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 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 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 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 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, without limitation, all applicable provisions of the City’s ordinances 212
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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 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 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 Performance 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 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 nonperforming 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 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 214
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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 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 Services 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 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 215
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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 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 Cynthia Heredia-Torres, 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 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 Two Hundred Thousand Dollars ($200,000) (“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. 216
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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 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 costs 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, 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 217
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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 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. Since the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, Consultant agrees to fully comply with 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 218
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registration for the duration of the Project 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 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 219
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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 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 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 220
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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 Right to License. Consultant represents and warrants that Consultant has the legal right to license any and all copyrights, designs and other intellectual property embodied in the Project Documents that Consultant prepares or causes to be prepared pursuant to this Agreement. Consultant shall indemnify and hold City harmless pursuant to the indemnification provisions of this Agreement for any breach of this Section. Consultant makes no such representation and warranty in regard to previously prepared designs, plans, specifications, studies, drawings, estimates or other documents that were prepared by design professionals other than Consultant and provided to Consultant by City.
3.13.5 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 221
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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 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 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 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.
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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 224
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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 and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance.
3.15.9 Policy Provisions Required
(a) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration.
(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 225
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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 226
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shall be standardized to City’s criteria to the extent such criteria do not interfere with building design.
3.18 Limitation of Agreement.
This Agreement is limited to and includes only the work included in the Project described herein. Any additional or subsequent construction at the site of the Project, or at any other City site, will be covered by, and be the subject of, a separate Agreement for engineering 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. 227
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3.24 Exhibits and Recitals.
All exhibits and recitals contained herein and attached hereto are material parts of this Agreement and are incorporated as if fully set forth.
3.25 Severability.
Should any provision in the Agreement be held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall continue in full force and effect.
3.26 Non-Waiver.
None of the provisions of this Agreement shall be considered waived by either Party, unless such waiver is specifically specified in writing.
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: Cynthia Heredia-Torres
CONSULTANT:
Hammel, Green and Abrahamson, Inc.
1301 Colorado Avenue
Santa Monica, CA 90404
Attn: Fielding Featherston
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 228
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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 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 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.
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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 HAMMEL, GREEN AND ABRAHAMSON, INC.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
CITY OF ONTARIO Hammel, Green and Abrahamson, 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: soils engineering, geotechnical services, and hazardous waste or toxic substances engineering.
1.3 Additional Services. Consultant shall perform the following Additional Services for the Project: Project Specific
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 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 232
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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 Projectrelated 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. 233
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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 executing the Project work in an efficient and thorough manner (“Final Working Drawings and Specifications”). Such Final Working Drawings and Specifications shall be developed from the Schematic Plans and Design Development Documents approved by City. The Final Working Drawings and Specifications shall set forth in 234
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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 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 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, 235
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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 or more preconstruction meetings, as the City determines is needed for the Project, with all interested Parties.
8.4 Site Visits of Contractor’s Work. Consultant shall conduct site visits to observe each contractors’ work for general conformance with the Construction Documents and with any approved construction schedules or milestones. Such site visits shall be conducted as often as are necessary and appropriate to the stage of construction, according to the City’s sole discretion, but in no event less than weekly.
8.5 Site Visits of Inspector’s Work. Consultant shall conduct site visits to communicate and observe the activities of the City inspectors. Such site visits shall be conducted as often as is mutually acceptable to Consultant and City. Consultant shall direct the City inspectors and the Project contractors to coordinate the preparation of record drawings indicating dimensions and location of all “as-built” conditions, including but not limited to, underground utility lines.
8.6 Coordination of Subconsultants. Consultant shall cause all 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. 237
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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 238
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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 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 AsBuilt 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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10.1 Advice. Consultant shall provide advice to City on apparent deficiencies in the Project during any applicable warranty periods for the Project. 240
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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 Compensation.
Consultant will inform City regarding any out-of-scope work being performed by Consultant for which Consultant intends to seek compensation from City.
2. PHASING/FUNDING SCHEDULE.
Progress payments towards Total Compensation shall never exceed the following percentages of Total Compensation as of the phase indicated:
Initial Planning Phase: ________ percent (%____)
Schematic Plan Phase: ________ percent (%____)
Design Development Phase: ________ percent (%____)
Final Working Drawings & Specifications Phase: ________ percent (%____) Construction Contract Documents Phase: ________ percent (%____) Bid Phase: ________ percent (%____)
Construction Phase: ________ percent (%____)
As-Built Drawings Phase: ________ percent (%____)
Warranty Period Phase: ________ percent (%____)
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
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CITY 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 Robert Borders & Associates, a CORPORATION with its principal place of business at 1675 Scenic Ave, Suite 210 Costa Mesa, CA 92626 (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 engineering or 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 engineer or architect in the State of California.
2.3 Project. City desires to engage Consultant to render such services for the D&C 24-012 On-Call Architectural, Space Planning And Engineering Design 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 engineering or 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, 244
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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.
3.1.2 Term. The term of this Agreement shall be from November 20, 2024, to November 20, 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 Engineer of Record OR Project Architect. Consultant shall name a specific individual to act as Project Consultant, subject to the approval of City. Consultant hereby designates Loren Della Marna (License No. C21632) to act as the Engineer of Record OR Project Architect for the Project. The Engineer of Record OR 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 Engineer of Record OR Project Architect shall be subject to the City’s prior written approval, which approval shall not be unreasonably withheld. The new Engineer of Record OR Project Architect shall be of at least equal competence as the prior Engineer of Record OR Project Architect. In the event that City and Consultant cannot agree as to the substitution of a new Engineer of Record OR Project Architect, City shall be entitled to terminate this Agreement for cause.
3.2.2 Key Personnel. In addition to the Engineer of Record OR 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: Shelly DiLauro & Loren Della Marna
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 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.
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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 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 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 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 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 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, without limitation, all applicable provisions of the City’s ordinances 247
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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 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 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 Performance 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 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 nonperforming 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 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 249
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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 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 Services 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 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 250
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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 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 Cynthia Heredia-Torres, 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 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 Two Hundred Thousand Dollars ($200,000) (“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. 251
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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 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 costs 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, 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 252
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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 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. Since the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, Consultant agrees to fully comply with 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 253
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registration for the duration of the Project 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 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 254
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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 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 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 255
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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 Right to License. Consultant represents and warrants that Consultant has the legal right to license any and all copyrights, designs and other intellectual property embodied in the Project Documents that Consultant prepares or causes to be prepared pursuant to this Agreement. Consultant shall indemnify and hold City harmless pursuant to the indemnification provisions of this Agreement for any breach of this Section. Consultant makes no such representation and warranty in regard to previously prepared designs, plans, specifications, studies, drawings, estimates or other documents that were prepared by design professionals other than Consultant and provided to Consultant by City.
3.13.5 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 256
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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 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 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 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.
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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 259
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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 and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance.
3.15.9 Policy Provisions Required
(a) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration.
(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 260
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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 261
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shall be standardized to City’s criteria to the extent such criteria do not interfere with building design.
3.18 Limitation of Agreement.
This Agreement is limited to and includes only the work included in the Project described herein. Any additional or subsequent construction at the site of the Project, or at any other City site, will be covered by, and be the subject of, a separate Agreement for engineering 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. 262
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3.24 Exhibits and Recitals.
All exhibits and recitals contained herein and attached hereto are material parts of this Agreement and are incorporated as if fully set forth.
3.25 Severability.
Should any provision in the Agreement be held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall continue in full force and effect.
3.26 Non-Waiver.
None of the provisions of this Agreement shall be considered waived by either Party, unless such waiver is specifically specified in writing.
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: Cynthia Heredia-Torres
CONSULTANT:
Robert Borders & Associates
1675 Scenic Ave, Suite 210
Costa Mesa, CA 92626
Attn: Shelly DiLauro
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 263
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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 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 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.
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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 ROBERT BORDERS & ASSOCIATES
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
CITY OF ONTARIO Robert Borders & Associates
By:
Its:
Printed Name:
By:
Its:
Printed Name:
[If Corporation, TWO SIGNATURES,
President OR Vice President AND Secretary
OR Treasurer REQUIRED]
Approved By:
Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:
City Clerk
266
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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: soils engineering, geotechnical services, and hazardous waste or toxic substances engineering.
1.3 Additional Services. Consultant shall perform the following Additional Services for the Project: Project Specific
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 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 267
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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 Projectrelated 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. 268
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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 executing the Project work in an efficient and thorough manner (“Final Working Drawings and Specifications”). Such Final Working Drawings and Specifications shall be developed from the Schematic Plans and Design Development Documents approved by City. The Final Working Drawings and Specifications shall set forth in 269
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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 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 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, 270
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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 or more preconstruction meetings, as the City determines is needed for the Project, with all interested Parties.
8.4 Site Visits of Contractor’s Work. Consultant shall conduct site visits to observe each contractors’ work for general conformance with the Construction Documents and with any approved construction schedules or milestones. Such site visits shall be conducted as often as are necessary and appropriate to the stage of construction, according to the City’s sole discretion, but in no event less than weekly.
8.5 Site Visits of Inspector’s Work. Consultant shall conduct site visits to communicate and observe the activities of the City inspectors. Such site visits shall be conducted as often as is mutually acceptable to Consultant and City. Consultant shall direct the City inspectors and the Project contractors to coordinate the preparation of record drawings indicating dimensions and location of all “as-built” conditions, including but not limited to, underground utility lines.
8.6 Coordination of Subconsultants. Consultant shall cause all 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. 272
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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 273
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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 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 AsBuilt 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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10.1 Advice. Consultant shall provide advice to City on apparent deficiencies in the Project during any applicable warranty periods for the Project. 275
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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 Compensation.
Consultant will inform City regarding any out-of-scope work being performed by Consultant for which Consultant intends to seek compensation from City.
2. PHASING/FUNDING SCHEDULE.
Progress payments towards Total Compensation shall never exceed the following percentages of Total Compensation as of the phase indicated:
Initial Planning Phase: ________ percent (%____)
Schematic Plan Phase: ________ percent (%____)
Design Development Phase: ________ percent (%____)
Final Working Drawings & Specifications Phase: ________ percent (%____) Construction Contract Documents Phase: ________ percent (%____) Bid Phase: ________ percent (%____)
Construction Phase: ________ percent (%____)
As-Built Drawings Phase: ________ percent (%____)
Warranty Period Phase: ________ percent (%____)
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
277
278
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: CONSTRUCTION CONTRACTS FOR THE SPORTS COMPLEX OFFSITE UTILITIES
PROJECT AND THE SEWER IMPROVEMENT AT VINEYARD PROJECT IN
CONNECTION WITH THE CONSTRUCTION OF THE ONTARIO PROFESSIONAL
BASEBALL STADIUM
CITY OF ONTARIO
Agenda Report
November 19, 2024
SECTION:
CONSENT CALENDAR
RECOMMENDATION: That the City Council take the following actions:
A. Authorize the City Manager or his designee to award Contract No. D&C23-025 Sports Complex Offsite Utilities Project to Griffith Company, of Brea, California, for the construction of the Offsite Utilities for the Sports Complex, in the amount of $90,584,000 plus a 15% contingency of $13,587,600, for a total not-to-exceed contract amount of $104,171,600, and B. Authorize the City Manager or his designee to award Contract No. D&C23-025 Sports Complex Sewer Improvement at Vineyard Avenue Project to Weka, Inc., of San Bernardino, California, for the construction of the Offsite Vineyard Sewer for the Sports Complex, in the amount of $27,972,383 plus a 15% contingency of $4,195,857, for a total not-to-exceed contract amount of $32,168,240, and
C. Authorize the City Manager or his designee to execute Amendment No. 2 to the on-call Professional Services Agreement with Ardurra Group, Inc., of Newport Beach, California, to provide on-call Design Services for the Ontario Sports Complex Project in the amount of $72,780 for a total not-to-exceed contract amount of $2,457,212; and D. 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:
Focus Resources in Ontario's Commercial and Residential Neighborhoods Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in Ontario Ranch
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FISCAL IMPACT: The Fiscal Year 2024-25 Adopted Budget and 5-Year Capital Improvement Program includes current and planned appropriations in the Capital Projects-Measure Q, Sewer Capital, Water Capital, and DIF Ontario Ranch – Local Adjacent Sewer funds for the Regional Sports Complex – Off Site Improvements project. The recommended contract award to Griffith Company for the construction of the D&C23-025 Sports Complex Offsite Improvements is $90,584,000 plus a 15% contingency of $13,587,600, for a total not-to-exceed contract amount of $104,171,600. The recommended contract award to Weka, Inc. for the construction of the D&C23-025 Sports Complex Sewer Improvement at Vineyard Avenue Project is $27,972,383 plus a 15% contingency of $4,195,857 for a total not-to-exceed contract amount of $32,168,240. The proposed Amendment No. 2 for Ardurra Group for on-call Design Services for the Ontario Sports Complex Project is $72,780 for a total not-to-exceed contract amount of $2,457,212.
BACKGROUND & ANALYSIS: The Sports Complex project includes a professional baseball stadium, soccer fields, baseball tournament areas, softball tournament areas, football fields, tennis and pickleball courts, full and half-court basketball courts, retail facilities, and parking structures for the professional baseball stadium and sports fields area. The Sports Complex is being built in an underdeveloped area in Ontario Ranch. The City’s infrastructure needs to be enhanced to accommodate the operations at the Sports Complex.
Sports Complex Offsite Utilities Project
The Sports Complex Offsite Utilities Project consists of street improvements and off-site utility work on Riverside Ave., Hellman Ave., Chino Ave., Vineyard Ave., and the newly constructed streets A St., B St. and C St. Street improvements consist of street widening, curb and gutter installation, sidewalk construction, striping, signage, and landscape improvements. Off-site utility work consists of installation of new traffic signals, street lighting, fiber optic lines, storm drains, 9,910 LF of recycled water pipeline, 10,320 LF of potable water pipeline, and 7,820 LF of Sewer pipeline.
On October 24, 2024, one (1) bid was received for the D&C23-025 Sports Complex Offsite Improvements Project:
Bidder Location Amount
Griffith Company Brea, CA $90,584,000
Staff recommends the award to Griffith Company, of Brea, California, for Construction Contract D&C23-025 Sports Complex Offsite Improvements Project based on their expertise, ability to perform the work in a timely manner, and successfully completing this type of work in the past.
Sewer Improvement at Vineyard Avenue Project
The Sports Complex Sewer Improvement Project at Vineyard Ave. will connect the sewer lines from the Sports Complex to the existing lines on Eucalyptus Ave. New sewer lines need to be constructed because the existing lines maintained by the Inland Empire Utility Agency cannot handle the capacity of the sewage coming from the Sports Complex. The project scope consists of installation of 10,315 LF of new sewer pipeline on Vineyard Ave. and Eucalyptus Ave. south of Riverside Drive.
Improvements include sewer manholes, steel cased piping, new precast structures, new access roads, and sawcut patch and repair work on the existing street. 280
On October 21, 2024, four (4) bids were received for the D&C23-025 Sports Complex Vineyard Sewer Project. The bids ranged from a low bid amount of $27,972,383 to a high bid amount of $46,623,500. The bids are summarized below:
Bidder Location Amount
Weka, Inc. San Bernardino, CA $27,972,383
Norstar Plumbing & Engineering,
Inc.
Alta Loma, CA $33,444,555
Steve Bubalo Construction Co. Monrovia, CA $33,489,700
Steve P. Rados, Inc. Santa Ana, CA $46,623,500
Staff reviewed each bid, the company’s qualifications, and responsiveness to the bid requirements.
Staff recommends the award to Weka, Inc., of San Bernardino, California, for Construction Contract D&C23-025 Sports Complex Vineyard Sewer Project based on their expertise, pricing, references, the ability to perform the work in a timely manner, and successfully completing this type of work in the past.
On-Call Design Services for the Ontario Sports Complex Project On July 16, 2024, the City Council approved Amendment No. 1 to the on-call Design Services Agreement with Ardurra Group, Inc. to include landscape and irrigation design of the City’s public parkways and construction engineering services for the Ontario Sports Complex. Previously, Ardurra Group, Inc. designed all the Sports Complex off-site utilities. The proposed Amendment No. 2 to the on-call Design Services Agreement with Ardurra Group, Inc. includes design for the Sewer Improvement Project at Vineyard Ave.
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SECTION 00500 – CONTRACT FOR CONSTRUCTION
This Contract for Construction (“Contract”), No. D&C23-025 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 Weka, 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:
Sports Sewer Improvement at Vineyard Ave.
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 per the contract schedule and within 389 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.
ARTICLE 3. CONTRACT PRICE.
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 Twenty-Seven Million Nine Hundred Seventy-Two Thousand Three Hundred Eighty-Three Dollars ($27,972,383). 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.
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ARTICLE 4. LIQUIDATED DAMAGES.
Contractor acknowledges that the City will sustain 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 $15,000 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
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 Reference Specifications
Approved and fully executed Change Orders
Permits
Scope of Work Summary
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, 283
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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]
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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
Weka, Inc.
By:
Its:
Printed Name:
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
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46700.00100\33287662.1
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AMENDMENT NO. 2 TO THE DESIGN SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO AND
ARDURRA GROUP, INC.
1. Parties and Date.
This Amendment No. 2 to the Agreement (as defined herein) is made and entered as of ____________, by and between the City of Ontario (“City”) and Ardurra Group, Inc., a Corporation (“Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.”
2. Recitals.
2.1 Agreement. The City and Consultant have entered into an agreement entitled “Design Services Agreement” dated June 4, 2024 (“Agreement”).
2.2 Amendment Purpose. The City and Consultant desire to amend the Agreement to revise the scope of services for The Sports Complex Offsite Improvements and the not-to-exceed compensation amount by Seventy-Two Thousand Seven Hundred Eighty Dollars ($72,780) for a total contract amount not-to-exceed Two Million Four Hundred Fifty-Seven Thousand and Two Hundred Twelve Dollars ($2,457,212).
2.3 Amendment Authority. This Amendment No. 2 is authorized pursuant to Section
3.37 of the Agreement.
3. Terms.
3.1 Amendment. Section 3.1.1 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 herein by reference. All Services shall be subject to, and performed in accordance with, 286
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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."
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 Two Million Four Hundred Fifty-Seven Thousand and Two Hundred Twelve Dollars ($2,457,212) ("Total Compensation"). This Total Compensation amount shall be based upon, and may be adjusted according to, the fee schedule and related terms and conditions attached hereto as Exhibit "B" and incorporated herein by reference. The Total Compensation, as may be adjusted upon mutual agreement, shall constitute complete and adequate payment for Services under this Agreement.
Exhibit A and B are hereby revised in their entirety and added Attachment A attached hereto and incorporated herein by reference.
3.2 Continuing Effect of Agreement. Except as amended by this Amendment No. 2, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 2. From and after the date of this Amendment No. 2, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 2.
3.3 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 2.
3.4 Severability. If any portion of this Amendment No. 2 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.5 Integration. This Amendment represents the entirety of the Parties’ understanding relating to the subject of this Amendment, including written or verbal communications between the Parties, which shall have no relevance unless expressly incorporated herein. This is an integrated amendment.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR AMENDMENT NO. 2 TO THE DESIGN SERVICES
AGREEMENT BETWEEN THE CITY OF ONTARIO
AND ARDURRA GROUP, 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 ARDURRA GROUP, INC.
By:
Its:
Printed Name:
By:
Its:
Printed Name:
[If Corporation, TWO SIGNATURES,
President OR Vice President AND Secretary
OR Treasurer REQUIRED]
Approved By:
Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:
City Clerk
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3737 Birch Street, Suite 250 | Newport Beach, CA 92660 | www.ardurra.com July 1, 2024
Christy Stevens, PE, Principal Engineer
Ontario Municipal Utilities Department
1333 S. Bon View Avenue
Ontario, CA 91761
SUBJECT: Amendment No. 2 Engineering Services for Ontario Regional Sports Complex Offsite Improvements – Sewer Improvements in Eucalyptus Avenue from Vineyard Ave to Carpenter Ave
Dear Ms. Stevens:
Thank you for the privilege to work with the City on this exciting, fast-tracked project. Based on OMUC’s request to lower the elevation of the sewer along Eucalyptus Avenue, we prepared this scope and fee for your consideration and approval.
Please feel free to contact me if you have questions or require additional information at 661.748.3893 or [email protected].
Sincerely,
Dolores Salgado, PE
Client Service Manager
Enclosures:
Exhibit “A” Scope of Work
Exhibit “B” Design Fee Schedule and 2024 Billing Rates
Attachment "A"
289
Ms. Stevens
July 1, 2024
3737 Birch Street, Suite 250 | Newport Beach, CA 92660 | www.ardurra.com City of Ontario Sports Complex
Engineering Services for Offsite Improvements
Amendment No. 2
Task 1 – PREPARE CONTRACT DOCUMENTS AND REVISE EXISTING PLANS Ardurra will extend the sewer improvements approximately 1,200 linear feet along Eucalyptus Avenue from Vineyard Avenue to Carpenter Avenue. The following tasks are required to complete this work:
1. Data Collection and Utility Mapping
2. Surveying and Mapping (O’Day Consultants)
3. Hydraulic calculations
4. Prepare three (3) sewer plan and profile sheets and two manhole details
5. Revise five (5) sewer plan and profile sheets to deepen the sewer and manholes Task 2 – ENGINEERING SERVICES DURING CONSTRUCTION
Attend construction progress site meetings and provide support services including technical review of submittals, RFIs, change orders, claim mitigation efforts, generation of support calculations, review of applicable standards, and presentation of acceptable alternatives or solutions. Upon completion of construction activities, City’s team will forward one set of red-lined drawings to the Consultant to review and sign/approve as Finalized digital As-Builts record drawings.
NOTE: The management, meetings and other scope described above are covered by the Sports Complex Project. This scope below is specific to the additional segment of sewer main. Plus, submittals such as pipe and sewer manholes that are common to the entire sewer main alignments are also covered in the Sports Complex scope.
Change Order Management
Assist the City’s team with negotiating and coordinate the implementation of contract change orders during the construction process. City’s team will compile change order supporting documentation, such as inspection reports, test reports, drawings, sketches, photographs, and other materials as required. Ardurra will review and evaluate the appropriateness of all proposed change orders; advise City as to their effect on the contract time and cost; and perform independent estimates of the proposed change order work when necessary, as well as recommend approval or denial. Assumed 3 total.
Requests for Information (RFI)
Review and respond to contractor’s Request for Information (RFIs) the duration of the project. Responses will be provided within five (5) working days and in accordance with the Contract Documents. Assumed 5 total.
Submittal Management
Review and respond to contractor’s submittals the duration of the project. Assure contractor submittals are in conformance with the Contract Documents. Document the status of submittals, received and corresponding 290
Ms. Stevens
July 1, 2024
3737 Birch Street, Suite 250 | Newport Beach, CA 92660 | www.ardurra.com responses, via a Submittal Log and provide the City with an updated log for the entire project duration. Assumed 5 total.
Design Revisions
Prepare construction field order changes and design changes, as required during construction. Assumed 5 total.
Post Construction
Prepare record drawings per City’s standard process. Final drawings provided via PDF along with accompanying CAD files.
Task 3 – Additional Services
Additional services will be provided upon the City’s request, up to an amount equal to 10% of the contracted amendment fee. Work under this task will be pre-approved and defined by the Ardurra and the City in advance.
EXCLUSIONS:
Exclusions stated herein can easily be added upon the City’s request. They are listed here for clarity on the division of work, scope of work understanding, and based on previous scoping meetings with the City.
1. Qualified SWPPP Preparer services.
2. Construction Management and inspection.
3. Environmental Mitigation, Monitoring, and Reporting related to the EIR requirements. 291
Design Fee Schedule Ontario
Regional Sports Complex Offsite
Improvements Amendment No. 2
Quality
Control
Constructability
Review PM OMUC Utilities Design Lead
Project
Engineer II Engineer I Labor Hrs Labor Costs Surveyor
O'Day 10%
2024 Hourly Rates $ 275 $ 275 $ 265 $ 265 $ 165 $ 125
TASK 1 PREPARE CONTRACT DOCUMENTS AND REVISE EXISTING PLANS Data Collection and Utility Mapping 2 16 26 $ 4,770 $ - $ 4,770 Surveying and Mapping 2 8 10 $ 1,850 $ 20,843 $ 2,084 $ 24,777 Hydraulic calculations 2 2 4 $ 860 $ - $ 860
Prepare three (3) sewer plan and profile sheets and two manhole details 3 3 2 40 40 88 $ 13,780 $ - $ 13,780 Revise five (5) sewer plan and profile sheets to deepen the sewer and 5 5 2 20 20 52 $ 9,080 $ - $ 9,080 $ 53,267
TASK 2 ENGINEERING SERVICES DURING CONSTRUCTION
Change Order Management 8 8 $ 2,120 $ - $ 2,120
Requests for Information (RFI) 5 5 $ 1,325 $ - $ 1,325
Submittal Management 5 6 11 $ 2,315 $ - $ 2,315
Design Revisions 5 8 13 $ 2,645 $ - $ 2,645
Post Construction 2 20 22 $ 3,830 $ - $ 3,830
$ 12,235
TASK 3 ADDITIONAL SERVICES
Other Requested Services (10% total) $ 7,278
$ 7,278
8 8 10 25 120 60 239
$ 2,200 $ 2,200 $ 2,650 $ 6,625 $ 19,800 $ 7,500 $ 42,575 $ 20,843 $ 2,084 $ - $ 72,780 TOTAL
ADDITIONAL SERVICES
Total Hours:
Total Project Cost:
PREPARE CONTRACT DOCUMENTS AND REVISE EXISTING PLANS
ENGINEERING SERVICES DURING CONSTRUCTION
Task Item
Labor Hours Subconsultants
Sub
Markup Direct Costs
ORSC Ardurra Amendment No. 2_ Fee Page 1 of 1 7/1/2024 292 Ontario Ballpark -1-
SECTION 00500 – CONTRACT FOR CONSTRUCTION
This Contract for Construction (“Contract”), No. D&C23-025 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 Griffith Company, 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:
Sports Complex Offsite Utilities
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 per the contract schedule and within 389 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.
ARTICLE 3. CONTRACT PRICE.
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 Ninety Million Five Hundred Eighty-Four Thousand Dollars ($90,584,000). 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. 293
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Contractor will pay the City the sum of $50,000 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
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 Reference Specifications
Approved and fully executed Change Orders
Permits
Scope of Work Summary
Any other documents contained in or incorporated into the Contract ARTICLE 4. LIQUIDATED DAMAGES.
Contractor acknowledges that the City will sustain 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 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, 294
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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]
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. 295
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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
Griffith Company
By:
Its:
Printed Name:
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
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Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
Title(s) Title or Type of Document
Partner(s) Limited
General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
297
Department: Public Works
Prepared By: Blaine M Ishii
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: A GOODS AND EQUIPMENT PURCHASE AGREEMENT WITH MCLAUGHLIN WASTE EQUIPMENT, INC. FOR ROLL-OFF CONTAINERS AND PARTS
CITY OF ONTARIO
Agenda Report
November 19, 2024
SECTION:
CONSENT CALENDAR
RECOMMENDATION: That the City Council authorize the City Manager, or his designee, to execute a Goods and Equipment Purchase Agreement with McLaughlin Waste Equipment, Inc., of Lockeford, California, for the purchase of roll-off containers and parts for a total contract amount not-toexceed $2,000,000 for up to five (5) years.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Operate in a Businesslike Manner
Focus Resources in Ontario's Commercial and Residential Neighborhoods FISCAL IMPACT: The recommended contract award to McLaughlin Waste Equipment, Inc. is for a total not-to-exceed contract amount of $1,200,000 over a three-year term. Two (2) one-year extensions may be exercised at the City’s sole discretion for an additional contract amount of $400,000 per year for a total contract amount not-to-exceed $2,000,000 over the five-year term.
The Fiscal Year 2024-25 Adopted Budget includes appropriations in the Integrated Waste Fund for the purchase of roll-off containers and parts.
BACKGROUND & ANALYSIS: The Integrated Waste Department currently has approximately 450 roll-off containers of various sizes in service for high volume customers for refuse, recycling, and construction and demolition materials. To maintain adequate inventory to meet customer needs, the Department routinely repairs roll-off containers to prolong their useful life and purchases around 40 new containers annually to replenish those that cannot be repaired.
On September 13, 2024, the City solicited quotes for Bid No. 1827 for Roll-Off Bins and Parts. The following two (2) vendors responded:
Company Location Amount
McLaughlin Waste Equipment, Inc. Lockeford, CA $307,620 CONFAB Manufacturing Company, LLC Charlotte, NC $281,460 298
The criteria used to assess the quotes included the cost of the containers, production design, warranty, delivery lead time, and customer references. Staff recommends that this purchase be awarded to McLaughlin Waste Equipment, Inc. since they submitted a complete proposal including prices for parts while CONFAB Manufacturing’s proposal did not list pricing for parts.
McLaughlin Waste Equipment, Inc. has been the primary supplier of commercial waste containers to the City for the last three (3) years. The roll-off bins feature a high-quality steel material that greatly reduces damage, which results in a cost savings on repairs over time. Additionally, purchasing the McLaughlin Waste Equipment, Inc. containers will help reduce the inventory of spare parts due to interchangeability with the current bin inventory and provide greater visual continuity with the existing bins throughout the City.
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CITY OF ONTARIO
GOODS AND EQUIPMENT PURCHASE AGREEMENT
This Goods and Equipment Purchase Agreement (“Agreement”) is made and entered as of ____________, by and between the City of Ontario, a municipal corporation organized under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764-4196, County of San Bernardino, State of California (“City”), and McLaughlin Waste Equipment, Inc., a Corporation with its principal place of business at 11900 East Locke Road, Lockeford, California (“Supplier”). City and Supplier are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.
Section 1. DEFINITIONS.
A. “Goods” means all machinery, equipment, supplies, items, parts, materials, labor or other services, including design, engineering and installation services, provided by Supplier as specified in Exhibit “A,” attached hereto and incorporated herein by reference.
B. “Delivery Date(s)” means that date or dates upon which the Goods is to be delivered to City, ready for approval, testing and/or use as specified in Exhibit “B.” Section 2. MATERIALS AND WORKMANSHIP.
When Exhibit “A” specifies machinery, equipment or material by manufacturer, model or trade name, no substitution will be made without City’s written approval. Machinery, equipment or material installed in the Goods without the approval required by this Section 2 will be deemed to be defective material for purposes of Section 4. Where machinery, equipment or materials are referred to in Exhibit “A” as equal to any particular standard, City will decide the question of equality. When requested by City, Supplier will furnish City with the name of the manufacturer, the performance capabilities and other pertinent information necessary to properly determine the quality and suitability of any machines, equipment and material to be incorporated in the Goods.
Material samples will be submitted at City’s request.
Section 3. INSPECTIONS AND TESTS.
City shall have the right to inspect and/or test the Goods prior to acceptance. If upon inspection or testing the Goods or any portion thereof are found to be nonconforming, unsatisfactory, defective, of inferior quality or workmanship, or fail to meet any requirements or specifications contained in Exhibit “A,” then without prejudice to any other rights or remedies, City may reject the Goods or exercise any of its rights under Section 4.C. The inspection, failure to 300
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make inspection, acceptance of goods, or payment for goods shall not impair City’s right to reject nonconforming goods, irrespective of City’s failure to notify Supplier of a rejection of nonconforming goods or revocation of acceptance thereof or to specify with particularity any defect in nonconforming goods after rejection or acceptance thereof.
Section 4. WARRANTY.
A. Supplier warrants that the Goods will be of merchantable quality and free from defects in design, engineering, material, and workmanship for a period of two (2) years, or such longer period as provided by a manufacturer’s warranty or as agreed to by Supplier and City, from the date of final written acceptance of the Goods by City as required for final payment under Section 7. Supplier further warrants that any services provided in connection with the Goods will be performed in a professional and workmanlike manner and in accordance with the highest industry standards.
B. Supplier further warrants that all machinery, equipment, or process included in the Goods will meet the performance requirements and specifications specified in Exhibit “A” and shall be fit for the purpose intended. City’s inspection, testing, approval, or acceptance of any such machinery, equipment, or process will not relieve Supplier of its obligations under this Section 4.B.
C. For any breach of the warranties contained in Section 4.A and Section 4.B, Supplier will, immediately after receiving notice from City, at the option of City, and at Supplier’s own expense and without cost to City:
1. Repair the defective Goods;
2. Replace the defective Goods with conforming Goods, F.O.B. City’s plant, office or other location of City where the Goods was originally performed or delivered; or
3. Repay to City the purchase price of the defective Goods.
If City selects repair or replacement, any defects will be remedied without cost to City, including but not limited to, the costs of removal, repair, and replacement of the defective Goods, and reinstallation of new Goods. All such defective Goods that is so remedied will be similarly warranted as stated above. In addition, Supplier will repair or replace other items of the Goods which may have been damaged by such defects or the repairing of the same, all at its own expense and without cost to City.
D. Supplier also warrants that the Goods is free and clear of all liens and encumbrances whatsoever, that Supplier has a good and marketable title to same, and that Supplier owns or has a valid license for all of the proprietary technology and intellectual property incorporated within the Goods. Supplier agrees to indemnify, defend, and hold City harmless against any and all third party claims resulting from the breach or inaccuracy of any of the foregoing warranties.
E. In the event of a breach by Supplier of its obligations under this Section 4, City will not be limited to the remedies set forth in this Section 4, but will have all the rights and remedies 301
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permitted by applicable law, including without limitation, all of the rights and remedies afforded to City under the California Commercial Code.
Section 5. PRICES.
Unless expressly provided otherwise, all prices and fees specified in Exhibit “C,” attached hereto and incorporated herein by reference, are firm and shall not be subject to change without the written approval of City. No extra charges of any kind will be allowed unless specifically agreed to in writing by City’s authorized representative. The total price shall include (i) all federal, state and local sales, use, excise, privilege, payroll, occupational and other taxes applicable to the Goods furnished to City hereunder; and (ii) all charges for packing, freight and transportation to destination.
Section 6. CHANGES.
City, at any time, by a written order, and without notice to any surety, may make changes in the Goods, including but not limited to, City’s requirements and specifications. If such changes affect the cost of the Goods or time required for its performance, an equitable adjustment will be made in the price or time for performance or both. Any change in the price necessitated by such change will be agreed upon between City and Supplier and such change will be authorized by a change order document signed by City and accepted by Supplier.
Section 7. PAYMENTS.
A. Terms of payment, are net thirty (30) days, less any applicable retention, after receipt of invoice, or completion of applicable Progress Milestones. Final payment shall be made by City after Supplier has satisfied all contractual requirements. Payment of invoices shall not constitute acceptance of Goods.
B. If Progress Milestones have been specified in Exhibit “B,” then payments for the Goods will be made as the requirements of such Progress Milestones are met. Progress payments for the Goods will be made by City upon proper application by Supplier during the progress of the Goods and according to the terms of payment as specified in Exhibit “B.” Supplier’s progress billing invoice will include progress payments due for the original scope of work and changes. Each “Item for Payment” shown in Exhibit “B” and each change order will be itemized on the invoice. Invoices for cost plus work, whether part of Exhibit “B” or a change order, must have subcontractor and/or supplier invoices attached to Supplier’s invoice. Other format and support documents for invoices will be determined by City in advance of the first invoice cycle.
C. Payments otherwise due may be withheld by City on account of defective Goods not remedied, liens or other claims filed, reasonable evidence indicating probable filing of liens or other claims, failure of Supplier to make payments properly to its subcontractors or for material or labor, the failure of Supplier to perform any of its other obligations under the Agreement, or to protect City against any liability arising out of Supplier’s failure to pay or discharge taxes or other obligations. If the causes for which payment is withheld are removed, the withheld payments will be made promptly. If the said causes are not removed within a reasonable period after written notice, City may remove them at Supplier’s expense.
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D. Payment of the final Progress Milestone payment or any retention will be made by City upon:
1. Submission of an invoice for satisfactory completion of the requirements of a Progress Milestone as defined in Exhibit “B” and in the amount associated with the Progress Milestone;
2. Written acceptance of the Goods by City;
3. Delivery of all drawings and specifications, if required by City;
4. Delivery of executed full releases of any and all liens arising out of this Agreement; and
5. Delivery of an affidavit listing all persons who might otherwise be entitled to file, claim, or maintain a lien of any kind or character, and containing an averment that all of the said persons have been paid in full.
If any person refuses to furnish an actual release or receipt in full, Supplier may furnish a bond satisfactory to City to indemnify City against any claim or lien at no cost to City.
E. Acceptance by Supplier of payment of the final Progress Milestone payment pursuant to Section 7.D will constitute a waiver, release and discharge of any and all claims and demands of any kind or character which Supplier then has, or can subsequently acquire against City, its successors and assigns, for or on account of any matter or thing arising out of, or in any manner connected with, the performance of this Agreement. However, payment for the final Progress Milestone by City will not constitute a waiver, release or discharge of any claims or demands which City then has, or can subsequently acquire, against Supplier, its successors and assigns, for or on account of any matter or thing arising out of, or in any manner connected with, the performance of this Agreement.
F. 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.
Supplier shall provide the City with ACH payment details whereby the City shall initiate the ACH transfers to Supplier 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 Supplier is not entitled: (1) Supplier shall immediately notify the City and the financial institution; (2) Supplier shall not withdraw any of the funds which were erroneously deposited or to which Supplier is not entitled; and (3) Supplier 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 Supplier is not entitled. 303
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Section 8. SCHEDULE FOR DELIVERY.
A. The time of Supplier’s performance is of the essence for this Agreement. The Goods will be delivered in accordance with the schedule set forth in Exhibit “B.” Supplier must immediately notify City in writing any time delivery is behind schedule or may not be completed on schedule. In addition to any other rights City may have under this Agreement or at law, Supplier shall pay City the sum of $1.00 per item of Goods for each calendar day for which the item of Goods is unavailable beyond the scheduled delivery date(s) specified in Exhibit “B.” B. In the event that the Goods is part of a larger project or projects that require the coordination of multiple contractors or suppliers, then Supplier will fully cooperate in scheduling the delivery so that City can maximize the efficient completion of such project(s).
Section 9. TAXES.
A. Supplier agrees to timely pay all sales and use tax (including any value added or gross receipts tax imposed similar to a sales and use tax) imposed by any federal, state or local taxing authority on the ultimate purchase price of the Goods provided under this Agreement.
B. Supplier will withhold, and require its subcontractors, where applicable, to withhold all required taxes and contributions of any federal, state or local taxing authority which is measured by wages, salaries or other remuneration of its employees or the employees of its subcontractors. Supplier will deposit, or cause to be deposited, in a timely manner with the appropriate taxing authorities all amounts required to be withheld.
C. All other taxes, however denominated or measured, imposed upon the price of the Goods provided hereunder, will be the responsibility of Supplier. In addition, all taxes assessed by any taxing jurisdiction based on Supplier property used or consumed in the provision of the Goods such as and including ad valorem, use, personal property and inventory taxes will be the responsibility of Supplier.
D. Supplier will, upon written request, submit to City written evidence of any filings or payments of all taxes required to be paid by Supplier hereunder.
Section 10. INDEPENDENT CONTRACTOR.
Supplier enters into this Agreement as an independent contractor and not as an employee of City. Supplier shall have no power or authority by this Agreement to bind City in any respect.
Nothing in this Agreement shall be construed to be inconsistent with this relationship or status.
All employees, agents, contractors or subcontractors hired or retained by the Supplier are employees, agents, contractors or subcontractors of the Supplier and not of City. City shall not be obligated in any way to pay any wage claims or other claims made against Supplier by any such employees, agents, contractors or subcontractors or any other person resulting from performance of this Agreement.
Section 11. SUBCONTRACTS.
Unless otherwise specified, Supplier must obtain City’s written permission before 304
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subcontracting any portion of the Goods. Except for the insurance requirements in Section 14.A, all subcontracts and orders for the purchase or rental of supplies, materials or equipment, or any other part of the Goods, will require that the subcontractor be bound by and subject to all of the terms and conditions of the Agreement. No subcontract or order will relieve Supplier from its obligations to City, including, but not limited to Supplier’s insurance and indemnification obligations. No subcontract or order will bind City.
Section 12. TITLE AND RISK OF LOSS.
Unless otherwise agreed, City will have title to, and risk of loss of, all completed and partially completed portions of the Goods upon delivery, as well as materials delivered to and stored on City property which are intended to become a part of the Goods. However, Supplier will be liable for any loss or damage to the Goods and/or the materials caused by Supplier or its subcontractors, their agents or employees, and Supplier will replace or repair said Goods or materials at its own cost to the complete satisfaction of City. Notwithstanding the foregoing, in the event that the City has paid Supplier for all or a portion of the Goods which remains in the possession of Supplier, then City shall have title to, and the right to take possession of, such Goods at any time following payment therefor. Risk of loss for any Goods which remains in the possession of Supplier shall remain with Supplier until such Goods has been delivered or City has taken possession thereof. Supplier will have risk of loss or damage to Supplier’s property used in the construction of the Goods but which does not become a part of the Goods.
Section 13. INDEMNIFICATION.
A. Supplier shall defend, 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, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions, negligence or willful misconduct of Supplier, its officials, officers, employees, agents, subcontractors and subconsultants arising out of or in connection with the Goods or the performance of this Agreement, including without limitation the payment of all consequential damages and attorneys’ fees and other related costs and expenses except such loss or damage which was caused by the sole negligence or willful misconduct of the City.
B. Supplier’s defense obligation for any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the City, its officials, officers, employees, agents, or volunteers shall be at Supplier’s own cost, expense, and risk.
Supplier shall pay and satisfy any judgment, award, or decree that may be rendered against City or its officials, officers, employees, agents, or volunteers, in any such suit, action, or other legal proceeding. Supplier shall reimburse City and its officials, officers, employees, agents, and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided.
C. Supplier’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its officials, officers, employees, agents or volunteers. 305
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Section 14. INSURANCE.
A. General. Supplier shall take out and maintain:
1. Commercial General Liability Insurance, of at least $2,000,000 per occurrence/ $4,000,000 aggregate for bodily injury, personal injury and property damage, at least as broad as Insurance Services Office Commercial General Liability most recent Occurrence Form CG 00 01;
2. Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, of at least $2,000,000 per accident for bodily injury and property damage, at least as broad as most recent Insurance Services Office Form Number CA 00 01 covering automobile liability, Code 1 (any auto);
3. Workers’ Compensation in compliance with applicable statutory requirements and Employer's Liability Coverage of at least $1,000,000 per occurrence; and
4. Pollution Liability Insurance of at least $2,000,000 per occurrence shall be provided by the Supplier if transporting hazardous materials.
5. If Supplier is also the manufacturer of any equipment included in the Goods, Supplier shall carry Product Liability and/or Errors and Omissions Insurance which covers said equipment with limits of not less than $1,000,000.
B. Additional Insured; Primary; Waiver of Subrogation; No Limitation on Coverage.
The policies required under this Section shall give City, its officials, officers, employees, agents or volunteers additional insured status on commercial general liability and automobile liability insurance with the endorsements. Such policies shall contain a provision stating that Supplier’s policy is primary insurance and that any insurance, deductible, or self-insurance maintained by the City or any additional insureds shall not be called upon to contribute to any loss, and shall contain or be endorsed with a waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers. 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. 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.
C. Cancellation. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days (10 days for nonpayment of premium) prior written notice by certified mail, return receipt requested, has been given to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents, and volunteers. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officials, officers, employees, agents and volunteers, or any other additional insureds
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D. Insurance Carrier. All insurance required under this Section is to be placed with insurers with a current A.M. Best’s rating no less than A-:VII, licensed to do business in California, and satisfactory to the City.
E. Evidence of Insurance. Supplier shall furnish City with original certificates of insurance and endorsements effecting coverage required by the Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms supplied or approved by the City. All certificates and endorsements must be received and approved by the City before delivery commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
F. Subcontractors. All subcontractors shall meet the requirements of this Section before commencing work. In addition, Supplier shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
G. Freight. Supplier shall ensure that third party shippers contracted by Supplier have adequate insurance coverage for the shipped Goods.
Section 15. LIENS.
A. Supplier, subcontractors and suppliers will not make, file or maintain a mechanic’s or other lien or claim of any kind or character against the Goods, for or on account of any labor, materials, fixtures, tools, machinery, equipment, or any other things furnished, or any other work done or performance given under, arising out of, or in any manner connected with the Agreement (such liens or claims referred to as “Claims”); and Supplier, subcontractor and suppliers expressly waive and relinquish any and all rights which they now have, or may subsequently acquire, to file or maintain any Claim and Supplier, subcontractor and suppliers agree that this provision waiving the right of Claims will be an independent covenant.
B. Supplier will save and hold City harmless from and against any and all Claims that may be filed by a subcontractor, supplier or any other person or entity and Supplier will, at its own expense, defend any and all actions based upon such Claims and will pay all charges of attorneys and all costs and other expenses arising from such Claims.
Section 16. TERMINATION OF AGREEMENT BY CITY.
A. Should Supplier at any time refuse or fail to deliver the Goods with promptness and diligence, or to perform any of its other obligations under the Agreement, City may terminate Supplier’s right to proceed with the delivery of the Goods by written notice to Supplier. In such event City may obtain the Goods by whatever method it may deem expedient, including the hiring of another contractor or other contractors and, for that purpose, may take possession of all materials, machinery, equipment, tools and appliances and exercise all rights, options and privileges of Supplier. In such case Supplier will not be entitled to receive any further payments until the Goods is delivered. If City’s cost of obtaining the Goods, including compensation for additional managerial and administrative services, will exceed the unpaid balance of the Agreement, Supplier will be liable for and will pay the difference to City. 307
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B. City may, for its own convenience, terminate Supplier’s right to proceed with the delivery of any portion or all of the Goods by written notice to Supplier. Such termination will be effective in the manner specified in such notice, will be without prejudice to any claims which City may have against Supplier, and will not affect the obligations and duties of Supplier under the Agreement with respect to portions of the Goods not terminated.
C. On receipt of notice under Section 16.B, Supplier will, with respect to the portion of the Goods terminated, unless the notice states otherwise,
1. Immediately discontinue such portion of the Goods and the placing of orders for materials, facilities, and supplies in connection with the Goods,
2. Unless otherwise directed by City, make every reasonable effort to procure cancellation of all existing orders or contracts upon terms satisfactory to City; and
3. Deliver only such portions of the Goods which City deems necessary to preserve and protect those portions of the Goods already in progress and to protect material, plant and equipment at the Goods site or in transit to the Goods site.
D. Upon termination pursuant to Section 16.B, Supplier will be paid a pro rata portion of the compensation in the Agreement for any portion of the terminated Goods already delivered, including material and services for which it has made firm contracts which are not canceled, it being understood that City will be entitled to such material and services. Upon determination of the amount of said pro rata compensation, City will promptly pay such amount to Supplier upon delivery by Supplier of the releases of liens and affidavit, pursuant to Section 7.C.
Section 17. FORCE MAJEURE
A. Supplier shall not be held responsible for failure or delay in shipping nor City for failure or delay in accepting goods described herein if such failure or delay is due to a Force Majeure Event.
B. 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 occurring at the project site; (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 work); (4) pandemics, epidemics or quarantine restrictions; and (5) strikes and other organized labor action occurring at the project site and the effects thereof on the work, only to the extent such strikes and other organized labor action are beyond the control of Supplier and its subcontractors, of every tier, and to the extent the effects thereof cannot be avoided by use of replacement workers. 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 the City in its capacity as a municipal authority.
C. In the event of any such excused interference with shipments, City shall have the option either to reduce the quantity provided for in the order accordingly or to exercise its right of cancellation as set forth in this Agreement.
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Section 18. MISCELLANEOUS PROVISIONS.
A. 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: Blaine Ishii, Integrated Waste Director
SUPPLIER:
Mclaughlin Waste Equipment, Inc.
11900 East Locke Rd.
Lockeford, CA
Tom Bullard, VP of Sales and Marketing
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.
B. Assignment or Transfer. Supplier shall not assign or transfer any interest in this Agreement whether by assignment or novation, without the prior written consent of the City, which will not be unreasonably withheld. Provided, however, that claims for money due or to become due Supplier from the City under this Agreement may be assigned to a financial institution or to a trustee in bankruptcy, without such approval. Notice of any assignment or transfer, whether voluntary or involuntary, shall be furnished promptly to the City.
C. Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties.
D. Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
E. Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise.
F. Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County.
G. Attorneys’ Fees and Costs. If any action in law or equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, each Party shall pay its own attorneys’ fees.
H. Interpretation. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. 309
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I. No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
J. Authority to Enter Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right and authority to make this Agreement and bind each respective Party.
K. Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
L. Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
M. City’s Right to Employ Other Suppliers. City reserves its right to employ other contractors in connection with the Goods.
N. Entire Agreement. This Agreement constitutes the entire agreement between the Parties relative to the Goods specified herein. There are no understandings, agreements, conditions, representations, warranties or promises with respect to this Agreement, except those contained in or referred to in the writing.
SIGNATURES ON FOLLOWING PAGE
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SIGNATURE PAGE TO GOODS AND EQUIPMENT PURCHASE AGREEMENT
BETWEEN THE CITY OF ONTARIO
AND MCLAUGHLIN WASTE EQUIPMENT, INC.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date first above written.
CITY OF ONTARIO MCLAUGHLIN WASTE EQUIPMENT, INC.
By:
Its:
Printed Name:
By:
Its:
Printed Name:
Approved By:
Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:
Assistant City Clerk
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Goods Specifications
Vendor shall provide the city with Roll Off Containers in the quantities listed and have parts available for purchase as needed.
All containers and parts furnished shall be new and unused. Containers to be furnished under this specification shall be current production model roll-off containers. Containers shall conform to the best practices known to the trade in design, quality of material, and workmanship.
Assemblies, sub-assemblies, and component parts shall be standard and interchangeable throughout the entire quantity of containers, as specified in the invitation to bid.
The City will be acquiring a total of Fifteen (40) Roll-Off trash containers; Twenty (20) 7 ft. H x 8 ft. W x 22 ft. long minimum (40 Cu. Yd., “High Side”) and Twenty (20) of the 2 ft. H x 8 ft. W x 18 ft. long (10 Cu. Yd, “Low Boy”) containers. All shall have 24” rib spacing.
Vendor shall provide a price for the containers, inclusive of taxes, assembly charges and delivery charges to be paid by the City.
Parts will be ordered on an as needed basis. Please refer to Exhibit “C” Fee Schedule for a listing of parts and provide pricing on a per item basis.
STANDARDS OF PERFORMANCE
Services shall be performed under the Contract in a skillful and competent manner. The vendor represents and maintains that it is skilled in the professional calling necessary to provide a quality product.
Equipment, Personnel and Supplies
Vendor shall provide all equipment, trained personnel and supplies necessary to produce and deliver said roll off containers in a timely manner.
CONSTRUCTION
Containers shall be constructed of steel, properly braced and reinforced with 3” x 2” x 3/8” angle header around the top, 12 gauge sides, ends, and doors; 7-gauge floors.
Shall be equipped with frame rollers, front and back, not less than 10” diameter x 7”. Lock rollers on front shall extend not less than 7 inches OA from front of container. Units to be provided with steel wheels.
Tie-down rods, not less than ½” rod shall be furnished on each side and front of container, 24 inches from the top.
Finish – Shall be painted with good quality prime coat and with enamel finish coat (Dunn Edwards – National Blue).
312
(BB&K 2024) Exhibit A - 2 Goods and Equipment Agreement Serial Numbers to be placed on both sides of front header with numbers welded on steel panel:
7 ft. H x 8 ft. W x 20 ft. L – 101001 through 101010.
313
(BB&K 2024) Exhibit B - 1 Goods and Equipment Agreement Exhibit B
Delivery Schedule
Deliveries
All deliveries shall be made within 30 days after receipt of order (ARO) for Roll-Off Containers and 14 days for parts and are to be made F.O.B. destination with a priced delivery invoice; option delivered with a packing/delivery slip and the invoice emailed within 24 hours of delivery (As determined by the City some special-order items may be exemption from the delivery time frame).
Delivery Hours are Monday through Friday 6:00 a.m. and 3:30 p.m.
Delivery Locations:
Site Name Address
Municipal Services Center 1425 S. Bon View Ave.,
Ontario, CA 91761
Equipment, Personnel and Supplies
Vendor shall provide all equipment, trained personnel and supplies necessary to produce and deliver said roll off containers in a timely manner
314
(BB&K 2024) Exhibit C - 1 Goods and Equipment Agreement Exhibit C
Fee Schedule
BILLINGS AND COMPENSATION
The City shall issue an official City Purchase Order for products based on the terms of the contract. Upon delivery and acceptance by the City, vendor shall submit an official invoice for payment. Payment for work completed will be made within thirty (30) days of approved invoice.
No payment will be made for products ordered without proper purchase order authorization.
Payment cannot be made until materials, goods, or services have been received and accepted by the City in the quality and quantity ordered. In the event of disputes, the disputed invoice shall be submitted to the City Manager for his review and decision. The determination of the City Manager shall be final.
QUANTITIES
Quantities started are estimates only of product described or equivalent and are not guaranteed.
CONTRACT PERIOD
The contract term shall be a from July 1, 2024 – June 30, 2027 unless the City determines, in its sole discretion, that a later commencement date is necessary, in which case the City will notify the Bidder of such date upon award of the Contract. The total contract shall not exceed three million dollars ($1,200,000) over the three-year term.
EXTENSION OPTION
This Contract is subject to extension for two additional one (1) year periods from the date of expiration of this Contract, at the option of the City in accordance with the option granted in your bid.
Item
No.
Description Quantity Unit Cost Total
Amount
1 7 ft. H x 8 ft. W x 22 ft. long minimum (40
Cu. Yd., “High Side”) Container
20 $9,194.00 $183,880.00
2 2 ft. H x 8 ft. W x 18 ft. long (10 Cu. Yd,
“Low Boy”) Container
20 $6,187.00 $123,740.00
**Pricing for parts listed in following pages
TOTAL VENDOR QUOTE PRICE $307,620.00
315
(BB&K 2024) Exhibit C - 2 Goods and Equipment Agreement Price Sheet – Drop Body Fronts
Description Part # Type Price
Front Sheet 2' STD PSH14x24 1/2x90 SH $52.45
Front Sheet 3' STD PSH14x35 1/2x90 SH $76.26
Front Sheet 4' STD PSH14x48 1/2x90 SH $83.49
Front Sheet 5' STD PSH14X45 1/4x62 3/4 SH $69.56
Front Sheet 6' STD PSH14X45 1/4x75 1/2 SH $83.14
Front Sheet 6.5' STD PSH14X45 1/4x82 1/4 SH $89.90
Front Sheet 7' STD PSH14X45 1/4x88 1/4 SH $96.87
Front Sheet 8' STD PSH14X45 1/4x101 SH $109.78
Front Sheet 9' STD PSH14X45 1/4x113 3/4 SH $123.78
Front Sheet 2' HD PSH12x24 1/2x90 SH $72.42
Front Sheet 3' HD PSH12x35 1/2x90 SH $105.30
Front Sheet 4' HD PSH12x48 1/2x90 SH $115.28
Front Sheet 5' HD PSH12X45 1/4x62 3/4 SH $96.04
Front Sheet 6' HD PSH12X45 1/4x75 1/2 SH $114.80
Front Sheet 6.5' HD PSH12X45 1/4x82 1/4 SH $123.72
Front Sheet 7' HD PSH12X45 1/4x88 1/4 SH $133.75
Front Sheet 8' HD PSH12X45 1/4x101 SH $151.58
Front Sheet 9' HD PSH12X45 1/4x113 3/4 SH $170.90
Front Header PST3x.188x95 ST $77.99
Front Header For Rolling Roof PST3x.188.90 ST $73.89
Front Sill PST3x.188x95 5/8 ST $78.50
Side/Frt Post 12GA 2' PSH12x6 3/4x21 SH $4.57
Side/Frt Post 12GA 3' PSH12x6 3/4x33 SH $7.18
Side/Frt Post 12GA 4' PSH12x6 3/4x45 SH $9.79
Side/Frt Post 12GA 5' PSH12x6 3/4x57 SH $12.40
Side/Frt Post 12GA 6' PSH12x6 3/4x69 SH $15.01
Side/Frt Post 12GA 6.5' PSH12x6 3/4x75 SH $16.32
Side/Frt Post 12GA 7' PSH12x6 3/4x81 SH $17.62
Side/Frt Post 12GA 8' PSH12x6 3/4x93 SH $20.24
Side/Frt Post 12GA 9' PSH12x6 3/4x105 SH $22.85
Front Center Post 2' PSH12x6 3/4x1 1/4 SH $0.27
Front Center Post 3' PSH12x6 3/4x13 1/4 SH $2.88
Front Center Post 4' PSH12x6 3/4x25 1/4 SH $5.44
Front Center Post 5' PSH12x6 3/4x37 1/4 SH $8.05
Front Center Post 6' PSH12x6 3/4x49 1/4 SH $10.66
Front Center Post 6.5' PSH12x6 3/4x55 1/4 SH $11.97
316
(BB&K 2024) Exhibit C - 3 Goods and Equipment Agreement Front Center Post 7' PSH12x6 3/4x61 1/4 SH $13.27
Front Center Post 8' PSH12x6 3/4x73 1/4 SH $15.88
Front Center Post 9' PSH12x6 3/4x85 1/4 SH $18.49
Ladder Pipe PBP1/2x22 BP $2.39
Ladder Gusset PSH10x2 1/2x2 1/2 SH $0.26
Price Sheet – Drop Body Dog House
Description Part # Type Price
Horizontal Top Post PSH12x6 3/4x24 1/2 SH $7.24
Main Rail Gusset PPL1/4x6x12 PL $7.35
Snatch Hook PPL1x6 5/8x6 5/8 PL $17.59
Nose Roller 4x6 & Axle PBOH-001 BO $27.00
4x6 Nose Roller Axle PBOH-002 BO $13.50
Inside Nose Roller Bracket PPL1/2x5 1/4x9 PL $9.19
Outside Nose Roller Bracket PPL1/2x8 1/4x11 1/4 PL $20.90 Dog House Top PSH07x25 1/4x27 SH $51.13
Dog House End PSH07x17 1/2x20 SH $26.25
Dog House Channel Frame PCH3x14 1/2 CH $7.13
Dog House Gusset PPL1/4x6x6 PL $3.68
Price Sheet – Rectangular Drop Body Side
Description Part # Type Price
Side Sheet 2' 1/2 PSH14x24x24 1/2 SH $15.49
Side Sheet 2' Full PSH14x48x24 1/2 SH $30.98
Side Sheet 3' 1/2 PSH14x24x38 SH $22.25
Side Sheet 3' Full PSH14x48x38 SH $44.49
Side Sheet 4' 1/2 PSH14x24x50 3/4 SH $29.29
Side Sheet 4' Full PSH14x48x50 3/4 SH $58.57
Side Sheet 5' 1/2 PSH14x24x63 1/2 SH $36.40
Side Sheet 5' Full PSH14x48x63 1/2 SH $72.80
Side Sheet 6' 1/2 PSH14x24x76 1/4 SH $43.51
Side Sheet 6' Full PSH14x48x76 1/4 SH $87.02
Side Sheet 6.5' 1/2 PSH14x24x82 1/4 SH $46.89
Side Sheet 6.5' Full PSH14x48x82 1/4 SH $93.78
Side Sheet 7' 1/2 PSH14x24x89 SH $50.69
Side Sheet 7' Full PSH14x48x89 SH $101.38
Side Sheet 8' 1/2 PSH14x24x101 3/4 SH $57.80
317
(BB&K 2024) Exhibit C - 4 Goods and Equipment Agreement Side Sheet 8' Full PSH14x48x101 3/4 SH $115.60
Side Sheet 2' 1/2 PSH12x24x24 1/2 SH $21.68
Side Sheet 2' Full PSH12x48x24 1/2 SH $43.35
Side Sheet 3' 1/2 PSH12x24x38 SH $31.13
Side Sheet 3' Full PSH12x48x38 SH $62.27
Side Sheet 4' 1/2 PSH12x24x50 3/4 SH $40.99
Side Sheet 4' Full PSH12x48x50 3/4 SH $81.97
Side Sheet 5' 1/2 PSH12x24x63 1/2 SH $50.94
Side Sheet 5' Full PSH12x48x63 1/2 SH $101.88
Side Sheet 6' 1/2 PSH12x24x76 1/4 SH $60.89
Side Sheet 6' Full PSH12x48x76 1/4 SH $121.78
Side Sheet 6.5' 1/2 PSH12x24x82 1/4 SH $65.62
Side Sheet 6.5' Full PSH12x48x82 1/4 SH $131.24
Side Sheet 7' 1/2 PSH12x24x89 SH $70.94
Side Sheet 7' Full PSH12x48x89 SH $141.88
Side Sheet 8' 1/2 PSH12x24x101 3/4 SH $80.89
Side Sheet 8' Full PSH12x48x101 3/4 SH $161.78
Floor Sill 12 PST3x.120x138 ST $80.88
Floor Sill 14 PST3x.120x162 ST $94.36
Floor Sill 16 PST3x.120x186 ST $107.84
Floor Sill 18 PST3x.120x210 ST $121.32
Floor Sill 20 PST3x.120x234 ST $134.80
Floor Sill 22 PST3x.120x258 ST $148.28
Floor Sill 24 PST3x.120x282 ST $161.76
Floor Sill 26 PST3x.120x306 ST $175.23
Side Header 12 PST3x.120x141 3/4 ST $78.63
Side Header 14 PST3x.120x165 3/4 ST $92.11
Side Header 16 PST3x.120x189 3/4 ST $105.59
Side Header 18 PST3x.120x213 3/4 ST $119.07
Side Header 20 PST3x.120x237 3/4 ST $132.55
Side Header 22 PST3x.120x261 3/4 ST $146.03
Side Header 24 PST3x.120x285 3/4 ST $158.39
Side Header 26 PST3x.120x309 3/4 ST $171.86
Angle Header 10 PAN3x3x1/4x117 3/4 AN $62.02
318
(BB&K 2024) Exhibit C - 5 Goods and Equipment Agreement Angle Header 12 PAN3x3x1/4x141 3/4 AN $74.85
Angle Header 14 PAN3x3x1/4x165 3/4 AN $87.68
Angle Header 16 PAN3x3x1/4x189 3/4 AN $100.51
Angle Header 18 PAN3x3x1/4x213 3/4 AN $113.34
Angle Header 20 PAN3x3x1/4x237 3/4 AN $126.18
Angle Header 22 PAN3x3x1/4x261 3/4 AN $139.01
Angle Header 24 PAN3x3x1/4x285 3/4 AN $151.84
Price Sheet – Cam Lock Doors
Description Part # Type Price
Rope Hook 5/16 PRB5/16x5 $0.90
Rope Hook 3/8 PRB3/8x5 $1.00
Rope Hook 1/2 PRB1/2x5 $1.10
Rope Hook 5/16 Closed Loop PRB5/16Xx6 1/2 $1.20
Rope Hook 3/8 Closed Loop PRB3/8x6 1/2 $2.25
Door Header PST3x.188x90 ST $81.45
Door Sheet 2 PSH12x23x47 SH $48.50
Door Sheet 3 PSH12x35x47 SH $55.57
Door Sheet 4 PSH12x47x47 SH $76.36
Door Sheet 5 PSH12x47x59 SH $94.68
Door Sheet 6 PSH12x47x71 SH $113.01
Door Sheet 7 PSH12x47x83 SH $131.34
Door Sheet 7 1/2 PSH12x47x89 SH $140.50
Door Sheet 8 PSH12x47x95 SH $149.66
Door Sheet 9 PSH12x47x107 SH $167.99
Vertical Door Post 2 PSH7 1/4x22 3/4 SH $6.95
Vertical Door Post 3 PSH7 1/4x34 1/2 SH $7.79
Vertical Door Post 4 PSH7 1/4x46 3/4 SH $10.40
Vertical Door Post 5 PSH7 1/4x58 3/4 SH $13.01
Vertical Door Post 6 PSH7 1/4x70 3/4 SH $15.63
Vertical Door Post 7 PSH7 1/4x82 3/4 SH $18.24
Vertical Door Post 7 1/2 PSH7 1/4x88 3/4 SH $19.54
Vertical Door Post 8 PSH7 1/4x94 3/4 SH $20.85
Vertical Door Post 9 PSH7 1/4x106 3/4 SH $23.24
Horizontal Door Post PSH6 3/4x40 SH $8.70
319
(BB&K 2024) Exhibit C - 6 Goods and Equipment Agreement Cam Lock Bar 2 PRB1x26 1/2 RB $7.65
Cam Lock Bar 3 PRB1x38 1/2 RB $11.14
Cam Lock Bar 4 PRB1x50 1/2 RB $14.64
Cam Lock Bar 5 PRB1x62 1/2 RB $18.14
Cam Lock Bar 6 PRB1x74 1/2 RB $21.63
Cam Lock Bar 7 PRB1x86 1/2 RB $25.13
Cam Lock Bar 7 1/2 PRB1x92 1/2 RB $26.88
Cam Lock Bar 8 PRB1x98 1/2 RB $28.63
Cam Lock Bar 9 PRB1x109 1/2 RB $31.83
Cam Lock PPL3/4x3 3/4x4 PL $4.96
Cam Lock 1" Washer PBO $3.75
Door Handle PRB1x24 RB $6.99
Door Handle Gusset PPL1/4x4x4 PL $0.17
Door Lock Angle PAN3x3x3/8x3 AN $2.36
Door Hinge Left PBO BO $15.63
Door Hinge Right PBO BO $15.63
Door Hinge Post PRT3x2x.250x RT $88.59
Door Pin Chain PCN1/4x5 Links CN $1.58
Pin Angle Lock $1.57
Door Open Safety Chain PCN1/4x26 Links CN $7.23
Door Post Cap PSH10x1 7/8x2 7/8 SH $0.27
Door Header Gusset PPL1/4x6x12 PL $7.61
Header & Floor Gusset PPL1/4x1 1/4x8 PL $1.85
Price Sheet – Boogie Wheels
Description Part # Type Price
Mounting Bracket For STD PCH3x3.5x20 1/2 CH $7.23
Mounting Bracket For HD PCH3x3.5x14 1/2 CH $10.22
Boogie Wheel Bracket 8" PL $17.77
Boogie Wheel Bracket 10" PL $20.30
Boogie Wheel 8" BO $45.93
Boogie Wheel 10" $67.00
Boogie Wheel Axle 10 1/2 $12.26
320
(BB&K 2024) Exhibit C - 7 Goods and Equipment Agreement Pipe For Boogie Wheel Lock PBP3/4x14 BP $ 40.00
Price Sheet For Floor & Understructure
Description Part # Type Price
Main Rail 6" Channel 12 PCH6x8.2x142 1/2 CH $127.37
Main Rail 6" Channel 14 PCH6x8.2x166 1/2 CH $148.82
Main Rail 6" Channel 16 PCH6x8.2x190 1/2 CH $170.27
Main Rail 6" Channel 18 PCH6x8.2x214 1/2 CH $191.72
Main Rail 6" Channel 20 PCH6x8.2x238 1/2 CH $213.17
Main Rail 6" Channel 22 PCH6x8.2x262 1/2 CH $234.62
Main Rail 6" Channel 24 PCH6x8.2x286 1/2 CH $256.07
Main Rail 6" Channel 26 PCH6x8.2x310 1/2 CH $277.52
Cross Members PCH3x3.5x90 CH $36.48
Main Rail Gussets
Floor Sheets STD 24" PSH12x24x94 SH $74.09
Floor Sheets STD 48" PSH12x48x94 SH $148.19
Floor Sheets HD 24" PSH10x24x94 SH $95.26
Floor Sheets HD 48" PSH10x48x94 SH $190.52
Floor Sheets HHD 24" PSH07x24x94 SH $126.90
Floor Sheets HHD 48" PSH07x48x94 SH $253.80
Splash Baffle
Tarp Rails RMBP1/2-80 BP Inquire
Double End Hook Up ROXAH-01 ASS Inquire
DEH Underneath Hook PPL1x4 1/4x5 3/4 PL Inquire
DEH Gussets Inquire
DEH Nose Roller Bracket Inquire
DEH Nose Roller Bracket Inquire
DEH Nose Roller Axle Inquire
DEH Nose Roller Inquire
DEH Base Channel-STD Inquire
DEH Base Channel-HD Inquire
Lift Eyes Inquire
MR Gussets on Every x-Member Inquire
No Ladders on Front Inquire
321
(BB&K 2024) Exhibit C - 8 Goods and Equipment Agreement Ladders on Side Inquire
Floor Baffle Inquire
322
Department: Planning
Prepared By: Thomas Grahn
Department:
Prepared By: Thomas Grahn
Staff Member Presenting: Scott Murphy,
Executive Director Community Development
Reviewed By: Kimberly Ruddins, Henry
Noh, Rudy Zeledon
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 10
SUBJECT: AN APPEAL OF THE PLANNING COMMISSION DECISION APPROVING FILE NO.
PDEV22-017
CITY OF ONTARIO
Agenda Report
November 19, 2024
SECTION:
PUBLIC HEARINGS
RECOMMENDATION: That the City Council conduct a public hearing on the appeal and after receiving public testimony, uphold the Planning Commission decision to approve the Development Plan (File No. PDEV22-017) and deny the appeal.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
FISCAL IMPACT: There is not a direct fiscal impact associated with this action.
BACKGROUND & ANALYSIS:
On April 5, 2022, Prologis (Applicant) submitted a Development Plan (File No. PDEV22-017) to construct a 270,337 square feet industrial building on 13.08 acres of land, with a floor area ratio ("FAR") of 0.47, located at 5355 East Airport Drive. The Project site is currently developed with industrial land uses that include a grain processing company and a corn storage and distribution facility.
On March 18, 2024, the Development Advisory Board (DAB) voted to continue the Project to the next available DAB meeting to allow staff to work with the applicant to revise draft conditions of approval. On April 15, 2024, the DAB voted to recommend approval to the Planning Commission of the proposed Project.
On May 28, 2024, the Planning Commission conducted a hearing to consider the Project and continued the Project for further consideration. On August 27, 2024, the Planning Commission held a public hearing to consider the application and the Development Advisory Board's recommendation. Following a presentation of staff's findings and after receipt of all public 323
testimony, the Planning Commission addressed the application, and approved the project by a vote of 5-0, adopting Resolution Nos. PC24-036 and PC24-037 (see attached PC Back-up).
APPEAL:
On September 5, 2024, Aidan Marshall ("Appellant") from Adams Broadwell Joseph & Cardozo, representing Californian's Allied for a Responsible Economy (CARE CA), submitted an appeal of the Planning Commission's decision to approve File No. PDEV22-017. A copy of the Appeal application and Appellant statement is included as Exhibit A to this report. The basis of the Appellant's appeal lies in their belief that the Planning Commission's approval of the Project and certification of the Final Environmental Impact Report (Final EIR) violated the California Environmental Quality Act (CEQA) and land use laws because the City has not complied with its duty to disclose and mitigate the Project's potentially significant environmental and land use impacts, and the Planning Commission's approval findings were not supported by substantial evidence.
Appellant's Issue No. 1: The Final EIR fails to analyze the full scope of the Project, in particular in relation to the Project's reasonably foreseeable use as a parcel hub (a use that generates 2.6 times more trips than analyzed).
Staff Response: This comment is similar to Response to Comment A-6 in the Final EIR, 1-8 in the applicants Response To Comments (RTC) dated May 20, 2024, and CARE-7 in the RTC dated August 8, 2024. Refer to Final EIR RTC A-6 (Final EIR, pp. 2-38, 2-39), RTC 1-8 (RTC, p. 3), and RTC CARE-7 (RTC, p. 3). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, RTC, and the Responses provided herein, and the whole record before the City. The City maintains its position regarding accuracy and adequacy of the EIR trip generation estimates and all environmental impacts related to or attributable to Project's trip generation. There is no reasonable possibility that the Project, as designed, could operate as a parcel hub. No additions, revisions, or corrections are necessary, and no further response is required. Additionally, revised conditions of approval for PDEV22-017 prohibit the primary use of the building being established as a parcel hub.
Appellant's Issue No. 2: The commenter reiterates prior comments that the Final EIR fails to analyze reasonably foreseeable truck trips to the Ports of Los Angeles and Long Beach, which are longer than the trips analyzed in the Final EIR.
Staff Response: This comment is similar to RTC A-18, A-19, and A-28 in the Final EIR, 1- 16 in the RTC dated May 20, CARE-14, CARE-15, and CARE-16 in the RTC dated August 8. Refer to Final EIR RTC A18, A-19, A-28 (Final EIR, pp. 2-43, 2-44, 2-45) and RTC 1-16 (RTC, p. 7), and RTC CARE-14, CARE-15, and CARE-16 (RTC, p. 5). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, RTC, and the Responses provided herein, and the whole record before the City. The City maintains its position regarding accuracy and adequacy of the EIR analysis of the Project's truck trips assumptions. No additions, revisions, or corrections are necessary, and no further response is required.
Appellant's Issue No. 3: The Final EIR fails to include sufficient investigation into energy conservation measures that might be available or appropriate for the Project, as required by the CEQA Guidelines. 324
Staff Response: This comment is similar to RTC 1-20 in the RTC dated May 20, CARE-17, CARE-18, and CARE-21 in the RTC dated August 8. Refer to RTC 1-20 (RTC, pp. 8 to 10, and RTC CARE-17, CARE18, and CARE-21 (RTC, p. 6). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, RTC, and the Responses provided herein, and the whole record before the City. No additions, revisions, or corrections are necessary, and no further response is required.
Appellant's Issue No. 4: The Final EIR's analysis of cumulative air quality impacts is inadequate because it fails to consider the Project's impacts in the context of the numerous other warehouses existing and planned in the area.
Staff Response: This comment is similar to RTC A-14 in the Final EIR, 1-10 in the RTC dated May 20, CARE-9, CARE-10, and CARE-11 in the RTC dated August 8. Refer to Final EIR RTC A-14 (Final EIR, pp. 2-41, 2-42), RTC Comment 1-8 (RTC, p. 4, 5), and RTC CARE-9, CARE-10, and CARE-11 (RTC, pp. 3 to 4).
The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, RTC, and the Responses provided herein, and the whole record before the City.
The City maintains its position regarding accuracy and adequacy of the EIR analysis of air quality impacts including analysis of cumulative air quality impacts. No additions, revisions, or corrections are necessary, and no further response is required.
Appellant's Issue No. 5: The Final EIR's quantified health risk analysis underestimates impacts because it analyzed trucks travelling only east along Airport Drive, not accounting for building downwash and relying on unreliable input values.
Staff Response: This comment is similar to RTC 1-12, 1-13, 1-41 in the RTC dated May 20, CARE-13, CARE-27, and CARE-28 in the RTC dated August 8. Refer to RTC 1-12, 1-13, and 1-41 (RTC, pp. 5, 14 to 16), and RTC CARE-13, CARE-27, CARE-28 (RTC, pp. 4,7). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, the Responses provided herein, and the whole record before the City. The City maintains its position regarding accuracy and adequacy of the EIR analysis of health risk impacts. No additions, revisions, or corrections to the EIR are necessary, and no further response is required.
Appellant's Issue No. 6: The Final EIR identifies significant vapor intrusion impacts due to tetrachloroethylene (PCE) contamination, but improperly defers formulation of mitigation measures.
Staff Response: This comment is similar to RTC CARE-4, CARE-5, and CARE-6 in the RTC dated August
8. Refer to RTC CARE-4, CARE-5, and CARE-6 (RTC, pp. 2, 3). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, the Responses provided herein, and the whole record before the City. The City maintains its position regarding accuracy and adequacy of the EIR analysis of vapor intrusion impacts. No additions, revisions, or corrections to the EIR are necessary, and no further response is required.
Appellant Issue No. 7: The Final EIR is deficient as a matter of law and its conclusions are not supported by substantial evidence based on the previous comments made.
Staff Response: The commenter asserts that the Planning Commission's approval decision must be vacated, and the EIR must be revised and recirculated in compliance with CEQA. Contrary to the 325
commenter's assertion, this memorandum, RTCs (dated May 20 and August 8), and Final EIR demonstrates that the Project's impacts have been adequately analyzed and mitigated. Thus, no additions, revisions, or corrections are necessary.
Appellant Issue No. 8: The commenter cites to Section 4.02.025(D) of the City's Municipal Code and assets that the Project would have significant and unavoidable VMT impact, potential health risk, air quality, GHG, energy, and soil contamination impacts that have been underestimated.
Staff Response: The commenter asserts that the City cannot make the requisite findings to approve the Project, and a revised EIR must be recirculated before the Project can be recommended for approval. Contrary to the commenter's assertion, this memorandum, prior RTCs (dated May 20 and August 8), and Final EIR demonstrates that the Project's impacts have been adequately analyzed and mitigated as feasible. Thus, no additions, revisions, or corrections are necessary.
Appellant Issue No. 9: The commenter provides previously submitted comment letters as Attachments A through D to the appeal letter.
Staff Response: Attachment A includes a comment letter dated October 5, 2023, which has been responded to in the Project's Final EIR. Attachment B includes a comment letter dated April 15, 2024, which has been response to in the RTC dated May 20, 2024. Attachment C is a comment letter dated May 28, 2024, which has been responded to in the RTC dated August 8, 2024. Response to Attachment D is provided below in RTC CARECA-13 to CARECA-33 in the applicant's response.
Appellant Issue No. 10: This comment consists of introductory remarks, identifies that the comments in this letter are being provided by Adams Broadwell Joseph & Cardozo on behalf of CARECA, and provides a summary of prior comments submitted concerning the Project during the Draft's EIR public review period, and on the Final EIR.
Staff Response: The commenter claims that the RTC, dated August 8, 2024, failed to resolve asserted flaws that CARE CA and its experts identified in the Draft EIR and that the Planning Commission should require the City to revise and recirculate the EIR before any further action is taken on the Project. Response to the comments made in this letter are provided below in the following issues and responses below. Thus, no further response is required.
Appellant Issue No. 11: The commenter reiterates previous comments about the conclusions of the Project's Phase I and II Environmental Site Assessment (ESA; Technical Appendix G to the Draft EIR) regarding ethylbenzene concentration and opines the Final EIR improperly defers formulation of mitigation for PCE and ethylbenzene contamination.
Staff Response: Refer to responses above and RTC CARE-4, CARE-5, and CARE-6 in the RTC dated August 8, 2024. Refer to RTC CARE-4, CARE-5, and CARE-6 (RTC, pp. 2, 3). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, the Responses provided herein, and the whole record before the City. The City maintains its position regarding accuracy and adequacy of the EIR analysis of vapor intrusion impacts. No additions, revisions, or corrections to the EIR are necessary and no further response is required.
Appellant Issue No. 12: The commenter reiterates previous comments regarding the Project's potential as 326
a High Cube Parcel Hub Warehouse and that trip generated by the Project are not adequately analyzed.
Staff Response: This comment is similar to RTC A-6 in the Final EIR, 1-8 in the RTC dated May 20, 2024, and CARE-7 in the RTC dated August 8, 2024. Refer to Final EIR RTC A-6 (Final EIR, pp. 2-38, 2- 39), RTC 1-8 (RTC, p. 3), and RTC CARE-7 (RTC, p. 3). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, RTC, and the Responses provided herein, and the whole record before the City. The City maintains its position regarding accuracy and adequacy of the EIR trip generation estimates and all environmental impacts related to or attributable to Project's trip generation. There is no reasonable possibility that the Project, as designed, could operate as a parcel hub. No additions, revisions, or corrections are necessary, and no further response is required. Additionally, as previously noted, revised conditions of approval for PDEV22-017 prohibit the primary use of the building being established as a parcel hub.
Appellant Issue No. 13: The commenter reiterates previous comments that the Final EIR's analysis of cumulative impacts is inadequate because it fails to consider the cumulative impacts of past, present, and probable future projects.
Staff Response: This comment is similar to RTC A-14 in the Final EIR, 1-10 in the RTC dated May 20, CARE-9, CARE-10, and CARE-11 in the RTC dated August 8. Refer to Final EIR RTC A-14 (Final EIR, pp. 2-41, 2-42), RTC 1-8 (RTC, p. 4, 5), and RTC CARE-9, CARE-10, and CARE-11 (RTC, pp. 3 to 4). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, RTC, and the Responses provided herein, and the whole record before the City. The City maintains its position regarding accuracy and adequacy of the EIR analysis of air quality impacts including analysis of cumulative air quality impacts. No additions, revisions, or corrections are necessary, and no further response is required.
Appellant Issue No. 14: The commenter reiterates previous comments that the Project's Health Risk Assessment underestimates health risk impacts on sensitive receptors and failed to account for building downwash and relied on unreliable input values.
Staff Response: This comment is similar to RTC 1-12, 1-13, 1-41 in the RTC dated May 20, CARE-13, CARE-27, and CARE-28 in the RTC dated August 8. Refer to RTC 1-12, 1-13, and 1-41 (RTC, pp. 5, 14 to 16), and RTC CARE-13, CARE-27, CARE-28 (RTC, pp. 4,7). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, the Responses provided herein, and the whole record before the City. The City maintains its position regarding accuracy and adequacy of the EIR analysis of health risk impacts. No additions, revisions, or corrections to the EIR are necessary, and no further response is required.
Appellant Issue No. 15: The commenter reiterates previous comments that Final EIR truck trip length is underestimated.
Staff Response: This comment is similar to RTC A-18, A-19, and A-28 in the Final EIR, 1-16 in the RTC dated May 20, CARE-14, CARE-15, and CARE-16 in the RTC dated August 8. Refer to Final EIR RTC A18, A-19, A-28 (Final EIR, pp. 2-43, 2-44, 2-45) and RTC 1-16 (RTC, p. 7), and RTC CARE-14, CARE-15, and CARE-16 (RTC, p. 5). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, RTC, and the Responses provided herein, and the whole record before the City. The City maintains its position regarding accuracy and adequacy of 327
the EIR analysis of the Project's truck trips assumptions. No additions, revisions, or corrections are necessary, and no further response is required.
Appellant Issue No. 16: The commenter reiterates previous comments that the Project's energy analysis remains inadequate.
Staff Response: This comment is similar to RTC 1-20 in the RTC dated May 20, CARE-17, CARE-18, and CARE-21 in the RTC dated August 8. Refer to RTC 1-20 (RTC, pp. 8 to 10, and RTC CARE-17, CARE18, and CARE-21 (RTC, p. 6). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, RTC, and the Responses provided herein, and the whole record before the City. No additions, revisions, or corrections are necessary, and no further response is required.
Appellant Issue No. 17: The commenter asserts that the Project's Media Management Plan (Attachment F to the Final EIR) was never attached to the Final EIR that is posted at the City of Ontario's website.
Staff Response: The City thanks the commenter for calling this to the City's attention and the City immediately posted the Media Management Plan to the website. All appendices to the Final EIR are posted on the City's website. Additionally, the Media Management Plan was provided in all agenda packages and staff reports for the Project's Development Advisory Board and Planning Commission hearings. The commenter also summarizes the procedures in the Media Management Plan in the event that an unanticipated subsurface structure is discovered and states a site-specific remedial action work (RAW) plan should be initiated to protect workers onsite. The Media Management Plan's implementation is sufficient for ensuring that potential environmental effects are reduced to below a level of significance. Refer to Section 4.3 of the Media Management Plan, which requires adherence to a Health and Safety Plan (HASP) including for construction workers. The HASP will detail all planned construction activities and will describe standard safety precautions (e.g., protective gear for workers, proper soil handling techniques, etc.). The Contractor or the Environmental Professional is responsible for ensuring that the safety precautions detailed in the HASP are implemented and monitored during all activities at the site. The Contractor and the Environmental Professional also are required to abide by all applicable federal, state, and local regulations and codes relating to health and safety and are required by law to adhere to all California Occupational Safety and Health Administration regulations contained in Title 8 of the California Code of Regulations (8 CCR), as they apply to activities at the Project site. Additionally, revised conditions of approval for PDEV22-017 require the preparation and implementation of a remedial action work (RAW) plan for construction workers, for the potential of encountering hazardous materials.
Appellant Issue No. 18: The commenter reiterates previous comments that Final EIR truck trip length is underestimated and that the "Warehousing and Distribution Center Facilities in Southern California: The Use of the Commodity Flow Survey Data to Identify Logistics Sprawl and Freight Generation Patterns" by the National Center for Sustainable Transportation (NCST) validates that the majority of facilities in the SCAG region receive goods from the Ports of Los Angeles and Long Beach.
Staff Response: This comment is similar to RTC A-18, A-19, and A-28 in the Final EIR, 1-16 in the RTC dated May 20, CARE-14, CARE-15, and CARE-16 in the RTC dated August 8. Refer to Final EIR RTC A18, A-19, A-28 (Final EIR, pp. 2-43, 2-44, 2-45) and RTC 1-16 (RTC, p. 7), and RTC CARE-14, CARE-15, 328
and CARE-16 (RTC, p. 5). Specifically, refer to RTC CARE-16 regarding the low sample size of the study and that the study is not an accurate representation of warehouse facilities in the region. The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, RTC, and the Responses provided herein, and the whole record before the City. The City maintains its position regarding accuracy and adequacy of the EIR analysis of the Project's truck trips assumptions. No additions, revisions, or corrections are necessary, and no further response is required.
Appellant Issue No. 19: The commenter reiterates previous comments the use of a diesel generator was not accounted for in the Project's air quality analysis and that diesel generators are a source of diesel particulate matter (DPM), which is a primary toxic air contaminant (TAC) associated with the Project.
Staff Response: Refer to RTC A-10 in the Final EIR (Final EIR, pp. 2-40 to 2-41) that addresses the use of diesel generator, and which provided a table of calculations of emissions that would be generated from a 197 horsepower (hp) diesel-powered emergency water pump and a 762 hp diesel-powered emergency backup generator. As shown, emissions would be negligible, and the Project's total emissions would be less than the South Coast Air Quality Management District (SCAQMD) significance threshold. Thus, no further response is required.
Appellant Issue No. 20: The commenter reiterates previous comments that the health risk impacts to the San Bernardino County West Valley Detention Center (WVDC) was not analyzed.
Staff Response: Refer to RTC CARE-31 in the RTC dated August 4 (RTC, p. 8). Thus, no further response is required.
Appellant Issue No. 21: The commenter reiterates previous comments regarding the Project's cumulative impacts analysis.
Staff Response: This comment is similar to RTC A-14 in the Final EIR, 1-10 in the RTC dated May 20, CARE-9, CARE-10, and CARE-11 in the RTC dated August 8. Refer to Final EIR RTC A-14 (Final EIR, pp. 2-41, 2-42), RTC 1-8 (RTC, p. 4, 5), and RTC CARE-9, CARE-10, and CARE-11 (RTC, pp. 3 to 4). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, RTC, and the Responses provided herein, and the whole record before the City. The City maintains its position regarding accuracy and adequacy of the EIR analysis of air quality impacts including analysis of cumulative air quality impacts. No additions, revisions, or corrections are necessary, and no further response is required.
Appellant Issue No. 22: The commenter reiterates previous comments related to building downwash.
Staff Response: This comment is similar to RTC 1-12 in the RTC dated May 20. Refer to RTC Comment 1-12 in the RTC (RTC, p. 5) for a full discussion on the reasoning why the Project would not be materially affected by downwash. Thus, no further response is required.
Appellant Issue No. 23: The comment consists of introductory remarks from Smart Mobility and summarizes the findings of the commenter's letter in October 2023, stating that the Draft EIR acknowledges a significant and unavoidable VMT impact, asserting that the proposed VMT mitigation measure is not fully specified or quantified, and claiming that the Project's trip generation and GHG 329
emissions could be much higher than assumed.
Staff Response: As described in the following responses, the commenter's assertions are incorrect.
Refer to the comments below. Thus, no further response is required.
Appellant Issue No. 24: The commenter reiterates previous comments and responses made regarding the Project's truck trip length.
Staff Response: This comment is similar to RTC A-18, A-19, and A-28 in the Final EIR, 1- 16 in the RTC dated May 20, CARE-14, CARE-15, and CARE-16 in the RTC dated August 8. Refer to Final EIR RTC A18, A-19, A-28 (Final EIR, pp. 2-43, 2-44, 2-45) and RTC 1-16 (RTC, p. 7), and RTC CARE-14, CARE-15, and CARE-16 (RTC, p. 5). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, RTC, and the Responses provided herein, and the whole record before the City. The City maintains its position regarding accuracy and adequacy of the EIR analysis of the Project's truck trips assumptions. No additions, revisions, or corrections are necessary, and no further response is required.
Appellant Issue No. 25: The commenter reiterates previous comments and responses made regarding the Project's significant and unavoidable VMT impacts.
Staff Response: The commenter's statements have been previously addressed at Final EIR RTC A-24, which included a calculation of feasible VMT mitigation measures. As stated, measures associated with commute trip reduction (CTR) programs and their related commute trip reduction strategies have been excluded as they are not quantifiable, nor can their implementation be guaranteed and enforced since the Project is proposed to be developed as a speculative building without a known tenant (Final EIR pp. 2-44 to 2-45). Additionally, the commenter reiterated suggestions on requiring zero emission trucks, limiting daily number of trucks allowed at the Project site, and providing electric vehicle (EV) charging stations and electrical hookups for truckers. Refer to RTC B-53 and B60 in the Final EIR (Final EIR, pp. 2-97 to 2-100) regarding the infeasibility of using zero-emission vehicles and EV charging stations for trucks and 1-33 in the RTC dated May 20 (RTC, p. 13) for limiting daily number of trucks allowed at the Project site. Thus, no further response is required.
Appellant Issue No. 26: The commenter reiterates previous comments and responses made related to the Project's trip generation assumptions.
Staff Response: This comment is similar to RTC A-18, A-19, and A-28 in the Final EIR, 1- 16 in the RTC dated May 20, CARE-14, CARE-15, and CARE-16 in the RTC dated August 8. Refer to Final EIR RTC A18, A-19, A-28 (Final EIR, pp. 2-43, 2-44, 2-45) and RTC 1-16 (RTC, p. 7), and RTC CARE-14, CARE-15, and CARE-16 (RTC, p. 5). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, RTC, and the Responses provided herein, and the whole record before the City. The City maintains its position regarding accuracy and adequacy of the EIR analysis of the Project's truck trips assumptions. No additions, revisions, or corrections are necessary, and no further response is required.
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Case Planner: Tom Grahn Hearing Body Date Decision Action Planning Director
Approval:
DAB 4/15/2024 Approval Recommend
PC 8/27/2024 Final
Submittal Date: April 5, 2022 CC
FILE NO: PDEV22-017
SUBJECT: A public hearing to consider certification of the Final Environmental Impact Report (State Clearinghouse No. 202209006), including the adoption of a Mitigation Monitoring and Reporting Program and a Statement of Overriding Considerations, in conjunction with a Development Plan to construct a 270,337-square-foot industrial building on 13.08 acres of land (0.47 FAR) located at 5355 East Airport Drive, within the IH (Heavy Industrial) zoning district. Submitted by Prologis.
PROPERTY OWNER: Prologis
RECOMMENDED ACTION: That the Planning Commission consider and adopt the Final Environmental Impact Report (State Clearinghouse No. 202209006), including the adoption of a Mitigation Monitoring and Reporting Program and a Statement of Overriding Considerations, and approve a Development Plan (File No. PDEV22-017), pursuant to the facts and reasons contained in the staff report and attached Resolutions, and subject to the conditions of approval appended to the attached Resolutions as "Attachment A."
PROJECT SETTING: The Project site is
comprised of 13.08 acres of land located
at 5355 East Airport Drive, within the IH
(Heavy Industrial) zoning district (see
Figure 1: Project Location). The Project
site is currently developed with industrial
land uses that include a grain processing
company and a corn storage and
distribution facility. Land uses located
north of the Project site are rail lines for
the Southern Pacific Railroad and
beyond that is an existing industrial
building. Airport Drive is located south of
the Project site and beyond that are two
warehouse buildings. A Verizon facility is
located west of the Project site and an
industrial gas supplier is located to the
east. The existing surrounding land uses, Figure 1: Project Location 303 East B Street, Ontario, California 91764 Phone: 909.395.2036 / Fax: 909.395.2420
PLANNING COMMISSION
AGENDA REPORT
August 27, 2024
331
Planning Commission Agenda Report
File No.: PDEV22-017
August 27, 2024