may request that Consultant perform Additional Services. As used herein, Additional Services means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement . Any additional work in excess of this amount must be 302
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approved by the City . If authorized, such Additional Services will be compensated at the rates and in the manner set forth in Exhibit “C” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the Parties. If City requires Consultant to hire consultants to perform any Additional Services, Consultant shall be compensated therefore at the rates and in the manner set forth in Exhibit “C” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the Parties. City shall have the authority to review and approve the rates of any such consultants. In addition, Consultant shall be reimbursed for any expenses incurred by such consultants pursuant to the terms and conditions of Section 3.10.3.

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

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

3.10.4 Payment to Consultant . Consultant ’s compensati on and reimbursable expenses shall be paid by City to Consultant no more often than monthly. Such periodic payments shall be made based upon the percentage of work completed, and in accordance with the phasing and funding schedule provided in Exhibit “B” and the compensation rates indicated in Exhibit “C” attached hereto and incorporated herein by reference. In order to receive payment, Consultant shall present to City an itemized statement which indicates Services performed, percentage of Services completed, method for computing the amount payable, and the amount to be paid. The statement shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the da te of the statement, as well as those expenses for which reimbursement is requested for that statement period. The amount paid to Consultant shall never exceed the percentage amounts authorized by the phasing and funding schedule located in Exhibit “B” at tached hereto. City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon pursuant to the provisions of Civil Code Section 3320. Disputed amounts shall be resolved by the Parties in a mutually agreeable manner.

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

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

3.10.6 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Sections 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and If the total compensation is $1,000 or more, Consultant agrees to fully comply with and to require its consultants to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement.

Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant’s principal place of business and at the Project site. It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.

Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure of the Consultant or its consultants to comply with the Prevailing Wage Laws.
(a) Registration/DIR Compliance. If the Services are being performed as part of an applicable “public works project” of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such Services must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the P roject and require the same of any subconsultants. This project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the Department of Industrial Relations against Consultant or any subconsultant that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole 304
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responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subconsultant.

3.10.7 Automated Clearing House (“ACH”) payments. It is the City’s policy to pay its consultant invoices via electronic fund transfers through the ACH network. All payments due and owing pursuant to a properly issued and correct invoice or under this Agreement shall be made through electronic ACH transfers, unless otherwise agreed upon by both Parties in writing.

Consultant shall provide the City with ACH payment details whereby the City shall initiate the ACH transfers to Consultant in the amount required pursuant to a properly issued and correct invoice or under this Agreement. Each Party shall undertake any and all required actions and execute any required documents, instruments, or agreements required to effectuate the requirements of this Section. In the event the City erroneously deposits funds into an account, or otherwise deposits funds to which Consultant is not entitled: (1) Consultant shall immediately notify the City and t he financial institution; (2) Consultant shall not withdraw any of the funds which were erroneously deposited or to which Consultant is not entitled; and (3) Consultant authorizes both the City and financial institution to take all actions necessary to correct the error and return to the City all funds erroneously deposited or to which Consultant is not entitled.

3.11 Notice to Proceed.

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

3.12 Termination, Suspension and Abandonment.

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

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

3.12.3 Documents and Other Data . Upon suspension, abandonment or termination, Consultant shall provide to City all preliminary studies, sketches, working drawings, specifications, computations, and all other Project Documents, as defined below, to which City would have been entitled at the completion of Consultant’s Services under this Agreement. Upon 305
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payment of the amount required to be paid to Consultant pursuant to the termination provisions of this Agreement, City shall have the rights, as provided in this Agreement hereinafter, to use such Project Documents prepared by or on behalf of Consultant under this Agreement.

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

3.12.4 Employment of other Consultants. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.

3.13 Ownership and Use of Documents; Confidentiality.

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

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

Any use or reuse by City of the Project Documents on any project other than this Project without employing the services of Consultant shall be at City’s own risk with respect to third parties. If City uses or reuses the Project Documents on any project other than this Project, it shall 306
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remove the Consultant’s seal from the Project Documents and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Project Documents on such other project.

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

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

3.13.5 Confidentiality. All Project D ocuments, either created by or provided to Consultant in connection with the performance of this Agreement, shall be held confidential by Consultant to the extent they are not subject to disclosure pursuant to the Public Records Act. All Project Documents shall not, without the written consent of City, be used or reproduced by Consultant for any purposes other than the performance of the Services. Consultant shall not disclose, cause or facilitate the disclosure of the Project Documents to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City’s name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the written consent of City.

3.14 Indemnification.

3.14.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall survive expiration or termination of thi s Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.

3.14.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which 307
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is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.

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

3.15.1 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, Consultant shall, at its expense, procure and maintain in full force and effect for the duration of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so.

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

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

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

3.15.5 Workers’ Compensation/Employer’s Liability
(a) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self -insurance in accordance with the provisions of that code, and he/she will comply w ith such provisions before commencing work under this Agreement.
(b) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period 309
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required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this Section.

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

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

Coverage Combined Single Limit
Commercial General Liability $2,000,000 per occurrence/ $4,000,000 aggregate for bodily injury, personal
injury, and property damage
Automobile Liability $2,000,000 per occurrence for bodily injury and property damage
Employer’s Liability $1,000,000 per occurrence
Professional Liability $2,000,000 per claim and aggregate (errors and omissions)

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

3.15.8 Evidence Required
(a) Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certi fying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance.
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3.15.9 Policy Provisions Required
(a) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration.
(b) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant ’s policy is primary insurance and that any insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
(c) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims -made policy with a retroactive date subsequent to the effective date of this Agreement.
(d) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
(e) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability.

Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.

3.15.10 Qualifying Insurers
(a) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
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3.15.11 Additional Insurance Provisions
(a) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(b) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the i nsurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
(c) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (d) Neither the City nor the City Council, nor any member of the City Council, nor any of the officials, officers, employees, agents or volunteers shal l be personally responsible for any liability arising under or by virtue of this Agreement.

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

3.16 Records.

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

Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of five (5) years from the date of final payment under this Agreement.

3.17 Standardized Manufactured Items.

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

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

3.19 Mediation.

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

3.20 Successors and Assigns.

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

3.21 Asbestos Certification.

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

3.22 No Third Party Rights.

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

3.23 Governing Law.

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

3.24 Exhibits and Recitals.

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

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

3.26 Non-Waiver.

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

3.27 Safety.

Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of its employees, consultant and subcontractors appropriate to the nature of the work and the conditions under which the work is to be performed.

3.28 Harassment Policy.

Consultant shall provide a copy of the City's Harassment Policy to each of its employees assigned to perform the tasks under this Agreement. Consultant shall submit to the City's Personnel Manager a statement signed by each of its employees who are assigned to perform the Services under this Agreement certifying receipt of City's Harassment Policy and certifying that they have read the Harassment Policy. A finding by the City that any of Consultant 's employees has harassed a City employee shall be grounds for appropriate discipline, up t o and including such employee's removal from performance of this Agreement at City's request.

3.29 Delivery of Notices.

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

CITY:

City of Ontario
303 East “B” Street
Ontario, CA 91764
Attn: Marissa Kucheck, Museum Director
CONSULTANT:

Johnson Favaro
5898 Blackwelder Street
Culver City, CA 90232
Attn: Jim Favaro

Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the Party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

3.30 Time of Essence.

Time is of the essence for each and every provision of this Agreement. 314
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3.31 City’s Right to Employ Other Consultants.

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

3.32 Prohibited Interests.

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

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

3.33 Equal Opportunity Employment.

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

Such non- discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City’s minority business enterprise program, affirmative action plan or other related programs or guidelines currently in effect or hereinafter enacted.

3.34 Labor Certification.

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

3.35 Subcontracting.

As specified in this Agreement, Consultant shall not subcontract any portion of the Services required by this Agreement, except as expressly st ated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to each and every provision of this Agreement.

3.36 Supplemental Conditions.

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

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

SIGNATURES ON FOLLOWING PAGE
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BB&K (2024) -23-

SIGNATURE PAGE FOR DESIGN SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO

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

CITY OF ONTARIO JOHNSON FAVARO, LLP

By:

Its:

Printed Name:

By:

Its:

Printed Name:

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

Approved By:

Scott Ochoa
City Manager
Approved as to Form:

_____________________________________
Best Best & Krieger LLP
City Attorney

Attested By:

City Clerk

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BB&K (2024) Exhibit A-1

EXHIBIT “A”

SCOPE OF SERVICES

1. GENERAL REQUIREMENTS.

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

1.2 Exclusions from Basic Services. The following services shall be excluded from the basic services listed above: COMMON EXCLUSIONS: civil engineering, landscape architectural, soils engineering, geotechnical services, hazardous waste or toxic substances engineering or other SERVICES.

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

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

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

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

2. INITIAL PLANNING PHASE.

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

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

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

Consultant shall use its best judgment in determining the balance between the size, type and 318
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BB&K (2024) Exhibit A-2

quality of construction to achieve a satisfactory solution within the Project’s budget and construction allowance. It shall be the duty of the Consultant to design the Project within budget.

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

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

3. SCHEMATIC PLAN PHASE.

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

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

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

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

3.4 Copies of Schematic Plans and Other Documents. Consultant , at its own expense, shall provide a complete set of the Schematic Plans described herein for City’s review and approval. Additionally, at City’s expense, Consultant shall provide such documents as may be required by any federal, state, regional or local agencies concerned with the Project. Any additional copies required by City shall be provided at actual cost to City. 319
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BB&K (2024) Exhibit A-3

4. DESIGN DEVELOPMENT PHASE.

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

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

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

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

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

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

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

5. FINAL WORKING DRAWINGS AND SPECIFICATIONS.

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

5.1 Final Working Drawings and Specifications. Once City provides Consultant with specific written approval of the Design Development Documents described herein, Consultant shall prepare such complete working drawings and specifications as are necessary for developing complete bids and for properly executi ng the Project work in an efficient and thorough manner (“Final Working Drawings and Specifications”). Such Final Working Drawings and Specifications shall be developed from the Schematic Plans and Design Development Documents approved by City. The Final Working Drawings and Specifications shall set forth in 320
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BB&K (2024) Exhibit A-4

detail all of the following: (1) the Project construction work to be done; (2) the materials, workmanship, finishes, and equipment required for the architectural, structural, mechanical, and electrical systems; and (3) the utility service connection equipment and site work. As indicated in Section 3.9.2 of the Agreement, City may be requested to supply Consultant with the necessary information to determine the proper location of all improvements on and off site, including record drawings (“as-built drawings”) in City’s possession. Consultant will make a good -faith effort to verify the accuracy of such information by means of a thorough interior and exterior visual survey of site conditions. City shall also make a good -faith effort to verify the accuracy of the as -built drawings and provide any supplemental information to Consultant which may not be shown on the as-built drawings.

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

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

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

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

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

Consultant, at its own expense, shall provide a complete set of the Final Working Drawings and Specifications described herein for City’s review and approval. Additionally, at City’s expense, 321
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BB&K (2024) Exhibit A-5

Consultant shall provide such documents as may be required by any federal, state, regional or local agencies concerned with the Project. Any additional copies required by City shall be provided at actual cost to City.

6. CONSTRUCTION CONTRACT DOCUMENTS.

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

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

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

7. BID PHASE.

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

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

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

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

8. CONSTRUCTION PHASE.

During the construction phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
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BB&K (2024) Exhibit A-6

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

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

8.3 Pre-Construction Meeting. Consultant shall conduct one or more pre- construction meetings, as the City determines is needed for the Project, with all interested Parties.

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

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

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

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

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

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

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

8.11 Material and Test Reports. Consultant shall check and process, in a timely manner, all required material and test reports for the Project work. In addition, Consultant shall provide notice of any deficiencies in material or work reflected in such reports, as well as its recommendation for correction of such deficiencies, to the contractors and City. 323
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BB&K (2024) Exhibit A-7

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

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

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

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

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

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

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

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

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

8.20 Punch List. After determining that the Project is substantially complete, Consultant shall participate in the inspection of the Project and shall review all remaining deficiencies and minor items needed to be corrected or completed on the Project, including those identified on the punch list prepared by the contractor (“Punch List Items”). Consultant shall notify 324
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BB&K (2024) Exhibit A-8

contractor in writing that all Punch List Items must be corrected prior to final acceptance of the Project and final payment. Consultant shall also notify City of all Punch List Items.

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

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

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

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

9. AS-BUILT DRAWINGS.

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

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

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

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

10. WARRANTY PERIOD.

During the warranty period phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
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BB&K (2024) Exhibit A-9

10.1 Advice. Consultant shall provide advice to City on apparent deficiencies in the Project during any applicable warranty periods for the Project. 326
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BB&K (2024) Exhibit B-1

EXHIBIT “B”

FEE AND PHASING/FUNDING SCHEDULES

1. FEE SCHEDULE.

Consultant will invoice City on a monthly cycle based on the following fee schedule.

Consultant will include with each invoice a detailed progress report that indicates the amount of budget spent on each phase and the total amount spent against the Total Compensation.

Consultant will inform City regarding any out -of-scope work being performed by Con sultant for which Consultant intends to seek compensation from City.

2. PHASING/FUNDING SCHEDULE.

Progress payments towards Total Compensation shall never exceed the following percentages of Total Compensation as of the phase indicated:

Initial Planning Phase: ________ percent (%____)
Schematic Plan Phase: ________ percent (%____)
Design Development Phase: ________ percent (%____) Final Working Drawings & Specifications Phase: ________ percent (%____) Construction Contract Documents Phase: ________ percent (%____) Bid Phase: ________ percent (%____)
Construction Phase: ________ percent (%____)
As-Built Drawings Phase: ________ percent (%____)
Warranty Period Phase: ________ percent (%____)

Note: No Phasing/Funding Schedule is necessary until a project task is issued under the contract
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BB&K (2024) Exhibit C-1

EXHIBIT “C”

COMPENSATION RATES AND REIMBURSABLE EXPENSES

1. HOURLY COMPENSATION RATES.

2. REIMBURSABLE EXPENSES.

Reimbursable Expenses shall be billed at cost plus 15% and shall include typica; reimbursables such as reproduction costs,
Additional Services shall be computed at the actual hourly rates listed above.

3. ADDITIONAL CONSULTANTS.

If City requires Consultant to hire consultants to perform any Additional Services, Consultant shall be compensated therefore at the Consultant ’s actual hourly rates plus 15%.

Owner shall have the authority to review and approve the rates of any such consultants. 328
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BB&K (2024) -1-

C

ITY OF ONTARIO

DESIGN SERVICES AGREEMENT

1. PARTIES AND DATE.

This Agreement is made and entered into as of ____________, by and between the City of Ontario, a municipal corporation organized and operating under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764 - 4196, County of San Bernardino, State of California (“City”), and Page & Turn bull, Inc. , a Corporation with its principal place of business at 523 W. 6th Street, Suite 103, Los Angeles, CA 90014 (hereinafter referred to as “Consultant”). City and Consultant are sometimes individually referred to herein as “Party” and collectively as “Parties.”

2. RECITALS.

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

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

2.3 Project. City desires to engage Consultant to render such services for the Museum Improvements On-Call Architectural ("Project") as set forth in this Agreement.

3. TERMS

3.1 Employment of Consultant.

3.1.1 Scope of Services. Consultant promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional architectural and related services necessary for the full and adequate completion of the Project consistent with the provisions of this Agreement (hereinafter referred to as “Services”). The Services are more particularly described throughout this Agreement, including Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, any exhibits attached hereto and incorporated herein by reference, and all applicable local, state and f ederal laws, rules and regulations. All Services performed by Consultant shall be subject to the sole and discretionary approval of the City, which approval shall not be unreasonably withheld. 329
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BB&K (2024) -2-

3.1.2 Term. The term of this Agreement shall be from November 4, 2024, to November 4, 2027, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than two (2) additional one-year terms. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines.

3.2 Project Consultant; Key Personnel.

3.2.1 Project Architect. Consultant shall name a specific individual to act as Project Consultant, subject to the approval of City. Consultant hereby designates John Lesak (License No. C26607) to act as the Project Architect for the Project. The Project Architect shall:
(1) maintain oversight of the Services; (2) have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement; (3) supervise and direct the Services using his or her best skill and attention; (4) be responsible for the means, methods, techniques, sequences and procedures used for the Services; (5) adequately coordinate all portions of the Services; and (6) act as principal contact with City and all contractors, consultants, engineers and inspectors on the Project. Any change in the P roject Architec t shall be subject to the City’s prior written approval, which approval shall not be unreasonably withheld. The new Project Architect shall be of at least equal competence as the prior Project Architect. In the event that City and Consultant cannot agree as to the substitution of a new Project Architect , City shall be entitled to terminate this Agreement for cause.

3.2.2 Key Personnel . In addition to the Project Architect , Consultant has represented to the City that certain additional key personnel, engineers and consultants will perform the Services under this Agreement. Should one or more of such personnel, engineers or consultants become unavailable, Consultant may substitute othe rs of at least equal competence upon written approval of the City. In the event that City and Consultant cannot agree as to the substitution of key personnel, engineers or consultants, City shall be entitled to terminate this Agreement for cause. The key additional personnel, engineers and consultants for performance of this Agreement are as follows: Jim McLane, Project Manager; Heather Mangrum, Job Captain

3.3 Hiring of Consultants and Personnel.

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

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

3.3.2 Qualification and License. All architects, engineers, experts and other consultants retained by Consultant in performance of this Agreement shall be qualified to perform the Services assigned to them, and shall be licensed to practice in their respective professions, where required by law.
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BB&K (2024) -3-

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

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

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

3.4 Standard of Care.

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

3.4.2 Performance of Employees . Any employee or consultant who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee or consultant who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.

3.5 Laws and Regulations.

3.5.1 Knowledge and Compliance. Consultant shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and regulations in any manner affecting the performance of the Services or the Project, and shall give all notices required of the Consultant by law. Consultant shall be liable, pursuant to the standard of care and indemnification provisions of this Agreement, for all violations of such laws and regulations in 331
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connection with its Services. Consultant shall defend, indemnify and hold City, its officials, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.

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

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

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

3.5.5 Water Quality Management and Compliance. Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, wi thout limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000- 14950); and any and all regulations, policies, or permits issued pursuant to any such authority.

Consultant shall additionally comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with j urisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges. Failure to 332
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comply with laws, regulations, and ordinances listed in this Section is a violation of federal and state law.

3.6 Independent Contractor.

3.6.1 Control and Payment of Subordinates . City retains Consultant on an independent contractor basis and Consultant is not an employee of City. Consultant is not an employee for state tax, federal tax or any other purpose, and is not entitled to the rights or benefits afforded to City’s employees. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City, and shall at all times be under Consultant’s exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.

3.7 Schedule of Services.

3.7.1 Consultant Services. Consultant shall fully and adequately complete the Services described in this Agreement and in Exhibit “A” attached hereto and incorporated herein by reference.

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

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

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

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

3.7.4 Excusable Delays . Any delays in Consultant ’s work caused by the following may be added to the time for completion of any obligations of Consultant: (1) the actions of City or its employees; (2) the actions of those in direct contractual relationship with City; (3) the actions of any governmental agency having jurisdiction over the Project; (4) the actions of any parties not within the reasonable control of the Consultant; and (5) any Force Majeure Event (as defined herein) or other unforeseen occurrence not due to any fault or negligence on the part of 333
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Consultant. Neither the City nor the Consultant shall be liable for damages, liquidated or otherwise, to the other on account of such delays.

3.7.5 Force Majeure Events. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non- performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the services, only to the extent such strikes and other organized labor action are beyond the control of Consultant and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the Services and Agreement. Should a Force Majeure Event occur, the non- performing Party shall, within fifteen (15) calendar days of the beginning of an Force Majeure Event, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events shall not entitle Consultant to any additional compensation. Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.

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

3.8 Additional Services.

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

3.8.2 Definition. As used herein, “Additional Services” mean: (1) any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary for the Consultant to perform at the execution of this Agreement; or (2) any work listed as Additional Services in Exhibit “A” attached 334
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hereto. Consultant shall not perform, nor be compensated for, Additional Services without prior written authorization from City and without an agreement between the City and Consultant as to the compensation to be paid for such services. City shall pay Consultant for any approved Additional Services, pursuant to the compensation provisions herein, so long as such services are not made necessary through the fault of Consultant pursuant to the indemnification provision of this Agreement.

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

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

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

3.9.2 Project Survey . If required pursuant to the scope of the Project and if requested by Consultant , City shall furnish Consultant with, or direct Consultant to procure at City’s expense, a survey of the Project site prepared by a registered surveyor or civil engineer, any other record documents which shall indicate existing structures, land features, improvements, 335
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sewer, water, gas, electrical and utility lines, topographical information and boundary dimensions of the site, and any other such pertinent information.

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

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

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

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

3.9.7 City’s Representative. The City hereby designates the City Manager, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Contract. The City Manager hereby designates Marissa Kucheck, Museum Director, or his or her designee, as the City’s contact for the implementation of the Services hereunder. Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.

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

3.10 Compensation.

3.10.1 Consultant’s Compensation for Basic Services . City shall pay to Consultant, for the performance of all Services rendered under this Agreement, the total not to exceed amount of One Hundred Fifty Thousand Dollars ($150,000) (“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.

3.10.2 Payment for Additional Services . At any time during the term of this Agreement, City may request that Consultant perform Additional Services. As used herein, Additional Services means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement . Any additional work in excess of this amount must be approved by the City . If authorized, such Additional Services will be compensated at the rates and in the manner set forth in Exhibit “C” attached hereto and incorporated herein by reference, 336
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unless a flat rate or some other form of compensation is mutually agreed upon by the Parties. If City requires Consultant to hire consultants to perform any Additional Services, Consultant shall be compensated therefore at the rates and in the manner set forth in Exhibit “C” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the Parties. City shall have the authority to review and approve the rates of any such consultants. In addition, Consultant shall be reimbursed for any expenses incurred by such consultants pursuant to the terms and conditions of Section 3.10.3.

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

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

3.10.4 Payment to Consultant . Consultant ’s compensation and reimbursable expenses shall be paid by City to Consultant no more often than monthly. Such periodic payments shall be made based upon the percentage of work completed, and in accordance with the phasing and funding schedule provided in Exhibit “B” and the compensation rates indicated in Exhibit “C” attached hereto and incorporated herein by reference. In order to receive payment, Consultant shall present to City an itemized statement which indicates Services performed, percentage of Services completed, method for computing the amount payable, and the amount to be paid. The statement shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, t hrough the date of the statement, as well as those expenses for which reimbursement is requested for that statement period. The amount paid to Consultant shall never exceed the percentage amounts authorized by the phasing and funding schedule located in E xhibit “B” attached hereto. City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon pursuant to the provisions of Civil Code Section 3320. Disputed amounts shall be resolved by the Parties in a mutually agreeable manner.

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

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

3.10.6 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Sections 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and If the total compensation is $1,000 or more, Consultant agrees to fully comply with and to require its consultants to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement.

Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant’s principal place of business and at the Project site. It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.

Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure of the Consultant or its consultants to comply with the Prevailing Wage Laws.
(a) Registration/DIR Compliance. If the Services are being performed as part of an applicable “public works project” of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such Services must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the P roject and require the same of any subconsultants. This project may also be subject to compliance monitoring and enforcement b y the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the Department of Industrial Relations against Consultant or any subconsultant that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole 338
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responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subconsultant.

3.10.7 Automated Clearing House (“ACH”) payments. It is the City’s policy to pay its consultant invoices via electronic fund transfers through the ACH network. All payments due and owing pursuant to a properly issued and correct invoice or under this Agreement shall be made through electronic ACH transfers, unless otherwise agreed upon by both Parties in writing.

Consultant shall provide the City with ACH payment details whereby the City shall initiate the ACH transfers to Consultant in the amount required pursuant to a properly issued and correct invoice or under this Agreement. Each Party shall undertake any and all required actions and execute any required documents, instruments, or agreements required to effectuate the requirements of this Section. In the event the City erroneously deposits funds into an account, or otherwise deposits funds to which Consultant is not entitled: (1) Consultant shall immediately notify the City and the financial institution; (2) Consultant shall not withdraw any of the funds which were erroneously deposited or to which Consultant is not entitled; and (3) Consultant authorizes both the City and financial institution to take all actions necessary to correct the error and return to the City all funds erroneously deposited or to which Consultant is not entitled.

3.11 Notice to Proceed.

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

3.12 Termination, Suspension and Abandonment.

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

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

3.12.3 Documents and Other Data . Upon suspension, abandonment or termination, Consultant shall provide to City all preliminary studies, sketches, working drawings, specifications, computations, and all other Project Documents, as defined below, to which City would have been entitled at the completion of Consultant’s Services under this Agreement. Upon 339
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payment of the amount required to be paid to Consultant pursuant to the termination provisions of this Agreement, City shall have the rights, as provided in this Agreement hereinafter, to use such Project Documents prepared by or on behalf of Consultant under this Agree ment.

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

3.12.4 Employment of other Consultants. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.

3.13 Ownership and Use of Documents; Confidentiality.

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

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

Any use or reuse by City of the Project Documents on any project other than this Project without employing the services of Consultant shall be at City’s own risk with respect to third parties. If City uses or reuses the Project Documents on any project other than this Project, it shall 340
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remove the Consultant’s seal from the Project Documents and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Project Documents on such other project.

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

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

3.13.5 Confidentiality. All Project Documents, either created by or provided to Consultant in connection with the performance of this Agreement, shall be held confidential by Consultant to the extent they are not subject to disclosure pursuant to the Public Records Act. All Project Documents shall not, without the written consent of City, be used or reproduced by Consultant for any purposes other than the performance of the Services. Consultant shall not disclose, cause or facilitate the disclosure of the Project Documents to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City’s name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the written consent of City.

3.14 Indemnification.

3.14.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.

3.14.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civi l Code section 2782.8, which 341
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is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.

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

3.15.1 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, Consultant shall, at its expense, procure and maintain in full force and effect for the duration of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so.

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

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

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

3.15.5 Workers’ Compensation/Employer’s Liability
(a) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ com pensation or to undertake self -insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement.
(b) To the extent Consultant has employees at any time during the term of this Agr eement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period 343
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required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this Section.

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

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

Coverage Combined Single Limit
Commercial General Liability $2,000,000 per occurrence/ $4,000,000 aggregate for bodily injury, personal
injury, and property damage
Automobile Liability $2,000,000 per occurrence for bodily injury and property damage
Employer’s Liability $1,000,000 per occurrence
Professional Liability $2,000,000 per claim and aggregate (errors and omissions)

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

3.15.8 Evidence Required
(a) Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance , the location and operations to which the insurance applies, and the expiration date of such insurance.
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3.15.9 Policy Provisions Required
(a) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration.
(b) The Commercial General Liability Policy and A utomobile Policy shall each contain a provision stating that Consultant ’s policy is primary insurance and that any insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
(c) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims -made policy with a retroactive date subsequent to the effective date of this Agreement.
(d) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
(e) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability.

Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.

3.15.10 Qualifying Insurers
(a) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transac t in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
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3.15.11 Additional Insurance Provisions
(a) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(b) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
(c) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (d) Neither the City nor the City Council, nor any member of the City Council, nor any of the officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.

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

3.16 Records.

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

Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of five (5) y ears from the date of final payment under this Agreement.

3.17 Standardized Manufactured Items.

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

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

3.19 Mediation.

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

3.20 Successors and Assigns.

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

3.21 Asbestos Certification.

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

3.22 No Third Party Rights.

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

3.23 Governing Law.

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

3.24 Exhibits and Recitals.

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

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

3.26 Non-Waiver.

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

3.27 Safety.

Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of its employees, consultant and subcontractors appropriate to the nature of the work and the conditions under which the work is to be performed.

3.28 Harassment Policy.

Consultant shall provide a copy of the City's Harassment Policy to each of its employees assigned to perform the tasks under this Agreement. Consultant shall submit to the City's Personnel Manager a statement signed by each of its employees who are assigned to perform the Services under this Agreement certifying receipt of City's Harassment Policy and certifying that they have read the Harassment Policy. A finding by the City that any of Consultant 's employees has harassed a City employee shall be grounds for appropriate discipline, up t o and including such employee's removal from performance of this Agreement at City's request.

3.29 Delivery of Notices.

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

CITY:

City of Ontario
303 East “B” Street
Ontario, CA 91764
Attn: Marissa Kucheck, Museum Director
CONSULTANT:

Page & Turnbull, Inc.
523 W. 6th Street, Suite 1013
Los Angeles, CA 90014
Attn: John Lesak

Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the Party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

3.30 Time of Essence.

Time is of the essence for each and every provision of this Agreement. 348
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3.31 City’s Right to Employ Other Consultants.

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

3.32 Prohibited Interests.

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

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

3.33 Equal Opportunity Employment.

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

Such non- discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City’s minority business enterprise program, affirmative action plan or other related programs or guidelines currently in effect or hereinafter enacted.

3.34 Labor Certification.

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

3.35 Subcontracting.

As specified in this Agreement, Consultant shall not subcontract any portion of the Services r equired by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to each and every provision of this Agreement.

3.36 Supplemental Conditions.

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

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

SIGNATURES ON FOLLOWING PAGE
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SIGNATURE PAGE FOR DESIGN SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO
AND PAGE & TURNBULL, INC.

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

CITY OF ONTARIO PAGE & TURNBULL, INC.

By:

Its:

Printed Name:

By:

Its:

Printed Name:

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

Approved By:

Scott Ochoa
City Manager
Approved as to Form:

_____________________________________
Best Best & Krieger LLP
City Attorney

Attested By:

City Clerk

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EXHIBIT “A”

SCOPE OF SERVICES

1. GENERAL REQUIREMENTS.

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

1.2 Exclusions from Basic Services. The following services shall be excluded from the basic services listed above: COMMON EXCLUSIONS: civil engineering, landscape architectural, soils engineering, geotechnical services, hazardous waste or toxic substances engineering or other SERVICES.

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

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

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

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

2. INITIAL PLANNING PHASE.

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

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

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

Consultant shall use i ts best judgment in determining the balance between the size, type and 352
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quality of construction to achieve a satisfactory solution within the Project’s budget and construction allowance. It shall be the duty of the Consultant to design the Project within budget.

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

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

3. SCHEMATIC PLAN PHASE.

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

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

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

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

3.4 Copies of Schematic Plans and Other Documents. Consultant , at its own expense, shall provide a complete set of the Schematic Plans described herein for City’s review and approval. Additionally, at City’s expense, Consultant shall provide such documents as may be required by any federal, state, regional or local agencies concerned with the Project. Any additional copies required by City shall be provided at actual cost to City. 353
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BB&K (2024) Exhibit A-3

4. DESIGN DEVELOPMENT PHASE.

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

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

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

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

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

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

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

5. FINAL WORKING DRAWINGS AND SPECIFICATIONS.

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

5.1 Final Working Drawings and Specifications. Once City provides Consultant with specific written approval of the Design Development Documents described herein, Consultant shall prepare such complete working drawings and specifications as are necessary for developing complete bids and for properly executing the Project work in an efficient and thorough manner (“Final Working Drawings and Specifications”). Such Final Working Drawings and Specifications s hall be developed from the Schematic Plans and Design Development Documents approved by City. The Final Working Drawings and Specifications shall set forth in 354
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BB&K (2024) Exhibit A-4

detail all of the following: (1) the Project construction work to be done; (2) the materials, workmanship, finishes, and equipment required for the architectural, structural, mechanical, and electrical systems; and (3) the utility service connection equipment and site work. As indicated in Section 3.9.2 of the Agreement, City may be requested to supply Consultant with the necessary information to determine the proper location of all improvements on and off site, including record drawings (“as-built drawings”) in City’s possession. Consultant will make a good -faith effort to verify the accuracy of such information by means of a thorough interior and exterior visual survey of site conditions. City shall also make a good -faith effort to verify the accuracy of the as -built drawings and provide any supplemental information to Consultant which may not be s hown on the as-built drawings.

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

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

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

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

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

Consultant, at its own expense, shall provide a complete set of the Final Working Drawings and Specifications described herein for City’s review and approval. Additionally, at City’s expense, 355
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Consultant shall provide such documents as may be required by any federal, state, regional or local agencies concerned with the Project. Any additional copies required by City shall be provided at actual cost to City.

6. CONSTRUCTION CONTRACT DOCUMENTS.

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

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

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

7. BID PHASE.

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

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

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

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

8. CONSTRUCTION PHASE.

During the construction phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
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8.1 Observation. The Project Consultant shall observe work executed from the Final Working Drawings and Specifications in person, provided that City may, in its discretion, consent to such observation by another competent representative of Consultant.

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

8.3 Pre-Construction Meeting. Consultant shall conduct one o r more pre- construction meetings, as the City determines is needed for the Project, with all interested Parties.

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

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

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

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

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

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

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

8.11 Material and Test Reports. Consultant shall check and process, in a timely manner, all required material and test reports for the Project work. In addition, Consultant shall provide notice of any deficienc ies in material or work reflected in such reports, as well as its recommendation for correction of such deficiencies, to the contractors and City. 357
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8.12 Review and Response to Submissions. Consultant shall review and respond, in a timely manner, to all schedules, submittals, shop drawings, samples, information requests, change requests, and other submissions of the contractor and subcontractors for compliance with, or alterations and additions to, the Construction Documents. Consultant ’s review and response shall be done in such a manner so as to ensure the timely and uninterrupted progress of the Project work.

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

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

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

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

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

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

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

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

8.20 Punch List. After determining that the Project is substantially complete, Consultant shall participate in the inspection of the Project and shall review all remaining deficiencies and minor items needed to be corrected or completed on the Project, including those identified on the punch list prepared by the contractor (“Punch List Items”). Consultant shall notify 358
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contractor in writing that all Punch List Items must be corrected prior to final acceptance of the Project and final payment. Consultant shall also notify City of all Punch List Items.

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

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

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

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

9. AS-BUILT DRAWINGS.

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

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

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

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

10. WARRANTY PERIOD.

During the warranty period phase of the Project, Consultant shall do all of the fol lowing, as well as any incidental services thereto:
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10.1 Advice. Consultant shall provide advice to City on apparent deficiencies in the Project during any applicable warranty periods for the Project. 360
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EXHIBIT “B”

FEE AND PHASING/FUNDING SCHEDULES

1. FEE SCHEDULE.

Consultant will invoice City on a monthly cycle based on the following fee schedule.

Consultant will include with each invoice a detailed progress report that indicates the amount of budget spent on each phase and the total amount spent against the Total Compensati on.

Consultant will inform City regarding any out -of-scope work being performed by Consultant for which Consultant intends to seek compensation from City.

2. PHASING/FUNDING SCHEDULE.

Progress payments towards Total Compensation shall never exceed the foll owing percentages of Total Compensation as of the phase indicated:

Initial Planning Phase: ________ percent (%____)
Schematic Plan Phase: ________ percent (%____)
Design Development Phase: ________ percent (%____) Final Working Drawings & Specifications Phase: ________ percent (%____) Construction Contract Documents Phase: ________ percent (%____) Bid Phase: ________ percent (%____)
Construction Phase: ________ percent (%____)
As-Built Drawings Phase: ________ percent (%____)
Warranty Period Phase: ________ percent (%____)

Note: No Phasing/Funding Schedule is necessary until a project task is issued under the contract
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EXHIBIT “C”

COMPENSATION RATES AND REIMBURSABLE EXPENSES

1. HOURLY COMPENSATION RATES.

2. REIMBURSABLE EXPENSES.

3. ADDITIONAL SERVICES.

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

4. ADDITIONAL CONSULTANTS.

If City requires Consultant to hire consultants to perform any Additional Services, Consultant shall be compensated therefore at the Consultant ’s actual hourly rates plus 15%.

Owner shall have the authority to review and approve the rates of any such consultants. 362
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C

ITY OF ONTARIO

DESIGN SERVICES AGREEMENT

1. PARTIES AND DATE.

This Agreement is made and entered into as of ____________, by and between the City of Ontario, a municipal corporation organized and operating under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764 - 4196, County of San Bernardino, State of California (“City”), and Smithgroup, Inc., a Corporation with its principal place of business at 550 South Hope Street, Suite 1950, Los Angeles, CA 90071 (hereinafter referred to as “Consultant”). City and Consultant are sometimes individually referred to herein as “Party” and collectively as “Parties.”

2. RECITALS.

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

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

2.3 Project. City desires to engage Consultant to render such services for the Museum Improvements On -Call Architectural Services ("Project") as set forth in this Agreement.

3. T ERMS

3.1 Employment of Consultant.

3.1.1 S cope of Services . Consultant promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional architectural and related services necessary for the full and adequate completion of the Project consistent with the provisions of this Agreement (hereinafter referred to as “Services”). The Services are more particularly described throughout this Agreement, including Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, any exhibits 363
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attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. All Services performed by Consultant shall be subject to the sole and discretionary approval of the City, which approval shall not be unreasonably withheld.

3.1.2 Term. The term of this Agreement shall be from November 4, 2024, to November 4, 2027, unless earlier terminated as provided herein The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than two (2) additional one- year terms. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines.

3.2 Project Consultant; Key Personnel.

3.2.1 Project Architect. Consultant shall name a specific individual to act as Project Consultant, subject to the approval of City. Consultant hereby designates Richey Madison (License No. T24359) to act as the Project Architect for the Project. The Project Architect shall:
(1) maintain oversight of the Services; (2) have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement; (3) supervise and direct the Services using his or her best skill and attention; (4) be responsible for the means, methods, techniques, sequences and procedures used for the Services; (5) adequately coordinate all portions of the Services; and (6) act as principal contact with City and all contractors, consultants, engineers and inspectors on the Project. Any change in the Project Architect shall be subject to the City’s prior written approval, which approval shall not be unreasonably withheld. The new Project Architect shall be of at least equal competence as the prior Project Architect. In the event that City and Consultant cannot agree as to the substitution of a new Project Architect, City shall be entitled to terminate this Agreement for cause.

3.2.2 Key Personnel. In addition to the Project Architect , Consultant has represented to the City that certain additional key personnel, engineers and consultants will perform the Services under this Agreement. Should one or more of such personnel, engineers or consultants become unavailable, Consultant may substitute others of at least equal competence upon written approval of the City. In the event that City and Consultant cannot agree as to the substitution of key personnel, engineers or consultants, City shall be entitled to terminate this Agreement for cause. The key additional personnel, engineers and consultants for performance of this Agreement are as follows: Jame Anderson, Museum Leadership; Andrea Cabalo, Project Manager; Crystal Chum, Project Architect; Don Posson, Engineer.

3.3 Hiring of Consultants and Personnel.

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

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

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

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

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

3.4 Standard of Care.

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

3.4.2 P
erformance of Employees. Any employee or consultant who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee or consultant who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.
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3.5 Laws and Regulations.

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

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

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

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

3.5.5 W ater Quality Management and Compliance. Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances 366
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regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000- 14950); and any and all regulations, policies, or permits issued pursuant to any such authority.

Consultant shall a dditionally comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges. Failure to comply with laws, regulations, and ordinances listed in this Section is a violation of federal and state law.

3.6 Independent Contractor.

3.6.1 Control and Payment of Subordinates . City retains Consultant on an independent contractor basis and Consultant is not an employee of City. Consultant is not an employee for state tax, federal tax or any other purpose, and is not entitled to the rights or benefits afforded to City’s employees. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City, and shall at all times be under Consultant’s exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.

3.7 Schedule of Services.

3.7.1 Consultant Services. Consultant shall fully and adequately complete the Services described in this Agreement and in Exhibit “A” attached hereto and incorporated herein by reference.

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

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

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

Such schedule shall be subject to the City’s review and approval, which approval shall not be unreasonably withheld, and shall include allowances for periods of time required for City’s review and approval of submissions, and for approvals of authorities having jurisdiction over Project approval and funding. If City and Consultant cannot mutually agree on a performance schedule, City shall have the authority to immediately terminate this Agreement. The schedule shall not be exceeded by Consultant without the prior written approval of City. If the Consultant’s Services are not completed within the time provided by the agreed upon performance schedule, or any milestones established therein, it is understood, acknowledged and agreed that the City will suffer damage for which the Consultant will be responsible.
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3.7.4 Excusable Delays. Any delays in Consultant ’s work caused by the following may be added to the time for completion of any obligations of Consultant: (1) the actions of City or its employees; (2) the actions of those in direct contractual relationship with City; (3) the actions of any governmental agency having jurisdiction over the Project; (4) the actions of any parties not within the reasonable control of the Consultant; and (5) any Force Majeure Event (as defined herein) or other unforeseen occurrence not due to any fault or negligence on the part of Consultant. Neither the City nor the Consultant shall be liable for damages, liquidated or otherwise, to the other on account of such delays.

3.7.5 For ce Majeure Events. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circum stances beyond the reasonable control of the non- performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the services, only to the extent such strikes and other organized labor action are beyond the control of Consultant and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the Services and Agreement. Should a Force Majeure Event occur, the non- performing Party shall, within fifteen (15) calendar days of the beginning of an Force Majeure Event, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events shall not entitle Consultant to any additional compensation. Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.

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

3.8 Additional Services.

3.8.1 Request for Services . At City’s request, Consultant may be asked to perform services not otherwise included in this Agreement, not included within the basic services 368
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listed in Exhibit “A” attached hereto, and/or not customarily furnished in accordance with generally accepted architectural practice.

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

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

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

3.9.1 Data and Information. City shall make available to Consultant all necessary data and information concerning the purpose and requirements of the Project, including scheduling and budget limitations, objectives, constraints and criteria. As part of the budget 369
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limitation information, the City shall provide the Consultant with a preliminary construction budget (“City’s Preliminary Construction Budget”).

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

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

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

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

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

3.9.7 Cit
y’s Rep resentative. The City hereby designates the City Manager, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for al l purposes under this Contract. The City Manager hereby designates Marissa Kucheck, Museum Director, or his or her designee, as the City’s contact for the implementation of the Services hereunder. Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.

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

3.10 Compensation.

3.10.1 Consultant’s Compensation for Basic Services . City shall pay to Consultant, for the performance of all Services rendered under this Agreement, the total not to exceed amount of One Hundred Fifty Thousand Dollars ($150,000) (“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. 370
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3.10.2 Payment for Additional Services . At any time during the term of this Agreement, City may request that Consultant perform Additional Services. As used herein, Additional Services means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement . Any additional work in excess of this amount must be approved by the City. If authorized, such Additional Services will be compensated at the rates and in the manner set forth in Exhibit “C” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the Parties. If City requires Consultant to hire consultants to perform any Additional Services, Consultant shall be compensated therefore at the rates and in the manner set forth in Exhibit “C” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the Parties. City shall have the authority to review and approve the rates of any such consultants. In addition, Consultant shall be reimbursed for any e xpenses incurred by such consultants pursuant to the terms and conditions of Section 3.10.3.

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

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

3.10.4 P
ayment to Consultant . Consultant ’s compensation and reimbursable expenses shall be paid by City to Consultant no more often than monthly. Such periodic payments shall be made based upon the percentage of work completed, and in accordance with the phasing and funding schedule provided in Exhibit “B” and the compensation rates indicated in Exhibit “C” attached hereto and incorporated herein by reference. In order to receive payment, Consultant shall present to City an itemized statement which indicates Services performed, percentage of Services completed, method for computing the amount payable, and the amount to be paid. The statement shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement, as well as those expenses for which reimbursement is requested for that statement period. The amount paid to Consultant shall never exceed the percentage amounts authorized by the phasing and funding schedule located in Exhibit “B” attached hereto. City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon pursuant to the provisions of Civil Code Section 3320. Disputed amounts shall be resolved by the Parties in a mutually agreeable manner.

Payments made for Additional Services shall be made in installments, not more often than monthly, proportionate to the degree of completion of such services or in such other manner as the Parties shall specify when such services are agreed upon, and in accordance with any authorized fee or rate schedule. In order to receive payment, Consultant shall present to City an itemized statement which indicates the Additional Services performed, percentage of Additional Services completed, method for computing the amount payable, and the amount to be paid. The statement shall describe the amount of Additional Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within thirty (30) days of receiving such statement, review 371
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the statement and pay all approved charges thereon pursuant to the provisions of Civil Code Section 3320. Disputed amounts shall be resolved by the Parties in a mutually agreeable manner.

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

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

3.10.6 P
revailing Wages . Consultant is aware of the requirements of California Labor Code Sections 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and If the total compensation is $1,000 or more, Consultant agrees to fully comply with and to require its consultants to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant’s principal place of business and at the Project site. It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4. Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure of the Consultant or its consultants to comply with the Prevailing Wage Laws. (a) R
egistration/DIR Compliance. If the Services are being performed as part of an applicable “public works project” of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such Services must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the P roject and require the same of any subconsultants. This 372
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project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the Department of Industrial Relations against Consultant or any subconsultant that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subconsultant.

3.10.7 Automated Clearing House (“ACH”) payments. It is the City’s policy to pay its consultant invoices via electronic fund transfers through the ACH network. All payments due and owing pursuant to a properly issued and correct invoice or under this Agreement shall be made through electronic ACH transfers, unless otherwise agreed upon by both Parties in writing.

Consultant shall provide the City with ACH payment details whereby the City shall initiate the ACH transfers to Consultant in the amount required pursuant to a properly issued and correct invoice or under this Agreement. Each Party shall undertake any and all required actions and execute any required documents, instruments, or agreements required to effectuate the requirements of this Section. In the event the City erroneously deposits funds into an account, or otherwise deposits funds to which Consultant is not entitled: (1) Consultant shall immediately notify the City and the financial institution; (2) Consultant shall not withdraw any of the funds which were erroneously deposited or to which Consultant is not entitled; and (3) Consultant authorizes both the City and financial institution to take all actions necessary to correct the error and return to the City all funds erroneously deposited or to which Consultant is not entitled.

3.11 Notice to Proceed.

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

3.12 Termination, Suspension and Abandonment.

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

3.12.2 C
ity’s Suspension of Work . If Consultant’s Services are suspended by City, City may require Consultant to resume such Services within ninety (90) days after written notice from City. When the Project is resumed, the Total Compensation and schedule of Services shall be equitably adjusted upon mutual agreement of the City and Consultant. 373
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3.12.3 Documents and Other Data. Upon suspension, abandonment or termination, Consultant shall provide to City all preliminary studies, sketches, working drawings, specifications, computations, and all other Project Documents, as defined below, to which City would have been entitled at the completion of Consultant’s Services under this Agreement. Upon payment of the amount required to be paid to Consultant pursuant to the termination provisions of this Agreement, City shall have the rights, as provided in this Agreement hereinafter, to use such Project Documents prepared by or on behalf of Consultant under this Agree ment.

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

3.12.4 E
mployment of other Consultants. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.

3.13 Ownership and Use of Documents; Confidentiality.

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

3.13.2 Rig
ht to Use . Consultant grants to City the right to use and reuse all or part of the Project Documents, at City’s sole discretion and with no additional compensation to Consultant, for the following purposes:
(a) The construction of all or part of this Project.
(b) The repair, renovation, modernization, replacement, reconstruction or expansion of this Project at any time;
(c) The construction of another project by or on behalf of the City for its ownership and use;
City is not bound by this Agreement to employ the services of Consultant in the event such documents are used or reused for these purposes. City shall be able to use or reuse the Project Documents for these purposes without risk of liability to the Consultant or third parties with respect to the condition of the Project Documents , and the use or reuse of the Project Documents for these purposes shall not be construed or interpreted to waive or limit City’s right to recover for latent defects or for errors or omissions of the Consultant. 374
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Any use or reuse by City of the Project Documents on any project other than this Project without employing the services of Consultant shall be at City’s own risk with respect to third parties. If City uses or reuses the Project Documents on any project other than this Project, it shall remove the Consultant’s seal from the Project Documents and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Project Documents on such other project.

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

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

3.13.5 C
onfidentiality . All Project Documents, either created by or provided to Consultant in connection with the performance of this Agreement, shall be held confidential by Consultant to the extent they are not subject to disclosure pursuant to the Public Records Act. All Project Documents shall not, without the written consent of City, be used or reproduced by Consultant for any purposes other than the performance of the Services. Consultant shall not disclose, cause or facilitate the disclosure of the Project Documents to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City’s name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the written consent of City.

3.14 Indemnification.

3.14.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.
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3.14.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.

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

3.15.1 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, Consultant shall, at its expense, procure and maintain in full force and effect for the duration of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so.

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

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

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

3.15.5 Workers’ Compensation/Employer’s Liability
(a) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self -insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement.
(b) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the 377
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“Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this Section.

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

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

Coverage Combined Single Limit
Commercial General Liability $2,000,000 per occurrence/ $4,000,000 aggregate for bodily injury, personal
injury, and property damage
Automobile Liability $2,000,000 per occurrence for bodily injury and property damage
Employer’s Liability $1,000,000 per occurrence
Professional Liability $2,000,000 per claim and aggregate (errors and omissions)

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

3.15.8 Evidence Required
(a) Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer a nd shall certify the names of the insured, any additional insureds, where appropriate, the type and 378
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amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance.

3.15.9 Policy Provisions Required
(a) C onsultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration.
(b) The Commercial General Liability Policy and Automobile Policy shall each contain a pro vision stating that Consultant’s policy is primary insurance and that any insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
(c) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims -made policy with a retroactive date subsequent to the effective date of this Agreement.
(d) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
(e) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability.

Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.

3.15.10 Qualifying Insurers
(a) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
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3.15.11 Additional Insurance Provisions
(a) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(b) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
(c) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (d) Neither the City nor the City Council, nor any member of the City Council, nor any of the officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.

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

3.16 Records.

Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identi fiable.

Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of five (5) years from the date of final payment under this Agreement.

3.17 Standardized Manufactured Items.

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

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

3.19 Mediation.

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

3.20 Successors and Assigns.

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

3.21 Asbestos Certification.

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

3.22 No Third Party Rights.

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

3.23 Governing Law.

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

3.24 Exhibits and Recitals.

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

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

3.26 Non-Waiver.

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

3.27 Safety.

Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of its employees, consultant and subcontractors appropriate to the nature of the work and the conditions under which the work is to be performed.

3.28 Harassment Policy.

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

3.29 Delivery of Notices.

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

CITY:

City of Ontario
303 East “B” Street
Ontario, CA 91764
Attn: Marissa Kucheck, Museum Director
CONSULTANT:

Smithgroup, Inc.
550 South Hope Street, Suite 1950
Los Angeles, CA 90071
Attn: Richey Madison

Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the Party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

3.30 Time of Essence.

Time is of the essence for each and every provision of this Agreement. 382
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3.31 City’s Right to Employ Other Consultants.

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

3.32 Prohibited Interests.

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

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

3.33 Equal Opportunity Employment.

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

Such non- discrimination shall include, but not be limited to, all activities rel ated to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City’s minority business enterprise program, affirmative action plan or other related programs or guidelines currently in effect or hereinafter enacted.

3.34 Labor Certification.

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

3.35 Subcontracting.

As spe cified in this Agreement, Consultant shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to each and every provision of this Agreement.

3.36 Supplemental Conditions.

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

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

SIGNATURES ON FOLLOWING PAGE
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SIGNATURE PAGE FOR DESIGN SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO
AND SMITHGROUP, INC.

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

CITY OF ONTARIO SMITHGROUP, INC.

By:

Its:

Printed Name:

By:

Its:

Printed Name:

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

Approved By:

Scott Ochoa
City Manager
Approved as to Form:

_____________________________________
Best Best & Krieger LLP
City Attorney

Attested By:

City Clerk

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BB&K (2024) Exhibit A-1

EXHIBIT “A”

SCOPE OF SERVICES

1. GENERAL REQUIREMENTS.

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

1.2 Exclusions from Basic Services. The following services shall be excluded from the basic services listed above: COMMON EXCLUSIONS: civil engineering, landscape architectural, soils engineering, geotechnical services, haz ardous waste or toxic substances engineering or other SERVICES.

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

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

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

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

2. INITIAL PLANNING PHASE.

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

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

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

Consultant shall use its best judgment in determining the balance between the size, type and 386
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BB&K (2024) Exhibit A-2

quality of construction to achieve a satisfactory solution within the Project’s budget and construction allowance. It shall be the duty of the Consultant to design the Project within budget.

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

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

3. SCHEMATIC PLAN PHASE.

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

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

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

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

3.4 Copies of Schematic Plans and Other Documents. Consultant , at its own expense, shall provide a complete set of the Schematic Plans described herein for City’s review and approval. Additionally, at City’s expense, Consultant shall provide such documents as may be required by any federal, state, regional or local agencies concerned with the Project. Any additional copies required by City shall be provided at actual cost to City. 387
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BB&K (2024) Exhibit A-3

4. DESIGN DEVELOPMENT PHASE.

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

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

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

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

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

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

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

5. FINAL WORKING DRAWINGS AND SPECIFICATIONS.

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

5.1 Final Working Drawings and Specifications. Once City provides Consultant with specific written approval of the Design Development Documents described herein, Consultant shall prepare such complete working drawings and specifications as are necessary for developing complete bids and for properly executing the Project work in an efficient and thorough manner (“Final Working Drawings and Specifications”). Such Final Working Drawings and Specifications s hall be developed from the Schematic Plans and Design Development Documents approved by City. The Final Working Drawings and Specifications shall set forth in 388
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BB&K (2024) Exhibit A-4

detail all of the following: (1) the Project construction work to be done; (2) the materials, workmanship, finishes, and equipment required for the architectural, structural, mechanical, and electrical systems; and (3) the utility service connection equipment and site work. As indicated in Section 3.9.2 of the Agreement, City may be requested to supply Consultant with the necessary information to determine the proper location of all improvements on and off site, including record drawings (“as-built drawings”) in City’s possession. Consultant will make a good -faith effort to verify the accuracy of such information by means of a thorough interior and exterior visual survey of site conditions. City shall also make a good -faith effort to verify the accuracy of the as -built drawings and provide any supplemental information to Consultant which may not be s hown on the as-built drawings.

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

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

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

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

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

Consultant, at its own expense, shall provide a complete set of the Final Working Drawings and Specifications described herein for City’s review and approval. Additionally, at City’s expense, 389
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BB&K (2024) Exhibit A-5

Consultant shall provide such documents as may be required by any federal, state, regional or local agencies concerned with the Project. Any additional copies required by City shall be provided at actual cost to City.

6. CONSTRUCTION CONTRACT DOCUMENTS.

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

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

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

7. BID PHASE.

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

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

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

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

8. CONSTRUCTION PHASE.

During the construction phase of the Project, Consultant shall do all of the following, as well as any incidental services thereto:
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BB&K (2024) Exhibit A-6

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

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

8.3 Pre-Construction Meeting. Consultant shall conduct one or more pre- construction meetings, as the City determines is needed for the Project, with all interested Parties.

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

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

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

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

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

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

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

8.11 Material and Test Reports. Consultant shall check and process, in a timely manner, all required material and test reports for the Project work. In addition, Consultant shall provide notice of any deficienc ies in material or work reflected in such reports, as well as its recommendation for correction of such deficiencies, to the contractors and City. 391
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BB&K (2024) Exhibit A-7

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

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

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

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

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

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

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

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

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

8.20 Punch List. After determining that the Project is substantially complete, Consultant shall participate in the inspection of the Project and shall review all remaining deficiencies and minor items needed to be corrected or completed on the Project, including those identified on the punch list prepared by the contractor (“Punch List Items”). Consultant shall notify 392
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contractor in writing that all Punch List Items must be corrected prior to final acceptance of the Project and final payment. Consultant shall also notify City of all Punch List Items.

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

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

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

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

9. AS-BUILT DRAWINGS.

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

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

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

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

10. WARRANTY PERIOD.

During the warranty period phase of the Project, Consultant shall do all of the fol lowing, as well as any incidental services thereto:
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10.1 Advice. Consultant shall provide advice to City on apparent deficiencies in the Project during any applicable warranty periods for the Project. 394
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BB&K (2024) Exhibit B-1

EXHIBIT “B”

FEE AND PHASING/FUNDING SCHEDULES

1. FEE SCHEDULE.

Consultant will invoice City on a monthly cycle based on the following fee schedule.

Consultant will include with each invoice a detailed progress report that indicates the amount of budget spent on each phase and the total amount spent against the Total Compensati on.

Consultant will inform City regarding any out -of-scope work being performed by Consultant for which Consultant intends to seek compensation from City.

2. PHASING/FUNDING SCHEDULE.

Progress payments towards Total Compensation shall never exceed the foll owing percentages of Total Compensation as of the phase indicated:

Initial Planning Phase: ________ percent (%____)
Schematic Plan Phase: ________ percent (%____)
Design Development Phase: ________ percent (%____) Final Working Drawings & Specifications Phase: ________ percent (%____) Construction Contract Documents Phase: ________ percent (%____) Bid Phase: ________ percent (%____)
Construction Phase: ________ percent (%____)
As-Built Drawings Phase: ________ percent (%____)
Warranty Period Phase: ________ percent (%____)

Note: No Phasing/Funding Schedule is necessary until a project task is issued under the contract
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BB&K (2024) Exhibit C-1

EXHIBIT “C”

COMPENSATION RATES AND REIMBURSABLE EXPENSES

1. HOURLY COMPENSATION RATES.

2. REIMBURSABLE EXPENSES.

3. ADDITIONAL SERVICES.

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

4. ADDITIONAL CONSULTANTS.

If City requires Consultant to hire consultants to perform any Additional Services, Consultant shall be compensated therefore at the Consultant ’s actual hourly rates plus 15%.

Owner shall have the authority to review and approve the rates of any such consultants. 396
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C

ITY OF ONTARIO

DESIGN SERVICES AGREEMENT

1. PARTIES AND DATE.

This Agreement is made and entered into as of ____________, by and between the City of Ontario, a municipal corporation organized and operating under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764 - 4196, County of San Bernardino, State of California (“City”), and Architectural Resources Group, Inc., a Corporation, with its principal place of business at 9 Pier, The Embarcadero, Suite 107, San Francisco, CA 94111 (hereinafter referred to as “Consultant”). City and Consultant are sometimes individually referred to herein as “Party” and collectively as “Parties.”

2. RECITALS.

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

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

2.3 Project. City desires to engage Consultant to render such services for the Museum Improvements On -Call Architectural Services ( "Project") as set forth in this Agreement.

3. T ERMS

3.1 Employment of Consultant.

3.1.1 S cope of Services . Consultant promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional architectural and related services necessary for the full and adequate completion of the Project consistent with the provisions of this Agreement (hereinafter referred to as “Services”). The Services are more particularly described throughout this Agreement, including Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, any exhibits 397
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attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. All Services performed by Consultant shall be subject to the sole and discretionary approval of the City, which approval shall not be unreasonably withheld

3.1.2 Term. The term of this Agreement shall be from November 4, 2024, to November 4, 2027, unless earlier t erminated as provided herei n. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than two (2) additional one-year terms. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines.

3.2 Project Consultant; Key Personnel.

3.2.1 Project Architect. Consultant shall name a specific individual to act as Project Consultant, subject to the approval of City. Consultant hereby designates Liz MacLean (License No. C-39534) to act as the Project Architect for the Project. The Project Architect shall:
(1) maintain oversight of the Services; (2) have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement; (3) supervise and direct the Services using his or her best skill and attention; (4) be responsible for the means, methods, techniques, sequences and procedures used for the Services; (5) adequately coordinate all portions of the Services; and (6) act as principal contact with City and all contractors, consultants, engineers and inspectors on the Project. Any change in the Project Architect shall be subject to the City’s prior written approval, which approval shall not be unreasonably withheld. The new Project Architect shall be of at least equal competence as the prior Project Architect. In the event that City and Consultant cannot agree as to the substitution of a new Project Architect , City shall be entitled to terminate this Agreement for cause.

3.2.2 Key Personnel. In addition to the Project Architect , Consultant has represented to the City that certain additional key personnel, engineers and consultants will perform the Services under this Agreement. Should one or more of such personnel, engineers or consultants become unavailable, Consultant may substitute others of at least equal competence upon written approval of the City. In the event that City and Consultant cannot agree as to the substitution of key personnel, engineers or consultants, City shall be entitled to terminate this Agreement for cause. The key additional personnel, engineers and consultants for performance of this Agreement are as follows: Kimbro Frutiger, Project Manager and Scott Severson.

3.3 Hiring of Consultants and Personnel.

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

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

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

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

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

3.4 Standard of Care.

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

3.4.2 P
erformance of Employees. Any employee or consultant who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee or consultant who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.
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3.5 Laws and Regulations.

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

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

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

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

3.5.5 W
ate r Quality Management and Compliance. Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances 400
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regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000- 14950); and any and all regulations, policies, or permits issued pursuant to any such authority.

Consultant shall additionally comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges. Failure to comply with laws, regulations, and ordinances listed in this Section is a violation o f federal and state law.

3.6 Independent Contractor.

3.6.1 Control and Payment of Subordinates . City retains Consultant on an independent contractor basis and Consultant is not an employee of City. Consultant is not an employee for state tax, federal tax or any other purpose, and is not entitled to the rights or benefits afforded to City’s employees. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City, and shall at all times be under Consultant’s exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.

3.7 Schedule of Services.

3.7.1 Consultant Services. Consultant shall fully and adequately complete the Services described in this Agreement and in Exhibit “A” attached hereto and incorporated herein by reference.

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

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

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

Such schedule shall be subject to the City’s review and approval, which approval shall not be unreasonably withheld, and shall include allowances for periods of time required for City’s review and approval of submissions, and for approvals of authorities having jurisdiction over Project approval and funding. If City and Consultant cannot mutually agree on a performance schedule, City shall have the authority to immediately terminate this Agreement. The schedule shall not be exceeded by Consultant without the prior written approval of City. If the Consultant’s Services are not completed within the time provided by the agreed upon performance schedule, or any milestones established therein, it is understood, acknowledged and agreed that the City will suffer damage for which the Consultant will be responsible.
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3.7.4 Excusable Delays. Any delays in Consultant ’s work caused by the following may be added to the time for completion of any obligations of Consultant: (1) the actions of City or its employees; (2) the actions of those in direct contractual relationship with City; (3) the actions of any governmental agency having jurisdiction over the Project; (4) the actions of any parties not within the reasonable control of the Consultant; and (5) any Force Majeure Event (as defined herein) or other unforeseen occurrence not due to any fault or negligence on the part of Consultant. Neither the City nor the Consultant shall be liable for damages, liquidated or otherwise, to the other on account of such delays.

3.7.5 For ce Majeure Events. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non- performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unfor eseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the services, only to the extent such strikes and other organized labor action are beyond the control of Consultant and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the Services and Agreement. Should a Force Majeure Event occur, the non- performing Party shall, within fifteen (15) calendar days of the beginning of an Force Majeure Event, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events shall not entitle Consultant to any additional compensation. Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.

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

3.8 Additional Services.

3.8.1 Request for Services . At City’s request, Consultant may be asked to perform services not otherwise included in this Agreement, not included within the basic services 402
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listed in Exhibit “A” attached hereto, and/or not customarily furnished in accordance with generally accepted architectural practice.

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

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

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

3.9.1 Data and Information. City shall make available to Consultant all necessary data and information concerning the purpose and requirements of the Project, including scheduling and budget limitations, objectives, constraints and criteria. As part of the budget 403
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limitation information, the City shall provide the Consultant with a preliminary construction budget (“City’s Preliminary Construction Budget”).

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

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

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

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

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

3.9.7 Cit y’s Representative . The City hereby designates the City Manager, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Contract. The City Manager hereby designates Gil Mars, Project Manager , or his or her designee, as the City’s contact for the implementation of the Services hereunder.

Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.

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

3.10 Compensation.

3.10.1 Consultant’s Compensation for Basic Services . City shall pay to Consultant, for the performance of all Services rendered under this Agreement, the total not to exceed amount of One Hundred Fifty Thousand Dollars ($150,000) (“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. 404
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3.10.2 Payment for Additional Services . At any time during the term of this Agreement, City may request that Consultant perform Additional Services. As used herein, Additional Services means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement . Any additional work in excess of this amount must be approved by the City . If authorized, such Additional Services will be compensated at the rates and in the manner set forth in Exhibit “C” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the Parties. If City requires Consultant to hire consultants to perform any Additional Services, Consultant shall be compensated therefore at the rates and in the manner set forth in Exhibit “C” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the Parties. City shall have the authority to review and approve the rates of any such consultants. In addition, Consultant shall be reimbursed for any expenses incurred by such consultants pursuant to the terms and conditions of Section 3.10.3.

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

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

3.10.4 P
ayment to Consultant . Consultant ’s compensation and reimbursable expenses shall be paid by City to Consultant no more often than monthly. Such periodic payments shall be made based upon the percentage of work completed, and in accordance with the phasing and funding schedule provided in Exhibit “B” and the compensation rates indicated in Exhibit “C” attached hereto and incorporated herein by reference. In order to receive payment, Consultant shall present to City an itemized statement which indicates Services performed, percentage of Services completed, method for computing the amount payable, and the amount to be paid. The statement shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement, as well as those expenses for which reimbursement is requested for that statement period. The amount paid to Consultant shall never exceed the percentage amounts authorized by the phasing and funding schedule located in Exhibit “B” attached hereto. City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon pursuant to the provisions of Civil Code Section 3320. Disputed amounts shall be resolved by the Parties in a mutually agreeable manner.

Payments made for Additional Services shall be made in installments, not more often than monthly, proportionate to the degree of completion of such services or in such other manner as the Parties shall specify when such services are agreed upon, and in accordance with any authorized fee or rate schedule. In order to receive payment, Consultant shall present to City an itemized statement which indicates the Additional Services performed, percentage of Additional Services completed, method for computing the amount payable, and the amount to be paid. The statement shall describe the amount of Additional Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within thirty (30) days of receiving such statement, review 405
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the statement and pay all approved charges thereon pursuant to the provisions of Civil Code Section 3320. Disputed amounts shall be resolved by the Parties in a mutually agreeable manner.

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

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

3.10.6 P
revailing Wages . Consultant is aware of the requirements of California Labor Code Sections 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and If the total compensation is $1,000 or more, Consultant agrees to fully comply with and to require its consultants to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement.

Consultant sh all make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant’s principal place of business and at the Project site. It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.

Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure of the Consultant or its consultants to comply with the Prevailing Wage Laws.
(a) R
egistration/DIR Compliance. If the Services are being performed as part of an applicable “public works project” of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such Services must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain 406
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registration for the duration of the P roject and require the same of any subconsultants. This project may also be subject to compliance monitoring and enforcement b y the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the Department of Industrial Relations against Consultant or any subconsultant that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subconsultant.

3.10.7 Automated Clearing House (“ACH”) payments. It is the City’s policy to pay its consultant invoices via electronic fund transfers through the ACH network. All payments due and owing pursuant to a properly issued and correct invoice or under this Agreement shall be made through electronic ACH transfers, unless otherwise agreed upon by both Parties in writing.

Consultant shall provide the City with ACH payment details whereby the City shall initiate the ACH transfers to Consultant in the amount required pursuant to a properly issued and correct invoice or under this Agreement. Each Party shall undertake any and all required actions and execute any required documents, instruments, or agreements required to effectuate the requirements of this Section. In the event the City erroneously deposits funds into an account, or otherwise deposits funds to which Consultant is not entitled: (1) Consultant shall immediately notify the City and the financial institution; (2) Consultant shall not withdraw any of the funds which were erroneously deposited or to which Consultant is not entitled; and (3) Consultant authorizes both the City and financial institution to take all actions necessary to correct the error and return to the City all funds erroneously deposited or to which Consultant is not entitled.

3.11 Notice to Proceed.

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

3.12 Termination, Suspension and Abandonment.

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

3.12.2 C
ity’s Suspension of Work . If Consultant’s Services are suspended by City, City may require Consultant to resume such Services within ninety (90) days after written notice 407
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from City. When the Project is resumed, the Total Compensation and schedule of Services shall be equitably adjusted upon mutual agreement of the City and Consultant.

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

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

3.12.4 E
mployment of other Consultants. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.

3.13 Ownership and Use of Documents; Confidentiality.

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

3.13.2 Rig
ht to Use . Consultant grants to City the right to use and reuse all or part of the Project Documents, at City’s sole discretion and with no additional compensation to Consultant, for the following purposes:
(a) The construction of all or part of this Project.
(b) The repair, renovation, modernization, replacement, reconstruction or expansion of this Project at any time;
(c) The construction of another project by or on behalf of the City for its ownership and use;
City is not bound by this Agreement to employ the services of Consultant in the event such documents are used or reused for these purposes. City shall be able to use or reuse the Project Documents for these purposes without risk of liability to the Consultant or third parties with respect 408
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to the condition of the Project Documents, and the use or reuse of the Project Documents for these purposes shall not be construed or interpreted to waive or limi t City’s right to recover for latent defects or for errors or omissions of the Consultant.

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

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

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

3.13.5 C onfidentiality . All Project Documents, either created by or provided to Consultant in connection with the performance of this Agreement, shall be held confidential by Consultant to the extent they are not subject to disclosure pursuant to the Public Records Act. All Project Documents shall not, without the written consent of City, be used or reproduced by Consultant for any purposes other than the performance of the Services. Consultant shall not disclose, cause or facilitate the disclosure of the Project Documents to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City’s name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the written consent of City.

3.14 Indemnification.

3.14.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall 409
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survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.

3.14.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.

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

3.15.1 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, Consultant shall, at its expense, procure and maintain in full force and effect for the duration of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so.